STATE OF TEXAS THE SUMMIT AT RIVERY PARK COUNTY OF WILLIAMSON FIRST AMENDED AND RESTATED CITY OF GEORGETOWN MASTER DEVELOPMENT AGREEMENT

Transcription

1 STATE OF TEXAS THE SUMMIT AT RIVERY PARK COUNTY OF WILLIAMSON FIRST AMENDED AND RESTATED CITY OF GEORGETOWN MASTER DEVELOPMENT AGREEMENT THE SUMMIT AT RIVERY PARK AMENDED AND RESTATED MASTER DEVELOPMENT AGREEMENT This First Amended and Restated Master Development Agreement ("Agreement") is by and between the City of Georgetown, Texas, a municipal corporation ("City"), Novak Brothers, LLC, a Texas limited liability company ("Novak"), and Hines Georgetown Hotel LLC, a Delaware limited liability company ("Hines"). The term "Developer" as used herein shall refer jointly and severally to Novak and Hines. The City and Developer are sometimes referred to collectively as the "Parties". RECITALS WHEREAS, by Ordinance No , the City Council of the City of Georgetown created a tax increment reinvestment zone known as the Rivery Park Tax Increment Reinvestment Zone ("TIRZ") pursuant to Chapter 311 of the Texas Tax Code, as amended, in order to facilitate development of the land in the TIRZ and the surrounding area with, among other things, a hotel, conference center, and enhancements to the City s Rivery Park; and WHEREAS, since 2007 the City has been working with a succession of the owners of the private property in the TIRZ on development and financing plans to implement the vision of the TIRZ, and on May 14, 2013 the City, Developer, and Hines Interests Limited Partnership, a Delaware limited partnership, entered into a Memorandum of Understanding (MOU) pertaining to the development of the land in the TIRZ; and WHEREAS, the MOU contemplated that the Developer would make, or cause to be made, certain improvements in Rivery Park and to construct, or cause to be constructed, a Hotel (defined herein), Conference Center (defined herein), a Public Parking Garage (defined herein), and related utility, transportation, and storm water drainage and detention improvements, and that the Developer would receive public financing directly or indirectly from the Tax Increment Fund (defined herein) to assist with such construction; and WHEREAS, after extensive negotiation, the City and the Developer have entered into a series of agreements, and the City has taken certain actions in reliance thereon, to make public funds available to Developer from various sources to facilitate development of the land in the TIRZ, including execution of the Related Agreements (defined herein); and WHEREAS, the purpose of this Agreement is to memorialize the Developer s obligation to develop the TIRZ as set forth herein and in the Related Agreements and to establish the conditions under which the Developer will be entitled to receive reimbursement from the City or

2 from the Tax Increment Fund for constructing the improvements when and as required by this Agreement and the Related Agreements; and WHEREAS, on January 14, 2014, the City Council approved The Summit at Rivery Park Master Development Agreement by and between the Parties (the Original MDA ), which memorialized the Developers obligation to develop the TIRZ as set forth herein and in the Related Agreements, and to establish the conditions under which the Developer would be entitled to receive reimbursement from the City or from the Tax Increment Fund created for the TIRZ for constructing the improvements when and as required by the Original Agreement and the Related Agreements; and WHEREAS, the Developer Conditions required by Section 1.3 of the Original MDA were not performed within the required timeframes, Developer has Commenced Construction of portions of the Utility Improvements, Transportation Improvements, and Stormwater Improvements (each, defined herein) and the Parties agree that it is their mutual intent and desire not to declare the Original MDA automatically terminated under the terms thereof, but rather to amend and restate the Original MDA in order to extend certain performance deadlines, acknowledge the completion of certain tasks by the Parties as of the Effective Date; establish new deadlines for certain other tasks, and to restate the Original MDA as set forth in this amended and restated Agreement; and WHEREAS, City is authorized by Article III, Section 52-a of the Texas Constitution and Section of the Texas Local Government Code to provide grants for economic development and by Chapter 311 of the Texas Tax Code to use tax increment funds directly or indirectly to finance public improvements for the benefit of the TIRZ, and further, pursuant to Section (g) of the Texas Tax Code, Developer is not subject to public bidding or procurement processes and/or requirements in connection with its development or construction of the Project; and WHEREAS, the City Council has determined that development of the TIRZ as contemplated in this Agreement and the Related Agreements addresses the needs identified by the City to improve park land and traffic conditions, and to add hotel and conference center space within the City; and WHEREAS, after due and careful consideration the City Council has determined that development of the land within the TIRZ will not occur solely through private investment in the reasonably foreseeable future and that providing the financial incentives as set forth in this Agreement will further the public purposes and development goals of the City; and WHEREAS, as of the Effective Date of this Agreement, Developer has requested, and the City has agreed, pursuant to the terms hereof, to modify and amend certain terms of the Original MDA; therefore, the Developer and the City have agreed to amend and restate the Original MDA in its entirety. NOW THEREFORE, in consideration of the foregoing and the mutual promises contained herein, and other valuable consideration the sufficiency and receipt of which are hereby acknowledged, the Parties agree as follows: ARTICLE I Page 2

3 PROJECT OVERVIEW 1.1. Project Overview Background. This Agreement, together with the Related Agreements (defined herein), describes the Parties respective rights and obligations regarding the design, construction, development, ownership, use, and maintenance of an integrated Hotel (defined herein), Conference Center (defined herein), Public Parking Garage (defined herein), Rivery Park improvements, townhomes, multifamily units (apartments), retail/commercial areas, amenity areas, and all ancillary public improvements necessary for same (collectively, the "Project"). In 2007, the City passed an ordinance creating the TIRZ (defined herein) on the Property (defined herein). The TIRZ ordinance has since been amended several times, most recently after extensive negotiations and discussions regarding the Project and initially memorialized in that certain MOU (defined herein). Based on those discussions and negotiations, the parties have determined that they desire to work together to cause Completion of Construction (defined herein) of the Hotel, Conference Center and Public Parking Garage on or before the Completion Deadline (defined herein). Developer acknowledges that construction of the Hotel, Conference Center, and Public Parking Garage on or before the Completion Deadline is critical for several reasons, including the fact that Williamson County has conditioned its agreement to participate in the TIRZ on Completion of Construction of the Conference Center on or before the Completion Deadline. The City acknowledges that Novak has commenced some of the off-site work necessary for the Project under the Parkland Improvement Agreement (defined herein), has Commenced Construction of certain of the required Utility Improvements, Transportation Improvements, and Stormwater Improvements (each, defined herein), and that Novak has also commenced construction of the townhome and multifamily portions of the Project. This Agreement, together with the Related Agreements, supersedes and replaces the MOU and the Original Agreement and governs the rights and responsibilities of the parties regarding the Project and the Property Current Status. Prior to December 9, 2014 (the date of the City Council meeting at which this Agreement was considered and approved by the City Council), the Parties agree that: AG Approval. The City received a favorable response from the Texas Attorney General to its November 20, 2013 letter requesting general concurrence with the proposal to issue limited Tax Notes to finance the Public Parking Garage (defined herein), the Parkland Improvements (defined in the Parkland Improvement Agreement), and the cost of public roads and other improvements within the TIRZ, and has also concurred with the proposal for GEDCO (defined herein) to fund the cost of constructing infrastructure required to support development of the Hotel/Conference Center Site (defined herein) and other utility infrastructure (the AG Approval ) as required by Section of the Original MDA; and Page 3

4 Third Amended TIF. The Williamson County Commissioner s Court approved the Third Amended TIF (defined below); and Financing Commitments. Developer provided the Financing Commitments to the City s financial advisor for review as required by Section of the Original MDA, and the City is reasonably satisfied that the Financing Commitments are sufficient to pay for all costs and expenses associated with the Hotel, Conference Center, and Public Parking Garage; and Approved Franchise. Developer executed the Approved Franchise with the Approved Franchisor and shall provided a copy of the executed Approved Franchise to the City Attorney as required by Section of the Original MDA; and Guaranty Agreement. Developer provided a form of Guaranty Agreement to the City for review as required by Section of the Original MDA, and that instrument is currently under review by the City; and Public Parking Garage Plans. Developer submitted to the City the Public Parking Garage Plans as required by Section of the Original MDA; and Construction Details. Developer submitted to the City the Construction Details for the Utility Improvements, Transportation Improvements, and the Stormwater Improvements as required by Section of the Original MDA City Conditions. The rights and obligations of the Parties shall be of no force or effect unless all of the following conditions are fully satisfied on or before the deadlines specified below, which deadlines shall not be subject to extension by the occurrence of a Force Majeure Event or otherwise unless the Parties mutually agree in writing prior to the specified deadline: On or before the date that is thirty (30) days after the Effective Date, the City Council and the Williamson County Commissioners Court have approved an amendment (the "Third Amended TIF ) to the Tax Increment Financing Agreement (Second Amended TIF) originally dated September 15, 2008, and amended in 2010 and previously in 2014, evidencing the City s and the County s consent to : (a) extend the term of the TIRZ from December 31, 2031 to December 31, 2041; (b) add 8.33 acres of land previously removed from the TIRZ back into the boundaries of the TIRZ; (c) an agreement by the County to contribute at least 80% of the County Tax Increment into the Tax Increment Fund for the TIRZ created by Ordinance No until the date the TIRZ is terminated (either by expiration or earlier as allowed by law) or the date that the total amounts of the sums deposited into the tax increment fund reaches $25,000,000,; (d) fix the size of the Conference Center ballroom at a minimum of 16,000 square feet; (e) extend the deadline to complete construction of the Conference Center to from December 31, 2015 to June 30, 2016; (f) confirm the County s ability to use the Page 4

5 Conference Center and the terms of such use; and (g) confirm the County s approval of the Second Amended Project Plan and Financing Plan for the TIRZ in the form approved by the City Council on December 10, On or before July 15, 2014, the City receives a favorable response from the Texas Attorney General to its November 20, 2013 letter requesting preclearance on the proposal to issue the First LTN Issuance (defined herein) and the Second LTN Issuance (defined herein) as contemplated by this Agreement (the "AG Approval") The City is able to issue taxable limited tax notes ("LTNs") on terms and conditions acceptable to the City, in the City s sole discretion, in the amounts and at timeson the schedule set forth below and in Exhibit A attached hereto. Notwithstanding the generality of the foregoing sentence or any statements in Exhibit A, and provided that the Developer timely satisfies each of the Developer Conditions set forth in Section 1.3 of this Agreement and the City timely receives the AG Approvalapproval from the Texas Attorney General at the time of actual LTN issuance, the City agrees that it will intends to issue the LTNs in two tranches on or about October 1, 2015 in two issuances: The first issuance is anticipated to occur on or before October 1, 2014, in an original principal amounts sufficient to generate total net proceeds of FIVE MILLION SEVEN HUNDRED THOUSAND DOLLARS ($5,700,000)EIGHT MILLION ONE HUNDRED THIRTY THOUSAND THREE HUNDRED NINETY NINE DOLLARS and 50/CENTS ($8,130,399.50) plus issuance costs (collectively, the "First LTN Issuance"), which proceeds are intended to be used to finance the City s obligations under Article IV of this Agreement (relating to the Public Parking Garage) The second issuance is anticipated to occur on or before October 1, 2015 in an original principal amount sufficient to generate net proceeds of TWO MILLION FOUR HUNDRED THOUSAND DOLLARS ($2,400,000) plus issuance costs (the "Second LTN Issuance"), which proceeds are intended to be used to finance the City s obligationsand under Article V of this Agreement (relating to that portion of the Eligible Costs (herein defined) attributable to the Rivery Park Improvements and Other Onsite Public Infrastructure) Developer Conditions. The rights and obligations of the Parties shall be of no force or effect unless all of the following conditions are fully satisfied on or before the deadlines specified below, which deadlines shall not be subject to extension by the occurrence of a Force Majeure Event (defined herein) or otherwise unless the Parties mutually agree in writing prior to the specified deadline: On or before the date that is thirty (30) calendar days after the Effective Date of this Agreement, Developer provides a letter to City summarizing, in reasonable detail, the timeline for obtaining financing commitments for the Hotel, Conference Center and Public Parking Garage, the source and availability of all funding, and when and how all funding gets disbursed to Developer On or before July 15 December 31, 2014, Developer has delivered to the City a Notice of Intent to Proceed (herein so called) sworn to and executed by duly authorized representatives of Developer and of Developer s lender(s) stating that: Page 5

6 With respect to the Hotel, Conference Center, and Public Parking Garage, Developer has entered into an equity joint venture with a partner; and/or a loan or credit agreement with a so-called conduit lender, commercial bank or similar financial institution; and/or has received financing under the "EB-5" provisions of the Immigration Act of 1990 (collectively, the "Financing Commitments"), from Persons having the financial capability to perform their obligations under such agreement(s), and which provide construction investment and/or financing upon terms typical for "construction/mini-perm" financing (not subject to any contingency or condition other than those typically associated with such loans or equity investments), which are collectively in principal amounts sufficient, together with other available funds committed by Developer, to pay all costs and expenses for the design, development, construction and furnishing of the Hotel, Conference Center, and Public Parking Garage as required by this Agreement and the Related Agreements. The Notice to Proceed must be accompanied by a written letter from the Developer s certified financial advisor summarizing the amounts, preconditions, terms, and repayment obligations for each of the Financing Commitments, which letter shall be accompanied by term sheets, loan or equity documents, or commitment letters from the lending parties or equity partners detailing the terms and conditions of the Financing Commitments. The Notice to Proceed will not be accepted by the City unless Developer has also allowed the City at least thirty (30) days to review the Financing Commitment agreement(s) and all accompanying security instruments relating thereto, and the City is reasonably satisfied that the Financing Commitments are sufficient to pay all costs and expenses for the design, development, construction and furnishing of the Hotel, Conference Center, and Public Parking Garage; and Developer is ready to Commence Construction of the Hotel, Conference Center, and Public Parking Garage by the Commencement of Construction Deadline; and Developer intends to cause Completion of Construction of the Hotel, Conference Center, and Public Parking Garage on or before the Completion Deadline On or before July 15, 2014On or before December 31, 2014, Developer executes the Approved Franchise (defined herein) with the Approved Franchisor (defined herein) and delivers a copy of same to the City Attorney On or before July December 1531, 2014, Guarantor (defined herein) has executed a written guaranty of lien-free and timely completion of the Hotel, Conference Center, and Public Parking Garage, including, without limitation, payment of change orders and cost overruns. Such guaranty agreement shall be in a form approved by the City in its reasonable discretion (the "Guaranty Agreement"). The Guaranty Agreement must be accompanied by a certified financial statement for the Guarantor and a legal opinion from counsel to the Guarantor in form and content and reasonably acceptable to the City s Financial Advisor and City s Chief Financial Officer to the effect that (i) Guarantor has Page 6

7 been duly formed and is validly existing and has the power and authority to conduct its business as presently conducted and to execute and deliver said Guaranty Agreement and to perform all its obligations thereunder; (ii) Guarantor has duly executed and delivered the Guaranty Agreement pursuant to all requisite authority; (iii) the Guaranty Agreement constitutes the valid and binding obligations of Guarantor and is enforceable against Guarantor in accordance with its terms; and (iv) the execution and delivery by Guarantor of the Guaranty Agreement does not, and if Guarantor was to perform its obligations thereunder, such performance would not, result in any (a) violation of the organizational documents of Guarantor; (b) violation of any existing federal or state constitution, statute, regulation, rule, order or law to which Guarantor is subject; (c) breach of or a default under any agreement to which Guarantor is a party; or (d) violation of any judicial or administrative decree, writ, judgment or order to which Guarantor is subject. Such opinion letters must contain such other opinions as City may reasonably require and be in a form reasonably acceptable to the City and to the City s financial advisor. The Guaranty will not be accepted by the City unless Developer has also allowed the City at least thirty (30) days to review the certified financial statement and legal opinion from Guarantor s counsel, and the City is reasonably satisfied that the Guarantor can perform its obligations under the Guaranty Agreement On or before the Commencement of Construction Deadline, Developer Commences Construction (defined herein) Automatic Termination. This Agreement shall automatically terminate if and when any of the following events occur and thereafter no party shall have any further rights or obligations unto the other Parties unless, at such time, the Parties enter into a separate written agreement acknowledging that this Agreement shall continue notwithstanding the occurrence of any of the following events: If any of the conditions set forth in Section 1.2 and Section 1.3 (inclusive) of this Agreement are not satisfied when and as required thereby; or A preliminary or permanent injunction or other order, decree or ruling is issued by a court or governmental entity, or a statute, rule, regulation or executive order promulgated or enacted by a governmental entity is in effect, which restrains, enjoins, prohibits or otherwise makes illegal the consummation of the actions and transactions contemplated by this Agreement or any Related Agreement; provided, however, the City agrees that it will not affirmatively seek injunctive relief or initiate other action that would cause this Agreement to terminate so long as Developer is not in default of its obligations under this Agreement or under the Related Agreements Term. This Agreement shall commence on the Effective Date and shall continue for a term lasting until the Parties have completed their obligations hereunder (the "Term"), unless earlier terminated in accordance with the terms hereof. ARTICLE II DEFINITIONS Page 7

8 2.1. Definitions. As used herein the following terms are defined as set out below. Additional terms are also defined in other sections of this Agreement "AG Approval" has the meaning given to same in Section hereof "Applicable Laws" mean and include all of the following: all federal, state and local laws, ordinances, orders, specifications, standards, and regulations pertaining and applicable to the development of the Property (defined herein), including, without limitation, the Texas Commission on Environmental Quality laws and rules for construction over the Edwards Aquifer Recharge Zone; the City s Code of Ordinances, Unified Development Code, Construction Specifications and Standards, Drainage Criteria Manual, Building Codes, Fire Codes, Inspection Guidelines, and Development Manual; the Public Parking Garage Plans (defined herein), and Infrastructure Approved Plans (defined herein) "Approved Franchise" or "Approved Franchise Agreement": shall have the meaning given same in Section 1.01 of the JUALA (defined below) "Approved Franchisor" shall have the meaning given same in Section 1.01 of the JUALA "Architect of Record" has the meaning ascribed to same in Exhibit B attached hereto "City s Project Representative" means the person(s) appointed by the City, in its sole discretion, to oversee design and construction of the Public Parking Garage, Stormwater Improvements, Transportation Improvements, and Utility Improvements, and to perform the duties set forth in this Agreement. As of the Effective Date, the City anticipates it will retain the services of a third-party project manager to serve as the City s Project Representative for the Public Parking Garage, and that the City s Water Utility Engineer will serve as the City s Project Representative for the Transportation Improvements, Utility Improvements, and Stormwater Improvements. The City may change the City s Project Representatives from time to time at its sole discretion upon notice of same to Developer "Commencement of Construction" occurs, "Construction Commences" on, and/or Developer will be deemed to "Commence Construction" of the Hotel, Conference Center or Public Parking Garage (for each, as applicable) at such time as the Developer has: obtained all necessary permits and approvals from the City and any other governmental body having jurisdiction over the construction of the Hotel, Conference Center, or Public Parking Garage to allow the construction thereof; and entered into a contract with a construction contractor which requires such contractor to construct the entirety of the Hotel, Conference Center or Public Parking Garage on or before the Completion Deadline; and Page 8

9 issued a "Notice to Proceed" to the contractor authorizing the contractor to commence and pursue all of the work necessary to complete the Hotel, Conference Center or Public Parking Garage on or before the Completion Deadline; and delivered materials and equipment to, mobilized contractors on, or otherwise started substantial site work at the Hotel, Conference Center or Public Parking Garage under the Construction Contract Documents (defined herein) "Commencement of Construction Deadline" "means September 1December 31, "Completion of Construction " of the Hotel, Conference Center and Public Parking Garage (as applicable) will be deemed to have occurred when: the construction of the Hotel, Conference Center, or Public Parking Garage (as applicable) is substantially complete such that all utilities, operational systems and equipment are fully operational, and the Approved Franchisor, its employees, tenants, invitees, occupants, guests, contractors, and representatives, the City, the public and the other permitted users can beneficially occupy and use the Hotel, Conference Center, or Public Parking Garage for its intended use and (i) only Punch List Items (defined herein) remain to be completed and such items do not adversely affect the capability of the Hotel, Conference Center, or Public Parking Garage to operate and function safely in the ordinary course of business, (ii) temporary (or partial) certificates of use and occupancy and any other permits and approvals necessary to allow the use and occupancy of the Hotel, Conference Center, and Public Parking Garage have been issued, and (iii) the Architect of Record and City Project Representative have each certified that the Hotel, Conference Center, and Public Parking Garage are substantially complete; the Architect of Record, the City, and the Approved Franchisor have determined (with the City s Project Representative s written confirmation) that all Punch List Items can be completed within thirty (30) days; and all required governmental inspections applicable to the development and construction of the Hotel, Conference Center, and Parking Garage have been conducted and all final approvals required for beneficial occupancy and use have been obtained from public and quasi-public authorities with jurisdiction over the Hotel, Conference Center, and Public Parking Garage (other than a final certificate of occupancy) "Completion Deadline" means 5:00 PM Central Standard Time on December 31, 2015June 30, "Conference Center" means an upscale conference center facility (a) constructed and operated pursuant to and in accordance with the terms of this Agreement and the Related Agreements, (b) located in Zone B1 (defined herein) as shown on the Site Layout (defined herein) in accordance with Applicable Laws, (c) equal in quality and compatible Page 9

10 in style with the Hotel, (d) containing one (1) large ballroom at least 16,000 square feet in size, (e) designed to also accommodate multiple small scale events, and (f) which is to be open to the public and to the business community and citizens of the City and Williamson County "Effective Date" means the latest date accompanying the signatures lines below "Eligible Costs" means those actual, direct costs not to exceed a total of FIVE MILLION EIGHT HUNDRED THOUSAND THREE HUNDRED THIRTY EIGHT DOLLARS ($5,890,388.50) consisting of costs associated with the Rivery Park Improvements ($390,388.50) and the public infrastructure improvements ($2,000,000.00) to be funded out of the Second LTN Issuance, and the public infrastructure improvements to be reimbursed out of the Tax Increment Fund ($3,500,000.00) which are incurred for the benefit of the Property and which are also within the meaning of "Project Costs" under Second Amended Project and Financing Plan for the TIRZ, but that are not costs reimbursed under the GTEC Performance Agreement (defined herein) or the GEDCO Performance Agreement (defined herein) "Event of Bankruptcy or Insolvency" means the dissolution or termination of a party s existence as a going business, insolvency, appointment of receiver for any part of the party s property and such appointment is not terminated within ninety (90) days after such appointment is initially made, or any general assignment for the benefit of creditors, or the commencement of any proceedings under any bankruptcy or insolvency laws by or against a party (and, in the case of involuntary proceedings, such proceedings are not dismissed within ninety (90) days after the filing thereof) "Final Completion" of the Hotel, Conference Center, and Public Parking Garage occurs: For the Hotel, Conference Center, and Public Parking Garage, when the City has issued a final Certificate of Occupancy for the Hotel, Conference Center and Public Parking Garage, and Developer has executed and provided to the City agreements for off-site parking (i.e., not on the Property) consistent with the PUD Ordinance and acceptable to the City For the Utility Improvements, Transportation Improvements, and the Stormwater Improvements, when the City has issued the Infrastructure Letters of Acceptance "Force Majeure Event" or Force Majeure has the meaning set forth in Article IX of this Agreement "Guarantor" means Hines Investment Management Holdings Limited Partnership, a Texas limited partnership, whose principal business address is 2800 Post Page 10

11 Oak Blvd., Suite 4800, Houston, Texas 77056, or such other person or entity as may be approved by the City s Chief Financial Officer and the City s Financial Advisor, in their sole discretion "Hotel" means a full-service upscale AAA 3 Diamond or Forbes 2 Star or Forbes 3 Star hotel such as the Sheraton hotels in Puerto Rico, Phoenix, Kansas City, New Orleans, and Denver Downtown (a) constructed and operated pursuant to and in accordance with the standards of an Approved Franchise, this Agreement, and the Related Agreements; (b) operated pursuant to the Approved Franchise; (c) constructed in Zone B1 (defined below) in the location shown on the Site Layout in accordance with the Applicable Laws; (d) consisting of a minimum of two hundred twenty-one (221) guestrooms (or such other number of guestrooms as approved by City) and a restaurant, recreational amenities, adequate on-site and off-site parking as required, and other ancillary improvements and related amenities and space customarily found in an upscale hotel; and (e) which is to be open to the public and serve the Conference Center, business community and citizens of the City "Hotel/Conference Center Site" means that portion of the Project Site (defined herein) located in Zone B1 in the area shown on the Site Layout upon which the Hotel and the Conference Center are to be constructed "JUALA" has the meaning given in Section of this Agreement "Major Change Orders" means a change order that (i) would result in an increase in the cost of constructing the Public Parking Garage of $50,000 in any one month, (ii) would (when added to all prior change orders relating to the Construction Contract for the construction of the Public Parking Garage) result in an overall increase to the cost of constructing the Public Parking Garage in excess of $250,000, or (iii) is the result of a Material Change (defined herein) "Material Change" means changes or revisions to Public Parking Garage Plans (defined herein) that are (i) not de minimis "field note" changes, (ii) changes that alter the Site Layout, (iii) changes that decrease the number of parking spaces or floors in the Public Parking Garage, or (iv) changes that are in violation of or contravention with the Approved Franchise "MOU" means the May 14, 2013 Memorandum of Understanding for the Hotel, Conference Center and Parking Garage at The Summit at Rivery Park between the City, Developer, and Hines Interests Limited Partnership, a Delaware limited partnership and an affiliate of Hines, as amended "Project" means the design, construction, development, ownership, use, and maintenance of the Hotel, Conference Center, Public Parking Garage, Rivery Park improvements, townhomes ("The Brownstones"), multifamily units (apartments), retail/commercial areas, amenity areas, as well as all ancillary public improvements necessary for same on the Property in accordance with this Agreement and the Related Agreements. Page 11

12 "Project Site" means that certain portion of the Property generally shown by sketch on Exhibit C, which is divided for planning purposes into various Zones (defined herein) "Property" means that certain /- acre tract of land generally shown by sketch on Exhibit C and being coterminous with the boundaries of the TIRZ (defined herein) "Public Parking Garage" means a multi-story public parking garage (a) having at least three hundred thirty-six (336) parking spaces (or such other number of parking spaces as approved by City); (b) located on a Legal Lot in Zone B1 (defined below) in the location shown on the Site Layout; (c) constructed, operated, and maintained in accordance with this Agreement and the Related Agreements; and (d) which is to be serve the visitors to Rivery Park and guests and visitors of the Hotel and the Conference Center on a first come, first serve basis "Public Parking Garage Site" means the legal lot to be created by the Developer in compliance with Applicable Laws located in Zone B1 in the area shown on the Site Layout and upon which the Public Parking Garage will be constructed "Punch List Items" means details of construction, decoration and mechanical adjustment of the Hotel, Conference Center, and Public Parking Garage which, individually and in the aggregate, are minor in character and do not, either by their nature or because of the repair or completion work necessary, materially interfere with the use or enjoyment of the improvement "Related Agreements" means the following documents, as the same may be amended and/or amended and restated from time to time: the Parkland Improvement Agreement between the City and Brae Group Ltd., a Texas limited partnership and affiliate of Novak, dated to be effective June 26, 2013 (the "Parkland Improvement Agreement"); the Joint Use, Access and Lease Agreement between the City and Hines pertaining to the Public Parking Garage and the Conference Center (the "JUALA"), as amended; the Tax Increment Financing Agreement between the City and Williamson County, as amended and approved by the City and Williamson County (the "TIF Agreement"), as amended; City Ordinance No , as amended by Ordinance No , Ordinance No , and Ordinance No relating to the Rivery Park Tax Increment Reinvestment Zone (collectively, the "TIRZ Ordinance"); City Ordinance No being the Planned Unit Development ordinance pertaining to zoning and development standards for the Project Site (the "PUD Ordinance"); Page 12

13 the Performance Agreement between the Georgetown Economic Development Corporation (GEDCO), Developer and the City (the "GEDCO Performance Agreement"), as amended; the Performance Agreement between the Georgetown Transportation Enhancement Corporation (GTEC), Novak, and the City (the "GTEC Performance Agreement"), as amended; The Reimbursement, Debt Administration, and Project Contract by and between the City, GEDCO, GTEC, and the Board of Directors of the Rivery Park Tax Increment Reinvestment Zone (the "Reimbursement Contract"); the Final Site Plan(s) approved by the City for the Hotel, Conference Center, and Parking Garage (or portions of the Property) from time to time (each a "Final Site Plan" or collectively, the "Final Site Plans"); this First Amended and Restated Master Development Agreement between the City and Developer ("this Agreement"), as amended; the Approved Franchise Agreement; the Guaranty Agreement; and the First LTN Issuance and Second LTN Issuance covenants and other conditions; any other agreement executed now or in the future between the City and Developer (or any of their affiliates, or permitted successors or assigns) relating to the Project or the Property "Site Layout" means the sketch showing the footprint and layout of the Hotel, Conference Center, Public Parking Garage, townhomes, apartments, and retail/commercial areas, along with driveways, access drives, amenity areas, surface parking and landscaped areas, and all other elements of the Project on the Project Site, attached hereto as Exhibit D, which has been approved by the City Council as part of the PUD Ordinance. Upon the City Council s approval of revised Site Layout, all references herein to Exhibit D and all references herein to the "Site Layout" shall mean and refer to the most current amended Site Layout as approved by the City Council "Stormwater Improvements" means and includes all on-site and off-site drainage, detention, retention or other improvements necessary to manage stormwater related to development of the Project on the Property "Tax Increment Fund" means the tax increment fund established under Ordinance No relating to the TIRZ (defined herein) "TIRZ" means the City of Georgetown Rivery Park Tax Increment Reinvestment Zone aka City of Georgetown Tax Increment Reinvestment Zone No.T07, originally created by Ordinance No , and amended by Ordinances No , , and , and as may be amended from time to time in the future. Page 13

14 "Transportation Improvements" means and includes all streets, driveways, alleyways, loading areas, and other similar street and roadway improvements necessary for the Project located on the Property "Utility Improvements" means and includes all water, wastewater, electric, gas, internet and other utility improvements necessary for the Project "Zone" or "Zones" means the following development zones on the Property: Zone A. Zone A consists of approximately acres of land described as Block H of Phase 5 of The Summit at Rivery Park Preliminary Plat and shown on the Site Layout, which is to be designed and developed for multifamily residential development Zone B1. Zone B1 consists of approximately acres of land described as Block F of Phase 5 of The Summit at Rivery Park Preliminary Plat, shown on the Site Layout, which is to be designed and developed for the Hotel, Conference Center, and Public Parking Garage Zone B2. Zone B2 consists of approximately acres of land and is generally depicted as Block E of Phase 5 of The Summit at Rivery Park Preliminary Plat, shown on the Site Layout, which is to be designed and developed for mixed commercial use and associated surface parking Zone B3. Zone B3 consists of approximately acres of land and is generally depicted as Block G of Phase 5 of The Summit at Rivery Park Preliminary Plat, shown on the Site Layout, which is to be designed and developed for mixed commercial use and associated surface parking Zone C. Zone C consists of approximately 11.0 acres of land and is generally depicted as Phases 1-4 of the Brownstone at the Summit, and Block A of Phase 5 and Phases 6-12 of The Summit at Rivery Park Preliminary Plat, shown on the Site Layout, which is being designed and developed as the Brownstone Single Family Residential Development. Page 14

15 ARTICLE III CONSTRUCTION OF PROJECT 3.1. Hotel Construction. Developer shall, subject to events of Force Majeure, cause Commencement of Construction of the Hotel to occur in Zone B1 in the location shown on the Site Layout on or before the Commencement of Construction Deadline and cause Completion of the Construction of the same on or before the Completion Deadline. The Hotel must be constructed in a good and workmanlike manner and free of liens in favor of any person providing labor or materials in connection with such construction. The Hotel must also be constructed in accordance with Final Site Plan for the Hotel, this Agreement, Applicable Laws, and (to the extent applicable) all Related Agreements. The design and construction of the Hotel shall, in all respects, be without cost to the City Conference Center Construction. Developer shall, subject to events of Force Majeure, cause Commencement of Construction of the Conference Center to occur in Zone B1 in the location shown on the Site Layout on or before the Commencement of Construction Deadline and cause Completion of the Construction of the same on or before the Completion Deadline. The Conference Center must be constructed in a good and workmanlike manner and free of liens in favor of any person providing labor or materials in connection with such construction. The Conference Center must also be constructed in accordance with the Final Site Plan for the Conference Center, this Agreement, Applicable Laws, and (to the extent applicable) all Related Agreements. The design and construction of the Conference Center shall, in all respects, be without cost to the City Public Parking Garage Construction. Developer shall, subject to events of "Force Majeure," cause Commencement of Construction of the Public Parking Garage to occur in Zone B1 in the location shown on the Site Layout on or before the Commencement of Construction Deadline and cause Completion of the Construction of the same on or before the Completion Deadline. The Public Parking Garage must be constructed in a good and workmanlike manner and free of liens in favor of any person providing labor or materials in connection with such construction. The Public Parking Garage must also be constructed in accordance with the Final Site Plan for the Public Parking Garage, this Agreement, Applicable Laws, and (to the extent applicable) all Related Agreements Legal Lot. Developer shall cause the Public Parking Garage Site to be platted as a "legal lot" in accordance with the City s UDC in order to facilitate conveyance of the Public Parking Garage to the City in accordance with Article Section 4.5 of this Agreement. In the alternative, and subject to approval by the City s Planning Director, which, so long as such alternative otherwise complies with Applicable Laws shall not be withheld, conditioned or delayed, Developer may cause the Public Parking Garage to be situated such that it is exempt under the Applicable Laws from platting but is still a "legal lot" such that a title company will not require an exception from the title commitment relating to legal lot status (for example, by virtue of a condominium regime in accordance with the Texas Uniform Condominium Act). Page 15

16 Independent Facility. Although the Site Layout shows that the Public Parking Garage, the Hotel and the Conference Center will be conjoined, the Parties acknowledge and agree that the Public Parking Garage must be designed so that the Public Parking Garage is capable of being operated independently and without reliance on any components of either the Hotel or the Conference Center. Notwithstanding the foregoing, however, the City acknowledges the Public Parking Garage shall serve the Hotel and Conference Center in addition to serving the general public and certain walls and structural aspects will be shared by the Conference Center and the Public Parking Garage. The Public Parking Garage shall have separate roof, entrance, loading docks and/or other elements of design necessary to operate independently of the other buildings; provided, however, that the mechanical and certain electrical systems will be shared and will be part of the common elements designated in the master condominium documents governing the Hotel, Conference Center, and Public Parking Garage such that the City shall have an ownership interest in same. Repairs to the common elements will be performed in accordance with the master condominium documents and this Agreement and will not be the responsibility or cost of the City Design. Developer agrees to arrange for a professional engineer registered in the State of Texas to prepare design drawings, specifications, bid, and design documents for the construction and installation of the Public Parking Garage on the Public Parking Garage Site ("Public Parking Garage Plans"). Developer further agrees to cause the Public Parking Garage Plans to be prepared such that the items relating to the construction of the Public Parking Garage are distinguished from the other elements of the Project so that the City s progress payments for the Public Parking Garage described in Article IV hereof can be accurately and easily calculated. Prior to the Effective Date of this Agreement, Developer delivered Developer shall deliver drafts of the Public Parking Garage Plans to the City, which are undergoing review by City staff and the City s Project Representative on or before the date that is sixty (60) days prior to the Public Parking Garage Commencement of Construction Deadline. The City shall provide comments on the original draft and any subsequent drafts within twenty (20) calendar days after receipt thereof, which approval shall not be unreasonably withheld, conditioned or delayed. If the City disapproves any drafts, the foregoing process shall be repeated until the Public Parking Garage Plans are approved and which approval shall be granted or denied only on the basis of the professional engineering standards and Applicable Laws related to the construction of a public parking garage and otherwise in compliance with this Agreement and the Related Agreements Architect/Engineer/Contractor Selection. Developer agrees that the City shall have the authority to approve Developer s selection of the architect, engineer, and contractor for the Public Parking Garage as set forth in this subsection, with such approval not to be unreasonably withheld, conditioned or delayed. The Architect of Record, the engineer and other third party design consultants for the Hotel, Conference Center, and Public Parking Garage are listed on Exhibit B attached hereto and have been approved by the City prior to the date of this Agreement. Further, the contractors listed on Exhibit B attached hereto have been pre-approved by the City and Developer shall have the right to enter into the Construction Contract Documents (defined below) with any of such pre-approved contractors without seeking additional approval from the City. Page 16

17 Contract Documents. Developer shall enter into a contract for the construction of the Public Parking Garage (which may be the same contract for the Hotel and Conference Center) which is consistent and in accordance with the terms and conditions of this Agreement and with the final, Public Parking Garage Plans (the "Construction Contract Documents"), and shall within five (5) days of execution of same provide two (2) complete sets of all of the Construction Contract Documents to the City Change Orders. Any and all Major Change Orders to the Parking Garage Construction Contract shall be jointly agreed to by the City and the Developer and copies of same shall be provided by Developer to the City. Change orders that do not constitute Major Change Orders may be effectuated by Developer or its construction manager without seeking approval from the City, but copies of such change orders shall be provided by Developer to the City. If Developer allows work to commence on any Major Change Order without receiving City approval as required under this Section, any costs incurred on that change order that are not approved by the City are not eligible for reimbursement under Article IV of this Agreement. The City agrees to provide its decision regarding approval of any requested Major Change Orders within ten (10) calendar days of Developer submitting a request to the City (such submission in a form to be determined by Developer). In the event that the City fails to respond to such request for approval within such ten (10) calendar day period, the City's approval to such Major Change Order shall be deemed given. Notwithstanding the foregoing provisions, the City s approval of any change order, including a Major Change Order, shall not have the effect of increasing the Maximum Purchase Price (defined in Section 4.1 of this Agreement) or extending the Completion Deadline Liens. Except for liens that were bonded around or insured over during periods of construction, there shall be no liens placed on the Public Parking Garage or the Public Parking Garage Site or any publicly-owned property by Developer, or any contractor, subcontractor, employee, agent or assign or one or more of them or their vendors (the "Contractors"). Notwithstanding the generality of the foregoing, however, the City acknowledges that, prior to its completion of the Hotel, Conference Center and Public Parking Garage, and portions of the Project Site and future improvements thereon shall be subject to the deed of trust lien benefitting the a construction lender to be identified in the commitment described in Section hereof (such deed of trust lien encumbering the Public Parking Garage Site and Public Parking Garage in fee [as opposed to a leasehold mortgage or collateral assignment of lease]); however, Developer acknowledges and agrees that all deed of trust liens and any other liens on the Public Parking Garage Site and the Public Parking Garage, other than as may be allowed in the JUALA, must be released on or before the date that the City takes title to the Public Parking Garage and Public Parking Garage Site Required Insurance and Bonds. Prior to and as a condition of the Developer s issuance of the Notice to Proceed, Developer shall post, or cause the Contractors to post, performance and payment bonds in the full amounts of the contract price for the Public Parking Garage, and to obtain and maintain in full force and effect insurance coverages in accordance with the requirements set forth in Exhibit E to this Agreement. Page 17

18 Project Schedule. Developer shall prepare and maintain, or use commercially reasonable best efforts to cause its contractor to prepare and maintain, a schedule describing the sequence and duration of the activities comprising the Developer s plan to cause Completion of Construction of the Hotel, Conference Center, and Public Parking Garage on or before the Completion Date. The Project Schedule shall be updated at least monthly, or more frequently if required by the terms of the Public Parking Garage Construction Contract, and provided to the City s Project Representative Diligent Prosecution of the Work. Developer shall diligently prosecute completion of the Public Parking Garage and shall keep the City s Project Representative apprised of construction progress following issuance of the Notice to Proceed on a basis that is not less than monthly or otherwise as often as reasonably required. In addition to obtaining any required street closure permits, if necessary, a minimum of fourteen (14) calendar days notice must be given to the City s Parks & Recreation Department Director to temporarily close any part of Rivery Park for any reason or to temporarily suspend access to any part of Rivery Park to facilitate or perform work under this Article or this Agreement. In the event of an emergency situation, Developer may temporarily close or limit access to any part of Rivery Park in order to protect the safety of River Park s users, and, as soon as reasonably practicable, must thereafter provide notice of the emergency closing to the City s Parks & Recreation Department Director and to the City s Project Representative. Developer shall use its best efforts to minimize the duration of any emergency closings of Rivery Park As Built Plans. After construction of the Hotel, Conference Center, and Public Parking Garage, Developer shall submit a set of construction plans certified as "as-built" by the engineer responsible for preparing the Public Parking Garage Plans and the plans for the Hotel and Conference Center Periodic Inspections. The City shall have the right to inspect the construction of the Public Parking Garage, and, upon completion of the final stage of construction of the Public Parking Garage in accordance with all this Agreement and the Applicable Laws, Developer shall request that City perform a final inspection of the Public Parking Garage Final Inspection. Upon Completion of Construction of the Public Parking Garage, Developer shall deliver to the City written notice that construction of the Public Parking Garage has been completed and is ready for final inspection, that the Maintenance Bond required by Section of this Agreement is in place, and that Developer has submitted a set of construction plans for the completed Public Parking Garage certified as "as-built" by the engineer responsible for preparing the Public Parking Garage Plans (collectively, the "Completion Notice"). Within ten (10) business days of receipt of the Completion Notice, the City shall respond to Developer by either submitting Punch List Items for the Public Parking Garage requiring completion or modification, or stating that all Punch List Items relating to the Public Parking Garage have been completed and that the Public Parking Garage is accepted and ready for transfer to the City pursuant to Article IV of this Agreement. All Punch List Items relating to the Public Parking Garage, if any, must be completed and a final Certificate of Occupancy for each of the Hotel, Conference Center and Public Parking Garage must be Page 18

19 obtained within thirty (30) days after Developer s receipt of the Punch List Items. Failure to respond to a Completion Notice within the ten (10) day period shall not be deemed acceptance by the City Developer s Warranty. Developer hereby warrants that the Public Parking Garage will be free from defects for a period of one (1) year from the date that the deed transferring ownership of the Public Parking Garage to the City is filed of record in the Official Records of Williamson County (the "Maintenance Period"). The Developer shall correct and repair, or cause to be corrected and repaired, any defects in materials or workmanship of the Public Parking Garage that are discovered before and during the Maintenance Period due to any cause Maintenance Bond. As a condition of the City s acceptance of the Public Parking Garage for transfer under Article IV of this Agreement, and to secure the Developer s warranty obligations during the Maintenance Period, the Developer shall provide a Maintenance Bond in the amount of twenty five percent (25%) of the total cost of constructing the Public Parking Garage (the "Maintenance Bond"). The Maintenance Bond must be in a form approved for use by the City Attorney. The Public Parking Garage must be in compliance with Applicable Laws at the end of the Maintenance Period in order for the City to release the Maintenance Bond. Upon expiration of the Maintenance Period, Developer shall have no further obligations or responsibility for the Public Parking Garage, except as otherwise provided in a Related Agreement Others Warranties. Upon expiration of the Maintenance Period, Developer shall transfer to the City all contractor, subcontractor, consultant and manufacturer warranties for the Public Parking Garage. Any such third party warranty will expire pursuant to its original terms Timely Payment by Developer. Developer shall make timely payment for all aspects of properly performed engineering, design, construction work (including inspection fees), and for all materials and services relating to the Public Parking Garage in accordance with the Construction Contract Documents for the Public Parking Garage. Developer shall be initially responsible for paying for the design and construction of the Public Parking Garage, subject to Developer s right to reimbursement as provided in Article IV of this Agreement. Notwithstanding the foregoing, however, Developer shall have the right to contest payment amounts so long as Developer causes any disputed amount to be escrowed or any lien resulting therefrom to be released by bond within thirty (30) days from the date of such lien (but not later than the Completion Deadline). Developer s obligations to make timely payment under this Section shall not be delayed or diminished by the City s processing of any request of funds held by the Trustee from the sale of the LTNs or any other City, GTEC, or GEDCO financing Public Infrastructure Utility Improvements. Developer shall be solely responsible for designing and constructing the Utility Improvements as necessary for the Project and in accordance with the Infrastructure Approved Plans (defined below), this Agreement, Applicable Laws, Page 19

20 and all Related Agreements. Developer shall, subject to events of Force Majeure, cause Commencement of Construction of the Utility Improvements on or before the Commencement of Construction Deadline and cause Completion of the Construction of the same on or before the Completion Deadline. Developer shall be initially responsible for paying for the design and construction of all Utility Improvements, subject to Developer s right to reimbursement (if any) under a Related Agreement or as provided in Article V of this Agreement Transportation Improvements. Developer shall be solely responsible for designing and constructing the Transportation Improvements as necessary for the Project and in accordance with the Infrastructure Approved Plans, this Agreement, Applicable Laws, and all Related Agreements. Developer shall, subject to events of Force Majeure, cause Commencement of Construction of the Transportation Improvements on or before the Commencement of Construction Deadline and cause Completion of the Construction of the same on or before the Completion Deadline. Developer shall be initially responsible for paying for the design and construction of all Transportation Improvements, subject to Developer s right to reimbursement (if any) under a Related Agreement or as provided in Article V of this Agreement Stormwater Improvements. Developer is currently constructing a storm water detention pond in the City s Rivery Park for the benefit of the Project. Developer also shall be solely responsible for designing and constructing all other Stormwater Improvements necessary for the Project and in accordance with the Infrastructure Approved Plans, this Agreement, Applicable Laws, and all Related Agreements. Developer shall, subject to events of Force Majeure, cause Commencement of Construction of the Stormwater Improvements on or before the Commencement of Construction Deadline and cause Completion of the Construction of the same on or before the Completion Deadline. Developer shall be initially responsible for paying for the design and construction of all Stormwater Improvements, subject to Developer s right to reimbursement (if any) under a Related Agreement or as provided in Article V of this Agreement Process Pertaining to Public Infrastructure Obtain Rights in Property. Developer shall cause the owner of the Property to transfer all rights, title and interest in the Property, or portions of the Property, when and as are necessary for Developer to construct the Utility Improvements, Transportation Improvements, and the Stormwater Improvements in accordance with this Agreement. Prior to requesting issuance of the Infrastructure Notice to Proceed pursuant to Section of this Agreement, Developer shall provide the City with written documentation evidencing Developer s right to construct the Utility Improvements, Transportation Improvements, and the Stormwater Improvements on the Property Duty to Construct. Developer shall construct or cause to be constructed the Utility Improvements, Transportation Improvements, and the Stormwater Improvements in accordance with the provisions of this Agreement. Page 20

21 Completion of Construction of all of the Utility Improvements, Transportation Improvements, and the Stormwater Improvements by Developer and acceptance of same by the City must occur not later than the Completion Deadline Construction Details. Not later than ninety (90) days afterprior to the Effective Date of this Agreement, Developer shall submitsubmitted to the City detailed construction plans and specifications for each of the Utility Improvements, Transportation Improvements, and the Stormwater Improvements (the "Construction Details"). The Construction Details shall include, for each Utility Improvement, Transportation Improvement, and Stormwater Improvement, the following information: detailed plans and specifications that are consistent with all Applicable Laws, construction schedule, proposed temporary construction access in relationship to Rivery Park and existing streets, the estimated cost of constructing each Utility Improvement, Transportation Improvement, and the Stormwater Improvement as determined by a professional engineer, and, if necessary, alternate access options for visitors to Rivery Park during construction of a said improvement(s). Prior to the Effective Date of this Agreement, the City approved the Construction Details.Within thirty (30) calendar days of receipt of the Construction Details, the City shall respond to Developer by either approving the Construction Details or conditionally approving the Construction Details subject to additional requirements or alterations mutually acceptable to the City and Developer. Failure of the City to respond to the submittal of the Construction Details within the thirty (30) day period shall not be deemed to be acceptance of same by the City Insurance. Prior to and as a condition of the City s issuance of the Infrastructure Notice to Proceed (defined below), Developer shall obtain and maintain in full force and effect insurance coverages in accordance with the requirements set forth in Exhibit E to this Agreement Infrastructure Notice to Proceed. Construction shall not commence on a Utility Improvement, Transportation Improvement, and the Stormwater Improvement until Developer has received a written "Infrastructure Notice to Proceed" from the City s Development Engineer for that specific improvement. No Infrastructure Notice to Proceed shall be valid unless and until Developer has provided the documentation required by Section of this Agreement, the performance and payment bonds required by Section of this Agreement, and the Insurance required by Section of this Agreement Infrastructure Approved Plans. All work must be performed in compliance with the Applicable Laws and with the City-approved Construction Details, construction plans and specifications for the Utility Improvements, Transportation Improvements, and the Stormwater Improvements (collectively, the "Infrastructure Approved Plans"). All work performed under this Agreement must also be free from design and construction defects. In addition, Developer shall follow all City ordinances and other rules and regulations regarding permits and approvals related to activities and construction of the Page 21

22 Public Utility Improvements, Transportation Improvements, and the Stormwater Improvements, as well as those of any other governmental entity having jurisdiction. All references in this Agreement to the Infrastructure Approved Plans shall mean and refer to the final City-approved plans for the Utility Improvements, Transportation Improvements, and the Stormwater Improvements Initial Costs. All costs of the Utility Improvements, Transportation Improvements, and the Stormwater Improvements, including any increases in the actual costs of the Utility Improvements, Transportation Improvements, and the Stormwater Improvements including cost increases, change orders and overruns initially shall be borne by Developer. Costs include, but are not limited to, consultant fees, design costs, landscaping costs, labor costs, site restoration and re-vegetation costs, materials costs, engineering costs, legal fees, utility connection fees, permits, inspection fees, insurance costs and any other costs incurred in the design and construction of the Utility Improvements, Transportation Improvements, and the Stormwater Improvements No Liens. Developer shall have no right to place liens on the Utility Improvements, Transportation Improvements, or the Stormwater Improvements or any other publicly-owned property, and shall not allow any liens to be placed against the Utility Improvements, Transportation Improvements, and the Stormwater Improvements or any publicly-owned property by any contractor, subcontractor, employee, agent or assign or one or more of them or their vendors (the "Contractors"). Developer agrees that the City will not accept for maintenance or ownership any Utility Improvement, Transportation Improvement, and the Stormwater Improvement burdened by any lien or any other encumbrance Payment and Performance Bonds. Prior to and as a condition of the City s issuance of the Infrastructure Notice to Proceed, Developer shall post, or cause the Contractors to post, performance and payment bonds in the full amounts of the contract price for each Utility Improvement, Transportation Improvement, and the Stormwater Improvement. The form and amount of the bonds must comply with Chapter 53 Texas Property Code and Chapter 2253 of the Government Code Diligent Prosecution of the Work. Developer shall diligently prosecute completion of the Utility Improvements, Transportation Improvements, and the Stormwater Improvements and coordinate all construction activity with the City s Water Utility Engineer following issuance of the Infrastructure Notice to Proceed. In addition to obtaining any required street closure permits, if necessary, a minimum of fourteen (14) business days notice must be given to the City s Parks & Recreation Department Director to temporarily close any part of Rivery Park for any reason or to temporarily suspend access to any part of Rivery Park to facilitate or perform work on said improvements. Page 22

23 Schedule. Developer shall prepare and maintain, or use commercially reasonable best efforts to cause its contractor to prepare and maintain, a schedule describing the sequence and duration of the activities comprising the Developer s plan to cause Completion of Construction of the Utility Improvements, the Transportation Improvements, and the Stormwater Improvements. The Project Schedule shall be updated at least monthly and provided to the City s Project Representative As-Built Plans. After construction of each Utility Improvement, Transportation Improvement, and the Stormwater Improvement, Developer shall submit a set of construction plans for each such improvement certified as "asbuilt" by the engineer responsible for preparing the Infrastructure Approved Plans Completion Notice. Upon completion of construction of the Utility Improvements, Transportation Improvements, and the Stormwater Improvements, Developer shall deliver to the City written notice that construction of the Utility Improvements, Transportation Improvements, and Stormwater Improvements have been completed and are ready for final inspection, that the Infrastructure Maintenance Bond required by Section of this Agreement is in place, and that Developer has submitted a set of construction plans for the completed Utility Improvements, Transportation Improvements, and Stormwater Improvements certified as "as-built" by the engineer responsible for preparing the construction plans for the Utility Improvements, Transportation Improvements, and Stormwater Improvements (collectively, the "Infrastructure Completion Notice"). Within fourteen (14) business days of receipt of the Infrastructure Completion Notice, the City shall respond to Developer by either submitting a list of items still requiring completion or modification, or by accepting the Utility Improvements, Transportation Improvements, and Stormwater Improvements by Letter of Acceptance (the "Infrastructure Letter of Acceptance"). Final acceptance of the Utility Improvements, Transportation Improvements, and the Stormwater Improvements shall be evidenced by an Infrastructure Letter of Acceptance from the City, but shall not be valid unless and until the Infrastructure Maintenance Bond required by Section of this Agreement is in place. Failure to respond to a Completion Notice within the 14-day period shall be not deemed acceptance by the City. Notwithstanding the foregoing, the City shall not be responsible for maintenance of any landscaping, irrigation improvements, or other amenities or improvements that may be placed in the median(s) or in the rights-of-way of the Utility Improvements, Transportation Improvements, or Stormwater Improvements Warranty Deed. Within five (5) calendar days of the date of the Letter of Acceptance, Developer shall convey to the City at no cost to the City and by General Warranty Deed those of the Transportation Improvements consisting of the public streets identified on Exhibit F as "Vehicular Circulation/Access." The Developer shall provide a title insurance policy to the City insuring the City s record title to the transferred Transportation Page 23

24 Improvements, and shall pay all property taxes and closing costs so that the City takes the Transportation Improvements are free of all taxes and liens (except for a tax lien in the current year which is a lien not yet due and payable). The deed(s) shall be in a form approved by the City. All pre- and post-closing taxes and all closing costs shall be borne solely by the Developer. No final plat for any portion of the Property any part of the Property shall be issued unless and until the Transportation Improvements are properly conveyed to the City Infrastructure Maintenance Period. Developer hereby warrants that the Utility Improvements, Transportation Improvements, and the Stormwater Improvements will be free from defects for a period of one (1) year from the date the City accepts the construction of the Utility Improvements, Transportation Improvements, and Stormwater Improvements (the "Infrastructure Maintenance Period"). The Developer shall correct and repair, or cause to be corrected and repaired, any defects in materials or workmanship of a Utility Improvement, Transportation Improvement, or Stormwater Improvement that occurs before and during the Infrastructure Maintenance Period due to any cause, other than those arising out of the gross negligence or willful misconduct of City Transfer of Warranties. Within thirty (30) days after the date of the Infrastructure Letters of Acceptance for the Utility Improvements, Transportation Improvements, and the Stormwater Improvements, Developer shall transfer to the City all contractor, subcontractor, consultant and manufacturer warranties for the Utility Improvements, Transportation Improvements, and the Stormwater Improvements Infrastructure Maintenance Bond. For all of the Utility Improvements, Transportation Improvements, and the Stormwater Improvements, as a condition of the City s acceptance of dedication of same, and to secure the Developer s warranty obligations during the Infrastructure Maintenance Period, the Developer shall provide a maintenance bond in the amount of Twenty Five Percent (25%) of the total cost of constructing all of the Utility Improvements, Transportation Improvements, and the Stormwater Improvements (the "Infrastructure Maintenance Bond"). The Infrastructure Maintenance Bond must be in a form approved for use in the City s Development Manual. The Utility Improvements, Transportation Improvements, and the Stormwater Improvements must meet the requirements of all Applicable Laws at the end of the Infrastructure Maintenance Period in order for the City to release the Infrastructure Maintenance Bond. Upon release of the Infrastructure Maintenance Bond, Developer shall have no further obligations or responsibility for the Utility Improvements, Transportation Improvements, or Stormwater Improvements, except as otherwise provided in the Parkland Improvements Agreement Timely Payments. Developer shall make timely payment for all aspects of properly performed engineering, design, construction work (including inspection fees), and for all materials and services relating to the Utility Improvements, Transportation Improvements, and Stormwater Improvements in Page 24

25 accordance with the applicable construction contract and design services contracts for the Utility Improvements, Transportation Improvements, and Stormwater Improvements. Notwithstanding the foregoing, however, Developer shall have the right to contest payment amounts so long as Developer causes any disputed amount to be escrowed or any lien resulting therefrom to be released by bond within thirty (30) days from the date of such lien Change Orders. Any and all Major Change Orders to the Utility Improvements, Transportation Improvements, and Stormwater Improvements shall be jointly agreed to by the City and the Developer and copies of same shall be provided by Developer to the City. Change orders that do not constitute Major Change Orders may be effectuated by Developer or its construction manager without seeking approval from the City, but copies of such change orders shall be provided by Developer to the City. If Developer allows work to commence on any such Major Change Order without receiving City approval as required under this Section, any costs incurred on that change order that are not approved by the City are not eligible for reimbursement under Article V of this Agreement. The City agrees to provide its decision regarding approval of any requested Major Change Orders within ten (10) calendar days of Developer submitting a request to the City (such submission in a form to be determined by Developer). In the event that the City fails to respond to such request for approval within such ten (10) calendar day period, the City's approval to such Major Change Order shall be deemed given. Notwithstanding the foregoing provisions, the City s approval of any change order, including a Major Change Order, shall not have the effect of increasing the Total Maximum Eligible Cost Amount (defined in Section 5.1 of this Agreement) or extending the Completion Deadline Project Easements. The Parties acknowledge that the Project is still in its formative stages and it is not possible to identify all necessary permanent easements for the Project. The Parties agree to cooperate in good faith to grant to each other, without additional consideration, such easements as may be necessary to allow the efficient operation of the Project (including, but not limited to, right-of-way, utility, access, drainage, and cross-parking easements). Developer shall cause such easements in form and substance reasonably acceptable to the City to be delivered and executed on or before the date Developer Commences Construction of the Hotel, the Conference Center, or the Public Parking Garage (whichever shall first occur). The Parties acknowledge that the foregoing easements may be part of a comprehensive Declaration of Condominium governing the Hotel, Conference Center and Public Parking Garage. To the extent any party has granted a lien or other encumbrance on all or any portion of the Property prior to the date the easement is executed and recorded, such party shall cause the holder of such lien or encumbrance to execute such instruments as the others may require to evidence the fact that the lien or other encumbrance has been subordinated by the holder Construction Easements. In order to help facilitate the construction of the Project, Developer agrees to cause the owners of the Property to grant such temporary construction easements as may be reasonably requested, each in such form as may be requested by a party in its reasonable discretion. Page 25

26 3.7. City s Regulatory Approvals. Prior to commencing construction of improvements on the Property, Developer must submit, and obtain approval from the City acting in its regulatory capacity for, such permit applications and other requests for approvals or authorizations as are necessary under any Applicable Laws to construct the Project on the Property. Wherever the terms of this Agreement call for, or reference, City s approval of any architectural or other drawings and/or specifications relating to construction of the Project or any component thereof, it is expressly agreed that City s approval of such drawings, plans and/or specifications will constitute City s approval of the general design and layout scheme described in such drawings, plans and/or specifications only and will not, however, make City responsible in any way for the technical adequacy of such items or for any liabilities arising out of any construction undertaken in accordance therewith No Relinquishment of Municipal Regulatory Authority. Notwithstanding anything contained in this Agreement to the contrary, the City s review (and if applicable, approval) of proposed architectural plans, specifications, site plans, plats, drawings, or other submittals from Developer or other persons in connection with this Agreement or the Related Agreements shall constitute approval for purposes of this Agreement only, and not be deemed to constitute approval, or replace, the City s right to review and approve same, under City s regulatory authority and/or police power under Texas or local law. This paragraph is not intended to negate, void or lessen the entitlements previously granted to the Property pursuant to the Related Agreements. ARTICLE IV PUBLIC PARKING GARAGE MATTERS 4.1. City Purchase of Public Parking Garage and Public Parking Garage Site. The parties intend that, upon the Completion of Construction, the Developer will transfer and convey all rights, title and interest in the Public Parking Garage and the Public Parking Garage Site to the City for the Developer s actual cost of constructing the Public Parking Garage, but not to exceed FIVE MILLION SEVEN HUNDRED FORTY THOUSAND DOLLARS ($5,740,000.00) (the "Maximum Purchase Price"). The parties agree that the payment of the Maximum Purchase Price shall be in accordance with the provisions of Section 4.2 and Section 4.3 of this Agreement and the attached Exhibit A, subject to the limitations in Section 4.4 of this Agreement Initial Payments by Developer. Developer shall initially pay all costs associated with the acquisition, design and construction of the Public Parking Garage. Developer shall make timely payments for all aspects of properly performed engineering, design, and construction work (including inspection fees) and for all materials and services related to the Public Parking Garage in accordance with the applicable contracts for such work. The City shall reimburse the Developer for actual, eligible costs related to construction of the Public Parking Garage in accordance with the terms and conditions of this Agreement. In no event shall the amount of the cost reimbursement available to the Developer for construction or eligible costs associated with the Public Parking Garage exceed the Maximum Purchase Price. The City shall have no obligation to reimburse the Developer or to otherwise pay for any work related to the Public Page 26

27 Parking Garage out of any funds other than the net proceeds of the First LTN Issuance. Any costs related to the Public Parking Garage in excess of the Maximum Purchase Price shall be borne solely by Developer, and Developer shall pay such amounts as they are due Progress Payments to Developer. Subject to Section 4.4 and the other terms and conditions of this Agreement, after receipt of proceeds from the First LTN Issuance, the City shall reimburse the Developer, up to the Maximum Purchase Price, as the work on the Public Parking Garage progresses in accordance with the City's progress payment procedures and protocols approved by the City s Project Representative and the City s Chief Financial Officer Conditions to City s Progress Payments to Developer. The City s obligation to approve and pay Developer s reimbursement requests under this Article IV is conditioned upon: (a) Developer having timely performed all of Developer s obligations under this Agreement that are to have been performed prior to any such reimbursement request and no event having occurred which by itself, or with the giving of notice, passage of time, or both, would constitute an Event of Default hereunder; (b) the Developer obtaining all requisite governmental approvals necessary to construct the Public Parking Garage; (c) Developer having caused construction of the Public Parking Garage to have occurred in accordance with the terms and conditions of this Agreement; and (d) the City having issued the First LTN Issuance and received the proceeds therefrom. The obligations of the City under this Agreement to make payments in any fiscal year shall constitute a current expense for that fiscal year payable solely from the revenues of the First LTN Issuance for that fiscal year. The City shall have no obligation to pay the Maximum Purchase Price from any funds other than the proceeds of the First LTN Issuance Transfer of Title. Upon Completion of Construction of the Public Parking Garage, Developer shall convey the Public Parking Garage Site and the Public Parking Garage to the City by executing and delivering a special warranty deed to the City which is in form and substance acceptable to the City. At the time of conveyance, the Public Parking Garage and the Public Parking Garage Site shall be lien free and Developer shall provide the City with final lien releases and waivers from the general contractor performing the work and any other "original" contractor (as such term is used under Texas law relating to construction contracts). Further, Developer shall purchase, at its sole cost and expense, an Owner's title policy naming the City as the insured covering the Public Parking Garage Site and common elements relating thereto pursuant to any master condominium documents as the insured estate showing lien free fee simple title in and to the City, said title insurance policy to contain only the standard, pre-printed exceptions that are part of the promulgated form of Texas title insurance policy and those exceptions approved by the City, in its sole discretion. The recording costs and preparation of conveyance documents and the title policy required under this Section 4.5 shall be at no cost to the City, such costs being the responsibility of Developer Escrowed Documents The JUALA is being executed contemporaneously with the execution of this Agreement, however, the JUALA will be held in escrow until such time as the Public Parking Garage and Public Parking Garage Site are conveyed to the City in accordance with this Article IV. Upon such conveyance, the JUALA shall be deemed effective, and the "Effective Date" of the JUALA will be the date of the deed from the Developer to the Page 27

28 City. The JUALA will, among many other things, govern the terms of the lease of the Public Parking Garage and Public Parking Garage Site to Hines (as owner of the Hotel and Conference Center) and the terms of the uses granted to the City and the County with respect to the Conference Center The form of special warranty deed conveying the Public Parking Garage Site and Public Parking Garage shall be held in escrow until such time as the Public Parking Garage and Public Parking Garage Site is conveyed to the City in accordance with this Article IV or by the terms of Section and Section 4.5 of this Agreement. ARTICLE V REIMBURSEMENT OF ELIGIBLE COSTS AFTER COMPLETION 5.1. Eligible Costs. Developer shall initially pay all Eligible Costs. Subject to the terms and conditions of this Article V, pursuant to Chapter 380 of the Texas Local Government Code and/or Section (b) of the Texas Tax Code, the City agrees to reimburse Developer, or to request that the TIRZ Board reimburse Developer, (as applicable) for the actual amount of costs or type of costs identified in Exhibit G, attached hereto, in a total amount not to exceed FIVE MILLION EIGHT HUNDRED THOUSAND THREE HUNDRED THIRTY EIGHT DOLLARS ($5,890,388.50) (the "Total Maximum Eligible Cost Amount") Eligible Cost Review Process After Final Completion. Within ninety (90) days after Final Completion, Developer shall submit to the City an Eligible Cost Reimbursement Request to the City s Chief Financial Officer, and shall be accompanied by documentation which clearly describes the Eligible Cost for which reimbursement is sought, and evidence of payment or lien waivers for same from all contractors, subcontractors, and suppliers. The Eligible Cost Reimbursement Request shall include all information and documents in Developer s possession or under its control as may be reasonably required by the City for proper review and processing of the Eligible Cost Reimbursement Request. The City shall promptly review each Eligible Cost Reimbursement Request and respond to Developer within thirty (30) calendar days after receipt thereof. If the City determines that an Eligible Cost Reimbursement Request correctly states the amount to be reimbursed to the Developer, the City shall respond by providing Developer with written notice of approval of amount of the Eligible Cost Reimbursement Request. If the City determines that an Eligible Cost Reimbursement Request does not correctly state the amount owing to the Developer, or if payment of the Eligible Cost Reimbursement Request will cause the Total Maximum Eligible Cost Amount to be exceeded, the City will provide a written notice of discrepancy to Developer, which notice shall include all supporting documentation upon which the notice of discrepancy is based. The City and the Developer shall work diligently and in good faith to resolve the discrepancy. Either party may refer the matter to the City Manager for resolution of the dispute. Failure of the City to respond to a Reimbursement Request within thirty (30) calendar days shall not be construed as approval by the City of the Eligible Cost Reimbursement Request. During the existence of an Event of Default, or if Developer is otherwise in default or not in compliance with any provision of this Agreement or a Related Agreement, the City shall have no obligation to process or pay any Eligible Cost Reimbursement Request. Page 28

29 5.3. Payment of Eligible Cost Reimbursement Requests For Eligible Cost Reimbursement Requests associated with Rivery Park Improvements addressed in Section of this Agreement and costs associated with the public infrastructure improvements addressed in Section of this Agreement, the City shall remit the approved reimbursement amounts to Developer within thirty (30) calendar days after the date of the notice of approval, or Final Completion, whichever is later For Eligible Cost Reimbursement Requests associated with the public infrastructure improvements addressed in Section of this Agreement, after Final Completion if the City determines that the Eligible Cost Reimbursement Request correctly states the amount to be reimbursed to the Developer, the City shall respond by providing Developer with written notice of approval of the amount of the Eligible Cost Reimbursement Request, and shall present such request for funding to the TIRZ Board as soon thereafter as practicable Conditions to Reimbursement for Eligible Costs Rivery Park Improvements. The City s obligation to approve Developer s Eligible Cost Reimbursement Request for the Rivery Park Improvements (as described on Exhibit G) in an amount not to exceed THREE HUNDRED NINETY THOUSAND THREE HUNDRED EIGHTY EIGHT DOLLARS AND FIFTY CENTS ($390,388.50) is conditioned upon: (a) Brae having timely performed all of Brae s obligations under the Parkland Improvements Agreement and no event having occurred which by itself, or with the giving of notice, passage of time, or both, would constitute an Event of Default thereunder; (b) the Developer having timely performed all of Developer s obligations under this Agreement and no event having occurred which by itself, or with the giving of notice, passage of time, or both, would constitute an Event of Default hereunder; (c) the Developer or Brae obtaining all requisite governmental approvals associated with the Eligible Cost; (d) the City having issued the Second LTN Issuance and receiving the proceeds therefrom; and (e) Williamson County and the City having executed the Second Third Amended TIF Agreement. The City shall have no obligation to reimburse the Developer for the Rivery Park Improvements from any funds other than the proceeds of the Second LTN Issuance Other Onsite Public Infrastructure. The City s obligation to reimburse Developer for Eligible Costs related to Other Onsite Public Infrastructure (as described on Exhibit G in an amount not to exceed TWO MILLION DOLLARS ($2,000,000.00) is conditioned upon: (a) Developer having timely performed all of Developer s obligations under this Agreement to be performed at such time and no event having occurred which by itself, or with the giving of notice, passage of time, or both, would constitute an Event of Default hereunder; (b) the Developer obtaining all requisite governmental approvals associated with the Eligible Cost; (d) the City having issued the Second LTN Issuance and receiving the proceeds therefrom; and (e) Williamson County and the City having executed the Second Third Amended TIF Agreement. The City shall have no obligation to reimburse the Developer for the Eligible Costs related to Other Page 29

30 Onsite Public Infrastructure (as described on Exhibit G) from any funds other than the proceeds of the Second LTN Issuance Additional Other Onsite Public Infrastructure. Developer reimbursement from the Tax Increment Fund for Eligible Costs related to Additional Other Onsite Public Infrastructure (as described on Exhibit G) that has not already been reimbursed under Sections and of this Agreement, and in an amount not to exceed THREE MILLION FIVE HUNDRED THOUSAND DOLLARS ($3,500,000.00) is conditioned upon: (a) Developer having timely performed all of Developer s obligations under this Agreement and no event having occurred which by itself, or with the giving of notice, passage of time, or both, would constitute an Event of Default hereunder; (b) the Developer obtaining all requisite governmental approvals associated with the Eligible Cost; (c) Williamson County and the City having executed the Second Third Amended TIF Agreement (d) City having been fully reimbursed out of the tax increment fund for the TIRZ for the First LTN Issuance and the Second LTN Issuance, including interest and carrying costs; (e) GEDCO having been fully reimbursed out of the tax increment fund for the TIRZ for any bonded indebtedness issued or other expenditures made by it for the benefit of the TIRZ, including interest and carrying costs; (f) GTEC having been fully reimbursed out of the tax increment fund for the TIRZ for any expenditures made by it for the benefit of the TIRZ, including interest; and (g) the TIRZ Board approving Developer s request for reimbursement from the TIRZ Tax Increment Fund. The City shall have no obligation to reimburse the Developer for the Eligible Costs related to Additional Other Onsite Public Infrastructure (as described on Exhibit_G) out of any City funds, and Developer shall look solely to the TIRZ Tax Increment Fund for any such reimbursement TIRZ Board of Director Approval. By its signature below, the TIRZ Board of Directors hereby acknowledges and agrees that it shall approve expenditures from the TIRZ Tax Increment Fund in order to: (i) reimburse the City for all costs (including principal, interest,, incidental costs, and fees) incurred by the City related to the First LTN Issuance and the Second LTN Issuance; (ii) reimburse GEDCO for all costs (including cash grants, debt service, and other administrative and issuance costs) incurred by GEDCO related to the GEDCO Performance Agreement; (iii) reimburse GTEC for all costs (including cash grants other administrative costs) incurred by GTEC related to the GTEC Performance Agreement; and (iv) to reimburse Developer for all Eligible Cost Reimbursement Requests related to costs addressed Section of this Agreement that are approved by the City Developer s Acknowledgement of Conditions on Eligible Cost Reimbursements to be Paid from the TIRZ Tax Increment Fund. The Developer hereby acknowledges and agrees that the City s performance of its obligations under Article V of this Agreement for any Eligible Costs not funded out of the Second LTN Issuance are conditioned on there being sufficient funds in the Tax Increment Fund (as that term is defined in the TIRZ Ordinance) after all reimbursement and payment obligations to the City, GEDCO, and GTEC are fully satisfied, and on the TIRZ Board approving reimbursement from the Tax Increment Fund when and as required by this Agreement. Page 30

31 ARTICLE VI ADDITIONAL OBLIGATIONS OF DEVELOPER 6.1. Duty to Develop Zones B1, B3 and B3. With regard to Zones B1, B2 and B3 of the Project Site, Developer shall use all commercially reasonable efforts applicable to projects similar in nature, market type, and market share to the Project to keep any leased portions of the Project Site fully leased, and to use its commercially reasonable efforts to re-lease any terminated or expired leases within a reasonable time after the termination or expiration thereof. With regard to portions of Zones B1, B2, or B3 that are to be sold, Developer agrees that it shall include in the sale documents a provision for an option to purchase or right of first refusal, or other means available to it to purchase vacated portions of the Project Site (or portions that are not vacated but are not generating property or sales tax revenues) and use its commercially reasonable efforts to ensure that property and sales tax revenues are generated as soon as possible Payment of Attorney s Fees. Developer shall, within thirty (30) days of receipt of an invoice or statement for same, reimburse the City for all reasonable attorneys fees incurred in connection with the Project. Failure of Developer to timely pay such fees shall authorize the City to withhold payments and approvals of submittals for permits, authorizations or approvals related to any portion of the Project until such time as Developer remits payment in accordance with this Section Developer Fiscal Security. For five (5) years, beginning in 2015, the Developer shall provide fiscal surety to the City to cover the deficit between the TIRZ revenue and the City/GEDCO annual debt service obligations, if any. On or before April 15 of each year, the City shall determine: 1) the projected TIRZ revenue based on the ad valorem tax assessment for the year; and 2) the debt service obligations for the First LTN Issuance, the Second LTN Issuance and the sales tax revenues bonds issued by GEDCO for the year (the "Annual Debt Service Obligation"); and 3) the reasonable TIRZ administrative costs for the year. If the amount of projected TIRZ revenue for the year is insufficient to pay the Annual Debt Service Obligation and the reasonable TIRZ administrative costs, there is a "Shortfall." The City shall provide written notice of the amount of the "Shortfall" to the Developer on or before May 15 of each year. The Developer will provide fiscal surety on or before June 15 of each year, in a form approved by the City, in the amount equal to the Shortfall (the "Developer Fiscal Surety"). The City shall be entitled to draw on the Developer Fiscal Surety to pay the Annual Debt Service Obligation. Any Developer Fiscal Surety drawn by the City to pay the Annual Debt Service Obligation will be reimbursed to the Developer from TIRZ revenue beginning the first year that there is no Shortfall, as and to the extent, excess TIRZ revenue is available after the payment of the debt service obligations for that year. ARTICLE VII REPRESENTATIONS, WARRANTIES AND COVENANTS 7.1. Representations and Warranties of the City. The City hereby represents and warrants to Developer that the following statement is true as of the date hereof: Page 31

32 Due Authority; No Conflict. The City has all requisite power and authority to execute this Agreement and to carry out its obligations hereunder and the transactions contemplated hereby. This Agreement has been, and the documents contemplated hereby will be, duly executed and delivered by the City and constitute legal, valid and binding obligations enforceable against the City in accordance with the terms. The consummation by the City of the transactions contemplated hereby is not in violation of or in conflict with, nor does it constitute a default under, any of the terms of any agreement or instrument to which the City is a party, or by which the City is bound, or of any provision of any applicable law, ordinance, rule or regulation of any governmental authority or of any provision of any applicable order, judgment or decree of any court, arbitrator or governmental authority Novak s Representations and Warranties. Novak represents and warrants to the City that the following representations and warranties are true as of the date hereof: Due Organization and Ownership. Novak is a limited liability company validly existing under the laws of the State of Texas and is duly qualified to do business in the State of Texas; and that the person executing this Agreement on behalf of Novak is authorized to enter into this Agreement. The members of Novak are Jeff Novak and Jacob Novak Due Authority; No Conflict. Novak has all requisite power and authority to execute and deliver this Agreement and to carry out its obligations hereunder and the transactions contemplated hereby. This Agreement has been, and the documents contemplated hereby will be, duly executed and delivered by Novak and constitute Novak s legal, valid and binding obligations enforceable against Novak in accordance with their terms. The consummation by Novak of the transactions contemplated hereby is not in violation of or in conflict with, nor does it constitute a default under, any term or provision of the organizational documents of Novak, or any of the terms of any agreement or instrument to which Novak is a party, or by which Novak is bound, or of any provision of any applicable law, ordinance, rule or regulation of any governmental authority or of any provision of any applicable order, judgment or decree of any court, arbitrator or governmental authority Consents. No consent, approval, order or authorization of, or declaration or filing with any governmental authority is required on the part of Novak in connection with the execution and delivery of this Agreement or for the performance of the transactions herein contemplated by the respective Parties hereto Litigation. To the best knowledge of Novak, there are no pending or, to the best knowledge of Novak, threatened, judicial, municipal or administrative proceedings, consent decree or, judgments which might affect Novak s ability to consummate the transaction contemplated hereby Legal Proceedings. To the best knowledge of Novak, no preliminary or permanent injunction or other order, decree, or ruling issued by a governmental entity, and no statute, rule, regulation, or executive order promulgated or enacted by a Page 32

33 governmental entity, shall be in effect which restrains, enjoins, prohibits, or otherwise makes illegal the consummation of the transactions contemplated by this Agreement Resolution or Certificate of Authority. Exhibit H attached hereto is a true and correct copy of the resolution or consent authorizing Novak to execute this Agreement and bind Novak to the terms hereof Hines Representations and Warranties. Hines represents and warrants to the City that the following representations and warranties are true as of the date hereof: Due Organization and Ownership. Hines is a limited liability company validly existing under the laws of the State of Delaware and is duly qualified to do business in the State of Texas; and that the person executing this Agreement on behalf of Hines is authorized to enter into this Agreement. The members of Hines are 5-N Investments, LLC, and Hines Georgetown Hotel Associates Limited Partnership Due Authority: No Conflict. Hines has all requisite power and authority to execute and deliver this Agreement and to carry out its obligations hereunder and the transactions contemplated hereby. This Agreement has been, and the documents contemplated hereby will be, duly executed and delivered by Hines and constitute Hines s legal, valid and binding obligations enforceable against Hines in accordance with their terms. The consummation by Hines of the transactions contemplated hereby is not in violation of or in conflict with, nor does it constitute a default under, any term or provision of the organizational documents of Hines, or any of the terms of any agreement or instrument to which Hines is a party, or by which Hines is bound, or of any provision of any applicable law, ordinance, rule or regulation of any governmental authority or of any provision of any applicable order, judgment or decree of any court, arbitrator or governmental authority Consents. No consent, approval, order or authorization of, or declaration or filing with any governmental authority is required on the part of Hines in connection with the execution and delivery of this Agreement or for the performance of the transactions herein contemplated by the respective Parties hereto Litigation. To the best knowledge of Hines, there are no pending or, to the best knowledge of Hines, threatened, judicial, municipal or administrative proceedings, consent decree or, judgments which might affect Hines' ability to consummate the transaction contemplated hereby Legal Proceedings. To the best knowledge of Hines, no preliminary or permanent injunction or other order, decree, or ruling issued by a governmental entity, and no statute, rule, regulation, or executive order promulgated or enacted by a governmental entity, shall be in effect which restrains, enjoins, prohibits, or otherwise makes illegal the consummation of the transactions contemplated by this Agreement Resolution or Certificate of Authority. Exhibit I attached hereto is a true and correct copy of the resolution or consent authorizing Hines to execute this Agreement and bind Hines to the terms hereof. Page 33

34 ARTICLE VIII DEFAULT AND REMEDIES 8.1. Default. Each of the following shall constitute an Event of Default under this Agreement: Failure to Post and Maintain Developer Fiscal Security. Failure of Developer to obtain and continuously maintain the Developer Fiscal Security in the form and amount and by the deadline stated in Section 6.3 of this Agreement is an Event of Default Failure to Commence Construction. Subject to Force Majeure, failure of Developer to cause Commencement of Construction of the Hotel, Conference Center, Public Parking Garage, Utility Improvements, Transportation Improvements, or Stormwater Improvements on or before the Commencement Deadline and in the manner required by this Agreement is an Event of Default Failure to Complete Construction or Cause Final Completion. Subject to Force Majeure, failure of Developer to cause Completion of Construction or Final Completion of the Hotel, Conference Center, Public Parking Garage, Utility Improvements, Transportation Improvements, or Stormwater Improvements on or before the Completion Deadline and in the manner required by this Agreement is an Event of Default False Statements. Any warranty, representation, or statement made or furnished to the City by or on behalf of Developer or the Guarantor under this Agreement or under any of the Related Agreements that is false or misleading in any material respect, either now or at the time made or furnished, is an Event of Default Insolvency. Developer s or the Guarantor s insolvency, appointment of receiver for any part of their respective property or the Property, any assignment for the benefit of creditors of any of them, any type of creditor workout for any of them, or the commencement of any proceeding under any bankruptcy or insolvency laws by or against any of them is an Event of Default, provided, in the case of involuntary bankruptcy proceedings, such proceedings are not dismissed within ninety (90) days after the filing thereof General. The failure of a Party to this Agreement to comply with any term, covenant, or condition contained in this Agreement, or the failure of any party to a Related Agreement to comply with any term, covenant, or condition contained in a Related Agreement, is an Event of Default Effect of an Event of Default Failure to Post and Maintain Developer Fiscal Security. In the event the Developer fails to obtain and/or continuously maintain the Developer Fiscal Security in Page 34

35 the form and amount and by the deadline stated in Section 6.3 of this Agreement, the City shall have no obligation to issue the Second LTN Issuance nor shall the Developer be entitled to receive reimbursement for any Eligible Costs Failure to Construct Public Parking Garage. In the event Developer fails to construct the Public Parking Garage in the manner required by this Agreement or to cause Completion of Construction of the Public Parking Garage on or before the Completion Deadline, the City shall give written notice of same to the Developer, and the Developer shall have thirty (30) calendar days (the "Public Parking Garage Cure Period") to cure said default. In the event that the default cannot be cured within the Public Parking Garage Cure Period, but Developer commences the cure within the Public Parking Garage Cure Period and diligently pursues same, Developer shall have an additional period of time, not to exceed ninety (90) calendar days from the initial default notice, in which to complete the cure. Should the default remain uncured as of the last day of the Public Parking Garage Cure Period, as the same may be extended as allowed in this Section, and the City is not otherwise in default, the Public Parking Garage Site and Public Parking Garage shall be transferred to the City as contemplated by Article IV of this Agreement (i.e., lien-free and subject only to those exceptions to title approved by the City), the City also shall have all rights and remedies available to it under this Agreement, the Guaranty Agreement, and in law and equity but shall have no obligation to reimburse Developer for any costs related to the Public Parking Garage after the date of the notice of default. Developer shall take all actions and deliver all documents as are necessary or appropriate to confirm and title to the Public Parking Garage Site and the Public Parking Garage in the City. The provisions of this Section and Article IV shall survive termination of this Agreement Failure to Construct Hotel or Conference Center. In the event Developer fails to construct the Hotel or the Conference Center in the manner required by this Agreement, or to cause Completion of Construction of the Hotel or Conference Center to occur on or before the Completion Deadline, the City shall have no obligation to reimburse Developer for any of the Eligible Costs Failure to Construct Utility Improvements, Transportation Improvements or Stormwater Improvements. In the event Developer fails to construct the Utility Improvements, Transportation Improvements or Stormwater Improvements in the manner required by this Agreement, or to cause Completion of Construction of same to occur on or before the Completion Deadline, the City shall have no obligation to reimburse Developer for any part of the Eligible Costs Other Event of Default. If an Event of Default other than an event described in Sections , above, occurs, the non-defaulting party shall give written notice to the defaulting of any default, and the defaulting party shall have thirty (30) days (the "Cure Period") to cure said default. Should said default remain uncured as of the last day of the Cure Period, and the non-defaulting party is not otherwise in default, the Parties shall each have all rights and remedies available to them in law and in equity for any Event of Default not specifically addressed above in Sections In the event that the default cannot be cured within the Cure Period, but the defaulting party Page 35

36 commences cure within the Cure Period and diligently pursues same, the defaulting party shall have an additional period of time, not to exceed ninety (90) days from the initial default notice, in which to compete the cure Other Remedies. Without limiting the foregoing remedies, or the Parties remedies available at law or in equity, all of which shall be cumulative and not exclusive, upon the occurrence of an Event of Default, this Agreement may be terminated by the non-defaulting party, after which the Developer shall be obligated reimburse the cash receive and to defease the, notes, bonds or other obligations issued by the City and GEDCO and GTEC and/or to otherwise reimburse the City and GEDCO and GTEC for any expenses, costs, debt service and other financing costs that any of them have incurred under this Agreement or a Related Agreement, and this obligation shall survive termination of this Agreement. No such termination shall affect any liability which either Developer or City may have to the other under the terms of this Agreement for events occurring prior to the date of such termination Interest on Past Due Amounts. Should Developer fail to pay any amounts due to the City hereunder when due, same shall bear interest from the date due until the date of payment at the lesser of twelve percent (12%) per annum or the highest rate allowed by applicable law. For purposes of determining the highest rate allowed by law, should Chapter 303 of the Texas Finance Code ever be deemed to apply to any such amounts, it is expressly agreed that the interest ceiling will be the "weekly ceiling" as defined in the Texas Finance Code, provided that if any applicable law permits a greater rate of interest, the law permitting the greatest rate of interest shall apply No Pledge of City s Credit. The City shall not be obligated to pay any bank, lender, or similar institution providing any financing, loan or credit to Developer Definitions. ARTICLE IX FORCE MAJURE The term "Force Majeure Event" or Force Majeure means any act or event, whether foreseen or unforeseen, that meets all four (4) of the following tests: The act or event prevents a party (the "Nonperforming Party"), in whole or in part, from performing obligations under this Agreement; The act or event is beyond the reasonable control and is not the fault of the Nonperforming Party; The Nonperforming Party has been unable to avoid or overcome the act or event by the exercise of diligence; and The act or event does not include economic hardship, changes in market conditions, or unavailability of labor, equipment or supplies. Page 36

37 9.2. Report of a Force Majeure Event. No later than five (5) business days after becoming aware of the occurrence of a Force Majeure Event, the Developer shall furnish the City with a written report describing the particulars of the occurrence, including an estimate of its expected duration and probable impact the Nonperforming Party s obligations under this Agreement (the "Report") Duties During the Continuation of a Force Majeure Event. During the continuation of a Force Majeure Event, the Nonperforming Party shall: exercise commercially reasonable efforts to mitigate or limit damages to the Performing Party; exercise commercially reasonable due diligence to overcome the Force Majeure Event; continue to perform its other obligations under this Agreement; cause the suspension of performance to be of no greater scope and no longer duration than the Force Majeure Event requires; and cause payments required under this Agreement or a Related Agreement to be paid when and as due Resumption of Performance. When the Nonperforming Party is able to resume performance of its construction obligations under this Agreement, it shall immediately give the Performing Party written notice to that effect and shall resume performance under this Agreement Dispute Resolution Related to Force Majeure. The Parties shall negotiate in good faith and attempt to resolve any dispute among them as to whether a Force Majeure Event has occurred, or whether a Force Majeure Event has prevented the Nonperforming party, in whole or in part, from performing any obligation or satisfying any condition under this Agreement. If the Parties are unable to resolve the dispute or to agree on a course of action within ten (10) calendar days from the date of the Report the following provisions shall apply: with regard to any Force Majeure Event affecting the Completion Deadline for the Conference Center, the Parties shall, within twenty (20) calendar days from the Date of the Report, submit the dispute to the Williamson County Commissioners Court for a binding determination on the sole issue of whether a Force Majeure Event has occurred or has prevented the Developer from meeting the Completion Deadline for the Conference Center. The burden of proof for demonstrating that a Force Majeure Event has occurred, or that a Force Majeure Event has prevented performance, shall be on the Developer with regard to any Force Majeure Event not affecting the Completion Deadline for the Conference Center, the Parties shall, within twenty (20) calendar days of the date of the Report, submit the dispute to a mutually-agreed upon mediator for a binding determination on the sole issue of whether a Force Majeure Event has occurred and has Page 37

38 prevented the Nonperforming Party from performing. The burden of proof for demonstrating that a Force Majeure Event has occurred and that a Force Majeure Event has prevented performance, shall be on the Nonperforming Party Termination. If any suspension of performance continues for a period of ninety (90) consecutive days, or longer period agreed to in writing by the parties, as a result of a Force Majeure Event, either party is entitled to terminate this Agreement by giving notice to the other party pursuant to the Notice provisions of this Agreement Exclusive Relief. The relief offered by this Article IX is the exclusive relief available to the Performing Party with respect to a Force Majeure Event, and the Nonperforming Party waives the common law defenses of impossibility and impracticability with respect to any Force Majeure Event and any event or act that might be deemed a force majeure event under the common law. ARTICLE X MISCELLANEOUS Brokers. Each party represents to the other party that it has not employed or retained any broker or finder in connection with the conveyance or lease of any property and/or transaction contemplated hereby Conflicts. In the event any one or more of the provisions contained in this Agreement conflict with any one or more of the provisions contained in any one or more of the Related Agreements, the more specific provision(s) in a Related Agreement(s) shall control Counterparts. This Agreement may be executed in counterparts. Each of the counterparts shall be deemed an original instrument, but all of the counterparts shall constitute one and the same instrument Covenants Run with the Land/Improvements. Developer s rights and obligations under this Agreement are hereby declared covenants running with Zone B1 and are fully binding on Developer and each and every subsequent owner, tenant, subtenant, licensee, manager and occupant of all or any portion of the land and improvements in Zone B1 (except for the City) but only during the term of such party s ownership, tenancy, sub-tenancy, license, management or occupancy thereof (except with respect to defaults that occur during the term of such person s ownership, tenancy, sub-tenancy, license, management or occupancy) and shall be binding on all successors, heirs, and assigns of Developer who acquire any right, title, or interest in or to land or improvements in Zone B1, except the City. Any person except the City who acquires any right, title, or interest in or to land or improvements in Zone B1, or any part thereof, hereby agrees and covenants to abide by and fully perform the provisions of this Agreement with respect to the right, title or interest in such property Entire Agreement. This Agreement and the Related Agreements constitute the entire agreement among the Parties with respect to the transactions covered in this Agreement. There is Page 38

39 no other collateral oral or written agreement among the Parties that in any manner relates to the subject matter of such agreements. This Agreement supersedes the MOU Governing Law. The validity of this Agreement and any of its terms and provisions, as well as the rights and duties of the Parties, shall be governed by the laws of the State of Texas; and venue for any action concerning this Agreement shall be in the State District Court of Williamson County, Texas Indemnification Independence of Action. It is understood and agreed by and among the Parties that in the design, construction and development of the Project and any of the related improvements described herein, and in the Parties satisfaction of the terms and conditions of this Agreement, that each party is acting independently, and the City assumes no responsibility or liability to any third parties in connection by Developer s obligations hereunder Developer Indemnification. Developer agrees to indemnify and defend the City its officers, agents and employees against any claims, suits, damages and causes of action, liabilities, costs and expenses, including reasonable attorneys fees and court costs, arising out of or resulting from Developer s negligent or willful acts or omissions pertaining to its obligations under this Agreement and the Related Agreements and/or Developer s breach of its obligations hereunder City Indemnification. To the extent of City s liability under applicable law, the City agrees to indemnify and defend Developer, its directors, officers, agents and employees against any and all claims, causes of action, costs and liabilities including reasonable attorney s fees and court costs, arising out of, or resulting from the City s negligent acts or omissions pertaining to its obligations under this Agreement. The indemnification provided by the City in the preceding sentence expressly excludes any claims, causes of action, costs and liabilities arising out of or resulting from the City s exercise of its governmental function. Nothing in this Section 9.7 shall be construed as a waiver of the City s or its officers and employees governmental or official immunity available to City or its officers or employees, respectively, under Texas Law Joint Responsibility. In the event of joint and concurrent negligence of both Developer and the City, responsibility and indemnity, if any, shall be apportioned comparatively in accordance with the laws of the State of Texas (without waiving any defenses available to the Parties) No Third Party Beneficiaries. The provisions of this Section 9.7 are solely for the benefit of the Parties hereto and are not intended to create or grant any rights, contractual or otherwise to any third person or entity Survival. The entirety of this Section 9.7 shall survive the termination of this Agreement. Page 39

40 10.8. No Joint Venture. It is acknowledged and agreed by and among 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, past, present and future officers, elected officials, employees and agents of the City do not assume any responsibilities or liabilities to any third party in connection with the development, design, construction or operation of any of the improvements contemplated by this Agreement. In addition, Developer acknowledges and agrees that there shall be no recourse against any of the aforesaid parties, none of whom will incur any liability in respect to any claims based upon or relating to the Agreement Notice. Any notice required or permitted to be delivered hereunder shall be deemed received when given in writing and delivered personally or when sent by United States mail, postage prepaid, certified mail, return receipt requested, addressed to the party at the following addresses: If intended for the City: Attn: City Manager City of Georgetown P.O Box 409 Georgetown, Texas Telephone: (512) Facsimile: (512) If intended for Novak: Novak Brothers, LLC Attn: Jeff Novak, Managing Member 201 Adams Street Georgetown, Texas Telephone: (512) If intended for Hines: Hines Georgetown Hotel LLC Attn: Travis M. Overall 811 Main Street, Suite 4100 Houston, Texas Telephone: (713) Facsimile: (713) With Copies to: Attn: City Attorney City of Georgetown P.O. Box 409 Georgetown, Texas Telephone: (512) Facsimile: (512) With Copies to: Winstead PC Attn: Greta Goldsby, Esq. 401 Congress Ave., Suite 2100 Austin, Texas Telephone: (512) Facsimile: (512) With Copies to: Baker Botts L.L.P Attn: Connie Simmons Taylor, Esq. 910 Louisiana Street Houston, Texas Telephone: (713) Facsimile: (713) Severability. In the event any section, subsection, paragraph, sentence, phrase or word herein is held invalid, illegal or unconstitutional, the balance of this Agreement, shall be enforceable and shall be enforced as if the Parties intended at all times to delete said invalid section, subsection, paragraph, sentence, phrase or word; and such invalid, illegal, unconstitutional or unenforceable section, subsection, paragraph, sentence, phrase or word shall be substituted by a section, subsection, paragraph, sentence, phrase or word as near in substance thereto as may be valid, legal, constitutional and enforceable. Page 40

41 Time. Subject to Force Majeure as expressly stated in this Agreement, time is of the essence for the performance of any obligation under this Agreement or the Related Agreements. If any date or period for performance provided for herein ends on a Saturday, Sunday, or legal holiday of the City of Georgetown, Texas, then the applicable date or period will be extended to the first day following such Saturday, Sunday, or legal holiday Time for Signatures. If Hines and Novak have not both executed this Agreement by January 31, 2014December 31, 2014, this Agreement shall be null and void and shall have no force or effect Effect on Original MDA. As of the Effective Date, this this Agreement amends, restates, supersedes, and replaces the Original MDA in its entirety, and after the Effective Date the Original MDA shall have no force or effect. [SIGNATURE PAGE FOLLOWS] Page 41

42 IN WITNESS WHEREOF, the Parties have executed this Agreement to be effective as of the Effective Date. [Signature Pages Follow] List of Exhibits Exhibit A Sources and Schedule of Funding Exhibit B List of Pre-Approved Contractors and Design Professionals Exhibit C Sketch of Project Site and Property Exhibit D Site Layout Exhibit E Insurance Requirements Exhibit F Public Streets to be conveyed in fee to the City Exhibit G Eligible Costs Exhibit H Novak Resolution of Authority Exhibit I Hines Resolution of Authority Page 42

43 CITY: THE CITY OF GEORGETOWN, TEXAS, A Texas home-rule municipality By: George G. GarverDale Ross, Mayor ATTEST: By: Jessica Brettle, City Secretary APPROVED AS TO FORM: By: Bridget Chapman, City Attorney ACKNOWLEDGEMENT State of Texas County of Williamson This First Amended and Restated Master Development for the Summit at Rivery Park instrument was acknowledged before me on, 2014, by George G. GarverDale Ross, Mayor of the City of Georgetown, Texas, a Texas home-rule municipality, on behalf of the City of Georgetown, Texas. Notary Public, State of Texas Page 43

44 HINES: HINES GEORGETOWN HOTEL, LLC, a Delaware limited liability company By: Hines Georgetown Hotel Associates Limited Partnership, a Texas limited partnership, its sole member By: Hines Georgetown Hotel GP, LLC, a Delaware limited liability company, its general partner By: Hines Interests Limited Partnership, a Delaware limited partnership, its sole member By: Hines Holdings, Inc., a Texas corporation, its general partner By: Name: Title: State of Texas County of ACKNOWLEDGEMENT This First Amended and Restated Master Development for the Summit at Rivery Park instrument was acknowledged before me on, 2014, by, of Hines Holdings, Inc., a Texas corporation, the general partner of Hines Interests Limited Partnership, a Delaware limited partnership, the sole member of Hines Georgetown Hotel GP, LLC, a Delaware limited liability company, the general partner of Hines Georgetown Hotel Associates Limited Partnership, a Texas limited partnership, the sole member of Hines Georgetown Hotel LLC, a Delaware limited liability company, on behalf of Hines Georgetown Hotel LLC. Notary Public Page 44

45 NOVAK: NOVAK BROTHERS, LLC, a Texas limited liability corporation By: Name: Jeffrey Ladd Novak Title: Managing Member State of Texas County of ACKNOWLEDGEMENT This First Amended and Restated Master Development for the Summit at Rivery Park instrument was acknowledged before me on, 2014, by Jeffrey Ladd Novak, the duly authorized Managing Member of Novak Brothers, LLC, a Texas limited liability company, on behalf of such limited liability company. Notary Public Page 45

46 CERTIFICATION OF RIVERY PARK TAX INCREMENT REINVESTMENT ZONE BOARD OF DIRECTORS APPROVAL I hereby certify that the foregoing First Amended and Restated Master Development Agreement pertaining to The Summit at Rivery Park was approved by the Board of Directors of the Rivery Park Tax Increment Reinvestment Zone Board of Directors on the day of, 2014, as evidenced by the signatures of duly authorized representatives of Board of Directors of the Rivery Park Tax Increment Reinvestment Zone appearing below. RIVERY PARK TAX INCREMENT REINVESTMENT ZONE ATTEST: By: Printed Name: Title: Board President By: Printed Name: Title: Board Secretary State of Texas County of Williamson ACKNOWLEDGEMENT This First Amended and Restated Master Development for the Summit at Rivery Park instrument was acknowledged before me on, 2014 by (name), President of the Board of Directors of the Rivery Park Tax Increment Reinvestment Zone, on behalf of the Rivery Park Tax Increment Reinvestment Zone. Notary Public State of Texas Page 46

47 EXHIBIT A SOURCES AND SCHEDULE OF PUBLIC FUNDING Public Improvements Public Parking Garage Cost City GEDCO GTEC $5.65,740,0 00 Million Develop er Funding Source City First City LTNs Issuance Earliest Anticipated Debt IssueIssuance Date 10/1/ Intended Earliest Anticipated Developer Reimbursement Schedule 11/01/ (thereafter during construction) Rivery Park Improvements $400, , City Second City LTNs Issuance 10/1/ /01/201607/01/ after Final Completion $2 Million City Second City LTNs Issuance 10/1/ /01/201607/01/ after Final Completion Other Public Infrastructure $2.5 Million $2 Million GEDCO Bonds 10/1/201505/1 / /01/201607/01/ after Final Completion $750,000 GTEC Cash 01/01/201607/01/ after Final Completion Developer $3.5 Million GEDCO Bonds and/or GEDCO Cash 10/1/20155/1/ 2016 (as available in Tax Increment Fund) 06/01/201607/01/ after Final Completion TIRZ Reimbursement - City+GEDCO $12,,500640,00 0 TIRZ Reimbursement - GTEC $750,000 TIRZ Reimbursement - Developer $3,500,000 Total TIRZ Reimbursement $16,750890,000

48 EXHIBIT B List of Pre-Approved Contractors and Design Professional Team LIST OF PRE-APPROVED CONTRACTORS 1. Austin Commercial 2. Whiting-Turner 3. Harvey Cleary 4. DPR 5. Balfour Beatty DESIGN PROFESSIONAL TEAM 1. Rabun & Associates (Architect) 2. Bay & Associates (MEP) 3. Ingenium/HOK (Structural) 4. Steger Bizzell (Civil) 5. Persohn/Hahn (Elevator) 6. William Caruso & Associates (Food & Laundry Service) 7. Terracon (Geotech) 8. IP Design Group (IT/AV) 9. TBG (Landscape Architect) 10. GreeNexus (LEED) 11. Quentin Thomas Associates (Lighting) 12. Bray Whaler International (Purchasing) 13. Leslie Fossler Interiors (Interior Design) 14. Command Commissioning (LEED/Commissioning)

49 EXHIBIT C SKETCH OF PROJECT SITE AND PROPERTY [SEE ATTACHED]

50