this memorandum of understanding (tlie mou) is entered into as of the

MEMORANDUM OF UNDERSTANDINGPROJECT 1603

RAILPORT INDUSTRIAL PARK.

THIS MEMORANDUM OF UNDERSTANDING (tlie "MOU") is entered into as of the /<^mlayof TSlAQif-. > 2017 ("Execution Date"), by and between Midlothian Development Authority("MDA"), and Jet Stream LLC, a Delaware limited liability company ("Owner"), and the City ofMidlothian, Texas, a municipal corporation situated in Ellis County, Texas (the "City"), hereinaftertogether referred to as "the Parties",

1U3CITALS:

WHEREAS, Owner owns approximately 366 acres located in Midlothian, Texas at the RailportIndustrial Park as more particularly described and depicted in Exhibit A hereto (the "ProEerty");and

WHEREAS, the Parties desire the Property to be developed for an industrial use project (the"Project"); and

WHEREAS, the Parties desire to enter into a written agreement that will bind all parties related to

development of tlie Project on the Property; and

WHEREAS, to achieve the development goals, site work is needed on the Property to make thesite suitable for Owner's development of the Project; and

WHEREAS, both City and MDA desire that certain site work be funded by MDA, and that the Cityreserve water and sewer capacity and support rczoning for development of the Project by Owner;and

WHEREAS, such commitments to Owner by MDA and City pursuant to the terms of this MOUwill incentivize Owner to complete the Project, which will drive infrastructure investment andjob creation, botli of which will, in turn, have a multiplier effect that increases both the City s tax

base and utility revenues.

NOW, THEREFORE, the Parties agree as follows;

Section 1, Purpose, The purpose of this MOU is to establish a basic framework and timeframefor completing certain improvements and infrastructure reservations to support the development

of the Project by Owner on the Property,

Section 2. Facility Relocation. MDA will, at its sole cost and expense, design and constructthe relocation of the existing open channel/drainage canal, the existing wastewater line, and theexisting acceKs road on tlie Property, the current locations of which are shown in Exhibit B, to alocation within the Base Utility Easements, as shown in Exhibit C (the "Facility Relocation").

Any changes from the agreed upon location shall be approved by Owner, in its sole discretion,prior to construction and shall not prevent Owner from developing the Project in conformance

MOU—Project 1603Page I of 16

with applicable zoning laws. MDA will be responsible for complying with all applicable liiwsrelating to its obligations set forth herein and for obtaining and complying with all permitsnecessary for the completion of the Facility Relocation, This will include complying with anymitigation requirements, such as wetlands mitigation, as needed, MDA will perform the FacilityRelocation in accordance with a mutually acceptable work and access agreement to be enteredinto with Owner that will include provisions relating to the performance of the Facility

Relocation, security, permitting, plan review, indemnification, access, governmentalauthorizations and communications, insurance and other matters. Unless delayed by ForceMajeiire (defined below), MDA agrees to complete all design, engineering, permitting, andmitigation required for the Facility Relocation within 24 months of the Execution Date, Owneragrees to provide MDA a notice of intent to start construction on tlie Property no later thantwelve (12) months prior to initiating ground disturbance on the Properly (the "ConstructionNotice"), Upon receipt of the Construction Notice, MDA shall immediately initiate the FacilityRelocation and complete all construction to Owner's satisfaction within twelve (12) months,subject to Force Majeure, In no event shall MDA be required to complete design, engineering,permitting, mitigation and construction of the Facility Relocation in less than 24 months. Owner

agrees to grant temporary access and temporary construction easements to MDA and the Citywithout cost to complete the Facility Relocation. Upon completion of the Facility Relocation,

Owner agrees to grant the City all easements necessary for the future access, operations andmaintenance of the channel and wastewater line and the City agrees to simultaneously abandonits former utility easements on the Property, For purposes of this MOU, Force Majeure meansany unforeseeable event that is beyond MDA's reasonable control, including, without limitation,

wars, acts of terrorists or enemies, fires, floods, acts of governments (except the City) prohibitingor impeding performance, or acts of God, MDA agrees to notily the Owner as soon asreasonably practical if it is delayed by a Force Majeure and further agrees to resume itsobligations as soon as possible following the Force Majeure,

Section 3, Potable Water Reservation, Tlie City owned water treatment plant has a total watersupply capacity of twenty (20) mg/d as of the Execution Date, The City agrees to reserve potablewater supply capacity for immediate use for the Project, as set forth in Exhibit D ("Initial WaterReservation"), from the City owned water treatment plant for a period of eight (8) years (the"Reservation Period"). If during the Reservation Period the City's peak water supply rateincreases to 85% of the total water capacity, the City shall immediately notify Owner, At suchtime, the parties agree to meet to discuss next steps witli tlie intent to renegotiate this Initial WaterReservation, Notwithstanding the above, tlie City agrees to replace the Initial Water Reservation

through expansion or procurement ofpotable water as needed within a commercially reasonabletuneframe,

a. After Owner has applied for a building permit on tlie Property, the City agrees to grantadditional water reservation capacity, in the increments set forth in Exhibit D, upon receiptof notice from Owner (the "Additional Water Reservation"), Notice of Additional Water

Reservation must be given no later than 18-months prior to needing water for the Project,which represents the amount of time required to add new capacity to the City water system.The City agrees to complete addition of new capacity within 18 months of receipt ofAdditional Water Reservation notice.

MOU—Project 1603 of 16

Section 4. Wastewater Capacity Reservation. The City represents and Owner acknowledgesthat wastewater treatment is provided for residents and busiinesses in tlie City, including thoselocated within the Railport Industrial Park, through a multi-party agreement with Trinity RiverAuthority ("TRA") which owns and operates the Mountain Creek Wastewnter Treatment Plant

located in Midlothian, Texas. Owner agrees to give at least 18 months' notice of start ofconstruction on the Property, Upon receipt of such notice, the City agrees to cooperate with Ownerand use commercially reasonable efforts to negotiate a reservation agreement with TRA and otherparties associated with the Mountain Creek Wastewater Treatment Plant as necessary to securewastewater treatment capacity ("WWT Capacity") for Owner. The WWT Capacity amount willbe determined in the future,

Section 5. Rezoning Support. The City staff will support rezoning of the Property by theOwner to a Planned Development with a base zoning of Heavy Industrial, as established in theCity of Midlothian's Zoning Ordinance 4,800 as of the Execution Date, substantially in the formof the zoning ordinance attached to this MOU as Exhibit E. City staff will advocate in favor ofthe zoning change applied for by Owner on the Property before the Planning and ZoningCommission and the City Council of the City of Midlothian.

Section 6, Relationship of Parties. This MOU is not assignable or transferable by the City orMDA. Owner may transfer or assign this MOU to an affiliate or subsidiary.

Section 7, Confidentiality

a. Trade Secret Protection. All parties to this Agreement acknowledge and agree that theOwner lias advised die City and MDA, and the City and MDA understand and agree, thatthe information contained in Exhibit D was submitted in confidence voluntarily by theOwner to tlie City and MDA, is competitively sensitive in nature and as such is, and shallbe, to the maximum extent provided by law, considered to be exempt by statute fromdisclosure under the Texas Public Information Act (Texas Government Code Chapter 552),as amended. Tlie City and MDA understand and agree that the Texas Public InformationAct shall be liberally construed in favor of non-disclosure of the information contained inExhibit D to the maximum extent allowed under Texas law.

b. Accordingly, eacli Party hereto agrees to treat, and to cause its respective officers, directors,employees and agents to treat, as strictly confidential and to limit, to the fullest extent

permitted by law, any release of information related to or pertaining to the information inExhibit D. Furthermore, the City and MDA each agree that it shall not attach a copy ofExhibit D to any public notice or present Exhibit D for approval in any public forum orprovide a copy or disclose the terms or conditions ofExliibit D to any third party, except(i) as and when the same may be required by law or by the order of a court of competentJurisdiction (the City and MDA agreeing to use their best efforts legally permissible inorder to assist the Owner in opposing the issuance of such an order) or (ii) as may benecessary for the City and MDA to perform its obligations under this Agreement, Beforeany disclosure is made by the. City or MDA to a third party pursuant to clauses (i) or (ii)


above, the City or MDA shall, as appropriate, provide reasonable advance written noticeto tlie Owner and the Owner may, to the extent permitted by law, require such third partyto enter into a conficlentiality agreement (obligating the third party to keep the terms,conditions and existence of this Agreement confidential),

c. Without limiting the foregoing, if the City or MDA receives a public records request forinformation contained in Exhibit D or other confidential information provided by Owner,the City or MDA, as applicable, shall, to tlie extent permitted by law (i) provide to theOwner, within forty-eight (48) hours of receipt of any public records request, written noticeof such public records request and (ii) timely take all steps required under Chapter 552,Subchapter 0 of tlie Texas Government Code to obtain a determination from the Texasattorney general that the information requested is within one of the exceptions to disclosureset forth in Chapter 552 of the Texas Government Code, As provided under Chapter 552,Subchapter 0 of the Texas Government Code, Owner shall be responsible for submittingin writing to the City, the MDA or the Texas Attorney General, as applicable, the reasonsas to why the confidential information should be withheld. If the City or MDA, asapplicable, is unable to obtain such a determination from the Texas attorney general andmust provide any such documents in response to such public records request, it sliall, tothe extent permitted by law (I) first give the Owner thirty (30) clays within which to seeka judicial injunction of restraining order before delivering such documents; (2) delete orotherwise redact from the disclosed information the information set forth in Exhibit D andany other confidential information subsequently identified in writing by the Owner to theCity and MDA with the assistance and/or consultation of the Owner, and with the Owner'spre-approval of the actual content to be disclosed, and (iii) provide to the Owner a copy ofany material subsequently disclosed to a third party,


d. Disclosure of Information in Civil Actions. If the City oi'MDA is named as a defendantin any civil action commenced to compel (i) the production or disclosure of informationrelated in any way to th'ss Agreement or the Project at any time and the City and MDA isentitled or required by law to postpone the deliveiy or disclosure of such information, or(ii) the infonnation sought in tlie action has been identified by the Owner as confidentialinformation of the Owner or otherwise privileged or confidential, such the City or MDA,as applicable, shall immediately notify the Owner of the commencement of suchaction, If the Owner objects to the disclosure of the information sought in any such

action, the City or MDA shall (1) vigorously defend the same in consultation with theOwner, (2) keep the Owner infonnecl of developments in such litigation and (3) consultwith the Owner before taking any position or making any decision that might materiallyaffect the Owner's interests in such matter, so long as there is a reasonable basis in lawand fact for defending such action. In determining whether there is a reasonable basis illlaw and fact for refusing to deliver any record in response to request therefor, Lhe City orMDA, as applicable, may rely conclusively on the advice of counsel.

e, Impact of Improper Disclosure, MDA and the City acknowledge and agree that anydisclosure of information contained in Exhibit D will cause substantial and irreparableharm to the Owner, Further, the Parties agree that the release of the infonnationcontained herein or therein would disclose important and sensitive information regardingthe negotiations of the Parties,

f. Non-Disclosure Aereements. Tlie provisions of this Section 6 are in addition to and notin lieu of the obligations of the Parties under the Non-Disclosure Agreements entered intoby the Owner or by any of its affiliates with tlie City, MDA or their officers, employeesor agents. The Parties, each of them and all of them, covenant, reaffirm and agree tliat theterms of such Non-Disclosure Agreeinents remain in full force and effect during the termof th is Agreement,

3,. Sufvivability. The provisions of this Section 7 shall survive the termination or expirationof this Agreement,

Section 8. BindiiiR. Tliis Agreement shall be binding upon and shall inure to the benefit of theparties hereto and their respective heirs, representatives, successors, and assigns

[SIGNATURES FOLLOW ON NEXT PAGE]


IN WITNESS WHEREOF, the parties hereto have executed this Agreement underseal eiYective as of the Effective Date.

,V""O^Y OA"''.,; MIDLOTHIAN DEVELOPMENT AUTHORITY

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Date of execution byMDA

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CHRIS DICK, CITY MANAGER

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CITY OF MIDLOTI-IIAN^"GYVYO^S

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Facilities to be Relocated

MOU—Prqjecl 1603Page 8 of 16

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Exhibit C

Base Utility Easements

MOU—Project 1603Page 9 of 16

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EXHIBIT C

DASE UTILITY EASEMENT AREAFOR RELOCATED FACILITIES

Exhibit E

ORDINANCE 2017-

AN ORDINANCE OF THE CITY COUNCIL OP THE CITY OFMIDLOTHIAN, TEXAS AMENDING THE CITY OF MIDLOTHIANZONING ORDINANCE AND ZONING MAP RELATING TO THE USEAND DEVELOPMENT OF XXX ACRES SITUATED WITHIN XXX, ASDESCRIBED IN EXHIBIT "A" HERETO, WHICH IS PRESENTLYZONED XXX BY REZONJNG SAID PROPERTY TO PLANNEDDEVELOPMENT DISTRICT NO. XXX (PD-XXX) FOR HEAVYINDUSTRIAL USES; PROVIDING FOR A CONFLICTS RESOLUTIONCLAUSE; PROVIDING A SEVERABILITY CLAUSE; PROVIDING ASAVINGS CLAUSE; PROVIDING A PENALTY OP FINE NOT TOEXCEED TWO THOUSAND DOLLARS ($2,000) FOR EACH OFFENSE;AND PROVIDING AN EFFECTIVE DATE.

WHEREAS, the Planning and Zoning Commission and the governing body of the City ofMidlothian, Texas, in compliance with the laws of the State of Texas and the ordinances of theCity of Midlothian, Texas, have given the requisite notices by publication and otherwise, and afterholding due hearings and affording a full and fair hearing to all the property owners generally andto all persons interested and situated in the affected area, and in the vicinity thereof, and in theexercise of its legislative discretion, have concluded that tlie City of Midlothian Zoning Ordinanceand Zoning Map of the City of Midlothian, Texas, as previously amended, should be amended.

NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OFMJDLOTfflAN, TEXAS, THAT:

The City of Midlothian Zoning Ordinance and the Zoning Map of the City of Midlothian, Texas,as previously amended (collectively, "the Zoning Regulations"), be further amended relating tothe use and development of XXX acres situated within XXX, as described in Exhibit "A" (Zoning

Map) and more fully described in Exliibit "B" (Legal Description) hereto, which, is presentlyzoned XXX by rezoning said property to Planned Development District No. XXX (PD-XXX) forHeavy Industrial (HI), subject to the Section 2 of this Ordinance.

SECTION 2. ZONING STANDARDS

The Property shall be used and developed in accordance with the use and development regulations

of the Zoning Regulations applicable to the Heavy Industrial (HI) District; provided however, inaddition to the uses which are otherwise prohibited within the Heavy Industrial CHI) District, theProperty sliall not be used and developed for tlie following purposes:

(a) Any use which is offensive because of odor, fumes, dust, smoke, noise or pollutionor which constitutes a nuisance or hazard

(b) Residential


(c) Agricultural uses including raising, breeding or keeping of animals

(d) Storage ofRV's, recreational trailers, boats, etc.

(e) Junk or salvage yards

(f) Vehicle repair without storage or repair

(g) Sexually Oriented businesses

(li) Outside storage or display as a primary use

Notwithstanding anything to the contrary mentioned above or within the regulations applicable tothe Heavy Industrial (PII) District, prohibited uses shall not include tho>se resulting from operationof, fuel storage for, maintenance of energy generators primarily used as a backup energy sourcefor the uses developed on tlie Property, or operation or maintenance of cooling towers.

This planned development district is adopted without a development plan and is not subject toSection 5,113 of the Zoning Ordinance,

SECTION 3. CONFLICTS.

To the extent of any irreconcilable conflict with tlie provisions of this Ordinance and otherordinanuey of the Cily of Midlothian governing the use and develoj3inent of the Property and whichare not expressly amended by this Ordinance, the provisions of this Ordinance shall be controlling,In the event there is an in'econcilable conflict within the text of this Ordinance, including anyexhibits attached hereto, relating to tlie applicable standard to be enforced with respect todevelopment of the Property, the strictest standard shall be controlling unless the City Councildetermines by approval of a motion or resolution that the less stringent standard is to apply.

SECTION 4. SEVERABILITY CLAUSE.

Should any word, sentence, paragraph, subdivision, clause, phrase or section of this Ordinance, orof the City of Midlothian Zoning Ordinance, as amended hereby, be acljudged or held to be voidor unconstitutionaJ, the same shall not affect the validity of the remaining portions of saidordinance or the City of Midlothian Zoning Ordinance, as amended hereby, which shall remain in

full force and effect.

SECTION 5. SAVINGS CLAUSE.

An offense committed before the effective date of this Ordinance is governed by prior law and theprovisions of the City of Midlothian Zoning Ordinance, as amended, in effect when the offensewas committed and tlie former law is continued in effect for this purpose,

SECTION 6. PENALTY,


Any person violating any of the provisions of this ordinance sliall be deemed guilty of amisdemeanor and upon conviction thereof shall be fined in a sum not to exceed Two ThousandDollars ($2,000) and a separate offense .shall be deemed committed upon each day during or onwhich a violation occurs or continues.


SECTION 7, EFFECTIVE DATE.

This Ordinance shall become effective from and after the date of its passage and final publication

in accordance with the Charter of the City of Midlothian ancl/or applicable state law and it isaccordingly so ordained,

PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF MIDLOTHIAN,TEXAS ON THIS THE XXX DAY OF XXX.

Bill Houston, MayorATTEST:

Tammy Varner, City Secretary

APPROVED AS TO FORM:

Josepli J, Gorfida, Jr,, City Attorney


Exhibit "A"ZONING MAP


Exhibit "B"Boundary Description of tlie Property


this memorandum of understanding (tlie mou) is entered into as of the

Documents