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HomeMy WebLinkAboutRes 08-19 Approving an Economic Development Agreement with DeloitteTOWN OF WESTLAKE RESOLUTION NO. 08-19 APPROVING AN ECONOMIC DEVELOPMENT AGREEMENT WITH DELOITTE LLP FOR A LEARNING AND INNOVATION CENTER PURSUANT TO THE TOWN OF WESTLAKE ECONOMIC DEVELOPMENT POLICY AND TAX ABATEMENT POLICY; AND DECLARING AN EFFECTIVE DATE. WHEREAS, The Board of Aldermen adopted an Economic Development Incentive Policy by Resolution 06-19 on May 8, 2006, and a commercial/industrial tax abatement reinvestment zone by Ordinance 589 on March 24, 2008; and WHEREAS, pursuant to Chapter 380 of the Texas Local Government Code the Board of Aldermen of the Town of Westlake, Texas (the `Board") has adopted a program for granting public funds in the form of sales tax rebates to promote local economic development, and stimulate business and commercial activity in the Town of Westlake, Texas (the "Town"); and WHEREAS, pursuant to said policy and Chapter 380 of the Texas Local Government Code the Board finds the economic development incentive offered in the attached Agreement will promote the economic development and stimulate business and commercial activity in the Town. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF ALDERMEN OF THE TOWN OF WESTLAKE, TEXAS: SECTION l: That the Economic Development Agreement by and between the Town of Westlake, Texas, and Deloitte LLP attached hereto as Exhibit "A" and incorporated herein for all purposes is hereby approved; and further authorizes the Town Manager to execute the contract on behalf of the Town of Westlake, Texas. SECTION 2: That this Resolution shall take effect from and after its final date of passage, and it is accordingly so ordered. PASSED AND APPROVED BY THE BOARD OF ALDERMEN OF THE TOWN OF WESTLAKE, TEXAS, ON THIS 24th DAY OF MARCH 2008. Scott Brad ey, Mayor ATTEST- S TTEST: Sutter, TRMC, Town Secretary APPROV AS TO RM: L. ton L , To Attorney Jo C. Hennig, I erz own !7)ger ECONOMIC DEVELOPMENT AGREEMENT STATE OF TEXAS § COUNTIES OF DENTON AND TARRANT § This Economic Development Agreement ("Agreement") is made and entered into as of the 1st day of July, 2008 (the "Effective Date"), by and between the Town of Westlake, Texas ("Town"), a municipal corporation of Denton and Tarrant Counties, Texas, and Deloitte LLP, a Delaware limited liability partnership ("Deloitte LLP"), each acting by and through their respective authorized officers and representatives. WITNESSETH: WHEREAS, Deloitte LLP (or one of its Affiliates, as herein defined) is considering constructing certain facilities, including, but not by way of limitation, a learning and innovation center within the Town; and WHEREAS, the Town had adopted an Economic Development Policy ("Economic Development Policy") that includes a Tax Abatement Policy ("Tax Abatement Policy") by the passage of Resolution No. 06-19 on the 8th day of May, 2006, which is attached hereto as Exhibit "A" and incorporated herein for all purposes; and WHEREAS, the Town is a duly created and validly existing Type A General Law Municipality, created under the laws of State of Texas, including particularly, but not by way of limitation, Chapter 51, Texas Local Government Code ("LGC"); and WHEREAS, on the 24th day of March, 2008, the Board of Aldermen of the Town (`Board"), passed Ordinance No. 589, which is attached hereto as Exhibit "B" and incorporated herein for all purposes, establishing Reinvestment Zone No. 3, Town of Westlake, Texas ("Zone"), for commercial -industrial tax abatement as authorized by Chapter 312 of the Texas Tax Code ("Tax Code"); and WHEREAS, on the 24th day of March, 2008, the Board passed Resolution No. 0848, which is attached hereto as Exhibit "C" and incorporated herein for all purposes, establishing Neighborhood Empowerment Zone No. 2, Town of Westlake, Texas ("Zone"), as authorized by Chapter 378 of the LGC; and WHEREAS, the Economic Development Policy and the Tax Abatement Policy constitute appropriate guidelines and criteria governing economic development agreements to be entered into by the Town as contemplated by Chapter 378 and Chapter 380 of the LGC and Chapter 312 of the Tax Code, providing for the availability of economic incentives for new facilities and structures; and WHEREAS, Deloitte LLP (or one of its Affiliates), as the owner of land located within the Town, intends to develop and construct one (1) or more buildings on the Land (as defined 1380494v.11 DEL255/16000 herein), and the development and construction on such Land is expected significantly to enhance the economic and employment base of the Town; and WHEREAS, the Constitution and laws of the State of Texas, including, but not by way of limitation, Chapter 378 and Chapter 380 of the LGC, Chapter 312 of the Tax Code and the Texas Constitution, authorize the Town to enter into economic development agreements and tax abatement agreements with companies such as Deloitte LLP; and WHEREAS, the Board finds that the improvements proposed for the Land are feasible and practical and would be of benefit to the Town; and WHEREAS, the Board finds that the terms of this Agreement, the Project (herein defined) and the proposed Qualified Facilities (herein defined) meet the applicable guidelines and criteria heretofore adopted by the Board and contained in the Economic Development Policy and Tax Abatement Policy; and WHEREAS, in order to maintain and enhance the commercial and industrial economic and employment base of the Town and Tarrant County, the Board finds that it is in the best interest of the citizens of the Town to enter into this Agreement in accordance with the Economic Development Policy, the Tax Abatement Policy, the Tax Code and the LGC; and WHEREAS, a copy of this Agreement in its proposed form has been furnished by the Town, in the manner prescribed by the Tax Code, to the presiding officers of the governing bodies of each of the taxing units (other than the independent school districts) in which the Land is located; NOW, THEREFORE, the Town and Deloitte LLP, for good and valuable consideration, the adequacy and receipt of -which are hereby acknowledged, which consideration includes the attraction of major investment in the Zone and increased payroll that contributes to the economic development of the Town, the enhancement of the tax base in the Town and Tarrant County and the economic development and tax abatement incentives set forth therein below, as authorized by Chapter 378 and Chapter 380 of the LGC and Chapter 312 of the Tax Code, as amended, do hereby contract, covenant and agree as follows: Section 1. Definitions. Wherever used in this Agreement, the following capitalized terms shall have the meanings ascribed to them: "Affiliate" shall mean any entity that owns or controls, is owned or controlled by, or is under common ownership or control with, Deloitte LLP, or any entity the ownership of which is substantially the same as Deloitte LLP. "Board" shall mean the Board of Aldermen of the Town. "Direct Payment Permit" shall mean a permit granted by the State and authorized under 34 TAC Sec. 3.288 that allows for the tracking of all taxable transactions subject to sales and use tax pursuant to Chapter 321 of the Tax Code. 1380494v.11 DEL255/16000 y "Effective Date" shall mean the last date on which all of the parties hereto have executed this Agreement, which shall be no later than December 31, 2008; provided, however that such date may be extended by mutual agreement of the parties hereto. "Final Certificate of Occupancy" shall mean the final certificate of occupancy issued for a Qualified Facility. "First Renewal Date" shall mean a date that is ten (10) years from the Effective Date. "First Use" shall mean the designation of the Town as the situs for use tax purposes with respect to any purchases made by Deloitte LLP or its Affiliates which are subject to the Town's Sales and Use Taxes. "Force Majeure" shall mean any contingency or cause beyond the reasonable control of Deloitte LLP and its Affiliates, including, without limitation, acts of God or the public enemy, epidemic, war, riot, civil -commotion, insurrection, governmental or de facto governmental action (unless caused by acts or omissions of Deloitte LLP or its Affiliates), fire, explosions, Hoods, or strikes. "Hotel Occupancy Tax Receipts" shall mean the Town's receipts from the State from the collection of Hotel Occupancy Taxes by, or on behalf of, Deloitte LLP or its Affiliates, with respect to any of the Qualified Facilities. The parties expressly acknowledge and agree that the hotel occupancy tax receipts described herein are being used only as a measurement of the Town's payment of grants through the use of general funds. "Hotel Occupancy Taxes" shall mean those hotel occupancy taxes authorized by Chapter 351 of the Tax Code (entitled, "Municipal Hotel Occupancy Taxes"), or any successor statute. "Jobs" shall mean all positions held by an employee, partner or principal of Deloitte LLP or any of its Affiliates, in which such employee, partner or principal works on a full-time basis for Deloitte LLP or any of its Affiliates and has an office in, or works primarily from, the Qualified Facilities. "Land" shall mean the parcel(s) of land which is more particularly described in. "Exhibit D," attached hereto and incorporated herein for all purposes. "Minimum Threshold Eligibility Requirements" shall mean (i) the construction and maintenance of a minimum 750,000 gross square feet of total structures on the Land; (ii) the existence of at least one hundred (100) Jobs; and (iii) the expenditure of no less than $200,000,000 on Project Costs. "Phase" shall mean each portion of the Project, as developed in such order and containing such acreage as Deloitte LLP, in its sole discretion, may determine. "Phase I" shall mean a portion of the Project constructed on or before January 1, 2014, including, but not by way of limitation, a learning and innovation center, as the first Phase of the Project. 1380494v.11 DEL255/16000 "Phase II" shall mean a portion of the Project whose development begins after that of Phase I. Phase II may be constructed on the Land or on another parcel(s) of land owned by Deloitte LLP or its Affiliates that is within the Town. Should Phase II be constructed on another such parcel(s) of land within the Town, such parcel(s) shall also be considered to be "Land." "Procurement Company" shall mean a procurement company that Deloitte LLP has the right to establish which operates a business of purchasing and reselling items, including taxable items, within the State. "Project"' shall mean the improvements, related infrastructure and/or modifications approved under the Town's Planned Development Regulations and to be constructed on the Land, or with respect to Phase II, on the Land or another parcel(s) of land owned by Deloitte LLP or its Affiliates within the Town, by or on behalf of Deloitte LLP or its Affiliates. The Project includes the Qualified Facilities. "Project Costs" shall mean all costs incurred by Deloitte LLP or its Affiliates with respect to the acquisition, construction, reconstruction, improvement, and expansion, as the case may be, of the Project, whether paid or incurred prior to or after the date of this Agreement, including the cost of the acquisition of all land, rights-of-way, property rights, easements, and interests; the cost of all machinery and equipment, furniture, fixtures and other personal property; the cost of engineering and legal services; plans, specifications, surveys, and estimates of cost and of revenue; other expenses necessary or incident to determining the feasibility and practicability of acquiring, constructing, reconstructing, improving, and expanding the Project; and administrative expenses. "Qualified Facilities" shall mean the buildings and other structural components of the facility to be constructed by or on behalf of Deloitte LLP or its Affiliates as part of the Project; a single building which constitutes a part of the Qualified Facilities may be referred to as a "Qualified Facility." "Sales Tax Receipts" shall mean (1) the Town's receipts from the State from the collection of the Town's Sales and Use Taxes attributable to the purchase of taxable items by Deloitte LLP or its Affiliates or its contractors and (2) the Town's receipts from the State attributable to the collection of Total Town Sales and Use Taxes by the Procurement Company. The parties expressly acknowledge and agree that the sales and use tax receipts described herein are being used only as a measurement of the Town's payment of grants through the use of general funds. "State" shall mean the State of Texas and all taxing authorities thereof, including, without limitation, the Comptroller of Public Accounts of the State of Texas. "Total Town Sales and Use Taxes" shall mean the Town's Sales and Use Taxes plus the half percent (.5%) 4B economic development sales tax authorized by art. 5190.6, Vernon's Texas Civil Statutes, Section 4B. and the half percent (.5%) additional municipal sales and use tax (commonly known as the "sales tax for property tax relief') authorized by Section 321.507 of the Tax Code imposed by the Town (it being expressly understood that sales and use taxes are -4- 1380494v.11 DEL255/16000 being used only as a measurement of the Town's grant of lawfully available funds to Deloitte LLP pursuant to Chapter 380 of the LGC). "Town's Sales and Use Taxes" shall mean the local sales and use tax imposed by the Town other than the half percent (.5%) 4B economic development sales tax authorized by art. 5190.6, Vernon's Texas Civil Statutes, Section 4B. and the half percent (.5%) additional municipal sales and use tax (commonly known as the "sales tax for property tax relief') authorized by Section 321.507 of the Tax Code imposed by the Town (it being expressly understood that sales and use taxes are being used only as a measurement of the Town's grant of lawfully available funds to Deloitte LLP pursuant to Chapter 380 of the LGC). "Use Payment Permit" shall mean a permit granted by the State that allows for the tracking of all taxable transactions subject to sales and use tax pursuant to Chapter 321 of the Tax Code. Section 2. General Provisions. A. The Qualified Facilities are not, and shall not be, an improvement project financed by tax increment bonds. B. The Land isnot owned or leased by any member of the Board, any member of the Planning and Zoning Commission of the Town or any member of the governing body of taxing units with jurisdiction over the Land. C. This Agreement is intended to comply with the requirements of the LGC and the Tax Code and is authorized by the Texas Property Redevelopment and Tax Abatement Act of the Texas Tax Code, Chapter 312, by Chapter 378 and Chapter 380 of the LGC, by the Economic Development Policy, the Tax Abatement Policy and by the resolution of the Board authorizing execution of this Agreement. The Town represents that it has due authority to enter into this Agreement and to take actions under the relevant laws cited herein. Section 3. Term. Subject to Section 5 and Section l OB, hereof, this Agreement shall remain in full force and effect from the Effective Date until the First Renewal Date. On the First Renewal Date and each ten (10) year anniversary of the First Renewal Date (each such date, a "Renewal Date"), this Agreement shall renew for successive ten (10) year terins without any action by either party; provided, however, that on any Renewal Date, either Deloitte LLP or the Town may elect to terminate this Agreement by providing the other party not less than thirty (30) days' written notice of termination, as further described in Section 5 of this Agreement. The term of this Agreement notwithstanding, the shorter time periods specified in Sections 10 and 14 hereof shall control for the purposes specified in such sections. The tax abatements, grants and other economic development incentives granted hereby to Deloitte LLP for the Qualified Facilities and the Project shall continue for the duration of the specified term and, once all applicable conditions specified herein have been fulfilled, shall not be lost through Force Majeure events or other circumstances beyond the reasonable control of Deloitte LLP or its Affiliates, except to the extent otherwise specified in Section 5 hereof. -5- 1380494v.11 DEL255/16000 Section 4. Records and Inspections. A. Not later than February 15 of each year during the term of this Agreement, Deloitte LLP shall certify to the Town (i) the number of Jobs as of January 1 of such year, and (ii) if changed from the previous year, the aggregate number of gross square feet of office space contained in the Qualified Facilities as of January 1 of such year, as reasonably calculated by an architect retained by Deloitte LLP. B. At all times throughout the term of this Agreement, the authorized representatives of the Town shall have reasonable access to the Qualified Facilities, during normal business hours and upon at least five (5) business days' prior written notice to Deloitte LLP, for the purpose of inspecting same to ensure that the Qualified Facilities are maintained in accordance with the specifications and conditions of this Agreement; provided, however, that Deloitte LLP or its representatives shall have the right to accompany the authorized representatives of the Town on any such inspection and that such inspection shall be conducted in a manner which complies with Deloitte LLP's security procedures and which is the least disruptive of the employees and business operations of Deloitte LLP and its Affiliates. C. Deloitte LLP shall also provide the Town, in a timely manner, reasonably satisfactory evidence of all sales and use taxes and/or hotel occupancy taxes collected and/or paid by Deloitte LLP or its Affiliates for which Deloitte LLP seeks a grant pursuant to Sections 14, 15, 16 and 17 below. Section 5. Breach and Remedy: Termination. A. The occurrence of the following conditions shall constitute an event of default ("Event of Default") hereunder: (i) the Qualified Facilities for which Deloitte LLP or any of its Affiliates has received an abatement hereunder fail to satisfy the Minimum Threshold Eligibility Requirements at any time subsequent to January 1, 2014; or (ii) Deloitte LLP fails to comply with any of the material terms or conditions of this Agreement, and any such failure (hereinafter, a "breach") specified in either clause (i) or (ii), above, remains uncured for ninety (90) days fallowing Deloitte LLP's receipt of written notice (the "Breach Notice") from the Town, delivered in accordance with Section 18 hereof, of the event and nature of such breach; provided, however, that if such breach is not reasonably susceptible of cure within such ninety (90) day period and Deloitte LLP has commenced and is continuing to pursue the cure of such breach, then after first advising the Town of such cure efforts, Deloitte LLP shall automatically receive an additional ninety (90) day period within which to cure such breach. The Town may authorize additional time to cure any such breach, but is not obligated to grant such additional time. Notwithstanding anything expressed or implied herein to the contrary, no Event of Default shall exist if the failure of Deloitte LLP to fully perform its obligations hereunder is the result of a Force Majeure event. -6- 1380494v.1 t DEL255/16000 Further time for cure of a breach by Deloitte LLP shall be extended by the reasonable time Deloitte LLP is delayed by a Force Majeure event. B. Upon the occurrence and during the continuation of any uncured Event of Default, the Town shall have the right to suspend the tax abatements and grants specified in Sections 10, 11, 14, 15, 16 and 17 hereof, pursuant to a notice (the "Suspension Notice") delivered in accordance with Section 18 hereof, and thereafter to receive from Deloitte LLP, as liquidated damages, a sum equal to (i) the amount of all ad valorem taxes which were assessed against the Qualified Facilities and which would have been paid to the Town by Deloitte LLP or its Affiliates but for this Agreement, for each year in which the Event of Default occurred and was continuing, without the benefit of abatement (after taking into account any applicable exemptions), and (ii) interest thereon charged at the rate of four and one-half percent (4.50%) per year and calculated for the period commencing on the date such taxes would have been delinquent and continuing through the date of payment of such liquidated damages. The calculation of liquidated damages shall not include any penalties or late charges. Such liquidated damages shall be due and payable to the Town within thirty (30) days of the receipt by Deloitte LLP of the Suspension Notice. If the Town delivers a Suspension Notice pursuant to this Section 5, then Deloitte LLP shall thereafter have no right to receive the tax abatements and grants specified in Sections 10, 11, 14, 15, 16 and 17 hereof unless and until DeIoitte LLP has cured the breach or breaches specified in the Breach Notice. C. The remedies of Town provided herein are exclusive; all other remedies of Town including, without limitation, the remedy of specific performance or the right to seek any damages other than the liquidated damages specified above, being hereby waived, D. This Agreement shall terminate upon any one of the following (a) On the First Renewal Date, or any subsequent Renewal Date, by either party, upon not less than thirty (30) days' written notice of termination to the other party; (b) By Deloitte LLP, immediately upon written notice to the Town, if the Town fails to pay any grant within the applicable time period provided under this Agreement; and (c) Immediately upon written notice from Deloitte LLP to the Town, upon any breach by the Town of its obligations under Section 21 hereof with respect to Confidential Tax Information. Section 6, Sale, Assignment or Lease of Property_. Deloitte LLP shall have the right, without the Town's consent, to transfer, convey or lease all or any portion of the Land, the Project or the Qualified Facilities to one or more of its Affiliates and, in connection therewith, to assign to such Affiliates all or any portion of Deloitte LLP's rights and obligations under this Agreement, provided that each assignee assumes the -7- 1380494v.1 I DEL255/16000 applicable terms and conditions of this Agreement. All other assignments of all or any portion of Deloitte LLP's rights and obligations under this Agreement shall require the prior approval of the Board. Deloitte LLP shall notify the Town pursuant to Section 18 of any proposed assignment requiring the Board's approval at least fifteen (15) days prior to the proposed effective date of such assignment. The approval of the Board of such assignment shall not be unreasonably withheld. Section 7. Waiver of Fees. A. The Town agrees that it shall waive all of the fees related to the construction of buildings in the Zone, including Impact Fees (as such term is defined in Chapter 395 of the LGC), for Phase II. B. All fees assessed by Town against Deloitte LLP or its Affiliates for all phases of the Project other than Phase Il shall be made in strict compliance with Chapter 378 and Chapter 395 of the LGC, as appropriate, and Deloitte LLP does not waive, and hereby expressly retains, all rights to challenge any such fee assessed by the Town. Section 8. Permittiny Process. A. The Town agrees that any permit or application submitted in connection with the Qualified Facilities that requires action by the Town, including, but not limited to, applications for: (a) zoning; (b) site plan and plat approval; (c) building permits; (d) certificates of occupancy; and (e) water, sewer and/or drainage improvements or connections shall be entitled to priority and shall be reviewed and approved as expeditiously as possible. Section 9. Mutual Assistance. The Town hereby agrees to cooperate with Deloitte LLP and its Affiliates in filing, whether solely or in conjunction with other parties, appropriate applications with county, state or federal agencies for grants, loans or other economic, non -economic, and infrastructure cost assistance, to benefit the Project, if requested by Deloitte LLP. Section 10. Tax Abatement. A. The parties acknowledge that the Town does not currently levy ad valorem taxes against real or personal property within the Town, and the Town does not -8- 1380494v.I I DEL255/16000 anticipate levying such taxes in the foreseeable future. However, as a material inducement to Deloitte LLP and its Affiliates to construct the Qualified Facilities, the Town hereby grants a tax abatement of severity -five percent (75%), such that Deloitte LLP and its Affiliates shall pay twenty-five percent (25%), of all real and personal property ad valorem taxes which may hereafter be assessed by the Town and which may be abated under Ch. 312 of the Tax Code (or any successor statute) on each Qualified Facility constructed in the Project. B. The term of the tax abatement for each Qualified Facility constructed shall extend for a period of ten (10) years from the date of issuance of the Final. Certificate of Occupancy for such Qualified Facility. Any tax abatement approved hereunder shall survive the termination of this Agreement and remain in force so long as Deloitte LLP complies with the Minimum Threshold Eligibility Requirements. Section 11. Grants. The Town recognizes that the abatement of future ad valorem taxes, as provided in Section 10, above, constitutes a material inducement to Deloitte LLP and its Affiliates to construct the Qualified Facilities. If the Town elects to levy ad valorem taxes against real or personal property within the Town and the tax abatement and grant provisions contained in Section 10 hereof are determined to be unenforceable or unlawful or are rendered unenforceable or unlawful by the passage of any federal or state law, Town shall make, and hereby makes, economic development grants to Deloitte LLP, such grants to equal the amount of the ad valorem taxes that otherwise would have been abated and rebated in accordance with Section 10 hereof and such grants shall remain in effect for the same period tax abatements would have been in effect pursuant to subsection 10.8 above. Section 12. Right of Protest. A. Deloitte LLP and its Affiliates shall have the right to protest, contest or litigate: (a) any assessment of the value of the Project by any appraisal district which appraises real or personal property on all or any part of the Project; and, (b) any tax imposed on the Project by any taxing authority. The tax abatement (or, if applicable, the grants) provided for herein shall be applied to the amount of taxes finally determined to be due as a result of any such protest, contest or litigation. B. Except as expressly provided, this Agreement shall not be construed to in any way modify Deloitte LLP's or any of its Affiliates' right to protest, contest or litigate any and all Impact Fees, ad valorem taxes or any other taxes, fees or charges which may be levied or assessed by the Town or any other entity on the Project or Deloitte LLP's or any of its Affiliates' operations at the Project. Notwithstanding the foregoing, in the absence of either a casualty to the Qualified Facilities or a reduction in average property value in the Town (as measured against the average property value in the Town as of the date of this Agreement) of 25% or greater, any protest of ad valorem taxes by Deloitte LLP or its Affiliates after the completion of Phase I resulting in an appraised value for the Qualified Facilities of less than $50,000,000 shall constitute an Event of Default. -9- 1380494v.11 DEL255/16000 Section 13. Annual Application for Tax Exemption. It shall be the responsibility of Deloitte LLP, pursuant to Section 11.43 of the Tax Code, if any, to file an annual exemption application form with the chief appraiser for each appraisal district in which the Project has situs. Section 14. Cha ter 380 Grant Based Upon Sales Taxes. A. Pursuant to the authority granted by Chapter 380 of the LGC, Deloitte LLP shall receive from the Town a grant in the amount equal to one hundred percent (100%) of the Sales Tax Receipts pertaining to the Town's Sales and Use Taxes that were paid by Deloitte LLP, its Affiliates or their respective contractors within the applicable period described herein for any Project Costs, except with respect to those Project Costs incurred by the Procurement Company. The sales tax grant period created under this Section 14 shall commence on the Effective Date of this Agreement and shall expire for each building that comprises any portion of the Qualified Facilities on the date that is sixty (60) months following the date the Town issues a building permit for the construction of such building. B. The sales tax grants made hereunder shall be paid solely from lawfully available funds that have been appropriated by the Town. The Town will ensure that the amount of funds appropriated is sufficient to ensure the payment of grants in the amount identified in subsection 14.A., above. Under no circumstances shall the Town's obligations hereunder be deemed to create any debt within the meaning of any constitutional or statutory provision. C. Deloitte LLP shall use diligent and good faith efforts to manage all construction comprising or related to the Qualified Facilities to maximize, to the extent practicable and reasonable for Deloitte LLP, the amount of sales tax collection by the Town by having a point of sale in the Town in accordance with all applicable law. D. All grants referenced herein shall be paid quarterly to Deloitte LLP within sixty (60) days following the end of the calendar quarter in which the relevant Sales Tax Receipts were received by the Town. The amount to be granted shall be determined based on the relevant Sales Tax Receipts received by the Town pertaining to, or on behalf of, Deloitte LLP or its Affiliates. Section 15. Chapter 380 Grant Based Upon Economic Development Incentive Avreement Revenues. A. Pursuant to Texas law, Deloitte LLP shall have the right to establish the Procurement Company. Upon Deloitte LLP's request, the Town will enter into an economic development incentive agreement with Deloitte LLP, in the form attached hereto as Exhibit "E" (the "Economic Development Incentive Agreement"). Whereupon, pursuant to the terms of the Economic Development Incentive Agreement, Deloitte LLP will use the Procurement Company (which is sited within the Town), to the extent practicable and reasonable (and to the extent -10- 1380494v.]1 DEL255/16000 appropriate in light of Deloitte LLP's use of the Direct Payment Permit described in Section 16, below), to make purchases for the operations of Deloitte LLP and its Affiliates within the State of Texas. Deloitte LLP and the Town agree that the failure by any third party to observe or comply with the terms of the Economic Development Incentive Agreement shall not be attributable in any way to Deloitte LLP or the Town. B. Pursuant to the authority granted by Chapter 380 of the LGC, the Town shall make a grant to Deloitte LLP, or, as Deloitte LLP may direct, to one of its Affiliates in an amount equal to 75% (excluding sales tax revenues from the half percent (.5%) 4B economic development sales tax authorized by art. 5190.6, Vernon's Texas Civil Statutes, Section 4B) of Total Town Sales and Use Taxes collected through the Economic Development Incentive Agreement. The parties expressly acknowledge and agree that the sales and use taxes described herein are being used only as a measurement of the Town's payment of grants through the use of general fiends. C. The sales tax grants made hereunder shall be paid solely from lawfully available funds that have been appropriated by the Town. The Town will ensure that the amount of funds appropriated is sufficient to ensure the payment of grants in the amount identified in subsection A., above. Under no circumstances shall the Town's obligations hereunder be deemed to create any debt within the meaning of any constitutional or statutory provision. Section 16. Cha ter 380 Grant Based Upon Sales/Use Taxes and Direct Pa ment Permit. A. Pursuant to Texas law, Deloitte LLP shall have the right to seek to obtain a Direct Payment Permit, which would establish First Use within the Town. B. If Deloitte LLP obtains such a Direct Payment Permit, pursuant to the authority granted by Chapter 380 of the LGC, Deloitte LLP shall receive from the Town a grant in the amount equal to one hundred percent (100%Q) of the Sales Tax Receipts pertaining to the Town's Sales and Use Taxes that were paid by Deloitte LLP or its Affiliates. C. The sales/use tax grants made hereunder shall be paid solely from lawfully available funds that have been appropriated by the Town. The Town will ensure that the amount of funds appropriated is sufficient to ensure the payment of grants in the amount identified in subsection 16.B., above. Under no circumstances shall the Town's obligations hereunder be deemed to create any debt within the meaning of any constitutional or statutory provision. D. If Deloitte LLP obtains such a Direct Payment Permit, Deloitte LLP shall use diligent and good faith efforts to manage all relevant costs related to the Qualified Facilities to maximize, to the extent practicable and reasonable for Deloitte LLP (as well as to the extent appropriate in light of Deloitte LLP's use of the -11- 1380494v.11 DEL255/16000 Procurement Company described in Section 15, above), the amount of sales and use tax collection by the Town in accordance with all applicable law. E. All grants referenced herein shall be paid quarterly to Deloitte LLP within sixty (60) days following the end of the calendar quarter in which the relevant sales tax receipts were received by the Town. The amount to be granted shall be determined based on the relevant Sales Tax Receipts received by the Town pertaining to the Project, by or on behalf of Deloitte LLP or its Affiliates. Section 17. Cha ter 380 Grant Based U on Hotel Occupancv Taxes. A. Pursuant to the authority granted by Chapter 380 of the LGC, Deloitte LLP shall receive from the Town a grant in an amount equal to fifty percent (50%) of the Town's Hotel Occupancy Taxes collected by Deloitte LLP or its Affiliates with respect to any of the Qualified Facilities, but said grant shall not exceed $100,000 in any calendar year. The grant period created under this Section 17 shall commence with the beginning of the calendar year following the issuance of a certificate of occupancy for each Qualified Facility within the Project. B. The grants referenced herein shall be paid solely from lawfully available funds that have been appropriated by the Town. The Town will ensure that the amount of funds appropriated is sufficient to ensure the payment of grants in the amount identified in subsection 17.A., above. Under no circumstances shall the Town obligations hereunder be deemed to create any debt within the meaning of any constitutional or statutory provision. C. All grants referenced herein shall be paid to Deloitte LLP within sixty (60) days of the end of each calendar quarter. The amount to be granted shall be determined based on the relevant Hotel Occupancy Tax Receipts received by the Town pertaining to the Project, collected by or on behalf of Deloitte LLP or its Affiliates. Section 18. Notice. Any notice, demand, or other communication required to be given or to be served upon any party hereunder, shall be void and of no effect unless given in accordance with the provisions of this Section. All notices shall be in writing and shall be delivered personally or sent by overnight courier service, by certified or registered mail, postage pre -paid, or by facsimile transmission and shall be deemed received, in the case of personal delivery, when delivered, in the case of overnight courier service, on the next business day after delivery to such service, in the case of mailing, on the third day after mailing (or, if such day is a day on which deliveries of mail are not made, on the next succeeding day on which deliveries of mail are made) and, in the case of facsimile transmission, upon transmittal. All notices, demands and other communications shall be given to the parties hereto at the following addresses: -12- 1380494v.11 DEL255/16000 Deloitte LLP: Frank Friedman _ Partner Deloitte LLP 1100 Walnut Street, Suite 3300 Kansas City, MO 64106 With Copies to: Deloitte LLP Office of General Counsel 1633 Broadway New York, New York 10019 Town: Tom Brymer Town Manager Town of Westlake 3 Village Circle, Suite 202 Westlake, Texas 76262 With copy to: L. Stanton Lowry Boyle & Lowry L.L.P. 4201 Wingren, Ste. 108 Irving, Texas 75062 Each party may change the address to which notice may be sent to that party by giving notice of such change to the other parties in accordance with the provisions of this Agreement. Section 19. Town Authorization. This Agreement was authorized by resolution of the Board that was approved by the affirmative vote of a majority of the Board at its regularly scheduled Board meeting on the 24th day of March, 2008, authorizing the Town Manager to execute this Agreement on behalf of the Town. An amended version of this Agreement was authorized by motion of the Board that was approved by the affirmative vote of a majority of the Board at its regularly scheduled Board meeting on the 28th day of April, 2008. Town represents and warrants to Deloitte LLP that Town may lawfully perform its obligations under this Agreement. Section 20. Deloitte LLP Authorization. The individual executing this Agreement on behalf of Deloitte LLP represents to the Town that all appropriate and necessary action has been taken to authorize such individual to do so for and on behalf of the party for which his or her signature appears, that there are no other parties or entities required to execute this Agreement in order for the same to be an authorized and binding agreement, and that such authorization is valid and effective on the date hereof. -13- 1380494v.11 DEL255/16000 Section 21. Confidentiality. Except as disclosure is required by law, the Town agrees to keep all non-public information and documentation relating to Deloitte LLP or its Affiliates that it obtains in connection with this Agreement (the "Confidential Tax Information") confidential. The Town will only provide access to the Confidential Tax Information to its employees on a "need -to - know" basis. The Town will use the Confidential Tax Information solely for the purposes of determining the respective amount of each grant and for no other purpose, and the Town; will not, without Deloitte LLP's prior written authorization: (a) disclose to any other person, use or exploit the Confidential Tax Information (other than as expressly permitted above) or (b) discuss Deloitte LLP or its affairs with any person other than Deloitte LLP's representatives. The Town's obligations under this Section 21 shall survive the termination of this Agreement. Notwithstanding the above, the Town and Deloitte LLP expressly understand and agree that should any third party request the Confidential Tax Information pursuant to the Texas Public Information Act, the Town's sole responsibility shall be to seek a written determination from the Texas Attorney General as to whether any or all of the Confidential Tax Information must be released as a public record. Section 22. Severability. In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. Section 23. Estoppel Certificate. Any party hereto may request an estoppel certificate from another party hereto so long as the certificate is requested in connection with a bona fide business purpose, and each party agrees to promptly execute and deliver any reasonable estoppel certificate requested pursuant to this Section. The certificate, which will upon request be addressed to Deloitte LLP, or a lessee, purchaser or assignee of Deloitte LLP, shall include, but not necessarily be limited to, statements (qualified to the best knowledge of the party providing the estoppel) that this Agreement is in full force and effect without default (or if a default exists, the nature of such default and any curative action which should be undertaken to cure same), the remaining term of this Agreement, and such other matters reasonably requested by the party(ies) to receive the certificate. Any such certificate on behalf of the Town shall be executed by the Mayor of the Town. Section 24. Applicable Law. This Agreement shall be construed under the laws and court decisions of the State of Texas. Venue for any action under this Agreement shall be the State District Court of Tarrant County, Texas. This Agreement is performable in Tarrant County, Texas. -14- 1380494v.11 DEL255/16000 Section 25. Recordation of Agreement. A copy of this Agreement in recordable form may be recorded by either party in the Real Property Records of Tarrant County, Texas. Section 26. Entire Agreement, This Agreement constitutes the entire agreement between the parties regarding the subject matter contained herein, supersedes any prior understanding or written or oral tax abatement agreements or representations between the parties regarding the matters contained herein, and can be modified only by a written instrument subscribed to by both parties. This Agreement may be executed in multiple counterparts, each of which shall be considered an original for all purposes. Section 27. Successors and. Assigns, Subject to the provisions of Section 6 hereof, this Agreement shall be binding on, and shall inure to the benefit of, the legal representatives, successors and assigns of the Town and Deloitte LLP. Section 28. Further Assurances. The Town and Deloitte LLP shall timely take all actions reasonably necessary and/or appropriate to carry out the terms and provisions of this Agreement, and to aid and assist each other in carrying out the terms and provisions of this Agreement to allow for the full development of the Project. (SIGNATURE PAGES FOLLOW) -15- 1390494v.I I DEL255/16000 EXECUTED to be effective as of the date first set forth above. ATTEST• By _m Su er, TRMC, Town Secretary APPROVED AS T (ItM L. ton.Lbwry Town Attorney TOWN OF WESTLAKE, TEXAS, a municipal corporation By: Name: Torn Brymer Title: Town Manager DELOITTE LLP, a Delaware limited liability partnership By: Name: vI'/e Title: :�' Signature Page to Economic Deti�elopmentAgreement STATE OF TEXAS COUNTY I This instrument was acknowledged before me on 1 - , 2008, by Tom Brymer, the Town Manager of the Town of Westlake, Texas, a municipal corporation, on behalf of said municipal corporation. !�s GINGER ROBERTS AWTRY :� ' ni Notary Public, State of Texas MY Commission Expires Ito, �`' SePlafnbor 26, 2010 C Y� Notary Pbl c in and for the State of Texab Printed/T' ed Name of Notary My Commission Expires Notary Signature Page a 6, ';�DIZ7 This instrument was acknowledged before me on2008 by 1C in his/her capacity as a partner/principal of Deloitte LLP, on behalf of said partnership. Notary Publi �fortl�6e of Printed/ yped Name of Notary My Commission Expires: Ab-3bq�,>,D Xotaf y Signature Page El: AMY SCHA'FEPFER; OF MY C�MMPSSION EXP!RPSSTATE May 23, 2009 COUNTY._S_ This instrument was acknowledged before me on2008 by 1C in his/her capacity as a partner/principal of Deloitte LLP, on behalf of said partnership. Notary Publi �fortl�6e of Printed/ yped Name of Notary My Commission Expires: Ab-3bq�,>,D Xotaf y Signature Page EXHIBIT A TOWN OF WESTLAKE RESOLUTION NO. 06-19 A RESOLUTION OF THE BOARD OF ALDEMIEN OF THE TOWN OF WESTLAKE, TEXAS, ADOPTING AN ECONOMIC DEVELOPMENT INCENTIVE POLICY. WHEREAS, the Town of lWestlake, Texas, relies upon the generation of Sales and Use Taxes for basic city operations; and `WHEREAS, the Town of Westlake aggressively pursues sales tax producing enterprises that meet the Town's high development standards; and VVHEREAS, Chapter 312 of the Texas Tax Code requires that guidelines and criteria be adopted by the Board of Aldermen before entering into any Economic Development AeTeement that provides reimbursement of taxes; and 11'HEREAS, Chapter 380 of the Texas Local Ooveniment Code allo,�%s the Board of Aldermen to create policies for economic development and any related grants or incentives. NONV, THEREFORE, BE IT RESOLVED BY THE BOARD OF ALDERMEN OF THE TON IST OF I}'£STL.A M, TEXAS: SECTION 1: The above findings are hereby found to be true and correct and are incorporated herein in its entirety. SECTION 2: The Board of Aldermen of the Taivn of `,Westlake, Texas, adopts the attached Exhibit A, Town of 'Westlake Economic Dei clopment Incentive Police and directs the Town Manager to immediately submit an Economic Development Agreement to the Board of .1ildermen consistent with the terms of this policy. PASSED AND APPROVED Oi,, THIS 8th DAY OF IMAY• "005. ATTEST: Ti ALI-4 anD;: annell, To.n Secretin APPRO S F R -M: L. Canton o To Attorney �z Scott Brad ev. Mayor Trent O. Pett.. ,n 1�Iara�er EXHIBIT A WE50 No. oti B. Specific considerations for approving tax abatement applications will be based upon the degree to which the proposed project: • Furthers the goals and objectives of the Town as expressed in the Town's Comprehensive Plan, Planned Development District Ordinances, and infrastructure plans; • Impacts the To Am's costs and ability to provide municipal senices; • Impacts the local environment, housing market, and available infrastructure; • C?fifers potential for long term payback in tax and -tor other revenues for the To, n's investment; • Potentially stimulates other desirable economic de"elopment ti%ithin the Town. C. Terra of the Abatement — A tax abatement may be granted for a Maximum of ten years_ The term of the abatement ma%, be granted for a lesser number of years depending upon the anticipated `value added" to the Town. Section IV, NF21ue of the Project The amount of the Incentive tivill be determined by the Board of Aldermen based upon the merits of the economic development project (the "Project"), including: but not limited to, the factors referenced in paragraph 111. B. (above) and the following specific economic considerations: • total capital investment: • added employment; generation of other tax revenues. Incentives may be granted only for the additional value of eligible prflperty improvements described in the Project and listed in the executed ta-X abatement agreement Target thresholds are established as expected qualifi-ME lei els for abate-nent consideration as indicated in paragraphs A and B as follows: A. For Nev; Businesses or Development - The Project must be reasonably expected to produce an added value of five million dollars (55,000,000) in real and personal property improvements -within the To-vn of'Westlake, or to create a minimum of 200 Ml- tirne jobs. or to generate annual sales tax revenues to the Town of at least S l 00,0C)O. B. For Expansion or lodernizanon of Existing Burin sses or Development _The Project must be reasonabl}° expected to produce an added value of t- o million d.,�llars (S2,000,000) in real and personal property impMvernents N% thin the Tov,'n. or to create a minimum ;�e cf 100 full time jobs. or to erate additionai annual sales tax revertues 10 the Town of at least S-50.000, Section i'. Inspection, N'erihcation and lnccsitive Modification The terms of an Incentive Agreement shall include the To,,�n's richt to - 2 (a) require the submission of an annual certification of compliance for the property receiving an Incentive, (b) conduct an on-site inspection of the project in each year during the life of the Incentive to verifi' compliance with the terms of the Agreement and the Policy; and (c) reduce or eliminate the Incentive if the applicant has failed to comply with the requirements of the Incentive Agreement. Section VL Evaluation Upon completion of the Project, the Town shall no less than annual])' evaluate each Project receiving an abatement to insure compliance -lith the terms of the agreement. Any incidents of non-compliance will be reported to all affected taxing units. Section N"11. Severabilih• and Limitation In the event that any section; clause, sentence, paragraph or any part of this policy shall, for any reason, be adjudged by any court of competent jurisdiction to be invalid, such invalidity, shall not affect, impair, or in% alidate the remainder of the guidelines and criteria in this Policv. Section 'DTIII. Expiration and Modification This Policy is effective upon the date of its adoption and will remain in force for t`3 -o years, at which time Incentive .Agreements created pursuant to its provisions «ill be reviewed by the Board of Aldermen to determine whether the objectives of the policy are being achieved. Based upon that review, this Policy -may be rnodif ed, renewed or eliminated. Ho -Wever, any Incentive Contracts created pursuant to this folic) ,rill remain in effect accordingg to their respective terms mrithout regard to any change to this pc!lic) unless mutually agreed by the parties_ Section IX, Economic Development Grants, Loans, and Other Incentives A. Any application for economic development grants, loans, and other incentij-es shall be reviewed and approved or disapproi°ed by the Board of Aldermen. In the rtvi_Nv Process, the Board of Aldermen will if applicable. consider the recomrilendations of the Westlake Development Corporation ander the \'Vestlake 4A Corporation. ?niv such economic development grants, loans. and other incentives nlav corn_ from any one er combination of the following: ® Grants or loans as authorized by Chapter 380 of the Texas Local CTorernment Code: R The general Sales and Llse taxes of the Tov.-n.. s Sales and Usy taxes collected nu,5u_n11t to=Ct; f1 �-I and t!r 4f3 C!f 5 1 90.6, Tex. Bev_ Cir. Stat.; and /or i ® Any other ]a-wful source of revenue of the Town including, but not limited to, bond or other debt financing -which further the purpose of economic development. B. To be eligible to apply and qualif}, for consideration of any grants, loans, and other incentives under this Section, the applicant must submit documentation, and enter into an Incentive Agreement, which indicates the specific details of the Project and compliance,with the Policy. P-',FJ;\{e-Lo�mAx. n Lakeni- agree,: enu'.sxI-acr c,�v. d:ti iric pcli.� ,iae EXHIBIT B TO'4'4'N OF VS'ESTLAKE ORDINANCE NO. 589 AN ORDINANCE OF THE TOWN OF WESTLAKE, TEXAS, DESIGNATING COMl1IERCIAL/INDUSTRIAL TAX ABATEMENT REINVESTMENT ZONE NO. THREE (3), IN THE TO'4'4'N OF WESTLAKE, TARRANT AND DENTON COUNTIES, TEXAS; PROVIDING AN EFFECTIVE DATE; AND PROVIDING A SEVERABILITY CLAUSE. WHEREAS, the Board of Aldermen ("Board") of the Town of Vl'estlake, Texas ("Town"), desires to promote the development or redevelopment of a certain contiguous geographic area within its jurisdiction by the creation of a reinvestment zone ("Zone ) for commercial/industrial tax abatement; as authorized by Chapter 312, Property Redevelopment and Tax Abatement Act, Texas Tax Code, Subchapter B, Sections 12.201 and 312.202, as amended (the "Code"); and WHEREAS, the Town has elected to become eligible to participate in tax abatement, and WHEREAS, a public hearing at a regularly scheduled meeting before the Board was held at 7.00 p.m. on the 24` day of March, 2008, such date being at least seven (7) dans after the date of publication of the notice of such public hearing in a newspaper having general circulation in the Town as required by the Code; and WHEREAS, notice of the public hearing was delivered to the presiding officer of the governing body of each taxing unit located within the proposed reinvestment zone at least seven (7) days before the date of the public hearing; and WHEREAS, the Town at such hearing invited all interested persons, or their representatives, to appear and speak for or against the creation of the proposed reinvestment zone, the boundaries of the proposed reinvestment zone, whether all or part of the territory described in this ordinance should be included in such proposed reinvestment zone, and the concept of tax abatement; and WHEREAS. all interested persons spoke and the proponents of the reinvestment zone offered evidence, both oral and documentary, in favor of the creation of the proposed reinvestment zone and the proponents also submitted evidence as to the proposed improvements_ NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF ALDERMEN OF THE TOWN OF WESTLAKE, TEXAS: SECTIO` 1. That the facts and recitations contained in the preamble of this ordinance are hereby found and declared to be true and correct and are incorporated herein in their entirety. SECTION 2. The Town. after conductingsuch hearings and having heard such evidence and testimony, has made the following findings and determinations based on the testimony and evidence presented to it: 4 (a) That a public hearingon the designation of the reinvestment zone has been properly called, held and conducted and that notices of such hearings have been published as required by law and delivered to all taxing units located within the proposed reinvestment zone; (b) That the boundaries of the reinvestment zone should be the area as described in the metes and bounds description attached hereto and identified as Exhibit "A", Which are incorporated herein for all purposes and which area is within the taxing jurisdiction of the Town; (c) That the creation of the reinvestment zone for commercial/industrial tax abatement, with boundaries as described in Exhibit "A" attached hereto will result in benefits to the Town and to the land included in the Zone and to the Town after the expiration of any Tax Abatement Agreement entered into and the improvements sought within the Zone are feasible and practical; (d) That the reinvestment zone as defined in Exhibit "A" attached hereto meets the criteria for the creation of a reinvestment zone as set forth in the Code, as amended; in that it is reasonably likely as a result of the designation to contribute to the retention or expansion of primary employment or to attract major investment in the Zone that would be a benefit to the property and that would contribute to the economic development of the Town; and (e) That the reinvestment zone as defined in Exhibit "A" attached hereto meets the criteria for the creation of a reinvestment zone -as set forth in the Town of Westlake Tax Abatement Policy, which Policy establishes guidelines and criteria governing tar` abatement agreements by the Town and provide for the availability° of tax abatement for both new facilities and structures and for the expansion or modernization of existing facilities and structures. SECTION 3. That pursuant to the Code, the Town hereby- creates a reinvestment zone for conimerciallindustrial tax abatement encompassing only the area described by the metes and bounds in Exhibit "A" attached hereto and such reinvestment zone is hereby designated and shall hereafter be designated as Reinvestment Zone No. Three (3), Town of Westlake, Texas. SECTION 4. That the Town shall deliver to the Texas Comptroller's Office prior to May 1. 2008. a general description of the reinvestment zone, including its size; the types of property located in it, its duration, and the guidelines and criteria established for the reinvestment zone wider Section 312.002 of the Code, including subsequent amendments and modifications of the guidelines or criteria. SECTION 5. That the Zone shall take effect on the .20' day of March. 2008. SECTION G. If any portion of this ordinance shall; for any reason, be declared invalid by an court of competent jurisdiction, such invalidity shall not affect the remaining provisions bereof and the Board hereby determines that it i ould have adopted this ordinances without the imralid provision. PASSED AND APPROVED ON THIS 24" DAA' OF MARCH 2'008. ATTEST: kirl�Stirtter.. TP—MC, Tm n Secretary APPROVED'".S TO FMI.,": ALo-,M'. StaONN _ ornev C�- ScottBradiev, Manor Joe Hermia nterim T zn M nager EXHIBIT 'A' LEGAL DESCRIPTION ORD NO. 589 PROPOSED REINVESTMENT ZONE BEING a tract of land situated in the Jesse Gibson Survey, Abstract Number 592, the G. Hendricks Survey, Abstract Number 680, and the Jesse Sutton Abstract No. 145 land the Chas Medlin Sun,ey, Abstract Number 1958, Tarrant County, Texas, and being situated in the Jesse Sutton Abstract No. 1154 Denton County Texas and being a portion of that certain tract of land (Tract 2) as described by deed to AIL Investment, L.P., as recorded in Volume 13275, Page 542, County Records, Tarrant County, Texas, and a portion of those tracts of land (tracts 1 & 2) as described by deed to AIL Investment, L.P., as recorded in Volume 13883, Page 335, County Records, Tarrant County, Texas, and a portion of that certain tract of land described by deed to Lakeway Land, Ltd., as recorded in Volume 13978, Page 222, County records, Tarrant County, Texas, and being more particularly described by metes and bounds as follows: BEGINNING at a point in the north line of proposed Roanoke -Dome Road where it intersects the w=est line of said AIL Investment tract (Volume 13583, Page 335 tract 2); THENCE N 00008' 56"W, 664.08 feet; THENCE S89059'38"W, 23.21 feet; THENCE N 00°04'20"E, 200.04 feet; THENCE S 89°47'29"W, 391.05 feet; THENCE N 00'09'35"W, 461.81 feet; THENCE N 00°02'25"W, 818.71 feet; THENCE N 43012'43"E, 127.27 feet to the beginning of a curve to the left; THENCE 320.00 feet along the arc of said curve, through a central angle of 37"20'29 Nvhose radius is 491.00 feet, the long chord of which bears N440 49'54"E, 314.37 feet; THENCE N 2'6009'38"E, 100.00 feet to the beginning of a can e to the right; THENCE 124.87 fret along the arc of said curve, through a central angle of 12'5415 1 radius is 554.00 feet, the long chord of which bears N32°37'03"E, 124.60 feet; THENCE N 39°04'28"E, 195.82 feet; THENCE N 494743" WT, 121.24 feet to the beginning of a cun•e to the right: THENCE 551.£3 feet along the arc of said curve, through a central angle of 27°15'77", whose radius is 1159.96 feet, the lona chord of which bears N7 - "'W. 546.64 feet; Cfi.B Job No. 015007.102 ACF -?359 AGS +larch 18, 2008 J]ob`;O1SO07102tsur,N'.p,leg`reinNestrrjrt Pao,. t of', THENCE N 00041'56"W, 1439.38 feet; THENCE S 75°35'35"E, 821.08 feet to the beginning of a curse to the right; THENCE 371.00 feet along the arc of said cMe, through a central angle of 48°18'39", whose radius is 440.00 feet, the long chord of which bears S51°26'16"E, 360.11 feet; THENCE S 27°16'56"E, 214.64 feet to the beginning of a cun-e to the left; THENCE 880.40 feet along the are of said can=e, through a central angle of 90°04'39", -hose radius is 560.00 feet, the long chord of which bears S72°19'15"E, 792.49 feet; THENCE N 62°38'25"E, 197.55 feet to the beginning of a come to the left; THENCE 1075.06 feet along the arc of said can°e, through a central angle of 54°23'23", whose radius is 1132.50 feet, the long chord of much bears S59020'00"E, 1035.15 feet; THENCE S 86031'42"E, 199.20 feet to the beginning of a curve to the left; THENCE 554.97 feet along the arc of said cun'e, through a central angle of 15°16'08", whose radius is 2052.50 feet, the long chord of which bears N85050'14"E, 553.33 feet; THENCE N 78012'1 O"E, 500.32 feet; THENCE S 09°34'05"E, 892.93 feet; THENCE S 16042'32"W, 1518.12 feet; THENCE S OY53'35"E, 573.79 feet; THENCE S 11 °28'06"E, 564.14 feet; THENCE S 70037'22'7W, 349.16 feet to the beginning of a cutup' to the right; THENCE 253.38 feet along the arc of said cuixe, through a central ancle of 19021'24", whose radius is 750.00 feet, the long chord of which bears SSU°18'Oi4"��', 252.18 feet; THENCE S 89;_58'46-"', 1261.17 feet; THENCE 89°00'39"W, 1253.71 feet; THENCE S 87042'32"W, 715,15 feet: THENCE S 98040"26"W, 272.28 feet to the POINT OF BEGI,' ?NrNG and containing 357.95 acres of land, more or less. C&B Job No. 0115007.102 nCF ^73359 AGS March IS, 2008 jl,'ob`,01500 7 102'st�r`,�� f`,leg''seinti estriet Page 2 of 3 THIS LEGAL DESCRIPTION IS FOR CONTRACT PURPOSES ONLY AND SHOULD NOT BE USED FOR THE CONVEYANCE OF REAL PROPERTY. C -B Job No. 015007.102 ACF ,#2359 AGS I'j Crr(1�n 7I, _ March 15, 2008 ��U�'10jJt10�1U21Sur`.t��7;'.���tir271it�ti�I37EI n.,r... � _r -s iL - - k, ti TOWN OF WESTLAKE NO. 08-18 DESIGNATING A NEIGHBORHOOD EMPO'kti'ER-MENT ZONE IN THE TOWN OF WESTLAKE, TARRANT AND DENTON COUNTIES, TEXAS; PROVIDING AN EFFECTIVE DATE; AND PROVIDING A SEVERABILITY CLAUSE. WHEREAS, the Board of Aldermen ("Board") of the Town of Westlake, Texas. ("Town"), desires to promote and increase economic development in the To«n, and the property described herein, pursuant to Chapter 378 of the Texas Local Government Code; NOW, THEREFORE, BE IT RESOL17ED BY THE BOARD OF ALDERMEN OF THE TOWN OF WESTLAKE, TEXAS: SECTION 1: That the facts and recitations contained in the preamble of this resolution are hereby found and declared to be true and correct and are incorporated herein in their entirety. SECTION 2: That the Board of the Town hereby finds and determines that: (a) That the creation of a Neighborhood Empowerment Zone ("Zone') would promote ars increase in economic development in the Zone; (b) The property to be contained within the Zone is described in attached Exhibit "A" and incorporated herein in its entirety; (c) That the creation of the Zone benefits and is for the public purpose of increasing public health; safety and-%velfare of the persons in the To -,,,-n, and the creation of the Zone satisfies the requirements of Section 312.202 of the Texas Tax Code. SECTIQN 3: That pursuant to Chapter 378 of the Teras Local Government Code. the Toi;n hereby creates the Zone in the earlier described Exhibit "A.". attached hereto and incorporated herein. SECTION 4: That the Zone shall take effect on the 24'day of March. 2008. SECTION 5: If any portion of this Resolution shall, for any reason; be declared invalid by any court of competent jurisdiction. such invalidity shall not affect the remaining provisions hereof and the Board hereby_ detennines that it would have adopted this Resolution without the invalid provision. PASSED AND APPROVED ON THIS 24TH DAY OF MARCH 2005. ATTEST: in) Sutter, TRA4C, Town Secretary APPROVED AS TO FORM: S Los,Tv. o tto ev G� Scott Bradley, Mayor EXHIBIT 'A' LEGAL DESCRIPTION RSO NO. 08-18 PROPOSED REINVESTMENT ZONE BEING a tract of land situated in the Jesse Gibson Survey, Abstract Number 592, the G. Hendricks Survey, Abstract Number 680, and the Jesse Sutton Abstract No. 1451and the Chas Medlin Survey, Abstract Number 1958, Tarrant County, Texas, and being situated in the Jesse Sutton Abstract No. 1154 Denton County Texas and being a portion of that certain tract of land (Tract 2) as described by deed to AIL Investment, L.P., as recorded in Volume 13275, Page 542, County Records, Tarrant County, Texas, and a portion of those tracts of land (tracts 1 & 2) as described by deed to AIL Investment, L.P., as recorded in Volume 13883, Page 335, County Records, Tarrant County, Texas, and a portion of that certain tract of land described by deed to Lakeway Land, Ltd., as recorded in Volume 13978, Page 222, County records, Tarrant Count}, Texas, and being more particularly described by metes and bounds as follows: BEGINNING at a point in the north line of proposed Roanoke -Dove Road where it intersects the «°est line of said AIL Investment tract (Volume 13883, Page 335 tract 2); THENCE N OO°08' S6" W, 664.08 feet; THENCE S89°59'38"W, 23.21 feet; THENCE N 00004'20"E, 200.04 feet; THENCE S 89°47'29"W, 391.05 feet; THENCE N 00°09'35-W, 46I.81 feet; THENCE N 00002'25"1V, 818.71 feet, THENCE N 43012'43"E, 127.27 feet to the beginning of a curve to the left; THENCE 320.00 feet along the arc of said can°e, through a central angle of 3720'29", whose radius is 491.00 feet, the long chord of which bears N440 49'54"E, 314.37 feet; THENCE N 26°09'38" E, 100.00 feet to the beginning of a curve to the right; THE'N'CE 124.57 feet along the arc of said cun-e, through a central ang,e of 12'54'51", wh«se radius is 554.00 feet, the long chord of which bears N32°37`0317E, 124.60 feet; THENCE N 39004328"E-, 195.82 feet: THENCE N 49°47'43"W, 121.24 feet to the beginning ofa curie to the right: THENCE 551.83 feet along the arc of said can°e, through a central angle of 27"15'27". whose radius is 115996 feet, the long chord of which bears N32150' 11 7'1��?, 5-46.64 feet; C&B Job No. 015007.102 ACF=?359 ;a r:c "'"� March 18, %008 j`job101500710_'\sur\',vp'%1e2'Teinvestmet Poor 3 of 8 THENCE N 00"41'56"W, 143938 feet; THENCE S 75°35'35"E, 821.08 feet to the beginning of a can°e to the right; THENCE 371.00 feet along the arc of said curve, through a central angle of48°18'39", -hose radius is 440.00 feet, the long chord of which bears S51°26'16''E, 360.11 feet; THENCE S 27°16'56"E, 214.64 feet to the.beginning of a cun�e to the left; THENCE 580.40 feet along the arc of said cun?e, through a central angle of 90°04'39", u°hose radius is 560.00 feet, the long chord of ev$ich bears S72°19' 15"E, 792.49 feet; THENCE N 62°38'2.5"E, 197.55 feet to the beginning of a curve to the left; THENCE 1075.06 feet along the arc of said curve, through a central angle of 54°23'23", whose radius is 1132.50 feet, the long chord of which bears S59°20'00"E, 1035.15 feet; THENCE S 5631'42"E, 199.20 feet to the beginning of a curve to the left: THENCE 554.97 feet along the arc of said curare, through a central angle of 15°l 6'08", whose radius is 2082.50 feet, the long chord of 4"'hick bears N85°50' 14"E, 55 3.33 feet; THENCE N 78° 12'1 0"E, 8 00.3 2 feet; THENCE S 09034'05"E, 892.93 feet; THENCE S 16°42'32"W, 1518.12 feet: THENCE S 00°53'35"E, 573.79 feet; THENCE S 11e28'06''E, 564.1.4 feet; THENCE S 70°37'22" 4'4', 349.I6 feet to the beginning of a cunt c to the right; THENCE 253.38 feet along the arc of said curve, through a central angle of 19°21'24". "hose radius is 750.00 feet, the long chord of which bears SS0018'04"W' 252.18 feet; THENCE S 8955'46" W. 1261.17 feet: THENCE 89"00'39"'"F, 1253.71 feet; THENCE S 57`47'32"W 715.15 feet; THENCE S SS`40'26"V,r 277.28 feet to the POINT OF BEGIN -NTNG and containing 387.95 acres of land, more or less. ` C&B Job No. 015+0 17.102 SCF - 5. .� G S ri o r.. ,1 job\011 5 007 102'Isur":1+.p'Je-%,relnvestniet Pace 2 of ; THIS LEGAL DESCRIPTION IS FOR CONTRACT PURPOSES ONLY AND SHOULD NOT BE USED FOR THE CONVEYANCE OF REAL PROPERTY. CB.B Job No. 015007.1c)-) ACF ±:2359 A `-- s iviflrCi] l i5, �GO� 'ob\01500/ 10�'sur`lu' ',l%�'tr�l17i'2�tI ]�iy ! Rqa EXHIBIT D BEING a tract of land situated in the Jesse Gibson Survey, Abstract Number 592 and the G. Hendricks Survey, Abstract Number 680, Tarrant County, Texas, and being a portion of that certain tract (Tract 2) of land described by deed to AIL Investment, L.P., as recorded in Volume 13275, Page 542, County Records, Tarrant County, Texas, and being more particularly described by metes and bounds as follows: BEGINNING at a 518 inch iron rod with plastic cap stamped "Carter & Burgess" set being an ell corner in the southerly property line of said AIL Tract 2, said point also being the northeast property corner of that certain tract of land described by deed to AIL Investment, L.P., as recorded in Document Number D208228230, County Records, Tarrant County, Texas, being the northeast comer of a proposed 30.403 acre tract to be known as Tract 5, and being an ell corner in the boundary line of the proposed 106.947 acre DCLI property described herein; THENCE S 8904956"W, 787.23 feet (previously recorded as N 89°50'20"W) along the common property line of the southerly property line of said AIL Tract 2 and the boundary line of said DCLI property described herein and the north property line of said AIL (D208228230) tract and the north line of said proposed Tract 5, to a 518 inch iron rod with plastic cap stamped "Carter & Burgess" set at the southeast corner of a proposed 18.323 acre tract to be known as Tract 2, also being the southeast corner of a proposed 10 foot wide Electric and Telecom easement to be known as tract 2A; THENCE N 00045'29"W, 357.87 feet along the westerly line of said proposed DCLI property described herein and the east line of said Tract 2A and then along the east line of a proposed 10 foot wide gas easement to be known as Tract 2B and then along the east line of a proposed 30 foot wide access easement to be known as Tract 2C and then along a proposed 10 foot wide Water easement to be known as Tract 2D and along the easterly line of said Tract 2 (18.323 acres) to a 5/8 inch iron rod with plastic cap stamped "Carter & Burgess" set; THENCE N 20°32'10"E, 243.20 feet continuing along the common line of the westerly line of said proposed DCLI property described herein and along the easterly line of said proposed Tract 2 to a 5/8 inch iron rod with plastic cap stamped "Carter & Burgess" set; THENCE N 24021'OI "E, 227.62 feet continuing along said common line to a 5/8 inch iron rod with plastic cap stamped "Carter & Burgess" set; THENCE N 26047'41"E, 340.17 feet continuing along said common line to a 5/8 inch iron rod with plastic cap stamped "Carter & Burgess" set; THENCE N 58007'29"E, 519.96 feet continuing along said common line to a 5/8 inch iron rod with plastic cap stamped "Carter & Burgess" set in the south line of a proposed 67.120 acre tract to be known as Tract 1, and also being the most northerly northwest corner of said proposed DCLI property described herein; Dallas 1432235v.1 THENCE N 89027'17"E, 1824.60 feet the northerly line of said proposed DCLI property described herein and along the south line of said Tract 1 and then along the south line of a proposed 28.370 acre tract to be known as Tract 3 to a 518 inch iron rod with plastic cap stamped "Carter & Burgess" set at the southeast corner of said proposed Tract 3, being in the westerly line of a proposed 3.100 acre tract to be known as Tract 6 and being the northeast corner of said proposed DCLI property described herein; THENCE S 00032'43"E, 545.49 feet along the easterly Iine of said proposed DCLI property described herein and along the westerly line of said proposed Tract 6 and along the westerly line of a proposed 8.128 acre tract to be known as a Private Drive Easement and then along the westerly line of a proposed 133.685 acre tract to be known as Tract 4 to a 5/8 inch iron rod with plastic cap stamped "Carter & Burgess" set; THENCE S 40°02'39"W, 871.03 feet along the easterly line of said proposed DCLI property described herein and along the westerly line of said proposed tract 4 to a 5/8 inch iron rod with plastic cap stamped "Carter & Burgess" set; THENCE S 01005'24"E, 1442.77 feet continuing along the easterly line of said proposed DCLI property described herein and along the westerly line of said proposed tract 4 to a 5/8 inch iron rod with plastic capped stamped "Carter & Burgess" set in the north right-of-way line of Dove Road as described in a deed to the Town of Westlake and recorded in Volume 16798, Page 279, County Records, Tarrant County Texas and being the southwest corner of said Tract 4 and the southeast corner of said DCLI property described herein; THENCE S 88054'36"W, 1153.05 feet along the north right-of-way line of said Dove Road and along the south line of said DCLI property described herein to a 5/8 inch iron rod with plastic cap stamped "Carter & Burgess" set. THENCE S 87°36'29"W, 138.19 feet continuing along the north line of said Dove Road and the south line of said DCLI property described herein to a 5/8 inch iron rod with plastic cap stamped "Carter & Burgess" set, being in the east property line of that certain tract of land (Tract 1) described by deed to AIL Investment, L.P., as recorded in Volume 13883, Page 335, County Records, Tarrant County, Texas and being the southeast corner of said Tract 5 and the southwest corner of said DCLI property described herein; THENCE N 00°31'56"E, 1296.32 feet (previously recorded as N 00°44'55"E) along the east property line of said AIL Tract 1 and then along the east property line of the aforementioned AIL (D208228230) tract and along the east line of said Tract 5 and along the westerly line of said DCLI property described herein to the POINT OF BEGINNING and containing 4,658,596 square feet or 106.947 acres of land more or less. Dallas 1432235v.1 EXHIBIT E TOWN OF WESTLAKE RESOLUTION NO. 08-20 APPROVING AN ECONOMIC DEVELOPMENT AGREEMENT NN7ITH DELOITTE LLP AND ITS PROCUREMENT COMPANY FOR ESTABLISHMENT OF A PROCUREMENT COMPANY ("PROCO") IN THE TOWN OF WESTLAKE PURSUANT TO THE TONVN OF WESTLAKE ECONOMIC DEVELOPMENT POLICY AND TAX ABATEMENT POLICY; AND DECLARING AN EFFECTIVE DATE. WHEREAS, The Board of Aldermen adopted an Economic Development Incentive Policy by Resolution 06-19 on May 8, 2006, and a cornmercial/industrial tax abatement reinvestment zone by Ordinance 589 on March 24, 2008; and WHEREAS, pursuant to Chapter 380 of the Texas Local Government Code the Board of Aldermen of the To« -n of Westlake, Texas (the "Board") has adopted a program for granting public funds in the fonn of sales tax rebates to promote local economic development, and stimulate business and commercial activity in the Town of Westlake, Texas (the "Town'); and Nl'HERE AS, pursuant to said policy and Chapter 380 of the Texas Local Government Code the Board finds the economic development incentive offered in the attached Agreement will promote the economic development and stimulate business and commercial activity in the ToNNm. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF ALDERMEN OF THE TON17N OF WESTLAKE, TEXAS: SECTION 1: That the Economic Development Agreement by and between the Town of Westlake, Texas; and Deloitte LLP and its Procurement Company attached hereto as Exhibit "A" and incorporated herein for all purposes is hereby approved; and further authorizes the Toren lllanaer to execute the contract on behalf of the Town of Westlake. Texas. SECTION 2: That this Resolution shall take effect from and after its final date of passage, and it is accordingly so ordered. PASSED AND APPROVED BY THE BOARD OF ALDERI IEN OF THE TOWN OF WESTLAKE, TEXAS, ON THIS 24th DAY OF RIARCH `'008. � Scott Braley, Mayor ATTEST: €m Sutter, TRMC. Town Secretary APPROVED AS TO RM: tanton Attomev 1 e C. Heri ter o«n Ma mer STATE OF TEXAS § § ECONOMIC DEVELOPMENT INCENTIVE § AGREEMENT COUNTY OF TARRANT § This Economic Development Incentive Agreement (this "Agreement") is made between the Town of Vti'estlake, Texas (the "Town") and Deloitte LLP, a Delaware limited liability partnership ("Deloitte LLP''), each acting by and through their respective authorized officers and representatives. WITNESSETH: WHEREAS, Deloitte LLP (or one of its Affiliates), as the owner of land located within the Town, intends to develop and construct one (1) or more buildings on land located within the Town, and the development and construction on such land is expected significantly to enhance the economic and employment base of the Town; and WHEREAS, in order to maintain and enhance the conunercial and industrial economic and employment base of the Town and Tarrant County, the Board found that it was in the best interest of the citizens of the Town to enter into that certain Economic Development Agreement with Deloitte LLP dated March 24, 2008 (the "Economic Development Agreement"), pursuant to which the ToN,,n agreed to provide Deloitte LLP certain economic incentives in accordance with the Economic Development Policy, the Tax Abatement Policy, the Tax Code and the LGC (as such terms are defined in the Economic Incentive Agreement); and WHEREAS, , a Texas and wholly owned subsidiary of Deloitte LLP (the "Procurement Company") is engaged in the business of purchasing and reselling taxable items; and WHEREAS, Deloitte LLP advised the Town that a contributing factor that would induce Deloitte LLP to locate its innovation and learning center within the Town would be an agreement by the Town to provide an economic development grant to Deloitte LLP; and WHEREAS, the Town desires to attract new retail business to the Town that will generate additional sales tax revenue for the Town; and WHEREAS, the attraction of new retail business to the Town will promote economic development, stimulate commercial activity, generate additional sales tax and enhance the tax base and economic vitality of the Town-, and y WHEREAS, the Town has adopted programs for promoting economic development; and WHEREAS, the To -v n is authorized by Article III, Section 52-a of the Texas Constitution, TEX. LOC. GOVT CODE §380.001 and the Development Corporation Act of 1979, Article 5190.6 of the TEX. REV. CIV. STAT. to provide economic development Grants to promote local economic development and to stimulate business and con- mercial activity in the Town: and 1376487v.1 DE1,255l16000 WHEREAS, the Town has determined that making an economic development grant to Deloitte LLP or one of its Affiliates in accordance with the terms and conditions set forth in this Agreement will further the objectives of the Town, benefit the Town and the Town's inhabitants and promote local economic development and stimulate business and commercial activity in the Tow=n; NOW THEREFORE, in consideration of the foregoing and the premises, mutual covenants and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties, intending to be legally bound, hereby covenant and agree as follows: ARTICLE I DEFINITIONS Section 1.01. For purposes of this Agreement, each of the following terms shall have the meaning set forth herein unless the context clearly indicates otherwise: "Affiliate" shall mean any entity that owns or controls, is owned or controlled by, or is under common ownership or control with, Deloitte LLP, or any entity the ownership of which is substantially the same as Deloitte LLP. "Deloitte LLP" shall mean Deloitte LLP or one of its Affiliates. "Effective Date" shall mean the last date on which all of the parties hereto have executed this Agreement, which shall be no later than December 31, 2010; provided, however that such date may be extended by mutual agreement of the parties hereto. -First Renewal Date" shall mean a date that is ten (10) years from the Effective Date. "Grant" shall mean periodic payments to the Procurement Company from lawfully available funds, in the amount set forth in Section 3.0I . "Retail Center" shall mean the Procurement Company's local office in the Town at which the Procurement Company operates a business of purchasing and reselling Taxable Items in the Town. "Sales Tax Receipts" shall mean the Town's receipts from the State attributable to the collection of Total Town Sales and Use Tax by the Procurement Company. The parties expressly acknowledge and agree that the sales and use tax receipts described herein are being used only as a measurement of the Totivn's payment of grants through the use of general funds. "State" shall mean the State of Texas and all taxing authorities thereof, including. without limitation, the Comptroller of Public Accounts of the State of Texas. 1376487vA DEL255,116000 "Taxable Items" shall have the same meaning assigned by Chapter 151, TEX. TAX CODE, as amended. "Total Town Sales and Use Taxes" shall mean the Tov n's Sales and Use Taxes plus the half percent (.5%) 4B economic development sales tax authorized by art. 5190.6, Vernon's Texas Civil Statutes, Section 4B. and the half percent (.5%) additional municipal sales and use tax (commonly kno-,vn as the "sales tax for property tax relief') authorized by Section 321.507 of the Tax Code imposed by the Town (it being expressly understood that sales and use taxes are being used only as a measurement of the Town's grant of lawfully available funds to Deloitte LLP pursuant to Chapter 380 of the LGC). "Tour's Sales and Use Taxes" shall mean the local sales and use tax imposed by the Tm n other than the half percent (.5%) 4B economic development sales tax authorized by art. 5190.6, Vernon's Texas Civil Statutes, Section 4B. and the half percent (.5%) additional municipal sales and use tax (commonly known as the "sales tax for property tax relief') authorized by Section 321.507 of the Tax Code imposed by the Town (it being expressly understood that sales and use tales are being used only as a measurement of the To-wn's grant of lawfully available funds to Deloitte LLP pursuant to Chapter 380 of the LGC). Capitalized terms not otherwise defined above shall have the meaning given such capitalized terms in this Agreement. ARTICLE 11 TERM Section "2.01. Term. The initial term of this Agreement shall begin on the Effective Date and continue through the First ReneNval Date, when it shall renew without any action by either party, and on each ten (10) year anniversary thereafter (each such date a "Renewal Date"), for successive ten (10) year terms; provided, however, that on any Renewal Date, either Deloitte LLP or the Town may elect to terminate this Agreement by providing the other party not less than thirty (30) days' written notice of termination, as further described in Article VI of this Agreement. Any reference to the "Tenn" of this Agreement shall include the initial term and any renewal terns, but shall mean the actual term during which this Agreement is in effect. ARTICLE III ECONOMIC DEVELOPMENT GRANT Section 3.01. Grant. During the Term, subject to Deloitte LLP's continued satisfaction of all of its obligations under the terms and conditions of this Agreement, the Town agrees to provide Deloitte LLP with an economic development grant from laiNfully available funds, payable as provided herein, in an amount equal to seventy-five percent (75%) of the Sales Tax Receipts for each calendar quarter during the Term (each, a "Grant" and, collectively, the "Grants"). 1376.187,,-.1 DEL255/16000 Section 3.02. Grant Funds. The Town shall not be required to pay any Grant until such time as the Town has received Sales Tax Receipts from the State relating to the calendar quarter for which such Grant payment is due. The Town will file all documentation required to be filed by it and make such requests to the State as necessary to obtain all Sales Tax Receipts in a timely manner and will not take any action that causes the State to delay remittance of Sales Tax Receipts for any calendar quarter during the Term. Section 3.03. Grant Pavment. All Grants referenced herein shall be paid quarterly to Deloitte LLP within sixty (60) days followw•ing the end of the calendar quarter in wvhich the relevant Sales Tax Receipts were received by the Town. The amount to be granted shall be determined based on the relevant Sales Tax Receipts received by the Towwn. Section 3.04. Amended Returns. In the event the Procurement Company files an amended sales and use tax return or report, or if additional sales and use tax is due and owing by the Procurement Company to the State, and, as a result, Sales Tax Receipts for a previous calendar quarter are increased, then the Grant payment due from the Town shall be increased accordingly for the calendar quarter immediately following the Town receiving Sales Tax Receipts from the State attributable to such increase. This Section 3.04 shall survive the termination of this Agreement. Section 3.05. Refunds. In the event the State determines that the Town erroneousiv received Sales Tax Receipts, or that the amount of sales and use tax paid to the Town exceeds the correct amount of sales and use tax owed to the Town, and, as a result, a previous Grant paid to Deloitte LLP exceeded the amount actually due to Deloitte LLP (calculated based on the State's determination) (any such excess amount being referred to herein as an "Excess Grant"), then Deloitte LLP shall, within thirty (30) days after receipt of a written notice from the Towwn specifying the amount of the Excess Grant, repay the amount of the Excess Grant to the Town. In lieu of repaying the amount of the Excess Grant to the Town, Deloitte LLP may instruct the Town in writing to reduce the amount of the Grant payment for the calendar quarter immediately following Deloitte LLP's receipt of the Town's wvritten notice of the Excess Grant by the amount of the Excess Grant. In such case, the Town shall deliver a written notice to Deloitte LLP acknowledging the amount of the Excess Grant that has been deducted from any Grant payment. As a condition precedent to Deloitte LLP's obligation to refund the amount of an Excess Grant to the Town or authorize the Town to reduce the Grant payment, Deloitte LLP shall have received a copy of the State's whritten determination, if any, or such other evidence to substantiate the amount of the Excess Grant as is acceptable to Deloitte LLP in its reasonable discretion. Should Deloitte LLP cause a refund to occur through its mvn action, Deloitte LLP will notify the Town promptly upon receiving the determination of the refund request from the State. ARTICLE IV PROCEDURES RELATING TO GRANTS Section: 4.01. Town Request for Information from State. NVithin 10 days after each due date for payment of sales and use tax from the Procurement Company to the State (each a "Due Date"), the Town will request from. the State all documentation relating to the Total Town Sales and Use Tax paid by the Procurement Company on such Due Date. Deloitte LLP shall provide -4- 1376487.1 DEL255116000 the Town with a Waiver of Sales Tax Confidentiality, which authorizes the State to release to the Town sales and use tax information pertaining to the Procurement Company during the Term. Such documentation may include the following, if it has been filed by the Procurement Company with the State, and nothing in this Section 4.01 shall obligate Deloitte LLP or the Procurement Company to prepare or provide to the Town any documentation not required to be filed with the State: (a) Information regarding the amount of sales and use tax collected and paid to the State by the Procurement Company as a result of the sale of Taxable items by the Procurement Company at the Retail Center; (b) A copy of all sales and use tax returns and reports, sales and use tax prepayment returns, direct payment permits and reports, including amended sales and use tax returns or reports, filed by the Procurement Company for the previous calendar quarter showing sales and use tax collected (including sales and use tax paid directly to the State pursuant to a direct payment certificate) by the Procurement Company for the sale of Taxable Items consummated at the Retail Center; (c) A copy of all direct payment and self-assessment returns, including amended returns, filed by the Procurement Company for the previous calendar quarter showing sales and use tax paid for the sale of Taxable Items by the Procurement Company consummated at the Retail Center; (d) A summary of the sales of Taxable Items by the Procurement Company consummated at the Retail Center which resulted in sales and use tax paid, and copies of receipts for those purchases, in the event that the Procurement Company is ineligible or unable to file direct payment or self-assessment returns for the previous calendar quarter; and (e) Information concerning any refund or credit received by the Procurement Company of sales or use tax paid or collected by the Procurement Company (including any sales and use tax paid directly to the State pursuant to a direct payment permit) which has previously been reported by the Procurement Company as sales and use tax paid or collected. Section 4.02. Confidentiality. Except as disclosure is required by law, the Town agrees to keep all information and documentation received from the State pursuant to this Section 4.02 (collectively, "Confidential Tax Inforination") confidential. The Town will only provide access to the Confidential Tax Information to its employees on a "need -to -know" basis. The Town wvill use the Confidential Tax Information solely for the purposes of determining the amount of each calendar quarter's Grant and the amount of other Grants related to the Retail Center that are dependent on the Confidential Tax Information and for no other purpose, and the Town will not. without Deloitte LLP's prior written authorization: (a) disclose to any other person, use or exploit the Confidential Tax Information (other than as expressly permitted above) or (b) discuss Deloitte LLP or its affairs with any person other than Deloitte LLP's representatives. Deloitte LLP's Waiver of Sales Tax Confidentiality is solely for the limited purpose of allowing an appropriate set of Town officials to verify the amount of the Town's obligations under this -g- 1376487v.1 DEL255:16000 Agreement. The Town's obligations under this Section 4.02 shall survive the termination of this Agreement. Notwithstanding the above, the Town and Deloitte LLP expressly_ understand and agree that should any third party request the Confidential Tax Information pursuant to the Texas Public Information Act, the Town's sole responsibility shall be to seek a written determination from the Texas Attorney General as to whether any or all of the Confidential Tax Information must be released as a public record. MIlit aNp REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PARTIES Section 5.01. No Violation. The Town hereby represents and warrants to Deloitte LLP that neither its execution and performance of this Agreement, nor its consummation of the transactions contemplated hereby (including, without limitation, the payment of Grants under the terms and conditions hereof), will (a) conflict with, or result in a breach of, the terms, conditions or provisions of, or constitute a default under, any agreement, indenture or other instrument under which the Town is bound, or (b) violate or conflict with any judgment, decree, order, statute, rule or regulation of any court or any public, governmental or regulatory agency or body having jurisdiction over the Town or its properties, assets or conduct. Furthermore, the Town hereby agrees that any claim made by a third party against the Town with respect to Town Sales Tax received by, or payable to, the Town from the State (including, without limitation, Grants payable to Deloitte LLP hereunder) (other than claims from the State, which shall be handled under Section 3.05) shall be paid or resolved by the Town from funds other than those committed to be paid to Deloitte LLP as Grants hereunder. Section 5.02. Publicity and Disclosures. The parties covenant and agree that neither party shall make any press release or public disclosure, either written or oral, regarding the transactions contemplated by this Agreement without the prior knowledge and consent of the other party; provided, that the foregoing shall not prohibit any disclosure to attorneys, accountants, investment bankers or other agents of the parties assisting the parties in connection with the transactions contemplated by this Agreement. ARTICLE VI TERMINATION Section 5.01. Termination of this Agreement. This Agreement shall terminate upon any one of the following: (a) On any Renewal Date on or after the First Renewal Date, by either party, upon thirty (30) days' written notice to the other party: (b) By Deloitte LLP, immediately upon NNTitten notice to the Town, if the Town fails to pay any Grant ~within the applicable time period provided under this Agreement; and -6- 13-,6487v.1 DEL -13i. 16000 (c) Immediately upon «Titten notice from Deloitte LLP to the Town, upon any breach by the Town of its obligations under Section 4.02 hereof with respect to Confidential Tax information. Section 6.02. Effect of Termination. Upon a termination of this Agreement, the Town shall remit all Grants relating to Sales Tax Receipts for the sale of Taxable Items by the Procurement Company at the Retail Center sold prior to the effective date of such termination. The rights, responsibilities and liabilities of the Parties under this Agreement shall be extinguished upon the applicable effective date of termination of this Agreement, except for any obligations that accrue prior to such termination or as otherwise expressly provided herein. ARTICLE VII MISCELLANEOUS Section 7.01. Binding Agreement: Assignment. The terms and conditions of this Agreement are binding upon the successors and permitted assigns of the parties hereto. This Agreement may not be assigned without the express written consent of non -assigning party, except that Deloitte LLP may assign this Agreement to one of its Affiliates liates without obtaining the Town's consent. Section 7.02. No Joint Venture. It is acknowledged and agreed by the parties that the terms hereof are not intended to and shall not be deemed to create a partnership or joint venture among the parties. Neither party shall have any authority to act on behalf of the other party under any circumstances by virtue of this Agreement. Section 7.03. Authorization. Each party represents that it has full capacity and authority to grant all rights and assume all obligations that are granted and assumed under this Agreement. Section 7.04. Notice. Any notice required or permitted to be delivered hereunder shall be deemed received three (3) days thereafter sent by United States Mail, postage prepaid, certified mail, return receipt requested, addressed to the party at the address set forth below (or such other address as such party may subsequently designate in wTitin¢) or on the day- actually received if sent by courier or otherwise hand delivered. If intended for Town, to: Town Manager Town of Westlake 3 Village Circle, Suite 202 Westlake, Teras 76262 With a copy (which shall not constitute notice) to: Stan Low-ry, Town Attorney Town of Westlake c/o -7- 1376487v.1 DEL -2-55116000 Boyle & LoNNTy LLP 4201 Wingren, Suite 108 Irving, Texas 75062 If intended for Deloitte LLP: With a copy to: Section 7.05. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter covered in this Agreement. There is no other collateral agreement, oral or wTitten, between the parties that in any manner relates to the subject matter of this Agreement. Section 7.06. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of Texas, without giving effect to any conflicts of law rule or principle that might result in the application of the laws of another jurisdiction. Subject to Section 7.11 hereof, venue for any disputes regarding this Agreement, the transactions contemplated hereby or the liabilities or obligations imposed hereunder shall be in any State District Court located in Tarrant County, Texas. Section 7.07. Amendment. This Agreement may be amended or modified only by a %Titten instrument signed by all the parties hereto. Section 7.08. Legal Construction. In the event any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect other provisions, and it is the intention of the parties to this Agreement that in lieu of each provision that is found to be illegal, invalid, or unenforceable, a provision shall be added to this Agreement which is legal, valid and enforceable and is as similar in terms as possible to the provision found to be illegal, invalid or unenforceable. Section 7.09. Recitals. The recitals to this Agreement are incorporated herein. Section 7.10. Counterparts. This Agreement may be executed in counterparts. Each of the counterparts shall be deemed an original instn€rnent, but all of the counterparts shall constitute one and the same instrument. Section 7.11. Survival of Covenants. Any of the representations, warranties, covenants, and obligations of the parties, as well as any rights and benefits of the parties, pertaining to a period of time followvinff the termination of this Agreement shall survive termination. [The next following pages are signature pages.] 1376487v.] DEL255/16000 EXECUTED on this day of 2008. TOWN OF WESTLAKE, TEXAS By: ThomasE.B - rymer;'T'o-%6 Manager I ATTEST: By: Kim Sutter, TkMC, Tovm Secretary APPROVED AS TO FORD`[: By: L. Stanton Lo,",-ry, Town Attomey EXECUTED on this _ day of March, 2008. DELOITTE LLP, a Delaware limited liability partnership IN 1376497N-.1 DEL25iA6000 By: _ Name: Title: Waiver of Sales Tax Confidentiality Date: I authorize the Comptroller of Public Accounts to release sales tax information pertaining to the taxpayer indicated below to the Town of Westlake, Texas. I understand that this waiver applies only to our place of business located in Westlake, Texas. Name of Taxpayer as Sho-,Nm on Texas Sales Tax Permit Name Under Which Taxpayer is Doing Business (dba or Outlet Name) Taxpayer Mailing Address Physical Location of Business Pennitted for Sales Tax in Westlake, Texas Texas Taxpayer ID Number Tax Outlet Number Authorized Signature [TITLE], Procurement Company, Telephone Number The authorized signature must be an oti-�mer. officer. director, partner, or agent authorized to sign a Texas Sales Tax Return. If you have any questions concerning this waiver of confidentiality, please contact the Texas Comptroller of Public Accounts at 800.53 l .5441. 13 7 64V v.1 DEL 255-16,11 0 By: Kk S V611.1 CO[7A Y MARY LOUISE NICHOLSON y COUNTY CLERK 100 West Weatherford Fort Worth, TX 76196-0401 PHONE (817) 884-1195 TOWN OF WESTLAKE 1500 SOLANA BLVD BLDG 7 STE 7200 WESTLAKE, TX 76262 Submitter: TOWN OF WESTLAKE DO NOT DESTROY WARNING - THIS IS PART OF THE OFFICIAL RECORD. Filed For Registration: 2/12/2019 11:58 AM Instrument #: D219027371 OPR 3 PGS $20.00 D219027371 ANY PROVISION WHICH RESTRICTS THE SALE, RENTAL OR USE OF THE DESCRIBED REAL PROPERTY BECAUSE OF COLOR OR RACE IS INVALID AND UNENFORCEABLE UNDER FEDERAL LAW. MARY LOUISE NICHOLSON COUNTY CLERK TOWN OF WESTLAKE 1500 SOLANA BLVD BLDG 7 STE 7200 WESTLAKE, TX 76262 Submitter: TOWN OF WESTLAKE VUV 1%4-0 0614 100 West Weatherford Fort Worth, TX 76196-0401 PHONE (817) 884-1195 DO NOT DESTROY WARNING - THIS IS PART OF THE OFFICIAL RECORD. Filed For Registration: 2/12/2019 11:58 AM Instrument #: D219027372 OPR 61 PGS $252.00 By: oija a oS D219027372 ANY PROVISION WHICH RESTRICTS THE SALE, RENTAL OR USE OF THE DESCRIBED REAL PROPERTY BECAUSE OF COLOR OR RACE IS INVALID AND UNENFORCEABLE UNDER FEDERAL LAW.