Loading...
HomeMy WebLinkAboutResolution No. 2012-029 CITY OF THE COLONY, TEXAS RESOLUTION NO. 2012-,- ;,j A RESOLUTION OF THE CITY OF THE COLONY, TEXAS, APPROVING AN AMENDED FOURTH AMENDMENT TO THE DEVELOPER'S AGREEMENT BETWEEN THE CITY OF THE COLONY AND WYNNWOOD PENINSULA VENTURE; AUTHORIZING THE MAYOR TO EXECUTE THE AMENDMENT; PROVIDING AN EFFECTIVE DATE WHEREAS, On April 19, 2004 the City entered into a Developer's Agreement concerning future development of Wynnwood Peninsula; and WHEREAS, On March 20, 2012 the City and Wynnwood Peninsula, Ltd. and MSW Wynnwood, LLC, desired to amend the original Developer's Agreement by extending the term of the Agreement, and by reducing the percentage of the tax reimbursement authorized pursuant to this Agreement; and WHEREAS, The March 20, 2012 agreement (not executed) contained the following items that need correction: The name Wynnwood Peninsula, Ltd. and MSW Wynnwood, LLC be amended to Wynnwood Peninsula Venture, the amendment be properly designated as the Fourth Amendment, and the dates in Section 2 (a) reflect January 1, 2012 to December 31, 2021, with the last payment by the city to the developer by March 31, 2022. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS: Section 1. The Amended Fourth Amendment to the Developer's Agreement, which is attached and incorporated hereto as Exhibit "A", having been reviewed by the City Council of the City of The Colony, Texas, and found to be acceptable and in the best interest of the City and its citizens, be, and the same is hereby, in all things approved, and the Mayor is hereby authorized to execute the Amendment on behalf of the City of The Colony, Texas. Section 2. That this Resolution shall take effect immediately from and after its adoption and it is so resolved. PASSED, APPROVED and EFFECTIVE this 17th day of April, 2012. 1.1~- ~ ~Z, e Me o -ry, Mayor City of The Colony, T xas 1' - ATT ST- Christie Wilson, City Secretary APPROVED AS TO FORM, 7 Jeff Moore, City Attorney i FOURTH AMENDMENT TO THE DEVELOPER'S AGREEMENT BETWEEN THE CITY OF THE COLONY AND WYNNWOOD PENINSULA VENTURE THIS FOURTH AMENDMENT TO THE DEVELOPER'S AGREEMENT ("Amendment") is hereby entered into by and between the City of the Colony, Texas (the "City"), Wynnwood Peninsula Venture (referred to as the "Developer"). RECITALS: WHEREAS, the City and Wynnwood Peninsula, Ltd., and MSW Wynnwood, LLC entered into that certain "Developer's Agreement Between the City of the Colony and Wynnwood Peninsula, Ltd., and MSW Wynnwood, LLC" dated on or about the 19t" day of April, 2004 (the "Agreement"), concerning the future development of Wynnwood Peninsula within the corporate limits of the City; and WHEREAS, the City and Wynnwood Peninsula, Ltd., and MSW Wynnwood, LLC entered into that certain First Amendment to the Developer's Agreement dated on or about April 3, 2006; and WHEREAS, on or about April 3, 2006, the City approved the assignment of the rights and obligations of Wynnwood Peninsula, Ltd., and MSW Wynnwood, LLC under the Agreement to Wynnwood Peninsula Venture, a Texas partnership; and WHEREAS, the City and the Developer entered into that certain Second Amendment to the Developer's Agreement dated on or about February 8, 2008; and WHEREAS, the City and the Developer entered into that certain Third Amendment to the Developer's Agreement dated on or about July 16, 2008; and WHEREAS, the City and the Developer now desire to amend the Agreement by extending the term of the Agreement, and by reducing the percentage of the tax reimbursement authorized pursuant to this Agreement. NOW, THEREFORE, for and in consideration and ten dollars ($10.00) and other good and valuable consideration, the receipt of which is hereby acknowledged, the City and the Developer hereby agree as follows: SECTION 1. FINDINGS INCORPORATED. The foregoing recitals are hereby incorporated into the body of this Amendment and shall be considered part of the mutual covenants, consideration and promises that bind the parties. FOURTH AMENDMENT TO THE DEVELOPER'S AGREEMENT BETWEEN THE CITY OF THE COLONY AND WYNNWOOD PENINSULA VENTURE - Page 1 SECTION 2. AMENDMENTS TO AGREEMENT. (a) Amendment to Agreement. That Section 7(ii) of the Agreement is hereby amended to read as follows: "(ii) The City will grant to the Developer a 100% tax rebate, per the terms of the agreement attached hereto as Exhibit D: The Revised Economic Development Agreement (the "Economic Development Agreement"), to be in effect for ten (10) years beginning January 1, 2012, and running through December 31, 2021, with the last payment to be made by City to Developer by March 31, 2022." (b) Amendment to Agreement. That Section 8(iii) of the Agreement is hereby amended to read as follows: "(iii) The Developer, but only from the tax rebate funds actually received by the Developer, shall pay the City on an annual basis the sum of money equal to $0.25325 per One Hundred and 00/100 ($100.00) valuation of real property, as determined by the Denton County Appraisal District, during the term of this Agreement, commencing as described in Section 7 (ii)." (c) Amendment to Agreement. That Section I. D. of Exhibit D of the Agreement is hereby amended to read as follows: "D. Rebate Commencement Date shall be the date that the ten (10) year tax rebate to the Owner begins. The Rebate Commencement Date shall be January 1, 2012.'' (d) Amendment to Agreement. That Section III. 2. of Exhibit D of the Agreement is hereby amended to read as follows: "2. Subject to the terms and conditions of this Agreement, including, particularly, the next following section, the City hereby grants a rebate to the Owner of one hundred percent (100%) of collected City ad valorem taxation on the Property, for the period of tax rebate herein provided. Notwithstanding the generality of the preceding sentence, and consistent with and pursuant to the provisions of Section 8 (iii) of the Developer's Agreement, the City shall retain, from amounts of collected ad valorem taxation of the Property, and amount of collected City ad valorem taxation equal to $0.25325 per $100.00 property valuation during the tenn of this Agreement commencing on the Rebate Commencement Date." (e) Amendment to Agreement. That Section IV. of Exhibit D of the Agreement, entitled FOURTH AMENDMENT TO THE DEVELOPER'S AGREEMENT BETWEEN THE CITY OF THE COLONY AND WYNNWOOD PENINSULA VENTURE - Page 2 "Collections/Payment to Owner" is hereby amended to read as follows: "IV. COLLECTION/PAYMENT TO OWNER From all amount of City ad valorem taxation attributable to the Property (or any portion thereof) collected by or on behalf of the City during each year of the tax rebate herein provided, the City shall be entitled to retain an amount equal to $0.25325 per $100.00 property valuation during the term of this Agreement commencing on the Rebate Commencement Date." SECTION 3. MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of this Amendment: (a) Amendments. This Amendment constitutes the entire understanding and agreement of the parties as to the matters set forth in this Amendment. No alteration of or amendment to this Amendment shall be effective unless given in writing and signed by the party or parties sought to be charged or bound by the alteration or amendment. (b) Applicable Law and Venue. This Amendment shall be governed by and construed in accordance with the laws of the State of Texas, and all obligations of the parties created hereunder are performable in Denton County, Texas. Venue for any action arising under this Amendment shall lie in the state district courts of Denton County, Texas. (c) Assignment. Neither Party shall have the right to assign its rights and/or obligations under this Amendment, or any interest herein, without the prior written consent of the other Party. (d) Binding Obligation. This Amendment shall become a binding obligation on the signatories upon execution by all signatories hereto. City wan-ants and represents that the individual executing this Amendment on behalf of City has full authority to execute this Amendment and bind City to the same. Developer warrants and represents that the individual executing this Amendment on Developer's behalf has full authority to execute this Amendment and bind it to the same. (e) Caption Headings. Caption headings in this Amendment are for convenience purposes only and are not to be used to interpret or define the provisions of the Amendment. (f) Counterparts. This Amendment may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall constitute one and the same document. (g) Effective Date. The effective date (the "Effective Date") of this Amendment shall be the date of the later to execute this Amendment by Developer and City. FOURTH AMENDMENT TO THE DEVELOPER'S AGREEMENT BETWEEN THE CITY OF THE COLONY AND WYNNWOOD PENINSULA VENTURE - Page 3 (h) Agreement and Amendment. All of the terms, conditions, and obligations of the Agreement, and any amendments remain in full force and effect except where specifically modified by this Amendment. (i) Severability. The provisions of this Amendment are severable. If any paragraph, section, subdivision, sentence, clause, or phrase of this Amendment is for any reason held by a court of competent jurisdiction to be contrary to law or contrary to any rule or regulation have the force and effect of the law, the remaining portions of the Amendment shall be enforced as if the invalid provision had never been included. (j) Sovereign Immunity. No party hereto waives any statutory or common law right to sovereign immunity by virtue of its execution hereof (k) Time is of the Essence. Time is of the essence in the performance of this Amendment. IThe Remainder of this Page Intentionally Left Blank] FOURTH AMENDMENT TO THE DEVELOPER'S AGREEMENT BETWEEN THE CITY OF THE COLONY AND WYNNWOOD PENINSULA VENTURE - Page 4 SIGNED AND EFFECTIVE as of the date last set forth below. WYNNWOOD PENINSULA VENTURE A Texas partnership MSW WYNNWOOD HOLDINGS, LTD. Managing Venturer By: It's General Partner MSW WYNNWOOD HOLDINGS GP, LLC By: Kristian Teleki, Senior Vice President Date: CITY OF THE COLONY, TEXAS a Texas home-rule municipality By: Joe,1JcCo rry, Mayor Dat ATTEST: By: Chris ie Wilson, TRMC, City Secretary APPROVED AS TO FORM: By: . Jeff Moore" City Attorney FOURTH AMENDMENT TO THE DEVELOPER'S AGREEMENT BETWEEN THE CITY OF THE COLONY AND WYNNWOOD PENINSULA VENTURE - Page 5