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HomeMy WebLinkAboutAgenda_GEDCO_12.08.2014Notice of Meeting for the Georgetown Economic Development Corporation and the Governing Body of the City of Georgetown December 8, 2014 at 1:30 PM at in the City Council Chambers, located at 101 E. 7th Street, Georgetown, Texas The City of Georgetown is committed to compliance with the Americans with Disabilities Act (ADA). If you require assistance in participating at a public meeting due to a disability, as defined under the ADA, reasonable assistance, adaptations, or accommodations will be provided upon request. Please contact the City at least four (4) days prior to the scheduled meeting date, at (512) 930-3652 or City Hall at 113 East 8th Street for additional information; TTY users route through Relay Texas at 711. Regular Session (This Regular Session may, at any time, be recessed to convene an Executive Session for any purpose authorized by the Open Meetings Act, Texas Government Code 551.) A Consideration and approval of the minutes for Georgetown Economic Development Corporation for the Regular Meeting held Monday, October 20, 2014--Hugh Brown, Secretary B Discussion and possible action regarding the Project Progress Report, including Airborn, Radix BioSolutions, Lone Star Circle of Care, Georgetown Winery, Grape Creek Winery, Difusion Technologies, Inc., Texas Life Sciences Collaboration Center (TLCC), Radix, Radiation Detection Company, Summit at the Rivery Conference Center, Molecular Templates, Inc., and TASUS Texas Corporation—Paul E. Brandenburg, General Manager and Mark Thomas, Economic Development Director C Consideration of the October 2014 Financial Reports-Micki Rundell, Finance Manager D Consideration and possible action to approve an Amended Performance Agreement between the Georgetown Economic Development Corporation, Novak Brothers, LLC and Hines Georgetown Hotel, LLC, for the Summit at Rivery Park project. E Action out of Executive Session. Executive Session In compliance with the Open Meetings Act, Chapter 551, Government Code, Vernon's Texas Codes, Annotated, the items listed below will be discussed in closed session and are subject to action in the regular session. F Sec. 551.071: CONSULTATION WITH ATTORNEY Consultation with attorney regarding legal issues related to agenda items and other matters in which the duty of the attorney to the Georgetown Economic Development Corporation under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas. G Section 551.072. DELIBERATIONREGARDING REAL PROPERTY Discussion and possible action to deliberate the purchase,exchange, lease or value of real property for purposes authorized by the Development Corporation Act which discussion in open session would have adetrimental effect on negotiations with third persons. H Section 551.087. DELIBERATION REGARDING ECONOMIC DEVELOPMENT NEGOTIATIONS. Deliberation regarding commercial or financial information that the corporation has received from a business prospect that the Georgetown Economic Development Corporation seeks to have locate, stay, or expand in or near the territory of the City of Georgetown and with which the Corporation is conducting economic development negotiations; and/or deliberation regarding the offer of a financial or other incentive to a business prospect that the Corporation seeks to have locate, stay, or expand in or near the territory of the City of Georgetown. - Pecan Branch CERTIFICATE OF POSTING I, Jessica Brettle, City Secretary for the City of Georgetown, Texas, do hereby certify that this Notice of Meeting was posted at City Hall, 113 E. 8th Street, a place readily accessible to the general public at all times, on the ______ day of __________________, 2014, at __________, and remained so posted for at least 72 continuous hours preceding the scheduled time of said meeting. ____________________________________ Jessica Brettle, City Secretary City of Georgetown, Texas SUBJECT: Consideration and approval of the minutes for Georgetown Economic Development Corporation for the Regular Meeting held Monday, October 20, 2014--Hugh Brown, Secretary ITEM SUMMARY: ATTACHMENTS: 1. Draft Minutes for the Regular Meeting held Monday, September 22, 2014 FINANCIAL IMPACT: None SUBMITTED BY: Hugh Brown, Corporate Secretary ATTACHMENTS: Description Type 10-20-14 minutes Cover Memo GEDCO Minutes October 20, 2014 Page 1 of 3 Minutes of the Meeting of the Georgetown Economic Development Corporation And the Governing Body of the City of Georgetown, Texas October 20, 2014 The Georgetown Economic Development Corporation of the City of Georgetown, Texas, met on Monday, October 20, 2014. Members Present: Steve Fought, Kevin Kelly, Patty Eason, Charles Carter, John Hesser, Walt Barkalow, Hugh Brown Staff Present: Mark Thomas, Economic Development Director; Micki Rundell, Finance Manager; Laurie Brewer, Assistant City Manager; Jodi Levi, Senior Accountant; Bridget Chapman, City Attorney; Tina Dunbar, Administrative Assistant; Conchita Gusman, Program Manager MINUTES Call to Order at 03:30 PM Legislative Regular Agenda A Consideration and approval of the minutes of the Georgetown Economic Development Corporation for the Regular Meeting held Monday, October 20, 2014--Hugh Brown, Secretary Motion by Fought, second by Barkalow to approve the Georgetown Economic Development Corporation minutes as amended for the Regular Meeting held Monday, September 22, 2014. Approved 7-0 B Consideration of the September 30, 2014 Financial Reports-Micki Rundell, Finance Manager Rundell explained the financial report for October and answered questions. Motion by Barkalow, second by Carter to accept the financial report as presented. Approved 7-0 C Discussion and possible action regarding the Project Progress Report, including Airborn, Radix BioSolutions, Lone Star Circle of Care, Georgetown Winery, Grape Creek Winery, Difusion Technologies, Inc., Texas Life Sciences Collaboration Center (TLCC), Radix, Radiation GEDCO Minutes October 20, 2014 Page 2 of 3 Detection Company, Summit at the Rivery Conference Center, Molecular Templates, Inc., and TASUS Texas Corporation—Paul E. Brandenburg, General Manager and Mark Thomas, Economic Development Director Thomas provided the progress report and answered questions. D Discussion and possible action regarding the Texas Life-Sciences Collaboration Center (TLCC) – Mark Thomas Thomas introduced the TLCC item explaining that the annual agreement is up for reconsideration. Dr. Douglas, TLCC Director, provided details on TLCC activities for the past year. Dr. Douglas answered questions and asked GEDCO to consider extending the agreement for another year. Motion by Fought, second by Brown to renew the agreement between GEDCO and TLCC for one year. Approved 7-0 GEDCO recessed to Executive Session at 3:56 pm and then back into Regular Session at 4:12 pm E Action out of Executive Session. Motion by Hesser, second by Carter to direct staff to create a performance agreement between GEDCO and Pecan Branch based on the items discussed in Executive Session. Approved 7-0 Executive Session In compliance with the Open Meetings Act, Chapter 551, Government Code, Vernon's Texas Codes, Annotated, the items listed below will be discussed in closed session and are subject to action in the regular session. H Sec. 551.071: CONSULTATION WITH ATTORNEY Consultation with attorney regarding legal issues related to agenda items and other matters in which the duty of the attorney to the Georgetown Economic Development Corporation under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas. I Section 551.072. DELIBERATIONREGARDING REAL PROPERTY Discussion and possible action to deliberate the purchase, exchange, lease or value of real property for purposes authorized by the Development Corporation Act which discussion in open session would have a detrimental effect on negotiations with third persons. J Section 551.087. DELIBERATION REGARDING ECONOMIC DEVELOPMENT NEGOTIATIONS. Deliberation regarding commercial or financial information that the corporation has received from a business prospect that the Georgetown Economic Development GEDCO Minutes October 20, 2014 Page 3 of 3 Corporation seeks to have locate, stay, or expand in or near the territory of the City of Georgetown and with which the Corporation is conducting economic development negotiations; and/or deliberation regarding the offer of a financial or other incentive to a business prospect that the Corporation seeks to have locate, stay, or expand in or near the territory of the City of Georgetown. - Pecan Branch - TLCC ADJOURNMENT The Meeting was adjourned at 4:16 p.m. Attest: ______________________________ ___________________________________ Hugh Brown, Corporate Secretary Patty Eason, President City of Georgetown, Texas SUBJECT: Discussion and possible action regarding the Project Progress Report, including Airborn, Radix BioSolutions, Lone Star Circle of Care, Georgetown Winery, Grape Creek Winery, Difusion Technologies, Inc., Texas Life Sciences Collaboration Center (TLCC), Radix, Radiation Detection Company, Summit at the Rivery Conference Center, Molecular Templates, Inc., and TASUS Texas Corporation—Paul E. Brandenburg, General Manager and Mark Thomas, Economic Development Director ITEM SUMMARY: The GEDCO Board has requested that staff provide a project progress and status report at each meeting on all of the active projects discussed by the Board. ATTACHEMENT: 1. Project Status Report FINANCIAL IMPACT: N/A SUBMITTED BY: Paul E. Brandenburg, General Manager and Mark Thomas, Economic Development Director ATTACHMENTS: Description Type Dec. 2014 update Cover Memo Project Project Description Approved by Council Funded Monitoring Compliance Closed Citigroup $1.3 Million Grant for wastewater infrastructure disbursed in April 2008. 12/12/2006 Funded April 2008 Approved and completed; Monitoring Compliance No Enflite Company building 25,000 sq. ft. expansion and adding 75 new jobs. Grant amount was $144,000 on completion of facility. Working with enflite regarding issues related to compliance with terms of Performance Agreement. 8/12/2008 and 3/10/2009 Funded $144,000 in May 2009 Final Compliance Date is in 2013. Council will act on final compliance and repayment to GEDCO on 9-23-1014.Company required to reimburse City for $114,000. Final payment rcvd from company on 10/23/14. Yes Airborn II Provided a $300,000 grant for job creation and retention and capital investment based on new 50,000 sq. ft. manufacturing facility at Georgetown South Commercial Park. Amending Performance Agreement to extend the construction completion date to May 2010. Extension was approved by GEDCO on January 25, 2010 and the City Council on January 26, 2010. Construction of Facility completed May 2010. Yes. 9/25/2007and 1/26/2010 Partially Funded. First Annual payment made February 2011 Yes. Final compliance date is 12/31/2014. No Radix BioSolutions, Ltd. Provided grant to assist with the work and future plans of Radix BioSolutions at the TLCC. Agreement approved by GEDCO on February 9, 2010 and Council approved the Agreement at its March 9, 2010 Meeting. 3/9/2010 Funded May 13, 2010 Yes, Final compliance date is March 2018 No Lone Star Circle of Care Provided a grant not to exceed $387,000 for Qualified Expenditures for future site improvements at 205 East University Avenue, Georgetown, Texas. Loan Agreement and Promissory Note have not been executed. Agreement approved by GEDCO on June 23, 2011 and Council approved the Agreement at its June 28, 2011 Meeting. 6/28/2011 Funded November and December 2011 Yes, Final Compliance Date is July 28, 2016 No. GEDCO PROJECT UPDATE AND STATUS REPORT December 8, 2014 Project Project Description Approved by Council Funded Monitoring Compliance Closed GEDCO PROJECT UPDATE AND STATUS REPORT December 8, 2014 Grape Creek Provide a grant not to exceed $447,000 for Qualified Expenditures for the lease/purchase and future site improvements at 101 E. 7th Street and 614 Main Street for the operation of a winery on the Downtown Square in Georgetown Agreement approved by GEDCO on July 25, 2011 and Council approved the Agreement at its August 23, 2011 Meeting. Fourth Amended Performance Agreement, Lease Agreement, and Promissory Note was approved by GEDCO on August 20, 2012 and by the City Council on August 28, 2012. TIRZ Agreement for $60,000 approved by City Council on 9-11-12. 8/23/2011 Funded Yes, Final Compliance is March 2018.No Georgetown Winery Provide a grant not to exceed $70,000 for Qualified Expenditures described as equipment for wine production and an agreement to maintain and operate the existing winery in Georgetown. Agreement approved by GEDCO on July 25, 2011 and Council approved the Agreement at its August 23, 2011 Meeting. 8/23/2011 Funded Yes, Final Compliance Date is June 30, 2016 No DiFusiion Technologies Provide a grant not to exceed $92,000 for Qualified Expenditures described as an ICP Spectrometer to be purchased by TLCC to be leased to Dufusion under the terms of the Performance Agreement. Qualified Expenditure to remain the Property of GEDCO unless transferred to DiFusion per the terms of the Performance Agreement.Agreement approved by GEDCO on October 17, 2011 and November 21, 2011 and Council approved the Agreement at its December 13, 2011 Meeting. Performance Agreement and Lease Agreement have not been executed. The GEDCO Board approved additional requirements for the Performance Agreement on May 21, 2012. Approved by Council on July 10, 2012.7/10/2012 Funded Yes, Final Compliance Date is July 31, 2015 No Georgetown Indpendent School District Provided a grant not to exceed $200,560 for the purchase of qualified expenditures related to the equipment for the Engineering Program and Laboratories at Georgetown and East View High Schools. GISD will offer the MSSC Certifications, implement a Job Placement Program, provide and annual report and annual tour of the facilities to the GEDCO Board. Agreement was approved by GEDCO on September 17, 2012 and the City Council on September 25, 2012. The GEDCO Board approved the GISD request to amend the Performance Agreement to allow the purchase different equipment than outlined in the original agreement on November 18, 2013.9/17/2012 Partially Funded. Yes. Final Compliance based on life of equipment. No Texas Life Sciences Collaboration Center (2) Provide a grant of $150,000 for the maintenance of the TLCC. Performance Agreement approved by GEDCO on July 15, 2013. 7/16/2013 Funded October 2013 Yes. Final Compliance September 2014 Yes Project Project Description Approved by Council Funded Monitoring Compliance Closed GEDCO PROJECT UPDATE AND STATUS REPORT December 8, 2014 Texas Life Sciences Collaboration Center (3) Provide a grant of $150,000 for the maintenance of the TLCC. Performance Agreement approved by GEDCO on 10/17/14. 11/11/2014 Funded Dec. 2014 Yes. Final Compliance October 31, 2015 No. The Rivery at Summit Conference Center Provide a grant not to exceed $4.5 Million for Public Infrastructure Improvements. Approved by the GEDCO Board on November 18, 2013. Approved by the City Council on December 10, 2013. 12/10/2013 Not Funded Yes.Construction Deadline is September 30, 2015. No. Molecular Templates, Inc. Provide a grant of $69,000 for the retention of jobs and retaining its headquarters at the TLCC. Approved by the City Council on December 10, 2013 and approved by the GEDCO Board on December 16, 2013. 12/10/2013 Not Funded Yes. Final Compliance December 31, 2014 No. TASUS Texas Corporation Provide a grant of $67,500 for job creation related to expansion of manufacturing facilities. Approved by the City Council on February 25, 2014 and approved by the GEDCO Board on February 17, 2014 2/25/2014 Not Funded Yes. Final Compliance May 31, 2017 No. Radiation Detection Corporation Provide a grant of $320,000 for job creation related to the relocation of the corporate offices to Georgetown. Approved by City Council and GEDCO on July 23, 2013. 7/23/2013 Not Funded Yes. Final Compliance December 31, 2021 No DisperSol Provide a grant of $250,000 for job creation related to expansion of manufacturing facilities. Approved by the GEDCO Board on August 18, 2014 10/16/2014 Not Funded Yes. Final Compliance February 15, 2019 No. Project Project Description Approved by Council Funded Monitoring Compliance Closed Vista Solutions Provided up to a $30,000 grant for the creation of high wage jobs and capital investment. Software development company locating on the square. 4/25/2006 Funded $21,000 April 2008 No. Yes Orthopeutics Provided up to $18,000 grant to company for creation of new jobs and capital investment. 8/12/2008 Yes. Funded up to $18,000 March 2009 No Yes Airborn I Provide a $300,000 grant for job creation and retention and capital investment based on new 50,000 sq. ft. manufacturing facility at Longhorn Junction. 12/11/2007 Not funded No Yes Loading Dock Water line infrastructure project to provide fire rate water flow to the Loading Dock restaurant and all buildings along Austin Avenue between 6th Street and 7th. 12/12/2006 Funded up to $100,000 Spring 2007 No Yes Quantum Logic Devices Provide Grant to assist the company in its efforts to build a test product for diagnostic clincical trials. GEDCO did not approve request.No Not funded No Yes Kenny Nguyen DBA The Beauty Escape Salon (Gardens Building) Provide grant to relocate transformers to downtown building. 5/13/2008 Funded $10,750 June 2008 No Yes CLOSED GEDCO PROJECTS Project Project Description Approved by Council Funded Monitoring Compliance Closed CLOSED GEDCO PROJECTS IntraLink-Spine, Inc. Provide grant to assist with the work and future plans of IntraLink-Spine, Inc, at the TLCC. Agreement approved by GEDCO on June 3, 2010 and Council approved the Agreement at its June 8, 2010 Meeting. The Agreement was not funded. Most of the company's operations are moving to Kentucky. 6/8/2010 Not Funded No Yes Amante Provide grant to fund grease trap improvements in alley in an amount not to exceed $25,968.40. Amante's closed its operations June 9, 2010.There is now a working grease trap that will benefit the next tenant. 8/25/2009 Funded $25,968.40 in September 2009 No (business closed) Yes Hope Lumber Company nka Pro-Build South, LLC Distributor of building materials. Company expanded rail line which required relocation of electric transformers. 4A funds provided $18,410 to offset cost of relocating electric transformers. 11/14/2006 Funded $18,410 March 2007 No Yes Ringdale, Inc. Provide grant for $20,000 to expand its current facility to 8,500 sq. ft. and hire at least 10 new employees to work on the LED technology. Agreement approved by GEDCO on February 9, 2010 and Council approved the Agreement at its March 9, 2010 Meeting 3/9/2010 Funded $20,000 April 8, 2010 No Yes Project Project Description Approved by Council Funded Monitoring Compliance Closed CLOSED GEDCO PROJECTS McIntosh Holdings, LLC Provide grant to relocate transformer to office building. GEDCO approved conditional Performance Agreement on December 21, 2009. Staff has requested back up invoices to verify electrical work performed and will bring agreement back to GEDCO once that is received from the Applicant. Legal worked with Applicant's Attorney to negotiate a settlement agreeement. No Not funded No Yes Texas Outdoor Power Equipment Funded extension of water and wasterwater infrastructure based on the construction of a new 70,000 sq. ft. warehouse. 5/27/2008 Funded $160,800 March 2009 No Yes Texas Life Sciences Collaboration Center Provide a grant not to exceed $150,000 for the maintenance of the TLCC. Performance Agreement approved by GEDCO on November 1, 2010 and the City Council on December 14, 2010. 12/14/2010 Funded No Yes City of Georgetown, Texas SUBJECT: Consideration of the October 2014 Financial Reports-Micki Rundell, Finance Manager ITEM SUMMARY: See Attachment FINANCIAL IMPACT: None SUBMITTED BY: Micki Rundell, Finance Manager ATTACHMENTS: Description Type nov financials Cover Memo City of Georgetown, Texas SUBJECT: Consideration and possible action to approve an Amended Performance Agreement between the Georgetown Economic Development Corporation, Novak Brothers, LLC and Hines Georgetown Hotel, LLC, for the Summit at Rivery Park project. ITEM SUMMARY: On December 10, 2013, the City Council ratified GEDCO’s agreement with Novak Brothers LLC and Hines Georgetown Hotel, LLC to reimburse up to $4.5 million of public infrastructure improvements related to the hotel/conference center project at the Summit at Rivery Park. These improvements are necessary for the development of new or expanded business and comply with the GEDCO ballot language and state statutes related to infrastructure contributions. The original agreement had a project construction deadline of December 31, 2015. Due to delays in the project, the completion date must be extended. This amended and restated agreement revises the construction deadline to June 30, 2016. FINANCIAL IMPACT: This is a reimbursement agreement, meaning funds will not be paid until the completion of the improvements and acceptance by the City. SUBMITTED BY: Micki Rundell, Finance Manager, Mark Thomas ATTACHMENTS: Description Type agreement Cover Memo Amended and Restated GEDCO Performance Agreement The Summit at Rivery Park Page 1 of 27 GEORGETOWN ECONOMIC § FIRST AMENDED AND RESTATED § DEVELOPMENT CORPORATION § PERFORMANCE AGREEMENT § CITY OF GEORGETOWN, TEXAS § THE SUMMIT AT RIVERY PARK This FIRST AMENDED AND RESTATED PERFORMANCE AGREEMENT (“Agreement”) is between NOVAK BROTHERS, LLC, a Texas limited liability company, whose mailing address is 201 Adams Street, Georgetown, Texas 78628 (“Novak”), HINES GEORGETOWN HOTEL, LLC, a Delaware limited liability company (“Hines”), the GEORGETOWN ECONOMIC DEVELOPMENT CORPORATION, a Texas non- profit corporation, whose mailing address is 113 E. 8th Street, Georgetown, Texas 78626 (“GEDCO”), and the CITY OF GEORGETOWN, a Texas Home Rule municipality, whose making address is 113 E. 8th Street, Georgetown, Texas 78626 (the “City”). The term “Developer” as used herein shall refer collectively to Novak and Hines. Developer, GEDCO and the City are referred to collectively in this Agreement as “the Parties.” WHEREAS, the Parties are parties to that certain “Performance Agreement” approved by the City Council of the City on December 10, 2013 (the “Original Performance Agreement”); WHEREAS, Developer has requested that that the definition of the term “Construction Deadline” as set forth in the Original Performance Agreement be revised from December 31, 2015 to June 30, 2016, and GEDCO and the City have no objections to amending the Original Agreement to so state; WHEREAS, Brae Group Ltd., a Texas limited partnership, is the owner of a 31.319-acre portion of the Property (defined herein) shown by sketch on Exhibit A; WHEREAS, Novak Brothers Texas Brownstones, LLC, a Texas limited liability company, is the owner of a 0.613-acre portion of the Property shown by sketch on Exhibit A; WHEREAS, the Property is the subject of several other agreements by or among some or all of the Parties pursuant to which the Property is to be developed by Developers with new business enterprises – specifically, the Hotel (defined herein) and the Conference Center (defined herein) – and with other improvements such as the Public Parking Garage (defined herein), residential townhomes, apartments, and other uses as may be allowed under the zoning ordinances applicable to the Property; Amended and Restated GEDCO Performance Agreement The Summit at Rivery Park Page 2 of 27 WHEREAS, GEDCO is a Type A economic development corporation created in 2001 pursuant to the predecessor statute of Chapter 504 of the Texas Local Government Code; WHEREAS, GEDCO is authorized to finance “projects” as that term is defined in various sections of Chapters 501 and 504 of the Texas Local Government Code; WHEREAS, Section 501.103 of the Texas Local Government Code, in pertinent part, defines the term "project" to mean "expenditures that are found by the board of directors [of the economic development corporation] to be required or suitable for infrastructure necessary to promote or develop new or expanded business enterprises, limited to: (1) streets and roads, rail spurs, water and sewer utilities, electric utilities, or gas utilities, drainage, site improvements, and related improvements; (2) telecommunications and Internet improvements; or (3) beach remediation along the Gulf of Mexico;" WHEREAS, Sections 501.152 and 504.105(a) of the Texas Local Government Code also allow GEDCO fund certain project costs related to the construction of the Hotel and Conference Center; WHEREAS, the Board of Directors of GEDCO has found that the expenditure of GEDCO funds to aid in the construction of the Public Infrastructure Improvements (herein defined) in accordance with the terms and conditions of this Agreement is an expenditure that is required or suitable for infrastructure necessary to promote or develop new or expanded business enterprises (i.e., the Hotel and Conference Center) and development of the Property consistently with the Revised PUD Ordinance (defined herein) and the Related Documents (defined herein); WHEREAS, following notice and a public hearing on GEDCO’s proposed financial participation in construction of the Public Infrastructure Improvements in the amount of the GEDCO Share (defined herein), the GEDCO Board of Directors determined that (1) expenditure of the GEDCO Share for the Public Infrastructure Improvements is an expenditure that meets the definition of "project" as that term is defined Section 501.103 of the Texas Local Government Code; (2) the proposed expenditure of the GEDCO Share for the Public Infrastructure Improvements meets the definition of "cost" as that term is defined by Sections 501.103, 501.152 and/or 504.105(a) of the Texas Local Government Code; and (3) the GEDCO Share is included in the GEDCO budget, which has been approved by the City Council; WHEREAS, the Parties understand and agree that Section 501.073(a) of the Texas Local Government Code requires the City Council of the City of Georgetown, Texas, to Amended and Restated GEDCO Performance Agreement The Summit at Rivery Park Page 3 of 27 approve all programs and expenditures of GEDCO, and accordingly this Agreement is not effective until City Council has approved this Agreement at a City Council meeting called and held for that purpose. NOW, THEREFORE, for and in consideration of the agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: SECTION 1. RECITALS INCORPORATED. The foregoing recitals are hereby found to be true and correct and are incorporated into the body of this Agreement by reference and shall be considered part of the mutual covenants, consideration and promises that bind the Parties. SECTION 2. TERM. This Agreement shall be effective as of the Effective Date and shall continue thereafter until all obligations of the Parties under this Agreement have been performed in full, unless terminated sooner in accordance with the terms of this Agreement. SECTION 3. DEFINITIONS. The following words shall have the following meanings when used in this Agreement. (a) Agreement. The word "Agreement" means this Performance Agreement, together with all Exhibits attached to this Agreement. (b) Applicable Laws. The words “Applicable Laws” mean and include all of the following: all federal, state and local laws, ordinances, orders, specifications, standards, and regulations pertaining to the development of the Property, including, without limitation, the Texas Commission on Environmental Quality laws and rules for construction over the Edwards Aquifer Recharge Zone; the City’s Code of Ordinances, Unified Development Code, Construction Specifications and Standards, Drainage Criteria Manual, Building Codes, Fire Codes, Inspection Guidelines, and Development Manual; and the final City- approved construction plans and specifications for the Public Infrastructure Improvements, Hotel, Conference Center, and Public Parking Garage. Amended and Restated GEDCO Performance Agreement The Summit at Rivery Park Page 4 of 27 (c) Board. The word “Board” means the Board of Directors of the Georgetown Economic Development Corporation (GEDCO). (d) Brae. The word “Brae” means BRAE GROUP, LTD., a Texas limited partnership whose general partner is Novak and whose mailing address is 201 Adams Street, Georgetown, Texas 78628, and Brae’s successors and assigns. (e) City. The word “City” means the City of Georgetown, Texas. (f) City Council. The words “City Council” mean the City Council of the City of Georgetown, Texas. (g) Conference Center. The words “Conference Center” mean the conference center to be constructed by Hines (defined herein) on the Property in the area shown on Exhibit B as “Zone B1,” having a ballroom at least 16,000 square feet in size, and being capable of hosting multiple small scale events constructed and operated pursuant to the applicable Related Documents. (h) Construction Deadline. The words “Construction Deadline” mean June 30, 2016. (i) Developer. The word “Developer” means, jointly and severally, Novak (defined herein) and Hines (defined herein). (j) Effective Date. The words "Effective Date" mean the latest date accompanying the signatures lines of the Parties below. (k) Event of Default. The words "Event of Default" mean and include any of the Events of Default set forth below in the section of this Agreement entitled "Events of Default.” (l) "GEDCO. The word "GEDCO" means the GEORGETOWN ECONOMIC DEVELOPMENT CORPORATION, a Texas non-profit corporation formed and operating under Chapter 504 of the Texas Local Government Code, its successors and assigns, whose corporate address for the purposes of this Agreement is 113 E. 8th Street, Georgetown, Texas 78626. (m) GEDCO Share. The words “GEDCO Share” mean an amount of Qualified Expenditures not to exceed FOUR MILLION FIVE HUNDRED THOUSAND DOLLARS ($4,500,000) anticipated to be funded in part from cash, and in part from the proceeds of bonds or other obligations issued by GEDCO as contemplated herein. Amended and Restated GEDCO Performance Agreement The Summit at Rivery Park Page 5 of 27 (n) Hines. The word “Hines” means Hines Georgetown Hotel LLC, a Texas limited liability company whose address for purposes of this Agreement is 811 Main Street, Suite 4100, Houston, Texas 77002, and Hines’ successors and assigns. (o) Hotel. The word "Hotel" means an upscale hotel having at least 221-rooms and a AAA 3 Diamond Rating or a 2 Star Forbes Rating (based on the 2013 hotel rating systems) in the Starwood Hotels & Resorts Worldwide, Inc. brand to be constructed by Hines on the Property in the area described on Exhibit B as “Zone B1” constructed and operated pursuant to the applicable Related Documents. (p) Novak. The word "Novak" means NOVAK BROTHERS, LLC, a Texas limited liability corporation, whose mailing address is 201 Adams Street, Georgetown, Texas 78628, and Novak’s successors and assigns. (q) Property. The word "Property" means that certain real property consisting of 31.94 acres of land, more or less, in the City of Georgetown, Williamson County, Texas, which is bounded by IH-35 to the east, Rivery Blvd. to the south, and the San Gabriel River to the west and east and known locally as The Summit at Rivery Park and more specifically described by sketch on Exhibit A, attached hereto and incorporated herein for all purposes. (r) Public Parking Garage. The words “Public Parking Garage” mean the multi- level above-ground public parking garage having at least 336 spaces to be constructed by Hines on the Property in the area described on Exhibit B as “Zone B1” constructed and operated pursuant to the applicable Related Documents. (s) Public Infrastructure Improvement(s) The words "Public Infrastructure Improvement" mean and include the public infrastructure improvements identified on Exhibit C of this Agreement, which is attached hereto and incorporated herein for all purposes. Each of the public infrastructure improvements identified on Exhibit C are sometimes referred to individually herein as a “Public Infrastructure Improvement” and collectively as the “Public Infrastructure Improvements.” The term Public Infrastructure Improvement does not mean or include the landscaping, irrigation improvements, or other improvements that may be located within the medians or rights-of-way of the Public Infrastructure Improvements. (t) Qualified Expenditures. The words "Qualified Expenditures" mean those certain expenditures by Developer that meet all of the following criteria: (1) are associated with the construction of the Public Infrastructure Improvements (and no other improvements) and are described on Exhibit C, attached hereto, (2) Amended and Restated GEDCO Performance Agreement The Summit at Rivery Park Page 6 of 27 meet the definitions of "project" as that term is defined in Section s501.103, 501.152 and/or 504.105(a) of the Texas Local Government Code, (3) meet the definition of "cost" as that term is defined in Section 501.152 of the Texas Local Government Code; and (4) do not exceed the GEDCO Share (regardless of the estimated costs shown on Exhibit C). (u) Reimbursement Conditions. The words “Reimbursement Conditions” mean and include each, every, and all of the following events: (1) With regard to the Public Infrastructure Improvements: (i) Developer has acquired rights from Brae to construct the Public Infrastructure Improvements on the Property; (ii) the Public Infrastructure Improvements have been finally constructed in accordance with all Applicable Laws, this Agreement, and the Related Documents (defined herein); (iii) the City has issued Letters of Acceptance for the Public Infrastructure Improvements; and (iv) the City has approved the title commitment and form of deed required by Section 4(l) of this Agreement; and (2) the Hotel has been finally constructed in accordance with all Applicable Laws, this Agreement, and the Related Documents, a final Certificate of Occupancy has been issued by the City for the Hotel; and (3) the Conference Center has been finally constructed in accordance with all Applicable Laws, this Agreement, and the Related Documents, a final Certificate of Occupancy has been issued by the City for the Conference Center; and (4) the Parkland Improvements (as that term is defined in the Parkland Improvements Agreement) have been finally constructed in accordance with all Applicable Laws, the Parkland Improvements Agreement, and the Related Documents, and accepted for maintenance by the City; and (5) the Public Parking Garage has been finally constructed in accordance with all Applicable Laws, this Agreement, and the Related Documents; the City has issued a final certificate of occupancy for the Public Parking Garage, a bill of sale and/or deed in a form acceptable to the City has been executed by the necessary parties transferring ownership of the Public Parking Garage to the City at no additional cost to the City and free and clear of all liens and other encumbrances; Amended and Restated GEDCO Performance Agreement The Summit at Rivery Park Page 7 of 27 (6) all documentation substantiating the Reimbursement Request required by Section 5(c) of this Agreement has been submitted to and approved by the City and GEDCO; (7) GEDCO has issued the GEDCO Obligations (defined below); and (8) Developer is has fully performed and complied with, and is not in default or breach of, any terms or conditions contained in this Agreement or any Related Document. (v) Related Documents. The words "Related Documents" mean and include, without limitation all of the ordinances and agreements pertaining to the Property, including but not limited to the following, as they may be amended from time to time: (1) the Memorandum of Understanding for the Hotel, Conference Center and Parking Garage at The Summit at Rivery Park dated May 14, 2013 between the City, Developer, and Hines Interests Limited Partnership, a Delaware limited partnership and an affiliate of Hines; (2) the Parkland Improvement Agreement between the City and Brae effective June 26, 2013, as amended; (3) the Joint Use, Access and Lease Agreement between the City and Hines pertaining to the Public Parking Garage and the Conference Center, as amended; (4) the Tax Increment Financing Agreement between the City and Williamson County, as amended; (5) City Ordinance No. 2007-91, as amended by Ordinance No. 2008-63, Ordinance No. 2010-30, and Ordinance No. 2013-10 relating to the Rivery Park Tax Increment Reinvestment Zone, as said ordinances may be amended from time to time; (6) City Ordinance No. 2013-54, being the revised Planned Unit Development Ordinance pertaining to zoning and development standards for the Property, as said ordinance may be amended from time to time; (7) the Performance Agreement between the Georgetown Transportation Enhancement Corporation (GTEC), Novak, and the City, as amended; Amended and Restated GEDCO Performance Agreement The Summit at Rivery Park Page 8 of 27 (8) the Final Site Plan(s) approved by the City for the Property; (9) the Master Development Agreement between the City, Developer, and Hines pertaining to development of the Property, as amended; and (10) all promissory notes, loan agreements, and all other instruments and documents, whether now or hereafter existing, executed in connection with the Property. (w) Term. The word "Term" means the term of this Agreement as specified in Section 2 of this Agreement. SECTION 4. AFFIRMATIVE COVENANTS OF DEVELOPER. (a) Obtain Rights in Property. Developer shall cause Brae to transfer all rights, title and interest in the Property, or portions of the Property, when and as are necessary for Developer to construct the Public Infrastructure Improvements in accordance with this Agreement. By the signature below of its duly authorized representative, Brae acknowledges and agrees that it has the obligation to timely transfer such rights, tile, and interest in the Property, or portions of the Property, to Developer so that Developer can comply with the terms and conditions of this Agreement. Prior to requesting issuance of the Notice to Proceed pursuant to Section 4(d) of this Agreement, Developer shall provide the City with written documentation evidencing Developer’s right to construct the Public Infrastructure Improvements on the Property. (b) Duty to Construct. Developer shall construct or cause to be constructed the Public Infrastructure Improvements in accordance with the provisions of this Agreement. Final completion of all of the Public Infrastructure Improvements by Developer and acceptance of same by the City must occur not later than the Construction Deadline, subject to reasonable Force Majeure as set forth in Section 9 of this Agreement. (c) Construction Details. Not later than ninety (90) days after the Effective Date, Developer shall submit detailed construction plans and specifications for each of the Public Infrastructure Improvements (the “Construction Details”). The Construction Details shall include, for each Public Infrastructure Improvement, the following information: detailed plans and specifications that are consistent with all Applicable Laws, construction schedule, proposed temporary construction access in relationship to Rivery Park and existing streets, the estimated cost of constructing each Public Infrastructure Improvement as determined by a professional engineer, and, if necessary, Amended and Restated GEDCO Performance Agreement The Summit at Rivery Park Page 9 of 27 alternate access options for visitors to Rivery Park during construction of a Public Infrastructure Improvement. Within thirty (30) calendar days of receipt of the Construction Details, the City shall respond to Developer by either approving the Construction Details or conditionally approving the Construction Details subject to additional requirements or alterations mutually acceptable to the City and Developer. Failure of the City to respond to the submittal of the Construction Details within the thirty (30) day period shall not be deemed to be acceptance of same by the City. (d) Notice to Proceed. Construction shall not commence on a Public Infrastructure Improvement until Developer has received a written "Notice to Proceed" from the City’s Development Engineer for that specific Public Infrastructure Improvement . No Notice to Proceed shall be valid unless and until Developer has provided the documentation required by Section 4(a) of this Agreement, the performance and payment bonds required by Section 4(h) of this Agreement, and the Insurance required by Section 6 of this Agreement. (e) Approved Plans. All work must be performed in compliance with the Applicable Laws and with the City-approved Construction Details, construction plans and specifications for the Public Infrastructure Improvements (collectively, the “Approved Plans”). All work performed under this Agreement must also be free from design and construction defects. In addition, Developer shall follow all City ordinances and other rules and regulations regarding permits and approvals related to activities and construction of the Public Infrastructure Improvements, as well as those of any other governmental entity having jurisdiction. (f) Initial Costs. All costs of the Public Infrastructure Improvements, including any increases in the actual costs of the Public Infrastructure Improvements, including cost increases, change orders and overruns initially shall be borne by Developer. Costs include, but are not limited to, consultant fees, design costs, landscaping costs, labor costs, site restoration and re-vegetation costs, materials costs, engineering costs, legal fees, utility connection fees, permits, inspection fees, insurance costs and any other costs incurred in the design and construction of the Public Infrastructure Improvements. (g) No Liens. Developer shall have no right to place liens on the Public Infrastructure Improvements or any other publicly-owned property, and shall not allow any liens to be placed against the Public Infrastructure Improvements or any publicly- owned property by any contractor, subcontractor, employee, agent or assign or one or more of them (the "Contractors") or their vendors. Developer agrees that the City will not accept for maintenance or ownership any Public Infrastructure Improvements burdened by any lien or any other encumbrance. Amended and Restated GEDCO Performance Agreement The Summit at Rivery Park Page 10 of 27 (h) Payment and Performance Bonds. Prior to and as a condition of the City’s issuance of the Notice to Proceed, Developer shall post, or cause the Contractors to post, performance and payment bonds in the full amounts of the contract price for each Public Infrastructure Improvement. The form and amount of the bonds comply with Chapter 2253 of the Government Code. (i) Diligent Prosecution of the Work. Developer shall diligently prosecute completion of the Public Infrastructure Improvements and coordinate all construction activity with the City’s Development Engineer following issuance of the Notice to Proceed. In addition to obtaining any required street closure permits, if necessary, a minimum of fourteen (14) business days notice must be given to the City’s Parks & Recreation Department Director to temporarily close any part of Rivery Park for any reason or to temporarily suspend access to any part of Rivery Park to facilitate or perform work under this Agreement. (j) As-Built Plans. After construction of each Public Infrastructure Improvement, Developer shall submit a set of construction plans for each Public Infrastructure Improvement certified as “as-built” by the engineer responsible for preparing the Approved Plans. (k) Completion Notice. Upon completion of construction of the Public Infrastructure Improvements, Developer shall deliver to the City written notice that construction of the Public Infrastructure Improvements have been completed and are ready for final inspection, that the Maintenance Bond required by Section 4(o) of this Agreement is in place, and that Developer has submitted a set of construction plans for the completed Public Infrastructure Improvements certified as “as-built” by the engineer responsible for preparing the construction plans for the Public Infrastructure Improvements (collectively, the "Completion Notice"). Within fourteen (14) business days of receipt of the Completion Notice, the City shall respond to Developer by either submitting a list of items still requiring completion or modification, or by accepting the Public Infrastructure Improvements by Letter of Acceptance (the “Letter of Acceptance”). Final acceptance of the Public Infrastructure Improvements shall be evidenced by a Letter of Acceptance from the City, but shall not be valid unless and until the Maintenance Bond required by Section 4(o) of this Agreement is in place. Failure to respond to a Completion Notice within the 14-day period shall be not deemed acceptance by the City. Notwithstanding the foregoing, the City shall not be responsible for maintenance of any landscaping, irrigation improvements, or other amenities or improvements that may be placed in the median(s) or in the rights-of-way of the Public Infrastructure Improvement(s). Amended and Restated GEDCO Performance Agreement The Summit at Rivery Park Page 11 of 27 (l) Warranty Deed. Within five (5) calendar days of the date of the Letter of Acceptance, Developer shall convey to the City at no cost to the City and by General Warranty Deed those of the Public Infrastructure Improvements consisting of the public streets identified on Exhibit D as “Vehicular Circulation/Access.” The Developer shall provide a title insurance policy to the City insuring the City’s record title to the transferred Public Infrastructure Improvements, and shall pay all property taxes and closing costs so that the City takes the Public Infrastructure Improvements free of all taxes and liens. The deed(s) shall be in a form approved by the City. All pre- and post- closing taxes and all closing costs shall be borne solely by the Developer. No final plat for any portion of the Property located in Zones B1, B2, or B3 (as shown on Exhibits B and D) any part of the Property shall be issued unless and until the Public Infrastructure Improvements are properly conveyed to the City. (m) Maintenance Period. Developer hereby warrants that the Public Infrastructure Improvements will be free from defects for a period of one (1) year from the date the City accepts the construction of the Public Infrastructure Improvements (the "Maintenance Period"). The Developer shall correct and repair, or cause to be corrected and repaired, any defects in materials or workmanship of a Public Infrastructure Improvement that occurs before and during the Maintenance Period due to any cause. (n) Transfer of Warranties. Within thirty (30) days after the date of the Letters of Acceptance for the Public Infrastructure Improvements, Developer shall transfer to the City all contractor, subcontractor, consultant and manufacturer warranties for the Public Infrastructure Improvements. (o) Maintenance Bond. For all of the Public Infrastructure Improvements, as a condition of the City’s acceptance of dedication of the Public Infrastructure Improvements, and to secure the Developer’s warranty obligations during the Maintenance Period, the Developer shall provide a Maintenance Bond in the amount of Twenty Five Percent (25%) of the total cost of constructing all of the Public Infrastructure Improvements (the “Maintenance Bond”). The Maintenance Bond must be in a form approved for use in the City’s Development Manual. The Public Infrastructure Improvements must meet the all Applicable Laws at the end of the Maintenance Period in order for the City to release the Maintenance Bond. Upon release of the Maintenance Bond, Developer shall have no further obligations or responsibility for the Public Infrastructure Improvements. (p) Timely Payments. Developer shall make timely payment for all aspects of properly performed engineering, design, construction work (including inspection fees), and for all materials and services relating to the Public Infrastructure Improvements in accordance with the applicable construction contract and design services contracts for Amended and Restated GEDCO Performance Agreement The Summit at Rivery Park Page 12 of 27 the Public Infrastructure Improvements. Notwithstanding the foregoing, however, Developer shall have the right to contest payment amounts so long as Developer causes any disputed amount to be escrowed or any lien resulting therefrom to be released by bond within thirty (30) days from the date of such lien. SECTION 5. PARTICIPATION BY GEDCO. (a) Initial Payment. Developer shall initially pay all costs associated with the construction of the Public Infrastructure Improvements. (b) Financing of the GEDCO Share. The Parties acknowledge that the GEDCO Share is comprised of a combination of lawfully available funds consisting of cash (the “Cash Payment”), and from the proceeds of bonds or other obligations to be issued by GEDCO (the “GEDCO Obligations”). With regard to the Cash Payment, GEDCO hereby reserves ONE MILLION FIVE HUNDRED THOUSAND DOLLARS ($1,500,000) from lawfully available funds to pay future Reimbursement Requests, upon compliance with all other conditions of reimbursement required by this Agreement. Any additional portion of the GEDCO Share that is not paid from the proceeds of GEDCO Obligations will be Cash Payment, subject to annual appropriation by GEDCO in any future fiscal year and shall constitute a current expense for that fiscal year payable solely from the sales tax revenues collected for that fiscal year. Such additional amount of Cash Payment does not constitute a general obligation or other indebtedness of GEDCO for which GEDCO is obligated to levy or pledge any form of taxation. With regard to the GEDCO Obligations, payment of any Reimbursement Request out of the GEDCO Obligations is conditioned upon the ability of GEDCO to obtain the approving opinion of the Attorney General of the State of Texas if such opinion is required by law for the issuance of such GEDCO Obligations, and subject to the other conditions of reimbursement required by this Agreement. Developer acknowledges that GEDCO must issue bonds or other obligations in order to fully satisfy its obligations under this Agreement. (c) Amount of Cost Reimbursement. Only Qualified Expenditures are eligible for reimbursement under this Agreement. In no event shall the total amount of Qualified Expenditures reimbursed under this Agreement exceed the GEDCO Share. Developer understands and acknowledges that the actual cost of the Public Infrastructure Improvements is likely to exceed the GEDCO Share, and further understands and acknowledges that any costs or expenses associated with the Public Infrastructure Improvements in excess of the GEDCO Share shall be borne solely by Developer and Amended and Restated GEDCO Performance Agreement The Summit at Rivery Park Page 13 of 27 that neither the City nor GEDCO shall be responsible for any costs over and above the GEDCO Share. (d) Submittal of Reimbursement Request. After the fulfillment of all of the Reimbursement Conditions, Developer shall submit to the City and to GEDCO a final consolidated report of all Qualified Expenditures associated with the Public Infrastructure Improvements, including all necessary supporting information and documentation (the “Reimbursement Request”). Such information shall include, but not be limited to, payment applications, cancelled checks evidencing payment, lien waivers from the Contractor and all subcontractors and suppliers, the warranties required by Section 4(n) and the Maintenance Bond required by Section 4(o). The Reimbursement Request must also include a statement signed by the Contractor and signed and sealed by the project engineer (who shall be a registered professional engineer licensed to practice in the State of Texas) attesting to the amount of the work performed, labor furnished, materials included, and the actual costs of each of the Qualified Expenditures shown on Exhibit C. Developer agrees to provide all information and documents in its possession or under its control reasonably required by the City and GEDCO for proper processing and for accurate accounting and documentation of actual costs for the construction of the Public Infrastructure Improvements. The Reimbursement Request will not be considered until after all of the Reimbursement Conditions have been completed. (e) Review and Processing of Reimbursement Request. Provided that all of the Reimbursement Conditions have been fulfilled, and subject to the provisions of Section 5(b) of this Agreement, the City and GEDCO shall promptly review the Reimbursement Request and respond to Developer within fifteen (15) business days after the receipt of a complete Reimbursement Request. (1) If both the City and GEDCO approve the Reimbursement Request, the City or GEDCO shall give Developer written notice of their approval thereof within fifteen (15) business after its receipt of the Reimbursement Request (the “Approval of Reimbursement Request”), but failure by the City or GEDCO to respond to the Reimbursement Request within fifteen (15) business shall not be construed to be approval by the City or GEDCO of the Reimbursement Request. Within fifteen (15) business days after the City and GEDCO provide Developer with their Approval of Reimbursement Request, GEDCO shall pay to Developer the amount specified in the Approval of Reimbursement Request, not to exceed the GEDCO Share. Amended and Restated GEDCO Performance Agreement The Summit at Rivery Park Page 14 of 27 (2) If the City or GEDCO determine that the amount owing to Developer is less than the amount submitted by Developer in the Reimbursement Request, the City or GEDCO shall work diligently and in good faith with Developer to resolve the discrepancy within thirty (30) business days. If the Parties are unable to resolve the discrepancy within thirty (30) business days, each Party shall have the rights and remedies available to it at law and in equity to enforce this Agreement. (f) Payment of Reimbursement Request. GEDCO hereby appropriates the Cash Payment portion of the GEDCO Share from lawfully available funds to pay future Reimbursement Requests, subject to all other conditions to reimbursement required by this Agreement. The Parties understand and agree that the City has no obligation to expend any funds under this Agreement. SECTION 6. INSURANCE Prior to and as a condition of the City’s issuance of the Notice to Proceed, Developer shall procure and maintain, or cause its Contractors to procure and maintain insurance coverages in accordance with the requirements as set forth in Exhibit E to this Agreement, which is attached hereto and incorporated herein for all purposes as if set forth in full. Such insurance coverages shall remain in full force and effect for the duration of this Agreement. SECTION 7. EVENTS OF DEFAULT. Each of the following shall constitute an Event of Default under this Agreement: (a) Failure to Construct. Failure of Developer or Hines (as applicable) to construct the Hotel, Conference Center, Public Parking Garage, Public Infrastructure Improvements, Public Roadways (as that term is defined in the GTEC Performance Agreement), or the Parkland Improvements as required by this Agreement and/or the Related Documents, and to secure a final Certification of Completion (for the Hotel, Conference Center, and Public Parking Garage) or the City’s final acceptance (for the Public Infrastructure Improvements or Public Roadways) on or before the Construction Deadline, is an Event of Default. (b) False Statements. Any warranty, representation, or statement made or furnished to GEDCO or the City by or on behalf of Developer, Brae, or Hines under this Amended and Restated GEDCO Performance Agreement The Summit at Rivery Park Page 15 of 27 Agreement or under any of the Related Documents that is false or misleading in any material respect, either now or at the time made or furnished, is an Event of Default. (c) Insolvency. Developer’s, Brae’s, or Hines’ insolvency, appointment of receiver for any part of their respective property or the Property, any assignment for the benefit of creditors of any of them, any type of creditor workout for any of them, or the commencement of any proceeding under any bankruptcy or insolvency laws by or against any of them is an Event of Default. (d) General. The failure of a Party to this Agreement to comply with any term, covenant, or condition contained in this Agreement, or the failure of any party to a Related Document to comply with any term, covenant, or condition contained in a Related Document, is an Event of Default. SECTION 8. EFFECT OF AN EVENT OF DEFAULT. (a) Failure to Construct. In the event Developer or Hines (as applicable) fail to construct the Hotel, Conference Center, Public Parking Garage, Public Infrastructure Improvements, the Public Roadways (as defined in the GTEC Performance Agreement), or the Parkland Improvements as required by this Agreement and/or the Related Documents, and to secure a final Certification of Completion (for the Hotel, Conference Center, and Public Parking Garage) or the City’s final acceptance (for the Public Infrastructure Improvements or the Public Roadways) on or before the Construction Deadline, GEDCO shall have no obligation to reimburse Developer for any part of the GEDCO Share. (b) Other Event of Default. If an Event of Default other than an event described in Section 7(a) of this Agreement occurs, the non-defaulting party shall give written notice to the defaulting of any default, and the defaulting party shall have thirty (30) days (the “Cure Period”) to cure said default. Should said default remain uncured as of the last day of the Cure Period, and the non-defaulting party is not otherwise in the Parties shall each have all rights and remedies available to them in law and in equity for any Event of Default not specifically addressed above in Section 8(a). In the event that the default cannot be cured within the Cure Period, but Developer commences cure within the Cure Period and diligently pursues same, Developer shall have an additional period of time, not to exceed ninety (90) days from the initial default notice, in which to compete the cure. SECTION 9. FORCE MAJEURE Amended and Restated GEDCO Performance Agreement The Summit at Rivery Park Page 16 of 27 (a) Definition. Except as otherwise provided below, the term “Force Majeure Event” means any act or event, whether foreseen or unforeseen, that meets all three (3) of the following tests: (1) The act or event prevents a party (the “Nonperforming Party”), in whole or in part, from (i) performing its obligations under this Agreement; or (ii) satisfying any conditions precedent to the other party’s (the “Performing Party’s”) obligations under this Agreement; and (2) The act or event is beyond the reasonable control of and not the fault of the Nonperforming Party, and (3) The Nonperforming Party has been unable to avoid or overcome the act or event by the exercise of due diligence. (b) Report of a Force Majeure Event. No later than five (5) business days after becoming aware of the occurrence of a Force Majeure Event, the Nonperforming Party shall furnish the Performing Party with a written report describing the particulars of the occurrence, including an estimate of its expected duration and probable impact on the performance of the Nonperforming Party’s obligations under this Agreement (the “Report”). (c) Duties During the Continuation of a Force Majeure Event. During the continuation of the Force Majeure Event, the Nonperforming Party shall: (1) exercise commercially reasonable efforts to mitigate or limit damages to the Performing Party; (2) exercise commercially reasonable due diligence to overcome the Force Majeure Event; (3) to the extent it is able, continue to perform its other obligations under this Agreement; (4) cause the suspension of performance to be of no greater scope and no longer duration than the Force Majeure Event requires; and (5) cause payments required under this Agreement to be paid when and as due. (d) Resumption of Performance. When the Nonperforming Party is able to: Amended and Restated GEDCO Performance Agreement The Summit at Rivery Park Page 17 of 27 (1) resume performance of its obligations under this Agreement, or (2) satisfy the conditions to the Performing Party’s obligations, it shall immediately give the Performing Party written notice to that effect and shall resume performance under this Agreement. (e) Dispute Resolution Related to Force Majeure. The Parties shall negotiate in good faith and attempt to resolve any dispute among them as to whether a Force Majeure Event has occurred, or whether a Force Majeure Event has prevented the Nonperforming Party, in whole or in part, from performing any obligation or satisfying any condition under this Agreement. If the Parties are unable to resolve the dispute or to agree on a course of action within ten (10) calendar days from the date of the Report, the Parties shall submit the dispute to the Williamson County Commissioners Court for a binding determination on the sole issue of whether an Event of Force Majeure has occurred or has prevented the Nonperforming Party from performing any obligation or satisfying any condition under this Agreement. The burden of proof for demonstrating that a Force Majeure Event has occurred, or that a Force Majeure Event has prevented performance, shall be on the Nonperforming Party. (f) Exclusive Remedy. The relief offered by this Section 9 is the exclusive remedy available to the Nonperforming Party with respect to a Force Majeure Event, and the Parties waive the common law defenses of impossibility and impracticability with respect to the Force Majeure Events and any event or act that might be deemed a force majeure event under the common law. SECTION 10. INDEMNIFICATION AND DEVELOPER’S REPRESENTATIONS, WARRANTIES AND COVENANTS. (a) DEVELOPER, ITS PARTNERS, MEMBERS, OFFICERS, SUCCESSORS, AGENTS, AFFILIATES, CONTRACTORS, AND ASSIGNS (COLLECTIVELY, THE “INDEMNITORS”) SHALL, JOINTLY AND SEVERALLY, INDEMNIFY, SAVE, AND HOLD HARMLESS THE CITY, GEDCO, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, AGENTS, ATTORNEYS, AND EMPLOYEES (COLLECTIVELY, THE "INDEMNITEES") FROM AND AGAINST: (I) ANY AND ALL CLAIMS, DEMANDS, ACTIONS OR CAUSES OF ACTION THAT ARE ASSERTED AGAINST ANY INDEMNITEE IF THE CLAIM, DEMAND, ACTION OR CAUSE OF ACTION DIRECTLY OR INDIRECTLY RELATES TO TORTIOUS INTERFERENCE WITH CONTRACT OR BUSINESS INTERFERENCE, OR WRONGFUL OR NEGLIGENT USE OF GEDCO FUNDING BY THE INTEMNITORS OR ANY OF THEIR AGENTS AND EMPLOYEES; (II) ANY ADMINISTRATIVE OR INVESTIGATIVE PROCEEDING BY ANY GOVERNMENTAL AUTHORITY DIRECTLY OR INDIRECTLY RELATED, TO A CLAIM, DEMAND, ACTION OR Amended and Restated GEDCO Performance Agreement The Summit at Rivery Park Page 18 of 27 CAUSE OF ACTION IN WHICH ANY INDEMNITEE IS A DISINTERESTED PARTY; (III) ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION WHICH DIRECTLY OR INDIRECTLY CONTESTS OR CHALLENGES THE LEGAL AUTHORITY OF THE INDEMNITEES OR THE INDEMNITORS TO ENTER INTO THIS AGREEMENT; (IV) ANY AND ALL LIABILITIES, LOSSES, COSTS, OR EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES AND DISBURSEMENTS) THAT ANY INDEMNITEE SUFFERS OR INCURS AS A RESULT OF ANY OF THE FOREGOING OR IS ARISING FROM OR RELATED TO THIS AGREEMENT; (V) A BREACH OF THIS AGREEMENT OR VIOLATION OF LAW BY THE INDEMNITORS; (VI) A FALSE REPRESENTATION OR WARRANTY MADE BY THE INTEMNITORS IN THIS AGREEMENT OR IN THE DESCRIPTION OF THE PUBLIC INFRASTRUCTURE IMPROVEMENTS OR THE ESTIMATED COSTS LISTED ON EXHIBIT C OF THIS AGREEMENT; (VII) THE NEGLIGENCE, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR BREACH OF A STANDARD OF STRICT LIABILITY BY THE INDEMNITORS IN CONNECTION WITH THIS AGREEMENT. CLAIMS TO BE INDEMNIFIED UNDER THIS SECTION INCLUDE BUT ARE NOT LIMITED TO CLAIMS FOR BODILY INJURY OR DEATH, OCCUPATIONAL ILLNESS OR DISEASE, LOSS OF SERVICES WAGES OR INCOME, DAMAGE DESTRUCTION OR LOSS OF USE OF PROPERTY, AND WORKERS’ COMPENSATION CLAIMS. DEVELOPER’S OBLIGATIONS UNDER THIS ARTICLE ARE NOT EXCUSED IN THE EVENT A CLAIM IS CAUSED IN PART BY THE ALLEGED NEGLIGENCE OR WILLFUL MISCONDUCT OF ANY OF THE INDEMNIFIED PARTIES OR BREACH OF ANY OF SUCH PARTIES' OBLIGATIONS UNDER THIS AGREEMENT. IF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION IS ASSERTED AGAINST ANY INDEMNITEE, SUCH INDEMNITEE SHALL PROMPTLY NOTIFY THE INDEMNITORS, BUT THE FAILURE TO SO PROMPTLY NOTIFY THE INDEMNITORS SHALL NOT AFFECT THE INDEMNITORS’ OBLIGATIONS UNDER THIS SECTION UNLESS SUCH FAILURE MATERIALLY PREJUDICES THE INDEMNITORS’ RIGHT TO PARTICIPATE IN THE CONTEST OF SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION, AS HEREINAFTER PROVIDED. IF REQUESTED BY THE INDEMNITORS IN WRITING, AS SO LONG AS NO DEFAULT OR EVENT OF DEFAULT SHALL HAVE OCCURRED AND BE CONTINUING, SUCH INDEMNITEE SHALL IN GOOD FAITH CONTEST THE VALIDITY, APPLICABILITY AND AMOUNT OF SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION AND SHALL PERMIT THE INDEMNITORS TO PARTICIPATE IN SUCH CONTEST. ANY INDEMNITEE THAT PROPOSES TO SETTLE OR COMPROMISE ANY CLAIM, DEMAND, ACTION, CAUSE OF ACTION OR PROCEEDING FOR WHICH THE INDEMNITORS MAY BE LIABLE FOR PAYMENT OF INDEMNITY HEREUNDER SHALL GIVE THE INDEMNITORS WRITTEN NOTICE OF THE TERMS OF SUCH PROPOSED SETTLEMENT OR COMPROMISE REASONABLY IN ADVANCE OF SETTLING OR COMPROMISING SUCH CLAIM OR PROCEEDING AND SHALL OBTAIN THE INDEMNITORS’ CONCURRENCE THERETO. (b) Developer represents and warrants to the City that the following representation and warranties are true as of the Effective Date: (1) Due Organization and Ownership. Developer is a limited liability company validly existing under the laws of the State of Texas, and the person Amended and Restated GEDCO Performance Agreement The Summit at Rivery Park Page 19 of 27 executing this Agreement on behalf of Developer is authorized to enter into this Agreement. The sole managing member of Developer is Jeffrey Ladd Novak. (2) Due Authority; No Conflict. Developer has all requisite power and authority to execute this Agreement and to carry out its obligations hereunder and the transactions contemplated hereby. This Agreement has been, and the documents contemplated hereby will be, duly executed by Developer and constitute Developer’s legal, valid and binding obligations enforceable against Developer in accordance with their terms. The consummation by Developer of the transactions contemplated hereby is not in violation of or in conflict with, nor does it constitute a default under, any term or provision of the organizational documents of Developer, or any of the terms of any agreement or instrument to which Developer is a party, or by which Developer is bound, or of any provision of any applicable law, ordinance, rule or regulation of any governmental authority or of any provision of any applicable order, judgment or decree of any court, arbitrator or governmental authority. (3) Consents. No consent, approval, order or authorization of, or declaration or filing with any governmental authority is required on the part of Developer in connection with the execution and delivery of this Agreement or for the performance of the transactions herein contemplated by the respective Parties hereto. (4) Litigation. There are no pending or, to the best of Developer’s knowledge, threatened, judicial municipal, or administrative proceedings, consent decrees, or judgments which might affect Developer’s ability to consummate the transaction contemplated hereby. (5) Legal Proceedings. No preliminary or permanent injunction or other order, decree, or ruling issued by a governmental entity, and not statute, rule, regulation, or executive order promulgated to or enacted by a governmental entity, shall be in effect which restrains, enjoins, prohibits, or otherwise makes illegal the consummation of the transactions contemplated by this Agreement. SECTION 11. MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of this Agreement: Amended and Restated GEDCO Performance Agreement The Summit at Rivery Park Page 20 of 27 (a) Amendments. This Agreement and the Exhibits attached hereto, together with all of the Related Documents, constitute the entire understanding and agreement of the parties as to the matters set forth in this Agreement. No alteration of or amendment to this Agreement shall be effective unless given in writing and signed by the party or parties sought to be charged or bound by the alteration or amendment. (b) Applicable Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas, and all obligations of the parties created hereunder are performable in Williamson County, Texas. Venue for any action arising under this Agreement shall lie in the state district courts of Williamson County, Texas. (c) Assignment. This Agreement may not be assigned by Developer without the express written consent of both GEDCO and the City Council. (d) Binding Obligation. This Agreement shall become a binding obligation on the Parties upon execution by all signatories hereto. Each Party to this Agreement warrants and represents that the individual or individuals executing this Agreement on behalf of them has full authority to execute this Agreement and bind them to the same. (e) Caption Headings. Caption headings in this Agreement are for convenience purposes only and are not to be used to interpret or define the provisions of the Agreement. (f) Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall constitute one and the same document. (g) Notices. Any notice or other communication required or permitted by this Agreement (hereinafter referred to as the "Notice") is effective when in writing and (i) personally delivered or (ii) three (3) days after notice is deposited with the U.S. Postal Service, postage prepaid, certified with return receipt requested, and addressed as follows: Amended and Restated GEDCO Performance Agreement The Summit at Rivery Park Page 21 of 27 if to Developer: Novak Brothers, LLC Attn: Jeff Novak, Managing Member 201 Adams Street Georgetown, Texas 78628 Telephone: (512) 931-7788 if to Brae: Brae Group, Ltd. Attn: Jeff Novak 201 Adams Street Georgetown, Texas 78628 Telephone: (512) 931-7788 If to Hines: Hines Georgetown Hotel LLC Attn: Travis M. Overall 811 Main Street, Suite 4100 Houston, Texas 77002 Telephone: (713) 237-5679 if to GEDCO: Georgetown Economic Development Corporation Attn: City of Georgetown Economic Development Director 113 E. 8th Street Georgetown, Texas 78626 Telephone: (512) 930-3652 if to City: City of Georgetown Attn: City Manager 113 E. 8th Street Georgetown, Texas 78626 Telephone: (512) 930-3723 (h) Severability. If a court of competent jurisdiction finds any provision of this Agreement to be invalid or unenforceable as to any person or circumstance, such finding shall not render that provision invalid or unenforceable as to any other persons or circumstances. If feasible, any such offending provision shall be deemed to be modified to be within the limits of enforceability or validity if the Parties so agree; Amended and Restated GEDCO Performance Agreement The Summit at Rivery Park Page 22 of 27 however, if the offending provision cannot be so modified by agreement, it shall be stricken and all other provisions of this Agreement in all other respects shall remain valid and enforceable. (i) Time is of the Essence. Time is of the essence in the performance of this Agreement. (j) Undocumented Workers. Developer certifies that it does not and will not knowingly employ an undocumented worker in accordance with Chapter 2264 of the Texas Government Code, as amended. If during the Term of this Agreement, Developer is convicted of a violation under 8 U.S.C. § 1324a(f), Developer shall repay the amount of the public subsidy provided under this Agreement plus interest, at the rate of eight percent (8%), not later than the 120th day after the date GEDCO notifies Developer of the violation. (k) Vesting. Developer agrees that neither this Agreement nor any proceedings related to the request for GEDCO funds is a vesting event under Chapter 245 of the Texas Local Government Code. (l) Further Assurances. The Parties agree to make, execute and deliver to GEDCO such other promissory notes, instruments, documents and other agreements as GEDCO or its attorneys may reasonably request to evidence this Agreement. (m) Performance. The Parties each agree to perform and comply with all terms, conditions, and provisions set forth in this Agreement and in all other instruments and agreements between or among them. (n) Effect on Original Agreement. As of the Effective Date of this First Amended and Restated Performance Agreement, this First Amended and Restated Performance Agreement shall supersede and replace the Original Performance Agreement in its entirety and the Original Performance Agreement shall have no further force or effect. EXHIBIT LIST: Exhibit A Sketch of the Property Exhibit B Site Layout Exhibit C Public Infrastructure Improvements and Qualified Expenditures Exhibit D Streets to be Conveyed to the City Exhibit E Insurance and Payment and Performance Bond Requirements Amended and Restated GEDCO Performance Agreement The Summit at Rivery Park Page 23 of 27 NOVAK: NOVAK BROTHERS, LLC a Texas limited liability corporation By: Printed Name: Jeffrey Ladd Novak Title: Managing Member Date Signed: ACKNOWLEDGEMENT State of Texas § County of Williamson § This First Amended and Restated Performance Agreement was acknowledged before me on _____________________________________ (date) by Jeffrey Ladd Novak, the duly authorized Managing Member of Novak Brothers, LLC, a Texas limited liability company, on behalf of Novak Brothers, LLC. Notary Public, State of Texas Amended and Restated GEDCO Performance Agreement The Summit at Rivery Park Page 24 of 27 HINES GEORGETOWN HOTEL, LLC a Delaware limited liability company By: Hines Georgetown Hotel Associates Limited Partnership, a Texas limited partnership, its sole member By: Hines Georgetown Hotel GP, LLC, a Delaware limited liability company, its general partner By: Hines Interests Limited Partnership, a Delaware limited partnership, its sole member By: Hines Holdings, Inc, a Texas corporation, its general partner By: Printed Name: Title: Date Signed: ACKNOWLEDGEMENT State of Texas § County of Harris § This First Amended and Restated Performance Agreement was acknowledged before me on __________________ (date) by ___________________________________________ (name of officer), ______________________________________(title of officer) of Hines Georgetown Hotel LLC, a Texas limited liability company, on behalf of Hines Georgetown Hotel LLC. Notary Public, State of Texas Amended and Restated GEDCO Performance Agreement The Summit at Rivery Park Page 25 of 27 GEDCO: GEORGETOWN ECONOMIC DEVELOPMENT CORPORATION, a Texas non-profit corporation By: Printed Name: Title: Board President Date Signed: ATTEST: , Board Secretary ACKNOWLEDGEMENT State of Texas § County of Williamson § This First Amended and Restated Performance Agreement was acknowledged before me on ______________________________________________________________ (date) by __________________________________________________ (name), President of the Board of Directors of the Georgetown Economic Development Corporation, a Texas corporation, on behalf of the Georgetown Economic Development Corporation. Notary Public, State of Texas Amended and Restated GEDCO Performance Agreement The Summit at Rivery Park Page 26 of 27 CERTIFICATION OF BRAE GROUP, LTD. APPROVAL I hereby certify that the foregoing First Amended and Restated Performance Agreement pertaining to The Summit at Rivery Park was approved by Brae Group, Ltd., a Texas limited liability partnership, on the _______ day of ______________________________, 201_, as evidenced by the signatures of duly authorized representatives of Brae Group, Ltd. appearing below. BRAE GROUP, LTD. A Texas limited liability partnership By: Novak Brothers, LLC A Texas limited liability company its sole General Partner By: Jeff Novak Managing Member ACKNOWLEDGEMENT State of Texas § County of Williamson § This instrument was acknowledged before me on ___________________________(date) by Jeff Novak, Managing Member of Novak Brothers, LLC, a Texas limited liability company, General partner of Brae Group, Ltd., a Texas limited partnership, on behalf of Brae Group, Ltd. Notary Public, State of Texas Amended and Restated GEDCO Performance Agreement The Summit at Rivery Park Page 27 of 27 CERTIFICATION OF CITY COUNCIL APPROVAL I hereby certify that the foregoing First Amended and Restated Performance Agreement pertaining to The Summit at Rivery Park was approved by the City Council of the City of Georgetown, Texas, on the __________________ day of ______________________________, 201_. THE CITY OF GEORGETOWN, TEXAS A Texas home-rule municipality By: Dale Ross, Mayor ATTEST: By: Jessica Brettle, City Secretary APPROVED AS TO FORM: By: Bridget Chapman, City Attorney ACKNOWLEDGEMENT State of Texas § County of Williamson § This instrument was acknowledged before me on _______________________(date) by Dale Ross, Mayor of the City of Georgetown, Texas, a Texas home-rule municipal corporation, on behalf of the City of Georgetown, Texas. Notary Public, State of Texas City of Georgetown, Texas SUBJECT: Action out of Executive Session. ITEM SUMMARY: FINANCIAL IMPACT: None SUBMITTED BY: Bridget Chapman, City Attorney City of Georgetown, Texas SUBJECT: Sec. 551.071: CONSULTATION WITH ATTORNEY Consultation with attorney regarding legal issues related to agenda items and other matters in which the duty of the attorney to the Georgetown Economic Development Corporation under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas. ITEM SUMMARY: FINANCIAL IMPACT: N/A SUBMITTED BY: City of Georgetown, Texas SUBJECT: Section 551.072. DELIBERATIONREGARDING REAL PROPERTY Discussion and possible action to deliberate the purchase,exchange, lease or value of real property for purposes authorized by the Development Corporation Act which discussion in open session would have adetrimental effect on negotiations with third persons. ITEM SUMMARY: FINANCIAL IMPACT: n/a SUBMITTED BY: Bridget Chapman, City Attorney City of Georgetown, Texas SUBJECT: Section 551.087. DELIBERATION REGARDING ECONOMIC DEVELOPMENT NEGOTIATIONS. Deliberation regarding commercial or financial information that the corporation has received from a business prospect that the Georgetown Economic Development Corporation seeks to have locate, stay, or expand in or near the territory of the City of Georgetown and with which the Corporation is conducting economic development negotiations; and/or deliberation regarding the offer of a financial or other incentive to a business prospect that the Corporation seeks to have locate, stay, or expand in or near the territory of the City of Georgetown. - Pecan Branch ITEM SUMMARY: FINANCIAL IMPACT: N/A SUBMITTED BY: Bridget Chapman, City Attorney