HomeMy WebLinkAboutResolution No. 08-110
CITY OF THE COLONY, TEXAS
RESOLUTION NO. 08- II ()
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF THE
COLONY, TEXAS, APPROVING AN AGREEMENT WITH THE
COLONY ECONOMIC DEVELOPMENT CORPORATION TO DESIGN
AND CONSTRUCT A LEFT TURN LANE, MEDIAN OPENING AND
DRIVEWAY MODIFICATION ALONG MEMORIAL DRIVE, WEST OF
MAIN STREET, MORE PARTICULARLY DESCRIBED IN EXHIBIT "A"
WHICH IS ATTACHED HERETO AND INCORPORATED HEREIN;
AUTHORIZING THE CITY MANAGER TO EXECUTE SAID
AGREEMENT; AND PROVIDING AN EFFECTIVE DATE
WHEREAS, the City Council has determined it is in the best interest of the City to
approve the Agreement, which is attached hereto and incorporated herein as Exhibit "A", with
The Colony Economic Development Corporation to design and construct a left turn lane, median
opening and driveway modification along Memorial Drive, West of Main Street, as provided
therein and authorizing the City Manager to execute said agreement.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF THE COLONY, TEXAS THAT:
Section 1. That the Agreement, which is attached hereto and incorporated herein as
Exhibit A, with The Colony Economic Development Corporation as provided therein, is hereby
approved and the City Manager is authorized to execute the same on behalf of the City.
Section 2. This Resolution shall become effective immediately from and after its
passage, as the law and charter in such cases provides.
PASSED, APPROVED and EFFECTIVE this 17th day of November. 2008.
ATTEST:
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Christie Wilson, City Secretary
APPROVED AS TO FORM:
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City Attorney - '.J
(PGS:tc) (11/14/08)(32571)
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ORIGINAL
ST ATE OF TEXAS
~
~ ECONOMIC DEVELOPMENT INCENTIVE AGREEMENT
~
COUNTY OF DENTON
This Economic Development Incentive Agreement ("Agreement") is made by and
between The Colony Economic Development Corporation ("TCEDC") and the City of
The Colony, Texas, a Texas home rule municipality (the "City"), acting by and through
their respective authorized officers.
WITNESSETH:
WHEREAS, the City has requested the TCEDC participate in the actual costs to
design and construct a left turn lane, median opening and driveway modifications along
Memorial Drive west of Main Street as depicted in Exhibit A (the "Memorial Drive
Improvements"); and
WHEREAS, the City will cause the Project and the Memorial Drive
Improvements to be constructed; and
WHEREAS, the Memorial Drive Improvements will allow west bound Memorial
Drive traffic to turn into a driveway that goes from Memorial drive to the west end of the
Wal-Mart parking lot as depicted in Exhibit A; and
WHEREAS, the board of directors of the TCEDC has determined that funding
the costs for the design and construction of the Memorial Drive Improvements and the
Project are expenditures that are required or suitable for infrastructure necessary to
promote or develop new or expanded business enterprises and qualify as a project under
the Development Corporation Act;
WHEREAS, the City and the TCEDC desire to attract new business to the City
that will add taxable value, create employment opportunities and provide additional sales
tax revenue for the City; and
WHEREAS, the Project and the Memorial Drive Improvements will promote
economic development, stimulate commercial activity, generate additional sales tax and
will enhance the tax base and economic vitality of the City; and
WHEREAS, TCEDC has adopted programs for promoting economIC
development; and
WHEREAS, the Development Corporation Act authorizes the TCEDC to provide
economic development grants suitable for expenditures to promote or develop new or
expanded business enterprises; and
TCEDC/The City of the Colony Economic Development Incentive Agreement - Page I
31623
NOW THEREFORE, in consideration of the foregoing, and on the terms and
conditions hereinafter set forth, and for other valuable consideration the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
Article I
Definitions
Wherever used in this Agreement, the following terms shall have the meanings
ascribed to them:
"Capital Investment" shall mean the total capitalized costs of the
Memorial Drive Improvements.
"City" shall mean the City of The Colony, Texas.
"Commencement of Construction" shall mean that (i) the plans have been
prepared and all approvals thereof required by applicable governmental
authorities have been obtained for construction of the Memorial Drive
Improvements, as the case may be; (ii) all necessary permits for the construction
of the Memorial Drive Improvements, as the case may be, pursuant to the
respective plans therefore having been issued by all applicable governmental
authorities; and (iii) grading of the land for the Memorial Drive Improvements, as
the case may be, has commenced.
"Completion of Construction" shall mean that (i) the construction of the
Memorial Drive Improvements, as the case may be, has been substantially
completed; and (ii) the City has accepted or conducted final inspection of the
Memorial Drive Improvements, as the case may be.
"Expiration Date" shall mean the date the parties have fully satisfied their
respective obligations hereunder.
"Force Majeure" shall mean any contingency or cause beyond the
reasonable control of a party including, without limitation, acts of God or the
public enemy, war, riot, civil commotion, insurrection, government or de facto
governmental action (unless caused by acts of omissions of the party), fires,
explosions or floods, strikes, slowdowns or work stoppages.
"Grant" shall mean an economic development grant equal to the actual costs
incurred and paid by City for the Memorial Drive Improvements not to exceed
$300,000.
"Payment Request" shall mean a written request from the City to the
TCEDC for payment of the respective Grant accompanied by: (i) written acceptance
of the Memorial Drive Improvements by the City and (ii) written evidence
TCEDC/The City of the Colony Economic Development Incentive Agreement- Page 2
31623
reasonably satisfactory to the TCEDC of the costs incurred and paid by the City for
the Memorial Drive Improvements.
"TCEDC" shall mean The Colony Economic Development Corporation.
Article II
Term
The term of this Agreement shall begin on the last date of execution hereof (the
"Effective Date") and continue until the Expiration Date, unless sooner terminated as
provided herein.
Article III
Economic Development Grants
3.1 Grant Payment. Subject to the City's continued satisfaction of all the
terms and conditions of this Agreement the TCEDC agrees to provide the City with the
Grant to be paid within forty-five (45) days after receipt of a Payment Request following
the Completion of Construction of the Memorial Drive Improvements.
3.2 Limitations. The Grant shall be paid solely from lawful available funds
that have been appropriated by TCEDC. Under no circumstances shall the obligations of
TCEDC hereunder be deemed to create any debt within the meaning of any constitutional
or statutory provision. Consequently, notwithstanding any other provision of this
Agreement, TCEDC shall have no obligation or liability to pay any portion of the Grant
unless the TCEDC appropriates funds to make such payment during the budget year in
which such items are payable. Further, TCEDC shall not be obligated to pay any
commercial bank, lender or similar institution for any loan or credit agreement made by
City. None of the obligations of the TCEDC under this Agreement shall be pledged or
otherwise encumbered in favor of any commercial lender and/or similar financial
institution.
Article IV
Conditions to Economic Development Grant
The obligations of the TCEDC to pay the Grant to the City shall be conditioned
upon the City's continued compliance with and satisfaction of the terms and conditions of
this Agreement and the conditions set forth below.
4.1 City shall, as a condition precedent to the payment of the Grant, provide
the TCEDC with the applicable Payment Request.
4.2 City shall subject to Events of Force Majeure cause Completion of
Construction of the Memorial Drive Improvements to occur on or before April 30, 2009.
4.3 The Capital Investment shall be at least equal to the Grant.
TCEDC/The City of the Colony Economic Development Incentive Agreement - Page 3
31623
Article V
Termination
5.1 This Agreement shall terminate upon anyone or more of the following:
(a) by written agreement of the parties;
(b) Expiration Date;
(c) by either party in the event the other party breaches any of the
terms or conditions of this Agreement, and such breach is not
cured within thirty (30) days after written notice thereof;
(d) by either party if any subsequent Federal or State legislation or any
decision of a court of competent jurisdiction declares or renders
this Agreement invalid, illegal or unenforceable.
Miscellaneous
Article VI
6.1 Binding Agreement. The terms and conditions of this Agreement are
binding upon the successors and assigns of all parties hereto. This Agreement may not be
assigned without the prior written consent of the other party.
6.2 Limitation on Liabilitv. It is acknowledged and agreed by the parties that
the terms hereof are not intended to and shall not be deemed to create a partnership or
joint venture among the parties. It is understood and agreed between the parties that City,
in satisfying the conditions of this Agreement, has acted independently and TCEDC and
the City assumes no responsibilities or liabilities to third parties in connection with these
actions.
6.3 Authorization. Each party represents that it has full capacity and
authority to grant all rights and assume all obligations that is granted and assumed under
this Agreement.
6.4 Notice. Any notice required or permitted to be delivered hereunder shall
be deemed received three (3) days thereafter sent by United States Mail, postage prepaid,
certified mail, return receipt requested, addressed to the party at the address set forth
below or on the day actually received as set by courier or otherwise hand delivered.
If Intended for TCEDC, to:
With a copy to:
Attn: Tom Terrall
Director of Economic Development
The Colony Economic Development Corp.
6800 Main Street
The Colony, Texas 75056
Attn: Peter G. Smith
Nichols, Jackson, Dillard, Hager
& Smith, L.L.P.
1800 Lincoln Plaza
500 North Akard
Dallas, Texas 75201
TCEDC/The City of the Colony Economic Development Incentive Agreement - Page 4
31623
If Intended for the City, to:
Attn: Dale Cheatham
City Manager
The City of The Colony
6800 Main Street
The Colony, Texas 75056
6.5 Entire Agreement. This Agreement is the entire Agreement between the
parties with respect to the subject matter covered in this Agreement. There is no other
collateral oral or written Agreement between the parties that in any manner relates to the
subject matter of this Agreement.
6.6 Governing Law. The Agreement shall be governed by the laws of the
State of Texas; and venue for any action concerning this Agreement shall be in the State
District Court of Denton County, Texas. The parties agree to submit to the personal and
subject matter jurisdiction of said court.
6.7 Legal Construction. In the event anyone or more of the proVIsions
contained in this Agreement shall for any reason be held to be invalid, illegal, or
unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect
other provisions, and it is the intention of the parties to this Agreement that in lieu of each
provision that is found to be illegal, invalid, or unenforceable, a provision be added to this
Agreement which is legal, valid and enforceable and is as similar in terms as possible to the
provision found to be illegal, invalid or unenforceable.
6.8 Recitals. The recitals to this Agreement are incorporated herein.
6.9 Counterparts. This Agreement may be executed in counterparts. Each of
the counterparts shall be deemed an original instrument, but all of the counterparts shall
constitute one and the same instrument.
6.10 Exhibits. All exhibits to this Agreement are incorporated herein by
reference for all purposes wherever reference is made to the same.
6.11 Survival of Covenants. Any of the representations, warranties,
covenants, and obligations of the parties, as well as any rights and benefits of the parties,
pertaining to a period of time following the termination of this Agreement shall survive
termination.
Signature Page to Follow
TCEDC/The City of the Colony Economic Development Incentive Agreement - Page 5
31623
Executed on this S day of /Va u ~ 4.-<-_
,2008.
THE COLONY ECONOMIC DEVELOPMENT
CORPORA TION
~(
By:
Executed on this
/1 day of f\.rOYf~ (Y1. b eA., 2008.
CITY OF THE COLONY, TEXAS,
By:
Q~ ci~~
Dale Cheatham, City Manager
TCEDC/The City of the Colony Economic Development Incentive Agreement - Page 6
31623
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