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HomeMy WebLinkAboutResolution No. 00-50 ORI$11YAL CITY OF THE COLONY, TEXAS RESOLUTION NO. ~ A RESOLUTION OF THE CITY OF THE COLONY, TEXAS, AUTHORIZING THE MAYOR TO EXECUTE AN ECONOMIC DEVELOPMENT AGREEMENT BETWEEN THE CITY AND BILLINGSLEY DEVELOPMENT CORPORATION; AND PROVIDING AN EFFECTIVE DATE. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS: Section 1. That the Mayor of the City of The Colony is hereby authorized to execute an Economic Development Agreement with Billingsley Development Corporation. Section 2. That a true and correct copy of the Economic Development Agreement is attached hereto as Exhibit A and incorporated herein. Section 3. That this resolution shall become effective from and after its date of passage in accordance with law. PASSED AND APPROVED by the City_ Council of the City of The Colony, Texas, on this 4~ day °f December' 2000' i~R i/~,Q_o ~, ~_ _lLs__~_~ · 'am W. Manning, Mayor <~ ATTEST.,. thann De4cl~-n,~)e~uty (2~/ Secretary APPROVED AS TO FORM: ECONOMIC DEVELOPMENT AGREEMENT STATE OF TEXAS § COUNTY OF DENTON § This Economic Development Agreement ("Agreement") is among the City of The Colony, a Texas Home Rule municipality_with the full power of local self government as provided by Article 11, Section 5 of the Texas Constitution and its Home Rule Charter ("City"), The Colony Economic Development Corporation, a Texas non-profit corporation ("EDC"), and Billingsley Development Corporation ("Billingsley") (the City, the EDC and Billingsley are hereinafter referred to together as the "Parties"). RECITALS WHEREAS, the EDC is an agent of the City, per approval ofa Tex. Rev. Civ. Stat. Ann. Section 5190.6(4A) sales tax by the citizens of the City on January 17, 1998. Section 4A tax proceeds may be used to fund many types of economic development endeavors, including land, buildings, equipment, facilities, and improvements; and WHEREAS, the City has established an economic development program or policy pursuant to the authority granted by Section 380.001 of the Texas Local Government Code; and WHEREAS, Billingsley is preparing to construct or cause to be constructed a National Headquarters Facility ("Facility") in the City to be located at the intersection of McKamy Trail and Piano Parkway as shown on Exhibit "A," to be utilized by Pizza Inn, Inc.; and WHEREAS, the EDC and the City believe the Facility will conform to the City's Comprehensive Zoning Ordinance, as amended, and the City's Comprehensive Plan; and WHEREAS, the Facility's location as described herein is intended to create permanent new jobs and generate property taxes in the City and generate other new economic development; and WHEREAS, the EDC and the City, acting by and through their duly authorized representatives, have found that the significant positive impact to the local community of the Facility will qualify the project for economic development incentives from the EDC and the City granted in this Agreement; and Economic Development Agreement Page 1 WHEREAS, in conjunction with development of the Facility, Billingsley plans to install certain offsite water and sanitary sewer pipelines (the "Public Improvements") which pipelines will be sized to accommodate utilization by additional landowners. The Public Improvements are identified in the City's capital improvements plan. In conjunction with the Public Improvements, Billingsley will install additional water and sanitary sewer facilities (the"Additlonal Improvements") which are not part of the Public Improvements and are not subject to the terms of this Agreement; and WHEREAS, the Parties have agreed that in conjunction with the development of the Facility, Billingsley will fund the cost of the Public Improvements initially, and will be reimbursed by the City and the EDC in accordance with the terms of this Agreement; and WHEREAS, the EDC and the City each have sufficient resources available, appropriated and budgeted to fund their obligations hereunder; and WHEREAS, the Parties have made an additional agreement that all or a portion of their respective outlays for the Public Improvements will be reimbursed through impact fees paid on account of developments that will use the Public Improvements, pursuant to Section 359.019 of the Texas Local Government Code; and WHEREAS, the EDC and the City recognize that the Facility would not be located in the City but for the economic development inducements granted herein, and has alternative locations available. AGREEMENTS NOW THEREFORE, in consideration of the recitals stated above and commitments and obligations of the Parties set forth hereinafter, the Parties hereto covenant and agree as follows: I. DEFINITIONS Whenever used in this Agreement, the following terms shah have the meanings ascribed to them: A. "Billingsley Project Cost" shall mean the Project Cost less $250,000.00 to be reimbursed to Billingsley by the EDC. B. "Facility" shall mean the contemplated approximate 140,000 square foot facility to be located on the Property, as further described in plans submitted to the City. Economic Development Agreement Page 2 C. "Floating Rate" shall mean the rate of interest periodically announced by the Wall Street Journal as the prime or base commercial lending rate, or if the Wall Street Journal shall ever cease to exist or cease to announce a prime or base commercial lending rate, then at the annual rate of interest from time to time announced by Citibank, N.A. (or by any other New York money center bank selected by the City) as its prime or base commercial lending rate. D. "Force Majeure" shall mean any contingency or cause beyond the reasonable control of Billingsley including, without limitation, acts of God or the public enemy, war, riot, civil commotion, insurrection, adverse weather, government or de facto governmental action (unless earned by acts or omissions of Billingsley), fire, explosion, flood, strike, work slowdowns or stoppages, shortages of labor or materials and other matters aff'ecting the ability of Billingsley to perform this Agreement. E. "Land" shall mean the real property described on Exhibit "B" attached. F. "Project Cost" shall mean the aggregate cost incurred by Billingsley in constructing the Public Improvements pursuant to written contracts at market rates with a third party contractor or contractors unaffiliated with Billingsley, including, without limitation, the cost of design, labor, materials, plan review and related municipal fees, and contractors' fees incurred on account of such construction. Notwithstanding any term or provision hereof to the contrary, the Project Cost shall not include any sum paid by any person directly or indirectly to or for the benefit of Billingsley or Billingsley affiliated parties. G. "Project Impact Fees" shall mean impact fees collected pursuant to the City's impact fee ordinance number 97-1000, as amended, adopted in accordance with Chapter 395 of the Texas Local Government Code, from developments which will connect to the Public Improvements (but not to the Additional Improvements) for so long as such improvements shall be operational. ii. "Property" shall mean the Land (described in Exhibit "B" which is attached hereto for all purposes and which is located at the intersection of McKamy Trail and Piano Parkway) and any improvements and personal property, excluding inventory and supplies, which is added to the Property subsequent to the execution of this Agreement. I. "Public Improvements" shall mean the water and sanitary sewer facilities shown on Exhibit "C" attached hereto and incorporated herein by reference, to be constructed by Billingsley in connection with the development of the Economic Development Agreement Page 3 Facility, and excluding for all purposes the Additional Improvements identified on Exhibit "C." Engineering studies, plan/profile sheets, and other construction documents shall be provided for by Billingsley prior to construction of the Public Improvements as required by the Subdivision Controls. Such plans shall be approved by the City Engineer or his agent prior to approval of a Development Permit. H. GENERAL PROVISIONS A. The Facility and all other improvements shall conform to the City's Comprehensive Zoning Ordinance, as amended, and the City's Comprehensive Plan, and all other applicable ordinances and regulations. B. Billingsley shall submit to the City's Engineer, prior to the commencement of construction of the Public Improvements to serve the Facility, a schedule of estimated costs for such construction. IH. SCHEDULE OF PAYMENTS A. Upon completion and acceptance by the City's Director of Public Works of the Public Improvements, the EDC shall grant and pay to Billingsley the cash sum of $250,000.00 (Two Hundred Fifty Thousand Dollars) as partial reimbursement for the cost of the Public Improvements incurred by Billingsley. At the time such payment is made, Billingsley shall deliver to the EDC and the City an accounting, calculating the Project Cost. B. The Parties agree that the City shall reimburse EDC and Billingsley for their respective net outlays for the Public Improvements on apro rata basis on the terms of this paragraph. Reimbursement shall be made out of Project Impact Fees. The City agrees to impose such fees on adjacent development in proportion to their requirement for such facilities at the time a Development Contract is executed with such Developer(s), in accordance with Section IG, above. Upon receipt of the payment of Project Impact Fees fi.om the owner of any land which will connect to and use the Public Improvements, the City shall deposit the payment into a separate account. The City shall reimburse EDC and Billingsley out of such collections on the following pro rata basis: EDC pro rata share: $250,000.00 / Project Cost Billingsleypro rata share: Billingsley Project Cost / Project Cost Economic Development Agreement Page 4 The City's payments to EDC and Billingsley shall be due and payable within twenty (20) days aider the City's receipt of Project Impact Fees on account of the Public Improvements. If any payment is more than twenty (20) days late, then the City shall reimburse that late payment plus interest at the Floating Rate. C. Project Impact Fees shall be collected by the City and reimbursed to EDC and Billingsley in accordance with the terms of this Agreement, which shall be deemed to amend Section 5.3B2 of that one certain Development Agreement (the "Development Agreement") dated January 20, 1998, by and between the City and Billingsley, to the extent of the application of such Development Agreement to the Project Impact Fees. The Parties agree that (i) the Development Agreement shall not apply to the Project Impact Fees, notwithstanding any term or provision of the Development Agreement, or this Agreement, to the contrary, and (ii) the Development Agreement shall continue in full force and effect with respect to impact fees, other than the Project Impact Fees, in accordance with its original terms. IV. GENERAL REQUIREMENTS A. The Public Improvement plans ("plans") will be filed with the City as part of the City's normal requirement for building permits. The plans, as amended from time to time, shall be deemed to be incorporated by reference herein and made a part hereof for all purposes. Reasonable variation from the plans, not materially affecting the benefits to be derived by the City are expressly permitted, without the necessity of filing the same with the City. B. The Parties agree that this Agreement is part of an incentive package that involves Pizza Inn's relocation of its national headquarters, training and distribution center to the City. Thus, the Parties agree that this Agreement is null and void in the event that Pizza Inn elects not to construct the Facility. V. MAINTENANCE BOND Prior to final acceptance of the Public Improvements, Billingsley shall furnish to the City a good and sufficient maintenance bond in the amount often percent (10%) of the contract price of sUch improvements, or in such amount as approved by the City Engineer, with a reputable and solvent corporate surety, in favor of the City, to indemnify the City against any repairs which may become necessary to any part of the construction work performed in connection with the subdivision and/or development, arising from defective workmanship or materials used_therein, for a period of two (2) years from the date of final acceptance of such improvements. Economic Development Agreement Page 5 VI. AMENDMENTS AND WAIVERS Any provision of this Agreement may be amended or waived if such amendment or waiver is in writing and is signed by the City and Billingsley. No course of dealing on the part of Billingsley or the City, nor any failure or delay by the Billingsley or the City with respect to exercising any right, power or privilege of the Billingsley or the City under this Agreement shall operate as a waiver thereof, except as otherwise provided in this Section. VII. TERMINATION This Agreement may be terminated by the mutual agreement of the Parties. Upon such termination, the Parties shall promptly execute and file of record in the County Clerk Official Records of Denton County, a document confirming the termination of this Agreement, and shall execute such other documents as may be appropriate to document such termination. VIII. EXHIBITS: TITLES OF ARTICLES, SECTIONS AND SUBSECTIONS The exhibits referenced herein and attached to this Agreement are incorporated herein and shall be considered a part of this Agreement for all purposes, except that in the event of any conflict between any of the provisions of such exhibits and the provisions of this Agreement, the provisions of this Agreement shall prevail. All titles or headings are only for the convenience of the parties and shall not be construed to have any effect or meaning as to the agreement between the parties hereto. Any reference herein to a Section or Subsection shall be considered a reference to such Section or Subsection of this Agreement unless otherwise stated. Any reference herein to an exhibit shall be considered a reference to the applicable exhibit attached hereto unless otherwise stated. IX. ADDITIONAL ACTIONS The Parties agree to take such actions, including the execution and delivery of such documents, instruments, petitions and certifications as may be necessary or appropriate, from time to time, to carry out the terms, provisions and intent of this Agreement and to aid and assist each other in carrying out said terms, provisions and intent. X. SUCCESSORS AND ASSIGNS Economic Development Agreement Page 6 This Agreement shall be binding on and inure to the benefit of the Parties to it and their respective heirs, executors, administrators, legal representatives, successors and assigns. The Agreement may be assigned by Billingsley with the written consent of the City, which consent shall not be unreasonably withheld or delayed. XI. CITY COUNCIL AUTHORIZATION This Agreement was authorized by resolution of the City Council authorizing the Mayor to execute this Agreement on behalf of the City, is within the City's authority to enter and is a binding obligation of the City. XH. ECONOMIC DEVELOPMENT CORPORATION AUTHORIZATION This Agreement was approved by the Board of Directors of the EDC, authorizing the President to execute this Agreement on behalf of the EDC, is within the EDC's authority to enter and is a binding obligation of the EDC. XllI. SEVERABILITY In the event any section, subsection, paragraph, sentence, phrase, or word herein is held invalid, illegal, or unconstitutional, the balance of this Agreement shall stand, shall be enforceable and shall be read as if the Parties intended at all times to delete said invalid section, subsection, paragraph, sentence, phrase, or word. The unenforceability of this Agreement, or any portion thereof as to any of the City or EDC shall not affect enforceability as the others. XIV. WAIVER Billingsley expressly acknowledges that by entering into this contract, Billingsley, its successors, assigns, vendors, grantees, and/or trustees, shall never construe this contract as waiving any of the requirements of the Zoning Ordinance or Subdivision Controls in force by the City, except as herein agreed upon. XV. APPLICABLE LAW THIS AGREEMENT SHALL BE CONSTRUED UNDER THE LAWS OF THE STATE OF TEXAS. VENUE FOR ANY ACTION UNDER THIS AGREEMENT SHALL BE THE STATE DISTRICT COURT OF DENTON COUNTY, TEXAS. THIS AGREEMENT IS PERFORMABLE IN DENTON COUNTY, TEXAS. The prevailing party in any litigation required to enforce this Agreement shall additionally recover costs and attorneys' fees. Economic Development Agreement Page 7 XVI. NOTICES All notices required to be provided hereunder shall be sent certified mail, postage prepaid, addressed as follows: If to Biilingsley: Billingsley Company 4800 W. Texas Commerce Bank Tower 2200 Ross Avenue Dallas, Texas 75201 Attn: Mack Dennis with a copy to: Charles C. Jordan Carrington, Coleman, Sloman & Blumenthal, L.L.P. 200 Crescent Court, Suite 1500 Dallas, Texas 75201 If to the City: City of The Colony City Hall 6800 Main Street The Colony, Texas 75056 Attn: Ms. Patti Hicks, Interim City Manager, City of The Colony with a copy to: Gordon R. Hikel, City Attorney Hayes, Coffey & Berry, P.C. 1710 Westminster P. O. Box 50149 Denton, TX 76206 If to EDC: City of the Colony Economic Development Agreement Page $ Economic Development Corporation 6800 Main Street The Colony, Texas 75056 Attn: Tom Ten'ail, Director of Economic Development The address for notice may be changed by a notice under this section. XVII. TIME OF THE ESSENCE Time is of the essence in performance of this Agreement. EXECUTED on this 5/~ day of~~'2000. THE CITY OF THE COLONY a Texas Home Rule/V~unicipality BY:william Mannin~ Mayor, City of The Colony Date: //~ - ~/- ?~_~ Attest: ~ uth'ann Devlin Deputy City Secretary, City of The Colony Economic Development Agreement Page 9 BILLINGSLEY DEVELOPMENT CORPORATION /~ By: If//~/~ Its: .~ ~r O: c~'~t~,~-~ THE COLONY ECONOMIC DEVELOPMENT CORPORATION Texas By: President Date: ./,'~ - Economic Development Agreement Page 10 EXHIRIT "A" 'K SIJRVEY *~-234 J. B. SHIPP SURVEY A-1227 ~ 18'12' E ~ 7.10' cm. ~' 1~ ca.~rr ~ 41'33'12' E ~ 118,60' ~ N 02'12'12" E 361.50' 00'33518" W 2611.55' z ,~ ~ " ABST 80.02' "wl 67.51' E,,,~. B.B.B. &: C.R.R. SURVEY ABST. 174 '.;~. ~., Description of Land Being a 10.983 acre tract of land situated in the T.A. West Survey, Abstract No. 1344 and being part of a 135.0201 acre tract of land recorded in Volume 2548, Page 775, Deed Records of Denton County, Texas and being more particularly described by metes and bounds as follows: Commencing at a point for the northwest comer of aforementioned 135.0201 acre tract at the south line of Plano Parkway (a 100 foot right-of-way); _~ Thence along the south line of Piano Parkway and a curve to the right for a central angle of 29°23'46', a radius of 950.00 feet and a chord bearing of south 75°44'17" east, 482.08 feet; Thence along said curve to the right and the south line of Plano Parkway for an arc distance of 487.41 feet to a 1/2 inch iron rod found for the point of beginning; Thence along the south line of Piano Parkway and a curve to the right for a central angle of 10°45'50n, a radius of 950.00 feet and a chord bearing of south 55039'29" east, 178.21 feet; Thence along said curve to the right and the south line of Plano Parkway for an arc distance of 178.47 feet to a 1/2 inch iron rod set for a reverse curve to the lett with a central angle of 15 °22'41", a radius of 1050.00 feet and a chord beating of south 57057'56" east, 280.97 feet; Thence along said curve to the lett and the south line of Piano Parkway for an arc distance of 141.76 feet to a 1/2 inch iron rod set for comer; Thence south 00°23'40" east, a distance of 931.31 feet to a 1/2 inch iron rod set for comer; Thence south 89°22'46" west, a distance of 450.00 feet to a 1/2 inch iron rod set for comer; Thence north 00°23'40" west, a distance of 1067.26 feet to a 1/2 inch iron rod found for comer; Thence north 28057'36" east, a distance of 135.43 feet to the point of beginning and containing 10.983 acres of land. EXHmIT "C"