HomeMy WebLinkAboutResolution No. 09-033
CITY OF THE COLONY, TEXAS
RESOLUTION NO. 09-C~
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF THE
COLONY, TEXAS, APPROVING THE TERMS AND CONDITIONS OF
THE ECONOMIC DEVELOPMENT AGREEMENT BY AND BETWEEN
THE COLONY ECONOMIC DEVELOPMENT CORPORATION AND
THE CITY OF THE COLONY FOR INCENTIVE AND
INFRASTRUCTURE REIMBURSEMENTS TO THE CITY, WHICH IS
ATTACHED HERETO AND INCORPORATED HEREIN AS EXHIBIT
"A"; AUTHORIZING THE CITY MANAGER TO EXECUTE SAID
AGREEMENT; AND PROVIDING AN EFFECTIVE DATE
WHEREAS, the City has requested The Colony Economic Development Corporation
(TCEDC) reimburse the City for the City's grant payments pursuant to the 2004 Edward Don &
Company Incentive Agreement and for the taxes that are to be abated pursuant to the 2004 Tax
Abatement Agreement; and
WHEREAS, the City has, or is, constructing certain infrastructure and has requested
TCEDC participate and/or reimburse a portion of the costs for the design and construction of the
Stewart Creek Wastewater Treatment Plant and the Carrollton Water Line; and
WHEREAS, the Economic Development Agreement, which is attached hereto and
incorporated herein as Exhibit "A" authorizes TCEDC to reimburse the City for incentive and
infrastructure costs as outlined in the attached agreement.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF THE COLONY, TEXAS THAT:
Section 1. That the terms and conditions of the Economic Development Agreement by
and between The Colony Economic Development Corporation and the City of The Colony,
which is attached hereto and incorporated herein as Exhibit "A" 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 20th day of April, 2008.
I.C
J Dillard, Mayor
TE T:
ristie Wilson, City Secretary
APPR E F RM:
Robert E. Hager, Cit ttorney
Page I of 1
OR JI
aL
STATE OF TEXAS §
§ Economic Development Agreement
COUNTY OF DENTON §
This Economic Development Agreement (this "Agreement") is made by and between The
City of The Colony (the "City"), and The Colony Economic Development Corporation (the
"TCEDC"), acting by and through their respective authorized officers.
WITNESSETH:
WHEREAS, the City and Edward Don & Company previously entered into that certain
tax abatement agreement dated August 2, 2004 for the tax abatement of improvements and
tangible personal property described therein for a period of ten (10) years (the "Tax Abatement
Agreement"); and
WHEREAS, the City and TCEDC entered into that certain economic development
incentive agreement with Edward Don & Company dated August 6, 2004 pursuant to which the
TCEDC and the City provides ten (10) annual grants equal to fifty percent (50%) of the sales tax
receipts from the sale of taxable items by Edward Don & Company consummated at the
improvements as described therein (the "Incentive Agreement"); and
WHEREAS, the City has requested the TCEDC reimburse the City for the City grant
payments pursuant to the Incentive Agreement and for the taxes that are to be abated pursuant to
the Tax Abatement Agreement; and
WHEREAS, the City has, or is constructing certain Infrastructure (hereinafter defined),
and has requested TCEDC participate and/or reimburse a portion of the costs for the design and
construction of the Infrastructure; and
WHEREAS, the Infrastructure has and will promote new and expanded business
enterprises in the City and qualifies as a "Project" under the Development Corporation Act of
1979, codified at Chapters 501 - 505, Texas Local Government Code (the "Act'); and
WHEREAS, the TCEDC Board of Directors has determined, and finds that the
Infrastructure has, and will promote new and expanded business enterprises in the City and
qualifies as a "Project" under the Act; and
WHEREAS, Edward Don & Company pursuant to the Incentive Agreement has created
and retained primary jobs as that term is defined in the Incentive Agreement; and
WHEREAS, the TCEDC desires to reimburse the City for: (i) the City grant payments
pursuant to the Incentive Agreement; (ii) for the City taxes that are to be abated pursuant to the
Tax Abatement Agreement; and (iii) for a portion of the costs for the design and construction of
the Infrastructure; and
TCEDC/City Economic Development Agreement for Reimbursement - Page 1 35640
WHEREAS, the TCEDC is authorized pursuant to the Act to reimburse the City for: (i)
the City grant payments pursuant to the Incentive Agreement; (ii) for the City taxes that are to be
abated pursuant to the Tax Abatement Agreement; and (iii) for a portion of the costs for the
design and construction of the Infrastructure;
WHEREAS, the TEX. Loc. Gov'T CODE, Chapters 501 and 502, authorize the TCEDC
to provide economic development grants for the creation and retention of primary jobs that are
required for the development of manufacturing and industrial facilities and for infrastructure
suitable for new or expanded industrial business enterprises; and
WHEREAS, the City and TCEDC have adopted programs for promoting economic
development; and
WHEREAS, the City is authorized by TEX. Loc. Gov'T CODE §380.001 to provide
economic development grants to promote local economic development and to stimulate business
and commercial activity in the City;
NOW THEREFORE, in consideration of the foregoing, and on the terms and conditions
hereinafter set forth, and other 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:
"City" shall mean The City of The Colony, Texas.
"Effective Date" shall mean the last date of execution hereof.
"Event of Bankruptcy or Insolvency" shall mean the dissolution or termination
of a party's existence as a going business, insolvency, appointment of receiver for any
part of such party's property and such appointment is not terminated within ninety (90)
days after such appointment is initially made, any general assignment for the benefit of
creditors, or the commencement of any proceeding under any bankruptcy or insolvency
laws by or against such party and such proceeding is not dismissed within ninety (90)
days after the filing thereof.
"Event of 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, acts of terrorism, civil commotion, insurrection, government or de facto
governmental action (unless caused by the intentionally wrongful acts or omissions of the
party), fires, explosions or floods, strikes, slowdowns or work stoppages.
"Expiration Date" shall mean the December 31, 2026.
TCEDC/City Economic Development Agreement for Reimbursement - Page 2 35640
"Impositions" shall mean all taxes, assessments, use and occupancy taxes,
charges, excises, license and permit fees, and other charges by public or governmental
authority, general and special, ordinary and extraordinary, foreseen and unforeseen,
which are or may be assessed, charged, levied, or imposed by any public or governmental
authority on the Company or any property or any business owned by Company within the
City.
"Infrastructure" shall collectively mean the Stewart Creek Wastewater
Treatment Plant Expansion Project and the Carrollton Water Line Project.
"Infrastructure Reimbursement" shall mean the TCEDC semi-annual
reimbursement to the City for a portion of the costs of the Infrastructure as set forth in the
schedule attached hereto as Exhibit "A".
"Incentive Reimbursement" shall mean the TCEDC annual reimbursement to
the City for: (i) the amount of the City taxes that are abated pursuant to the Tax
Abatement Agreement for the applicable tax year; and (ii) the amount of the annual City
grant paid pursuant to the Incentive Agreement for the applicable year, to be paid as set
forth herein. The amount of the annual Incentive Payment shall be adjusted in the event
the Tax Abatement and/or the Incentive Agreement are terminated.
"Payment Request" shall mean a written request from the City to the TCEDC for
payment of the Infrastructure or Incentive Reimbursement, as the case may be, accompanied
by written evidence reasonably requested by the TCEDC concerning the requested
reimbursement.
"Related Agreements" shall mean individually or collectively the Tax
Abatement Agreement and the Incentive Agreement.
"TCEDC" shall mean The Colony Economic Development Corporation.
Article II
Term
This Agreement shall begin on the Effective Date and shall continue until the Expiration
Date, unless sooner terminated as provided herein.
Article III
Reimbursement Payments
3.1 Infrastructure Reimbursement. (a) Payment. Subject to Section 3.1(c) below,
the TCEDC, agrees to provide the City with the semi-annual Infrastructure Reimbursement to be
paid within 30 days after receipt of a Payment Request from the City following February 1 and
August 1 of each calendar year beginning February 1, 2009, said payment amounts to be in
accordance with Exhibit "A," attached hereto.
TCEDC/City Economic Development Agreement for Reimbursement - Page 3 35640
(b) Adjustments. The parties agree that at any time the City Master Plan (City
Comprehensive Land Use Plan) is updated, revised, amended or repealed by the City that the
amount of the Infrastructure Reimbursement shall be automatically adjusted to account for any
changes in land use which decrease or alter the non residential area of the City. In such event the
TCEDC and/or the City shall provide written notice to the other party of the requirement to
adjust the amount of the semi-annual Infrastructure Reimbursement. The parties further agree
that the amount of the semi-annual Infrastructure Reimbursement shall be subject to
renegotiation at the written request of either party, in the event the sales tax receipts of the
TCEDC decrease and/or the payment of the semi-annual Infrastructure Reimbursement threatens
or jeopardizes the TCEDC current or future projects. In such event the amount of the
Infrastructure Reimbursement may be adjusted, terminated and/or suspended to account for any
decrease of the sales tax receipts of the TCEDC and/or to accommodate the funding needed for
TCEDC current or future projects.
(c) Annual Appropriation. The semi-annual Infrastructure Reimbursements shall be
paid solely from annual budget appropriations from the general funds of the TCEDC. The
TCEDC shall not be obligated to pay any semi-annual Infrastructure Reimbursement unless the
TCEDC has appropriated such funds for the ensuing semi-annual payment of the Infrastructure
Reimbursement. The TCEDC shall appropriate funding annually to make payments as indicated
in Exhibit A.
3.2 Incentive Reimbursement. (a) Payment. Subject to Section 3.2(c) below, the
TCEDC, agrees to provide the City with the annual Incentive Reimbursement to be paid within
30 days after receipt of a Payment Request from the City, with the first such Payment Request
for Tax Year 2008 to be made not earlier than the Effective Date, and each subsequent annual
Payment Request to be made following February 25th of each calendar year beginning in 2010.
(b) Adjustments. The parties agree that the amount of the annual Incentive
Reimbursement shall be subject to renegotiation at the written request of either party, in the
event the sales tax receipts of the TCEDC decrease and/or the payment of the annual Incentive
Reimbursement threatens or jeopardizes the TCEDC current or future projects. In such event the
amount of the Incentive Reimbursement may be adjusted, terminated and/or suspended to
account for any decrease of the sales tax receipts of the TCEDC and/or to accommodate the
funding needed for TCEDC current or future projects. The parties further agree that the amount
of the annual Incentive Reimbursement may be adjusted downward or terminated in the event the
Incentive Agreement and/or the Tax Abatement Agreement are terminated and/or amended. In
no case shall the amount of the annual Incentive Reimbursement be increased beyond the current
amounts required by the City pursuant to the Related Agreements.
(c) Annual Appropriation. The annual Incentive Reimbursements shall be paid solely
from annual budget appropriations from the general funds of the TCEDC. The TCEDC shall not
be obligated to pay any annual Incentive Reimbursement unless the TCEDC has appropriated
such funds for the ensuing annual payment of the Incentive Reimbursement. The TCEDC shall
appropriate funding annually to make these payments.
TCEDC/City Economic Development Agreement for Reimbursement - Page 4 35640
Article IV
Conditions to Reimbursements
The obligation of the TCEDC to pay the Incentive and/or Infrastructure Reimbursements
shall be conditioned upon the continued compliance with and satisfaction of each of the terms
and conditions of this Agreement by the City and each of the conditions set forth below:
(a) The City agrees that as a condition precedent to payment of the Reimbursements
hereunder that it shall not have an uncured breach or default of this Agreement; and
(b) The TCEDC shall have received a Payment Request from the City for payment of
the applicable Reimbursement.
Article V
Termination
This Agreement shall terminate upon any one or more of the following events:
(a) by written agreement of the parties;
(b) 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;
(c) by either party, if the other party suffers an Event of Bankruptcy or Insolvency;
(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;
or
(e) If The Colony voters approve a repeal, modification or reduction of the local sales
and use tax imposed by the City for the benefit of the TCEDC pursuant to the Act.
Article VI
Miscellaneous
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 Liability. 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 in satisfying the
conditions of this Agreement, each has acted independently and TCEDC and the City assume no
responsibilities or liabilities to third parties in connection with these actions.
TCEDC/City Economic Development Agreement for Reimbursement - Page 5 35640
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 Attn: Peter G. Smith
Director of Economic Development Nichols, Jackson, Dillard, Hager
The Colony Economic Development Corp. & Smith, L.L.P.
6800 Main Street 1800 Lincoln Plaza
The Colony, Texas 75056 500 North Akard
Dallas, Texas 75201
If Intended for the City, to: With a copy to:
Attn: Dale Cheatham Attn: Peter G. Smith
City Manager Nichols, Jackson, Dillard, Hager
The City of The Colony & Smith, L.L.P.
6800 Main Street 1800 Lincoln Plaza
The Colony, Texas 75056 500 North Akard
Dallas, Texas 75201
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 any one 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.
TCEDC/City Economic Development Agreement for Reimbursement - Page 6 35640
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.
6.12 Employment of Undocumented Workers. During the term of this Agreement
the City agrees not to knowingly employ any undocumented workers and if convicted of a
violation under 8 U.S.C. Section 1324a (f), the City shall repay the amount of the
Reimbursements and any other funds received by the City from the TCEDC as of the date of
such violation within 120 business days after the date the City is notified by the TCEDC of such
violation, plus interest at the rate of 6% compounded annually from the date of violation until
paid.
Signature Page to Follow
TCEDC/City Economic Development Agreement for Reimbursement - Page 7 35640
Executed on this day of Pry ~ , 2009.
THE COLONY ECONOMIC DEVELOPMENT
CORPORATION
By: 2
Tom Tvardzik, Presid nt
Executed on this 1~Wday of 7 , 2009.
CITY OF THE COLONY, TEXAS
By: 1~ CLICV~
Dale Cheatham, City Manager
TCEDC/City Economic Development Agreement for Reimbursement - Page 8 35640
Exhibit A
EDC REIMBURSABLES
AMORTIZATION SCHEDULE
UUlldes WWTP Expansion $9,844,805 0.13 $1,279,825 06/06/07
Carrollton Water Line $8,161,329 0.28 $2,285,172 In Progress
Subtotal: $3,564,997
EDC Annual Total February Payment (Int August Payment Total August Total Annual
Annual Payment % for EDC Payment Only) Payment (Ptl) Payment
Principal Interest Principal Interest
Funding - 2 Prior years 2,399,504.00
2008-09 916,887.00 17.932365% 164,419.52 81,306.06 1,807.40 81,306.06 83,113.46 164,419.52
2009-10 1,716,841.00 307,870.19 - 81,271.99 145,326.21 81,271.99 226,598.20 307,870.19
2010-11 1,715,783.00 307,680.47 - 78,547.16 150,586.14 78,547.16 229,133.30 307,680.47
2011-12 1,704,052.00 305,576.82 - 74,782.62 156,011.57 74,782.62 230,794.20 305,576.82
2012-13 1,705,552.00 305,845.81 - 70,882.33 164,081.14 70,882.33 234,963.47 305,845.81
2013-14 1,703,952.00 305,558.89 - 67,600.71 170,357.46 67,600.71 237,958.18 305,558.89
2014-15 1,705,952.00 305,917.53 - 64,193.56 177,530.41 64,193.56 241,723.97 305,917.53
2015-16 1,706,452.00 306,007.20 - 59,755.30 186,496.59 59,755.30 246,251.89 306,007.20
2016-17 1,709,452.00 306,545.17 - 55,092.89 196,359.39 55,092.89 251,452.28 306,545.17
2017-18 1,704,700.00 305,693.02 - 50,183.72 205,325.58 50,183.72 255,509.30 305,693.02
2018-19 1,703,900.00 305,549.56 - 46,077.21 213,395.14 46,077.21 259,472.35 305,549.56
2019-20 1,707,732.00 306,236.73 - 41,489.39 223,257.94 41,489.39 264,747.34 306,236.73
2020-21 1,704,818.00 305,714.18 - 36,745.03 232,224.12 36,745.03 268,969.15 305,714.18
2021-22 1,705,070.00 305,759.37 - 30,939.61 243,880.16 30,939.61 274,819.77 305,759.37
2022-23 1,707,070.00 306,118.02 - 24,842.60 256,432.82 24,842.60 281,275.42 306,118.02
2023-24 1,705,570.00 305,849.03 - 18,431.78 268,985.47 18,431.78 287,417.25 305,849.03
2024-25 1,706,818.00 306,072.83 - 12,715.66 280,641.51 12,715.66 293,357.17 306,072.83
2025-26 1,703,350.00 305,450.93 - 6,576.69 292,297.55 6,576.69 298,874.24 305,450.93
32,333,455.00 5,367,865.27 - 901,434.33 3,564,996.61 901,434.33 4,466,430.94 5,367,865.27
% calculated based on % of principal minus prior years principal paid