THIRD AMENDED TAX INCREMENT FINANCING AGREEMENT

Transcription

1 THIRD AMENDED TAX INCREMENT FINANCING AGREEMENT THIS THIRD AMENDED TAX INCREMENT FINANCING AGREEMENT ("Thinl Amendment") is made and entered into by and between WILLIAMSON COUNTY, TEXAS (the "County") and the CITY OF GEORGETOWN, TEXAS (the "City"), political subdivisions of the State of Texas, with respect to the creation of, and the level of participation in, the City of Georgetown Rivery Park Tax Increment Reinvestment Zone a/k/a Reinvestment Zone Number T07, City of Georgetown, Texas (the "Zone"). The City and the County are sometimes referred to jointly herein as the "Parties." This Third Amendment amends, restates, and wholly replaces the Original Agreement (defmed below), the First Amendment (defined below), and the Second Amendment (defined below). WITNESSETH: WHEREAS, on December I I, 2007, after complying with all requirements of Chapter 31 I of the Texas Tax Code, the City adopted Ordinance No creating the Zone over the property shown on the attached "Exhibit A" (the "Property") for a term beginning on the effective date of the ordinance and extending until December 3 1,203 I (unless earlier terminated as allowed by law) for the purpose of encouraging and enabling development of the Property with a hotel, conference center, and improvements to the City's Rivery Park (the "Project"); and WHEREAS, pursuant to Section (t) of the Texas Tax Code, which allows other taxing jurisdictions to participate in the Zone by entering into an agreement with the City, the Commissioners Court of the County executed that certain Tax Increment Financing Agreement dated to be effective on September 16, 2008 (the "Original Agreement"), pursuant to which the parties established their respective contributions to the Tax Increment Fund for the Zone and the County imposed several conditions to its participation in the Zone including, among other conditions, a minimum size and construction deadline for the conference center and the right of the County to appoint members to the board of directors for the Zone; and WHEREAS, after the required notice and hearing, the City adopted Ordinance No to incorporate the terms of the Original Agreement into the ordinance governing the Zone; and WHEREAS, the Project languished for several years during the economic downturn; in 20 I 0 the City received a landowner petition requesting that an 8.33 acre+/- tract of land be removed from the Zone, and after the required notice and hearing, the City adopted Ordinance No granting the removal petition; and WHEREAS, on May 15, 2012 the Original Agreement was amended by the "First Amended Tax Increment Financing Agreement" (the "First Amendment"), pursuant to which the County agreed to: (a) formalize its consent to the removal of the 8.33 acre +/- tract of land from the Zone; and (b) extend the deadline for completion of construction of the conference center from October I, 20 I I to September 30, 2015; and WHEREAS. throughout 2012 and 2013 the City continued to work on matters related to the Zone, including facilitating approval by the Zone board of directors of a First Amended Project Plan and Financing Plan (the "First Amended Plan"), which was never considered or approved by

2 the City Council, considering input from the prospective hotelier, and evaluating various financing proposals for the Project; and WHEREAS, on November 12,2013, Brae Group, Ltd., a Texas limited partnership, whose general partner is Novak Brothers, LLC, a Texas limited liability company, acting by and through its authorized member and representative, Jeff Novak, and as the owner of over 50% of the appraised value of the 8.33 acre +/- tract of land, filed a petition with the City pursuant to Sections (aX4) and (a) and (b) of the Texas Tax Code requesting that the 8.33 acre tract +/ of land shown on "Exhibit B" be added back into the Zone (the "Additional Property"); and WHEREAS, the City also prepared a Second Amended Project Plan and Financing Plan (the "Second Amended Plan"), which is attached hereto as "Exhibit C;" and WHEREAS, changes in the timing, type and nature of some of the development in the Zone and to the Second Amended Plan made it necessary and desirable to amend and restate the Original Agreement and the First Amended Agreement, and so on January 16,2014, the Second Amended Tax Increment Financing Agreement (the "Second Amendment") was approved to: (a) extend the term of the Zone, and the duration of the parties' contributions of the their respective Tax Increments into the Tax Increment Fund, from December 31, 2031 to December 31,2041; (b) add the Additional Property into the boundaries ofthe Zone; (c) to obtain the County's approval of the Second Amended Plan; (d) revise the specification as to the size of the conference center to be expressed in square feet rather than in seating capacity to avoid confusion; and (e) revise the twenty five million dollar ($25,000,000) limit on the total amount of net proceeds payable to the developer from the Tax Increment Fund.; and WHEREAS, changes in the timing, type and nature of some of the development in the Zone make it necessary and desirable to extend the date of completion of construction from December 31, 2015 to June 30, NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained the City and the County agree as follows: AGREEMENT I. Effect of Recitals. The recitals set forth above are incorporated herein for all purposes and are found by the Commissioners Court of the County and the City Council of the City to be true and correct statements of fact. It is further found and determined that the City and the County have authorized and approved this Third Amendment by ordinance, resolution, order or minute action adopted by their respective governing bodies, and that, upon this Third Amendment being executed by both Parties, this Third Amendment will be in full force and effect as of the Effective Date (defined below). 2. Zone Boundaries. The County hereby consents to the expansion of the Zone to include the Additional Property; therefore, on and after the Effective Date (herein defined), the boundaries of the Zone shall be as shown on "Exhibit A." 2

3 3. Zone Board of Directors. The County shall be allowed to appoint four (4) of the nine (9) members of the board of directors of the Zone and to retain this ratio if the Zone board is expanded. The four (4) Zone board members allowed to be appointed, by the County are inclusive of the two Zone board members that are required by the Texas Tax Code to be appointed by the State Representative and State Senator. 4. Project Plan and Financing Plan. The County hereby approves the Second Amended Plan attached hereto as "Exhibit C." 5. Zone Term. The County hereby agrees that the term of the Zone shall be extended from December 31, 2031, until December 31, 2041 (unless terminated earlier as may be ajlowed by law and if consistent with the City' s ordinance governing the Zone). 6. Contribution of County's and City's Tax Increments. The County hereby agrees to participate in the Zone to the extent of eighty percent (80%) of the "County's Tax Increment" (defined herein). The City has agreed to participate to the extent of One Hundred Percent (100%) of the City's Tax Increment (defined herein). The "County's Tax Ina-ement" shall be equal to the property taxes levied by the County on property in the Zone for each tax year on the Captured Appraised Value (defined herein). The "City's Tax Increment" shall be equal to the property taxes levied by the City on property in the Zone for each tax year on the Captured Appraised Value. The "Captured Appraised Value" is the total appraised value of all real property taxable by the County or the City, as applicable, and located in the Zone for that year less the "Tax Increment Base" (defined herein). The "Tax Increment Base" is either (as applicable): (I) except for the Additional Property, the total appraised value of all real property taxable by the County or the City, as applicable, and located in the Zone, determined as of January I, 2007, the year in which the Zone was initially designated as a reinvestment zone; or (il) for the Additional Property, the total appraised value of all real property taxable by the County or the City, as applicable, determined as of January 1, 2013, the year in which the Additional Property was added to the Zone (each a "Tax Increment Base"). 7. Payments of Tax Increments. The applicable percentage of the County's Tax Increment and the City'S Tax Increment shall be paid into a tax increment fund established for the Zone by the City (the "Tax Increment Fund") in compliance with Section of the Texas Tax Code. 8. Conditions of the County's Participation. The County's agreement to participate in the Zone is subject to the following conditions: (a) The City agrees to remit to the County each and every year for the term of this Third Amendment fifty percent (50%) of the I % general sales tax received by the City within the Zone as long as the County contributes eighty percent (80%) of the County's Tax Increment to the Tax Increment Fund. Said sales tax payment shall be due and owing by December I ofeach and every year for the duration of this Agreement. 3

4 (b) (c) (d) (e) (f) The conference center referenced in the Second Amended Plan must have a ballroom at least 16,000 square feet in size and be designed to accommodate multiple small scale events. The City shall cause the Joint Use, Access and Lease Agreement between the City and Hines Georgetown Hotel LLC to include provisions substantially similar to those attached hereto as "Exhibit D". The conference center shall be fully constructed by June 30, If the conference center is not fully constructed by June 30, 2016 the County reserves the right to terminate this Agreement thereafter and cease Tax Increment Payments as stated herein, and all sums previously deposited into the Tax Increment Fund by the County shall be returned to the County. If funds are returned to the County pursuant to this subsection (d), then the County shall also be required to return all sales taxes received from the City pursuant to subsection 8(a), above. The obligation to fully construct the conference center by June 30, 2016 is subject to events of force majeure as defined in the Master Development Agreement and Related Agreements, and the County agrees to participate in the dispute resolution process concerning claims offorce majeure. The portions ofthe Second Amended Plan pertaining to the conference center may not be materially amended without prior approval of the Commissioners Court. Said approva ~ or disapproval shall be determined by the Commissioners Court in a timely manner, and approval shall not be unreasonably withheld. The Tax Increment Fund shall be used solely for the reasonable expenses incurred in the administration of the Zone and to directly or indirectly fund the Project Costs identified in the Second Amended Plan for the Zone, as such Plan may be amended from time to time in the future as may be allowed by the Texas Tax Code. 9. County Option to Terminate Agreement to Participate. The County may terminate its agreement to participate in the Zone, prior to the end ofthe term ofthis Agreement, after the amount paid into the Tax Increment Fund from the City Tax Increment and the County Tax Increment totals TWENTY FIVE MILLION DOLLARS ($25,000,000). If terminating this Agreement pursuant to this Section 9, the County shall provide prior written notice of termination to the City at: City ofgeorgetown Attn: City Manager I13 E Street Georgetown, Texas Telephone: (512) Termination of this Agreement under this Section 9 shall be effective thirty (30) days after the date of the City' S receipt of the County's written notice of termination. Upon termination the County shall have no further rights, and the City shall have no further obligations, under this Agreement. 4

5 Amendment have been satisfied as of the date in which the City provides said certifications and/or reports. 18. Execution in Counterparts. This Third Amendment may be executed in several counterparts, each of which shall be an original and all of which shall be considered fully executed as of the Effective Date, when both Parties have executed an identical counterpart, notwithstanding that all signatures may not appear on the same counterpart. EXECUTED to be effective as of the date of the last signature (the "Effective Date") by the duly authorized representatives ofthe Parties as shown below. WILLIAMSON COUNTY, TEXAS BY:~~ /' DANA. AmS County Judge Date: /-/1-/.. / 'f Attest: By: ~~~~~~~~~~~~ Nancy Ris,unty Clerk -t.r:lt Approved as to Form: /7'/1,/ / By H~ld Attorney for Williamson County 6

6 CITY OF GEORGETOWN, TEXAS By: d~a DALE ROSS, Mayor Attest: 7