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HomeMy WebLinkAboutInfrastructure agreement CM. REALTY, INC. November 25, 2003 VIA HAND DELIVERY Mr. Glenn Brown Assistant City Manager City of College Station 1 101 Texas Avenue College Station, Texas 77842 Re: Infrastructure Agreement, effective as of September 21, 2001 , by and among The City of College Station, Texas, TAC Realty, Inc. and College Main Apartments, Ltd., as amended (the "Infrastructure Agreement") Dear Glenn: I am writing with regard to the above-referenced Infrastructure Agreement. Capitalized terms used herein but not otherwise defined herein shall have the meanings assigned thereto in the Infrastructure Agreement. As we have previously discussed, TAC is seeking the City's agreement not to attempt to terminate the Infrastructure Agreement in the event that construction of the corporate office building on Lot 1 , Crescent Pointe Tract One subdivision (the "Office Project") is commenced as provided in this letter agreement but is not finally completed by July 1 , 2005. Pursuant to the Infrastructure Agreement, the City has agreed to construct the Utilities and the Copperfield Extension that are included as part of the Phase I improvements in the Master Plan. Effective December 12, 2001 , the City, TAC and COLLEGE executed a First Amendment to the Infrastructure Agreement (the "Amendment"), which provides that "as long as TAC constructs or contracts to construct the Office Project (more fully described in the Development Agreement)," the City's obligations to construct the Utilities and the Copperfield Extension would "remain in full force and effect." The Amendment further provides that if TAC does not construct the Office Project as more fully described in the Development Agreement, the City may terminate the Infrastructure Agreement without any liability to TAC or COLLEGE. In the event the City were to exercise its right to terminate the Infrastructure Agreement, the Amendment provides COLLEGE with the right to repurchase the entire 55.5014 acre tract for the 1111 Briuruest Drive/Suite 300/Bryan,Texas 77802/(979)776-1111 /rax(979)776-6288 Mr. Glenn Brown November 25, 2003 Page 2 same price that TAC originally paid for the property. I have enclosed a copy of the Amendment for your reference. The Development Agreement contains a provision in Section 10.1 .5 that states, "Subject to the provisions of Section 6.1 .1 (c) and any Excusable Delay, Final Completion of the Office Project shall occur on or before July 1 , 2005." TAC has proceeded with selling Lot 1 , Crescent Pointe Tract One subdivision to its affiliate, First American Bank, SSB ("FAB"), for FAB to construct the Office Project. Although FAB currently anticipates completing the Office Project prior to July 1 , 2005, it is not possible to foresee or control all of the potential delays in a project of this size. FAB needs assurance that if it proceeds with the construction of the Office Project, and for some reason (other than abandonment of the Office Project by FAB) the Office Project is not finally completed by July 1 , 2005, the City will not attempt to terminate the Infrastructure Agreement. Such an action, if effective, would potentially result in FAB donating millions of dollars in improvements that it makes to the property to COLLEGE, which was not the intent of the parties' agreement. TAC therefore requests that the City agree not to attempt to exercise its right to terminate the Infrastructure Agreement in the event that Final Completion of the Office Project has not occurred by July 1 , 2005, provided that (a) FAB commences construction of the Office Project within three months after TAC has received an executed counterpart of this letter agreement and FAB does not abandon the construction of the Office Project at any time prior to its Final Completion, and (b) in the event that Final Completion of the Office Project has not occurred by December 31 , 2005, TAC compensates the City for lost ad valorem tax revenues, if any, for each subsequent tax year until Final Completion, such lost ad valorem tax revenues to be calculated based on the City's ad valorem tax rate in effect for such tax year multiplied by the positive difference, if any, between (i) $18,750,000.00, and (ii) the actual assessed value of the Office Project for such tax year. Any payments required to be made by TAC pursuant to the immediately preceding sentence will be due and payable at the time the ad valorem taxes for the Office Project for the same tax year are due and payable. We believe this is consistent with the intent of the parties in ensuring that the Office Project is constructed, and is necessary and appropriate for equitable purposes for all parties. If the City is in agreement with the foregoing, please acknowledge such agreement by having a counterpart original of this letter executed on behalf of the City and returning a fully executed counterpart original of this letter to me. Mr. Glenn Brown November 25, 2003 Page 3 We appreciate the City's willingness to consider our request. We intend to commence construction of the Office Project within the next few weeks. We hope that we can resolve this issue in a timely manner so that the Office Project is not further delayed. Please call me if you have any questions or would like to discuss this matter. Thank you for your assistance. Yours truly, TAC ' - • 1 , Inc., a Te 4_ .rporation a, By: Donald A. Adam Chairman and Chief Executive Officer ACKNOWLEDGED A D AGREED TO THIS/5 DAY OF , 2003: The City of College Station, Texas By. �. R Silvia, Mayor ATTEST: (1rOfq/lik.,2_' 144----L, Connie Hooks, City Secretary APPROVED: 9002A-,---„R's-,-------__ Tom Brymer, City Manager jitc\__ fc. ts Charles Cryan, Dir or of Finance 7NoZtt Harvey Ca I, Jr., y ,LA i'.rne y Mr. Glenn Brown November 25, 2003 Page 4 cc: Mr. Harvey Cargill, Jr., Esq. (via hand delivery) Mr. James D. Plummer, Esq. (via telecopy: 210/270-7205) SECOND AMENDMENT TO THE INFRASTRUCTURE AGREEMENT THIS SECOND AMENDMENT TO THE INFRASTRUCTURE AGREEMENT (this "Second Amendment") is made and entered into effective as of the 43Mday of November, 2004 (the "Effective Date") by and between THE CITY OF COLLEGE STATION, TEXAS, a municipal corporation and home-rule city of the State of Texas situated in Brazos County, acting by and through its City Council (the"City") and CRESCENT POINTE LTD., ("CRESCENT") a Texas limited partnership (formerly known as College Main Apartments, Ltd. ("COLLEGE")) relating to that certain Infrastructure Agreement executed by and between the City, TAC REALTY, INC., a Texas corporation ("TAC") and CRESCENT on the 21st day of September, 2001 (the "Original Agreement"), as amended by that certain First Amendment to the Infrastructure Agreement executed by and between the City, TAC, and CRESCENT on the 12th day of December, 2001 (the"First Amendment"). RECITALS: A. Phase I improvements involving the extension of Copperfield Drive as provided for in the City of College Station Highway 30/60 Corridor Master Plan dated September 2001 ("Master Plan")have been completed as of the Effective Date of this Second Amendment. B. The Phase II improvements from the Master Plan ("Phase II Improvements") were to be undertaken by the City and CRESCENT. The City and CRESCENT desire to complete the Phase II Improvements without creating a Public Improvement District("PID"). AGREEMENT: NOW, THEREFORE, for and in consideration of Ten Dollars ($10.00) and other good and valuable consideration, including, without limitation, the mutual covenants contained in this Second Amendment, the receipt and sufficiency of which are hereby acknowledged by the parties, the City and CRESCENT hereby AGREE, each with the other, as follows: 1. Capitalized Terms. (a) Any capitalized term that is used in this Second Amendment and is not defined herein shall have the same meaning ascribed to it in the Original Agreement. (b) "Utilities" shall be as defined in the Original Agreement except for gas and/or gas lines,which shall no longer be included as a Utility. (c) "Lighting" shall mean street lighting and pedestrian lighting. (d) "Other Improvements" shall mean the plans and specifications attached hereto as Exhibit "A" and incorporated herein for all .urposes. (e) "Improvements" shall include Utilities and Other Improvements. 45529349.5 1 (f) "Phase II Streets" shall refer to the cul-de-sac and loop described in the Master Plan and associated drainage. 2. No PID. The City shall not place the COLLEGE Property in a PID to fund up to $500,000 of the total cost of the Phase II Improvements. 3. Amendments. A. Paragraph 4 of the Original Agreement is amended by adding the following sentence to the end of the paragraph: "The City further agrees that CRESCENT shall not be assessed for all or any portion of the cost of the Phase II Improvements, including Crescent Pointe Parkway." B. Paragraph 6 of the Original Agreement is hereby deleted in its entirety and replaced with the following: 6. Phase II Improvements: (a) The City, at its sole cost and expense shall construct or contract for the installation of those certain Phase II Streets in accordance with the plans attached hereto as Exhibit "B", those certain Utilities in accordance with the plans and specifications attached hereto as Exhibit "C", along with associated Lighting, all such construction or installation to be completed by December 1,2005. The payment for the improvements called for in this paragraph shall not exceed the funds remaining from Phase I Improvements plus $1,200,000. (b) CRESCENT, at its sole cost and expense shall construct or contract for the installation of a gas line (the "Gas Line") and the Other Improvements to the COLLEGE Property in accordance with the list attached hereto as Exhibit "D", such construction or installation to be completed by December 1, 2005. CRESCENT shall install the Gas Line in accordance with the plans and specifications as required by Oncor Gas. The payment for the installation of the Gas Line and the Other Improvements called for in this paragraph shall be $194,365. (c) CRESCENT, at its sole cost and expense shall construct or contract for the installation of certain additional Other Improvements to the COLLEGE property in accordance with the list attached hereto as Exhibit"E", such construction or installation to be completed within two (2) years of the Effective Date of this Second Amendment. The payment for the installation of the additional Other Improvements called for in this paragraph shall be $305,835. 45529349.5 2 (d) CRESCENT, at its sole cost and expense shall secure any and all permits required to construct and install the Gas Line and Other Improvements called for in paragraph 6(b)and(c) above. (e) Within ten(10)business days of the execution hereof, CRESCENT shall provide a commercially acceptable guaranty ("Guaranty") in the form of either a letter of credit or performance bond to secure the payment of $500,000 or the installation of at least $500,000 worth of improvements to include the Gas Line and Other Improvements in paragraph 6(b) and(c) above. Prior to the release of the Guaranty by City, CRESCENT shall provide a notarized affidavit stating that all bills for labor and materials incurred have been paid in full and that any existing claims from manufacturers, materialmen, and subcontractors have been released. (f) CRESCENT shall provide to City a complete itemized sworn statement of the construction account for the Gas Line and Other Improvements installed and completed, certified by CRESCENT and its contractor as correct. City shall review said statement in order to determine that: 1) there are no discrepancies in the submittal, 2) the costs reflect the actual cost expended by CRESCENT for the Gas Line and Other Improvements, and 3) the cost of the improvements meets the requirements in this Second Amendment. (g) Paragraph 6(a), (b) and (c) above shall be subject to force majeure in regard to completion dates. (h) CRESCENT shall form the Property Owners Association (POA) called for in the proposed Crescent Pointe Protection Covenants (the "Covenants"), attached hereto as approved by the City as Exhibit "F"., before any portion of COLLEGE Property is conveyed but in any case no later than June 2005. CRESCENT shall cause the POA to maintain and replace as needed the Other Improvements for a period of at least 50 years after their installation. CRESCENT shall provide evidence of the filing of the Covenants with the Brazos County courthouse to City within ten(10)days of filing. (i) Provided, if after completion of the Phase II Streets and Improvements called for in paragraph 6(a), (b) and (c) above, City has not spent the total of $4,850,000 it budgeted for Phase I and Phase II Improvements and/or CRESCENT has not spent$500,000 on Phase II Improvements, then as many of the residual Other Improvements identified in Exhibit "G" attached hereto will be completed by City and/or CRESCENT until these funding limits are attained. 45529349.5 3 (j) Upon completion of all Improvements provided for in this paragraph,neither the CITY or CRESCENT shall have any further obligations,except that 1)the City shall maintain the roadways and sidewalks and pay for the monthly electrical expenses for lighting, and shall maintain/replace lighting fixtures as needed, and 2) CRESCENT and/or POA shall maintain the Other Improvements and pay for monthly water expenses for irrigation. C. Paragraph 21 of the Original Agreement is hereby deleted in its entirety. 4. Ratification. The terms of the Original Agreement and First Amendment are modified and amended pursuant to the terms of this Second Amendment and are hereby conformed to be consistent with the terms and provisions of this Second Amendment. Except as provided in this Second Amendment, the terms of the Original Agreement and First Amendment (including, without limitation, all Exhibits attached to each thereto) are hereby confirmed and ratified for all purposes and shall remain in full force and effect as originally provided. 5. Multiple Counterparts. Multiple copies of this Second Amendment may be executed by the parties. Each such executed copy shall have the full force and effect of an original executed instrument. [signatures and acknowledgements appear on following pages] 45529349.5 4 EXECUTED to be effective as of the Effective Date shown above. THE CITY: THE CITY OF COLL E STATION, TEXAS By: " I., A. Ron ' a, Mayor ATTEST: 4By: kktl,L____ Connie Hooks, City Secretary APPROVED: ,o„,, ''�F By: �:v III I'm 'as EBrIlCity an.ger By: it/.A. I e ,i.. / Z— /` c7)C f 7 ers en, O'rector of inance APPROVED AS TO FORM: BY: diiir ' J. is P. 'V er, `bright &Jaworski L.L.P. 45529349.5 5 SECOND AMENDMENT TO THE INFRASTRUCTURE AGREEMENT THIS SECOND AMENDMENT TO THE INFRASTRUCTURE AGREEMENT (this "Second Amendment") is made and entered into effective as of the day of November, 2004 (the "Effective Date") by and between THE CITY OF COLLEGE STATION, TEXAS, a municipal corporation and home-rule city of the State of Texas situated in Brazos County, acting by and through its City Council (the "City") and CRESCENT POINTE LTD., ("CRESCENT") a Texas limited partnership (formerly known as College Main Apartments, Ltd. ("COLLEGE")) relating to that certain Infrastructure Agreement executed by and between the City, TAC REALTY, INC., a Texas corporation ("TAC") and CRESCENT on the 21st day of September, 2001 (the "Original Agreement"), as amended by that certain First Amendment to the Infrastructure Agreement executed by and between the City, TAC, and CRESCENT on the 12th day of December, 2001 (the "First Amendment"). RECITALS: A. Phase I improvements involving the extension of Copperfield Drive as provided for in the City of College Station Highway 30/60 Corridor Master Plan dated September 2001 ("Master Plan") have been completed as of the Effective Date of this Second Amendment. B. The Phase II improvements from the Master Plan ("Phase II Improvements") were to be undertaken by the City and CRESCENT. The City and CRESCENT desire to complete the Phase II Improvements without creating a Public Improvement District ("PID"). AGREEMENT: NOW, THEREFORE, for and in consideration of Ten Dollars ($10.00) and other good and valuable consideration, including, without limitation, the mutual covenants contained in this Second Amendment, the receipt and sufficiency of which are hereby acknowledged by the parties, the City and CRESCENT hereby AGREE, each with the other, as follows: 1. Capitalized Terms. (a) Any capitalized term that is used in this Second Amendment and is not defined herein shall have the same meaning ascribed to it in the Original Agreement. (b) "Utilities" shall be as defined in the Original Agreement except for gas and/or gas lines, which shall no longer be included as a Utility. (c) "Lighting" shall mean street lighting and pedestrian lighting. (d) "Other Improvements" shall mean the plans and specifications attached hereto as Exhibit "A" and incorporated herein for all purposes. (e) "Improvements" shall include Utilities and Other Improvements. 45529349.5 1 (f) "Phase II Streets" shall refer to the cul-de-sac and loop described in the Master Plan and associated drainage. 2. No PID. The City shall not place the COLLEGE Property in a PID to fund up to $500,000 of the total cost of the Phase II Improvements. 3. Amendments. J A. Paragraph 4 of the Original Agreement is amended by adding the following sentence to the end of the paragraph: "The City further agrees that CRESCENT shall not be assessed for all or any portion of the cost of the Phase II Improvements, including Crescent Pointe Parkway." B. Paragraph 6 of the Original Agreement is hereby deleted in its entirety and replaced with the following: 6. Phase II Improvements: (a) The City, at its sole cost and expense shall construct or contract for the installation of those certain Phase II Streets in accordance with the plans attached hereto as Exhibit "B", those certain Utilities in accordance with the plans and specifications attached hereto as Exhibit "C", along with associated Lighting, all such construction or installation to be completed by December 1, 2005. The payment for the improvements called for in this paragraph shall not exceed the funds remaining from Phase I Improvements plus $1,200,000. (b) CRESCENT, at its sole cost and expense shall construct or contract for the installation of a gas line (the "Gas Line") and the Other Improvements to the COLLEGE Property in accordance with the list attached hereto as Exhibit "D", such construction or installation to be completed by December 1, 2005. CRESCENT shall install the Gas Line in accordance with the plans and specifications as required by Oncor Gas. The payment for the installation of the Gas Line and the Other Improvements called for in this paragraph shall be $194,365. (c) CRESCENT, at its sole cost and expense shall construct or contract for the installation of certain additional Other Improvements to the COLLEGE property in accordance with the list attached hereto as Exhibit "E", such construction or installation to be completed within two (2) years of the Effective Date of this Second Amendment. The payment for the installation of the additional Other Improvements called for in this paragraph shall be $305,835. 45529349.5 2 (d) CRESCENT, at its sole cost and expense shall secure any and all permits required to construct and install the Gas Line and Other Improvements called for in paragraph 6(b) and (c) above. (e) Within ten (10)business days of the execution hereof, CRESCENT shall provide a commercially acceptable guaranty ("Guaranty") in the form of either a letter of credit or performance bond to secure the payment of $500,000 or the installation of at least $500,000 worth of improvements to include the Gas Line and Other Improvements in paragraph 6(b) and (c) above. Prior to the release of the Guaranty by City, CRESCENT shall provide a notarized affidavit stating that all bills for labor and materials incurred have been paid in full and that any existing claims from manufacturers, materialmen, and subcontractors have been released. (f) CRESCENT shall provide to City a complete itemized sworn statement of the construction account for the Gas Line and Other Improvements installed and completed, certified by CRESCENT and its contractor as correct. City shall review said statement in order to determine that: 1) there are no discrepancies in the submittal, 2) the costs reflect the actual cost expended by CRESCENT for the Gas Line and Other Improvements, and 3) the cost of the improvements meets the requirements in this Second Amendment. (g) Paragraph 6(a), (b) and (c) above shall be subject to force majeure in regard to completion dates. (h) CRESCENT shall form the Property Owners Association (POA) called for in the proposed Crescent Pointe Protection Covenants (the "Covenants"), attached hereto as approved by the City as Exhibit "F", before any portion of COLLEGE Property is conveyed but in any case no later than June 2005. CRESCENT shall cause the POA to maintain and replace as needed the Other Improvements for a period of at least 50 years after their installation. CRESCENT shall provide evidence of the filing of the Covenants with the Brazos County courthouse to City within ten(10) days of filing. (i) Provided, if after completion of the Phase II Streets and Improvements called for in paragraph 6(a), (b) and (c) above, City has not spent the total of $4,850,000 it budgeted for Phase I and Phase II Improvements and/or CRESCENT has not spent $500,000 on Phase II Improvements, then as many of the residual Other Improvements identified in Exhibit "G" attached hereto will be completed by City and/or CRESCENT until these funding limits are attained. 45529349.5 3 (j) Upon completion of all Improvements provided for in this paragraph, neither the CITY or CRESCENT shall have any further obligations, except that 1) the City shall maintain the roadways and sidewalks and pay for the monthly electrical expenses for lighting, and shall maintain/replace lighting fixtures as needed, and 2) CRESCENT and/or POA shall maintain the Other Improvements and pay for monthly water expenses for irrigation. C. Paragraph 21 of the Original Agreement is hereby deleted in its entirety. 4. Ratification. The terms of the Original Agreement and First Amendment are modified and amended pursuant to the terms of this Second Amendment and are hereby conformed to be consistent with the terms and provisions of this Second Amendment. Except as provided in this Second Amendment, the terms of the Original Agreement and First Amendment (including, without limitation, all Exhibits attached to each thereto) are hereby confirmed and ratified for all purposes and shall remain in full force and effect as originally provided. 5. Multiple Counterparts. Multiple copies of this Second Amendment may be executed by the parties. Each such executed copy shall have the full force and effect of an original executed instrument. [signatures and acknowledgements appear on following pages] 45529349.5 4