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HomeMy WebLinkAboutResolution No. 00-27 ORIGtN CITY OF THE COLONY, TEXAS RESOLUTION NO. (90 -~7 A RESOLUTION OF THE CITY OF THE COLONY, TEXAS, AUTHORIZING THE MAYOR TO EXECUTE AN ECONOMIC DEVELOPMENT AGREEMENT BY AND AMONG THE CITY OF THE COLONY, THE COLONY ECONOMIC DEVELOMENT CORPORATION AND HOME DEPOT U.S.A., INC.; 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 a Developer's Agreement by and among the City of The Colony, The Colony Economic Development Corporation and Home Depot U.S.A., Inc. Section 2. That a true and correct copy of the Developer's Agreement is attached hereto as Exhibit "A" and incorporated herein. Section 3. That this resolution shall take effect immediately from and after its passage. PASSED AND APPROVED by the City Council of the City of The Colony, Texas this 24th day of July, 2000. ~[~4 ~·' ' William W. Manni g, ATTEST: :?~~ Se~c~etary APPROVED AS TO FORM: '~5~ttorney, C~f ~i'he Colon~ C:\WINDOWS\TEMP\Home Depot.doc ECONOMIC DEVELOPMENT AGREEMENT STATE OF TEXAS § COUNTY OF DENTON § This ECONOMIC DEVELOPMENT AGREEMENT ("Agreement") is executed by and among the CITY OF THE COLONY, a Texas Home Rule municipality (the "City"), THE COLONY ECONOMIC DEVELOPMENT CORPORATION, a Texas non-profit corporation (the "EDC"), and HOME DEPOT U.S.A., INC., a Delaware corporation ("Home Depot"). RECITALS A. The EDC is an agent of the City, per authorization of the Development Corporation Act of 1979, Tex. Rev. Civ. Stat.~4nn. Section 5190.6(4A). The City has established an economic development program or policy pursuant to the authority granted by Tex. Loc. Gov. Code Section 380.001. Pursuant to Section 4A, tax proceeds may be used to fund many types of economic development endeavors, including the acquisition and development of land, buildings, equipment, facilities, and improvements. B. The City and the EDC have requested that Home Depot develop a "Home Depot Home Improvement Store" (the "Home Depot Store") within the limits of the City; and C. Home Depot has entered into a written agreement to purchase a site within the City at the northeast comer of Paige Road and Texas State Highway 1.21 described on Exhibit A and depicted on Exhibit B attached hereto and made a part hereof (the "Land") for the purposes of constructing a Home Depot Store. Aider otherwise determining the feasibility of the construction of a store on the Land and if the construction thereof is otherwise in Home Depot's bests interests as determined in Home Depot's sole and absolute discretion, Home Depot is willing to purchase the Land and construct a Home Depot Store provided that the City and EDC agree to contribute certain construction and development costs in the amount of Four Hundred Eleven Thousand and No/100 Dollars ($411,000.00) payable as set forth below. D. The EDC and the City have determined that the construction, development, and operation of a Home Depot Store on the Land will conform to the City's Comprehensive Zoning Ordinance, as amended, and the City's Comprehensive Plan. E. A Home Depot Store on the Land is intended to create permanent new jobs, generate sales and property taxes in the City, and generate other new economic development. F. The Home Depot Store will have a significant positive impact to the City and thus the proposed Home Depot Store qualifies for a grant of certain economic development incentives by the EDC and the City as set forth more specifically in this Agreement. G. The EDC and the City each presently have (and anticipate that they shall continue to have in the future) sufficient funds appropriated and budgeted to fund their obligations hereunder. ECONOMIC DEVELOPMENT AGREEMENT - Page 1 H. The EDC and the City acknowledge that Home Depot would not acquire the Land but for the economic development inducements granted herein, and Home Depot has alternative locations available which it will forgo in pursuit of the Land. AGREEMENTS NOW THEREFORE, in consideration of the recitals stated above and commitments and obligations of the parties set forth hereinafter, the parties covenant and agree as follows: L DEFINITIONS. Whenever used in this Agreement, the following terms shall have the meanings ascribed to them: A. "Land" shall mean the Land described in Exhibit A which is attached hereto for all purposes and which is located at the northeast corner of Paige Road and Texas State Highway 121; B. "Property" shall mean the Land (as defined above) and any improvements and personal property, excluding inventory, which is added to the Property subsequent to the execution of this Agreement. C. "Home Depot Store" shall mean a prototypical Home Depot home improvement store consisting of approximately 110,000 square feet of indoor building area and a 22,000 square foot garden area to be located on the Land, as further described in plans submitted to the City (the "Plans"). D. "Force Majeure" shall mean any contingency or cause beyond Home Depot's reasonable control, 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 Home Depot), fire, explosion, flood, strike, work slowdowns or stoppages, shortages of labor or materials and other matters affecting the ability of Home Depot to perform this Agreement. H. GENERAL PROVISIONS. A. Home Depot is under contract to purchase the Land. B. The Home Depot Store and all other improvements shah conform to the City's Comprehensive Zoning Ordinance, as amended, and the City's Comprehensive Plan, and all other applicable ordinances and regulations, unless a variance is obtained therefrom. C. Home Depot shall submit to the City prior to the commencement of construction a schedule of all development and construction costs for construction of the Home Depot Store. The City agrees that such information is delivered to the City in confidence as such information is a material and necessary asset of Home Depot, giving Home Depot a competitive advantage over other similar businesses. Accordingly, the City shah retain the confidentiality of such ECONOMIC DEVELOPMENT AGREEMENT - Page 2 257452_4 15350-66 (11540) information; provided, however, nothing herein shall be deemed to prevent the City from disclosing such information as required under applicable law. D. The City hereby waives any and all impact fees and developer's fees up to a maximum amount of One Hundred Eighty-Four Thousand and No/100 Dollars ($184,000.00). 11I. SCHEDULE OF PAYMENTS. In the event that Home Depot completes its purchase of the Land and constructs the Home Depot Store in substantial compliance with the Plans as approved by the City, the EDC does hereby grant to Home Depot and hereby promises to pay to Home Depot the sum of Two Hundred and Twenty-Seven Thousand and No/100 Dollars ($227,000.00). Said amount shall be due and payable by the EDC within thirty (30) days of the grand opening date of the Home Depot Store. In the event that the EDC fails to pay to Home Depot such amounts when due, the delinquent amount shall commence to accrue interest at the annual rate of two percent plus the prime rate of interest announced by The Wall Street Journal on or nearest to the date on which the amounts were first due and payable to Home Depot. In the event of EDC's failure to pay amounts due hereunder, Home Depot shall have all rights and remedies upon such default permitted under applicable law. IV. CONSTRUCTION OF IMPROVEMENTS. A. In the event that Home Depot determines that the construction of the Home Depot Store on the Land is feasible and is otherwise in Home Depot's best interests, Home Depot shall commence construction as soon as possible but not later than forty-five (45) days at~er Home Depot's acquisition of the Land and the recording of such documents necessary or desirable to relocate that certain easement in favor of the Texas Department of Transportation (the "TxDOT Easement") recorded in Volume 343, Page 520, in the Deed Records of Denton County, Texas. The TxDOT Easement area is depicted on the site plan attached hereto as Exhibit B. Any Home Depot Store, if constructed, shah be constructed in substantial compliance with the Plans. B. If Home Depot elects to construct the Home Depot Store, then Home Depot shah diligently and faithfully, in a good and workmanlike manner, pursue the completion of the Home Depot Store within 270 days following commencement of construction; provided, however, Home Depot shah have such additional time as reasonably required to complete the Home Depot Store as may be reasonably necessary in the event of Force Majeure or such other events within the control of third parties over which Home Depot has no control (e.g., adjacent landowners, other governmental agencies) (so long as Home Depot is diligently and faithfully pursuing completion of the improvements). Home Depot is not obligated to open the Home Depot Store for business or operate it continuously thereafter. If Home Depot elects to open its store facility, it shah not be obligated to do so until completion of any and all offsite improvements required by any governmental agency or as set forth in the Plans or as required under any third party agreement to which Home Depot takes subject to or which Home Depot is a party in connection with its acquisition and development of the Property. C. At any time prior to the grand opening of the Home Depot Store on the Property, the City, its agents and employees shall have the right to access the Property to inspect the Home Depot Store during regular daytime business hours (i.e., 9:00 a.m. to 5:00 p.m.) upon no less than two (2) business days' notice in accordance with Home Depot's general visitor access and ECONOMIC DEVELOPMENT AGREEMENT - Page 3 2s74s2_4 ls3so-~ 0 ~54o) security policies, in order to insure that construction of the improvements substantially comply with the Plans, this Agreement, and ail applicable state and locai laws and regulations (or valid waiver thereof). D. The City represents and warranis that there are adequate water, sanitary sewer and storm drainage facilities to the boundary of the Land for the development, construction and operation of the proposed Home Depot Store. V. GENERAL REQUIREMENTS. A. Home Depot will file the Plans with the City as part of the City's normai requirement for building permits. The Plans, as amended fi.om time to time, shall be deemed to be incorporated by reference herein and made a part hereof for ali purposes. Reasonable variation fi.om the Plans, not having a material negative effect on the benefits otherwise to be derived by the City, are expreSSly permitted without the necessity of filing the same with the City. B. Nothing contained herein shah constitute an agreement or covenant by Home Depot to open and/or continuously operate and maintain the Property as a Home Depot Store. VI. SUCCESSORS AND ASSIGNS. This Agreement shaH be binding upon and inure to the benefit of the parties to it and their respective heirs, executors, administrators, legai representatives, successors, and assigns. This Agreement may be assigned by Home Depot with the consent of the City, which consent shah not be unreasonably withheld or delayed. VH. CITY COUNCIL AUTHORIZATION. This Agreement was authorized on u2000, by resolution number DtO--~.'7 of the City Council authorizing the te this Agreement on behalf of the City. This Agreement is within the City's authority to enter and is a binding obligation of the City. VIII, ECONOMIC DEVELOPMENT CORPORATION AUTHORIZATION. This Agreement was approved on ~ 2000, by the Board of Directors of the EDC, autho,fi~ the President to execute this Agreefnen[ on behaifofthe EDC. This Agreement is within the EDC s authority to enter and is a binding obligation of the EDC. IX. SEVERABILITY. In the event any section, subsection, paragraph, sentence, phrase, or word herein is held invalid, illegai, or unconstitutionai, the baiance of this Agreement shaH stand, shaH be enforceable and shah 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 the City and/or the EDC shaH not affect the enforceability of this Agreement as to the others. X. APPLICABLE LAW AND ATTORNEYS FEES. 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 REQUIRES PERFORMANCE IN DENTON COUNTY, TEXAS. ECONOMIC DEVELOPMENT AGREEMENT - Page 4 2~74~2_41535046 (11540) The prevailing party in any litigation required to enforce this Agreement shah additionally recover costs and reasonable attorneys' fees. XL NOTICES. All notices required to be provided hereunder shall be sent certified mail, postage prepaid, addressed as follows: Irt0 Home Depot: Home Depot U.S.A., Inc. 2455 Paces Ferry Road, NW Atlanta, Georgia 30339-4024 Attn: Vice President - Real Estate Law Group With a copy to: Home Depot U.S.A., Inc. 2800 Forest Lane Dallas, Texas 75234 Attn: Corporate Counsel With a copy to: Kane, Russell, Coleman & Logan, P.C. 1601 Elm Street, Suite 3700 Dallas, Texas 75201 Attn: Raymond J. Kane If to the City: City of The Colony City Hall 6800 Main Street The Colony, Texas 75056 Attn: Mr. Lanny Lambert, City Manager, City of The Colony If to El)C: City of The Colony Economic Development Corporation 6800 Main Street The Colony, Texas 75056 Attn: Director of Economic Development The address for notice may be changed by a notice under this section. XH. TIME OF THE ESSENCE. Time is of the essence in performance of this Agreement. IN WITNESS Wi~IF. REOF, this Agreement shah be deemed executed as of,_~ ~J. 2000. SEPARATE SIGNATURE PAGES FOLLOW ECONOMIC DEVELOPMENT AGREEMENT - Page $ 257452_4 15350..66 (11540) SEPARATE SIGNATURE PAGE OF THE CITY THE CITY OF THE COLONY, a Texas/l~me Rule Munil~lity By: William Manning Mayor, City of The Colony Date: Attest Patti Hicks City Secretary, City of The Colony ECONOMIC DEVELOPMENT AGREEMENT - Page 6 257432_4 15350~5 (11540) SEPARATE SIGNATURE PAGE OF HOME DEPOT HOME DEPOT U.S.A., INC., a Delaware corporation Date: ~ia_~Lt ~l i ~-'~ ~ ECONOMIC DEVELOPMENT AGREEMENT - Page 7 257452_4 15350-66 (11540) SEPARATE SIGNATURE PAGE OF EDC THE COLONY ECONOMIC DEVELOPMENT CORPORATION, aT ex as co rp~ ~~~x~,( ~f~~~~/ By: ~~ Date: r t'~'~~~j ECONOMIC DEVELOPMENT AGREEMENT - Page 8 Description of the Land Being a tract of land situated in the B.B.B. & C.R.R. Co. Survey, Abstract No. 173, City of The Colony, Denton County, Texas, and being the part of a coiled 781.450 acre tract of !crud conveyed to Paise/121 Partnership, Ltd. by Special Warranty Deed recorded in County Clerk File No. 96-R0068033, Deed Records of Denton County, Texas (DRDCT), and being more particulaHy described as follows: COMMENCING at a found "x" cut on concrete pavement for a corner in the northwest line of State Highway 121 (a variable width right of way), said point being the southeast corner of Lot 1, Block 1 of the Centennial Comer Addition, on addition to the City of The Colony, Denton County, Texas according to the plot thereof recorded in Cab;net N, Page 246 of the Plot Records of Denton County. Texas (PRDCT); THENCE, North 28 deg. 40 min. 20 sec. West departing the northwest line of State Highway 121 and with the northeast line of said Lot 1, a distance of 193.17 feet to a 1/2 inch iron rod set for THE POINT OF BEGINNING; THENCE, North 28 deg. 40 min. 20 sec. West with the northeast llne of said Eot 1, o distance of 38.61 feet to a 1/2 inch iron rod found for corner at the northeast comer of said Lot 1; THENCE, Souttl 89 deg. 59 min. 58 sec. West with the north line of said Lot 1, posslng at a distance of 185.56 feet, the northwest corner of said Lot 1 and offset in the east line of Pa/ge Road (a 124 foot right of way south of this location), continuing in all a distance of 207.56 feet to a found cut on concrete pavement for a corner in the east line of Poise Rood (a 100 foot right of way north of this location); THENCE, North O0 deg. O0 min. 02 sec. West with the east line of Paise Rood, a distance of 659..55 feet to a 1/2 inch iron rod found for o carrier at the intersection of the east line of Paise Road with the center line of proposed Memorial Drive (a proposed 120 foot right of way); THENCE, the following courses and distances ~,;th the center line of proposed Memorial Drive: North 80 deg. O0 min. O0 sec. East, departing the east !ina of Paise Road, a dlstance of 82.30 feet to a 1/2 inch ;ran rod found at the beginning of o tangent curve to the left with a central angle of 21 deg. 41 min. 44, sec., a radius of 1,590.00 feet, a chord bearing on North 69 de~j. 09 min.07 sec. East chord distance of 525.20 feet; Northeasterly, along said curve, an arc distance of 526.34 feet to 1/2 inch iron rod set for a comer;, THENCE, South 51 deg. ¢1 min. 45 sec. East, departing the centedine of proposed Memorial Drive. distance of 60.00 feet to a 1/2 inch iron too set for a corner ~n the southeast line of proposed Memorial Drive; THENCE, South 4.7 deg. 4.5 min. 12 sec. East, a distance of 165.52 feet to a 1/2 inch iron rod set at.~the beginning of a tangent curve to the right with a central angle of 14. deg. 49,~min. 28,~sec., a , : J