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HomeMy WebLinkAboutRes 2020-08-784 Development Grant Agreement with Italian VillaCITY OF ANNA, TEXAS RESOLUTION NO. aO?O. �9 4 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ANNA, TEXAS, APPROVING A CHAPTER 380 ECONOMIC DEVELOPMENT GRANT AGREEMENT BETWEEN THE CITY OF ANNA AND ITALIAN VILLA. WHEREAS, on May 11, 20201 the Collin County Commissioners court took the first steps to distribute the CARES Act funds and adopted the `Collin Cares" recovery plan which provides funding for cities' COVID-19 costs and business recovery efforts; and WHEREAS, the City of Anna City Council established a Chapter 380 small business assistance program on June 9, 2020 to provide immediate, short-term financial aid to qualified small businesses impacted by COVID-19; and WHEREAS, the City of Anna City Council desires to enter into a Chapter 380 Agreement with Italian Villa to provide short-term financial aid. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ANNA, TEXAS THAT: Section 1. Recitals Incorporated. The recitals set forth above are incorporated herein for all purposes as if set forth in full. Section 2. Approval of Agreement. The City Council hereby approves the Chapter 380 Economic Development Grant Agreement, attached hereto as Exhibit A, incorporated herein for all purposes, and ratifies and approves the City Manager's execution of the same. The City Manager is hereby authorized to execute all documents and to take all other actions necessary to finalize, act under, and enforce the Agreement. PASSED AND APPROVED by the City Council of the City of Anna, Texas, on thisa'� 5� day of 61 Qj , 2020. Carrie L. Land, City Secretary ROVED: ,r ike, Mayor CITY COUNCIL OF ANNA, TEXAS RESOLUTION NO.rI�� PAGE 1 OF 1 CHAPTER 380 AGREEMENT This Chapter 380 Agreement ("Agreement") is entered into to be effective as of the Effective Date as defined in Article III below), by and between the City of Anna, a home -rule municipality located in Collin County, Texas (hereinafter called "City"), and Italian Villa (hereinafter called "Business"), otherwise known as the "Parties" to this Agreement. RECITALS WHEREAS, the City of Am1a, Texas is a municipality operating under ahome-rule charter (the "City"); and WHEREAS, in December 2019, a novel coronavirus, now designated SARS-Co V2 which causes the disease COVID-19, was detected in Wuhan, China; and WHEREAS, President Donald J. Trump declared a State of National Emergency for the United States of America on March 13, 2020 in response to the spread of COVID4 9; and WHEREAS, on March 13, 2020, Texas Governor Greg Abbott declared a statewide public health disaster; and WHEREAS, on March 17, 2020, Mayor Nate Pilce issued a declaration of local disaster for public health emergency for the City and such declaration was extended by the City Council; and WHEREAS, on March 27, 2020, the Coronavirus Aid, Relief, and Economic Security Act (the "CARES Act") was passed by Congress and signed into law by President Trump, and WHEREAS, on Apr4122, 2020, the US Treasury established the Coronavirus Relief Fund added by Section 5001 of the CARES Act; and WHEREAS, on May 11, 2020, the Collin County Commissioners court took the first steps to distribute the CARES Act funds and adopted the `Collin Cares" recovery plan whichprovides firnding for cities' COVID-19 costs and business recovery efforts; and WHEREAS, the COVID-19 pandemic has caused closures of and limitations on local businesses; and WHEREAS, Chapter 380 of the Texas Local Government Code allows municipalities to establish economic development programs for making grants of public money to promote local economic development and to stimulate business and commercial activity in the municipality; and WHEREAS, the COVID49 National Disaster has caused business enterprise in Anna, Texas, to temporarily close and/or experience reductions in sales, workforce, capital development and/or development; and WHEREAS, the City Council of the City recognizes the economic strain the COVID-19 pandemic is causing its local businesses, and desires to establish a stimulus program from the CARES Act funding from the fiiterlocal Cooperation Agreement with Collin County in order to provide limited financial assistance to small businesses located within the city limits; and WHEREAS, the City Council finds that establishing this program pursuant to Chapter 380 of the Texas Local Government Code and awarding grants to qualified small businesses will serve the public health, safety and welfare of the City; and WHEREAS, Business desires to retain its number of employees and payroll, as well as its capital investment, to the numbers and amounts prior to the National Disaster declaration and COVID-19 pandemic crisis; and WHEREAS, providing Business with the funds under this Agreement will contribute to the City of Anna by helping retain jobs and increase employment back to the numbers prior to the COVID- 19 National Disaster, promoting and developing expanded business enterprises, increased development, increased real property value and tax revenue for the City of Anna, and will have both a direct and indirect positive overall improvement/stimulus in the local and state economy; and WHEREAS, the City desires to offer an incentive to Business to enable Business to retain and increase its employees and payroll to the numbers prior to the COVID49 National Disaster declaration and to train its employees on how to conduct business during such a National Disaster and pandemic pursuant to this Agreement; and WHEREAS, the Parties are executing and entering into this Agreement to set forth certain terms and obligations of the Parties with respect to such matters; and WHEREAS, the Parties recognize that all agreements of the Parties hereto and all terms and provisions hereof are subject to the laws of the State of Texas and all rules, regulations and interpretations of any agency or subdivision thereof at any time governing the subject matters hereof; and WHEREAS, the Parties agree that all conditions precedent for this Agreement to become a binding agreement have occur7ed and been complied with, including all requirements pursuant to the Texas Open Meetings Act and all public notices and hearings, if any, have been conducted in accordance with Texas law; and WHEREAS, on the Effective Date, the commitments contained in this Agreement shall become legally binding obligations of the Parties. NOW, THEREFORE, in consideration of the mutual covenants, benefits and agreements described and contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged and further described herein, the Parties agree as follows: ARTICLE I RECITALS The recitals set forth above are declared true and cored by the Parties and are hereby incorporated as part of this Agreement. ARTICLE II AUTHORITY AND TERM 1. Authori .The City's execution of this Agreement is authorized by Chapter 380 of the Texas Local Government Code and constitutes a valid and binding obligation of the City. The City acknowledges that Business is acting in reliance upon the City's performance of its obligations under this Agreement in making the decision to commit substantial resources to the establishment of the "Project" in the above recitals. 2. Term. This Agreement shall become enforceable upon the Effective Date, hereinafter established, and shall continue until the Expiration Date, hereinafter established, unless terminated sooner or extended by mutual agreement of the Parties in the manner provided for herein. 3. Purpose. The purpose of this Agreement is to formalize the agreements between the Business and the City for the granting of funds to cover certain costs associated with the Project and specifically state the covenants, representations of the Parties, and the incentives associated with Business's commitment to abide by all applicable law and to abide by the terms of this Agreement, which has been approved by the City and the Business. It is expressly agreed that this Agreement constitutes a single transaction. A failure to perform any obligation by the Business may constitute a breach of the entire Agreement and terminate any further commitments (if any) by the City unless an alternative penalty or remedy is provided for herein. 4. Administration of Agreement. Upon the Effective Date, the City delegates the administration and oversight of this Agreement to the Anna Community Development Corporation acting through the City's Economic Development Director. Any proposed amendments to this Agreement shall require the approval of the City. ARTICLE III DEFINITIONS As used in this Agreement, the following terms shall have the meanings ascribed below. All undefined terms shall retain their usual and customary meaning as ascribed by common and ordinary usage. "Anniversary/Year" -Performance and incentive calculations based upon years and anniversaries as used in this Agreement shall be calculated with the year and date zero beginning on the date the last party signs this agreement and first anniversary is twelve (12) months from that date, and so on with each year and anniversary from that date forward. "Bankruptcy" shall mean the dissolution or termination of a Part's existence as a going business, insolvency, appointment of receiver for any part of such Parry'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. "Default", unless otherwise specifically defined or limited by this Agreement, shall mean failure by any Party to timely and substantially comply with any performance requirement, duty, or covenant. "Effective Date" shall be the date of the last signing by a party to the agreement. "Expiration Date" shall mean the earlier of: 1. The first Anniversary of the Effective Date; or 2. The date of termination, provided for under Article VI of this Agreement. "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, not, civil commotion, insurrection, government or de facto governmental action (unless caused by the intentionally wrongful acts or omissions of a party), fires, explosions or floods, strikes, slowdowns or work stoppages. "Incentive Grant" means that money provided to the Business as an incentive for the creation and retention of workers and labor force in Anna, Texas. "Project" shall mean the Business's promise and agreement herein to use the COVID-19 relief funds awarded by the City to contribute to the City of Anna by helping retain jobs and increase employment back to the numbers prior to the COVID-19 National Disaster, as well as to train its employees on how to conduct business safely and in accordance with Center for Disease Control standards during this and any future similar National Disaster declaration. ARTICLE IV CITY OBLIGATION 1. COVID-19 Relief A City shall pay aone-time payment of up to $5,000 ("Incentive Grant") to Business as its COVID-19 relief funds in accordance with the Project, which shall be made available via direct deposit or mailed by check by the City. 2. Incentive Grant, The Incentive Grant is being awarded to Business for it to expand to the size, enterprise and/or revenue levels experienced by the Business prior to the National Disaster declaration and COVID-19 pandemic crisis that caused economic and business retraction. Business is obligated to retain jobs or increase its employment or payroll back or business enterprise back to the numbers prior to the COVID49 National Disaster, as well as to train its employees on how to conduct business safely and in accordance with Center for Disease Control standards during this and any future similar National Disaster declaration. Business further agrees to provide City with the following information (if applicable to the Business) on or before the Expiration Date: (a) 2020 ad valorem tax receipt showing Business's personal property taxes paid for 2020 (should be available February 2021 at latest); (b) February 2021 Texas Comptroller of Public Accounts sales tax receipt; and, (c) Texas Workforce Commission's Unemployment Tax Services Employer's Quarterly Report filed January 2021 (or comparable TWC statement or receipt showing payroll numbers for January 2021). 3. Confidentiality. The City agrees to the extent allowed by law to keep all tax information and documentation received, pursuant to this Agreement hereof, confidential. In the event a request is made for such information, City will not disclose the information unless required to do so by the Attorney General of Texas or other authority having valid jurisdiction. 4. Current Revenue. The funds distributed hereunder shall be paid solely from lawfully available funds of the City. Under no circumstances shall the obligations hereunder be deemed to create any debt within the meaning of any constitutional or statutory provision. None of the obligations under this Agreement shall be pledged or otherwise encumbered in favor of any commercial lender and/or similar financial institution. ARTICLE V COVENANTS AND DUTIES 1. Business's Covenants and Duties. Business makes the following covenants and warranties to the City and agrees to timely and fully perform the obligations and duties contained in Article IV of this Agreement. Any false or substantially misleading statements contained herein or failure to timely and fully perform those obligations and duties within this Agreement shall be an act of Default by the Business. (a) Business shall execute at least a five (5) year commercial lease in the City of Anna and construction contracts for frill construction of a new building location of the Business to conduct its restaurant operations in the City of Anna and shall supply copies of such executed lease and construction contracts to the City prior to December 30, 2020. (b) Business is authorized to do business and is in good standing in the State of Texas and 5 shall remain in good standing in the State of Texas and the United States of America during any term of this Agreement. (c) The execution of this Agreement has been duly authorized by Business's authorized agent, and the individual signing this Agreement is empowered to execute such Agreement and bind the entity. Said authorization, signing, and binding effect is not in contravention of any law, rule, regulation, or of the provisions of Business's by-laws, or of any agreement or instrument to which Business is a party to or by which it may be bound. (d) Business is not a parry to any Bankruptcy proceedings currently pending or contemplated, and Business has not been informed of any potential involuntary Bankruptcy proceedings. (e) To its current, actual knowledge, and subject to the Certificate of Occupancy (or other approvals and permits necessary for the operations of the Business), Business has acquired and maintained all necessary rights, licenses, permits, and authority to carry on its business in the City of Anna and will continue to use its best efforts to maintain all necessary rights, licenses, permits, and authority. (f) Business shall timely and fully comply with all of the terms and conditions of this Agreement. (g) Business shall cooperate with the City in providing all necessary information to assist them in complying with this Agreement. (h) During the term of this Agreement, Business agrees to not knowingly employ any undocumented workers as part of the Project, and, if convicted of a violation under 8 U.S.C. Section 1324a(1), Business shall be in Default (subject to the obligations in Article IV and the remedies in Article VII). Business is not liable for an unknown violation of this Section by a subsidiary, affiliate, or franchisee of Business or by a person with whom Business contracts; provided, however, that identical federal law requirements provided for herein shall be included as part of any agreement or contract which Business enters into with any subsidiary, assignee, affiliate, or franchisee for which funds provided herein will be used. (i) Business shall not have been in arrears and shall be current on its payment of all City taxes and fees that were due and owing prior to Mayor Nate Pike's declaration of a local disaster for public health emergency on March 17, 2020. (j) City has the right to periodically (and with reasonable advance notice) verify the terms and conditions of this Agreement. 2. Compliance and Default. Failure by Business to timely comply with any performance requirement, duty, or covenant shall be considered an act of Default and shall give the City the right to terminate this Agreement and collect the Recapture Amount, as determined by the City. ARTICLE VI TERMINATION Termination. This Agreement shall terminate upon the earliest occurrence of any one or more of the following: (a) The written agreement of the Parties; (b) The Agreement's Expiration Date; (c) Default by Business (at the option of the City). ARTICLE VII DEFAULT 1. Business Events of Default. (a) Failure of Business to perform under this Agreement. (b) City determines that any representation or warranty contained herein or in any application, financial statement, certificate, report or opinion submitted to City in connection with or pursuant to the requirements of this Agreement was incorrect or misleading in any material respect when made; or (c) Any judgment is assessed against Business or any attachment or other levy against the property of Business with respect to a claim remains unpaid, unstayed on appeal, undischarged, not bonded or not dismissed for a period of thirty (30) days; or (d) Business makes an assignment for the benefit of creditors; admits in writing its inability to pay its debts generally as they become due; files a petition in Bankruptcy; is adjudicated insolvent or bankrupt; petitions or applies to any tribunal for any receiver or any trustee of Business or any substantial part of its property, commences any action relating to Business under any reorganization, arrangement, readjustment of debt, dissolution or liquidation law or statute of any jurisdiction whether now or hereafter in effect; or if there is commenced against Business any such action and such action remains undismissed or unanswered for a period of sixty (60) days from such filing, or Business by any act indicates its consent to or approval of any trustee of Business or any substantial part of its property; or suffers any such receivership or trustee to and such appointment remains unvacated for a period of sixty (60) days; or (e) Business substantially changes its present ownership without written notification to City within thirty (30) days of such change; or (f) Business moves the location of the business outside the City or changes the general character of business as conducted at the date hereof or engages in any type of business not reasonably related to its business as presently and normally conducted. 7 2. Remedies for Default. (a) In the event of Default by the Business, the City shall, as its sole and exclusive remedy for Default hereunder, have the right to terminate this Agreement and to recapture one hundred percent (100%) of the Incentive Grant (the "Recapture Amount") if the Default occurs on or prior to the termination date. (b) Business agrees a remedy for Default is the City seeking a mandamus from a court of competent jurisdiction; or the appointment of a receiver in equity with the power to charge and collect rents, purchase price payments, and loan payments; and, apply the revenue from the Project in accordance with this Agreement. ARTICLE VIII MISCELLANEOUS 1. Binding Agreement. The teens and conditions of this Agreement shall be binding on and inure to the benefit of the Parties, and their respective successors and assigns. The Economic Development Director or City Manager shall be responsible for the administration of this Agreement and shall have the authority to execute any instruments, duly approved by the City, on behalf of the Parties related thereto. 2 Mutual Assistance. The Parties will do all things reasonably necessary or appropriate to carry out the terms and provisions of this Agreement and to aid and assist each other in carrying out such terms and provisions. 3. Representations and Warranties. The City represents and warrants to Business that this Agreement is within their authority, and that they are duly authorized and empowered to enter into this Agreement, unless otherwise ordered by a court of competent jurisdiction. Business represents and warrants to the City that it has the requisite authority to enter into this Agreement. 4. Assi ng meet. Business shall have the right to assign all of its rights, duties, and obligations under this Agreement to a duly qualified third party with prior written approval of the City. Any assignment provided for herein shall not serve to enlarge or diminish the obligations and requirements of this Agreement, nor shall they relieve Business of any liability to the City, including any required indemnity in the event that any Assignee hereof shall at any time be in Default of the terms of this Agreement. The City may demand and receive adequate assurance of performance including the deposit or provision of financial security by any proposed Assignee prior to its approval of an assignment. 5. Independent Contractors. (a) It is expressly understood and agreed by all Parties hereto that in performing their services hereunder, Business at no time will be acting as an agent of the City and that all consultants or contractors engaged by Business respectively will be independent contractors of Business; and nothing contained in this Agreement is intended by the Parties to create a partnership or joint venture between the Parties and any implicationto the contrary is hereby expressly disavowed. The Parties hereto understand and agree that the City will not be liable for any claims that may be asserted by any third party occurring in connection with services performed by Business respectively under this Agreement. (b) By entering into this Agreement, except as specifically set forth herein, the Parties do not waive, and shall not be deemed to have waived, any rights, immunities, or defenses either may have, including the defense a party, and nothing contained herein shall ever be construed as a waiver of sovereign or official immunity by the City with such rights being expressly reserved to the fullest extent authorized by law and to the same extent which existed prior to the execution hereof. (c) No employee of the City, or any board member, or agent of the City, shall be personally responsible for any liability arising under or growing out of this Agreement. 6. Notice. Any notice required or permitted to be delivered hereunder shall be deemed delivered by actual delivery, or on the first business day after depositing the same in the hands of a reputable overnight courier (such as United States Postal Service, FedEx or UPS) and addressed to the Parry at the address set forth below: If intended for City: City of Anna Attention: City Manager 111 N. Powell Pkwy Anna, TX 75409 With a copy to: Wolfe, Tidwell &McCoy, LLP Attention: Clark McCoy 2591 Dallas Pkwy, Ste 300 Frisco, TX 75034 If to the Business: Any Party may designate a different address at any time upon written notice to the other Parties. 7. Governmental Records. All invoices, records and other documents required for submission to the City pursuant to the terms of this Agreement are Governmental Records for the purposes of Texas Penal Code Section 37.10. 8. Governing Law, The Agreement shall be governed by the laws of the State of Texas, and the venue for any action concerning this Agreement shall be in the Courts of Collin County. The Parties agree to submit to the personal and subject matter jurisdiction of said court. 9. Amendment. This Agreement may be amended only by mutual written agreement of the Parties. 10. Legal Construction. In the event any one or more of the provisions contained in this Agreement shall, for any reason, be held invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect other provisions of this Agreement, 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. Each of the Parties has been represented by counsel of their choosing in the negotiation and preparation of this Agreement. Regardless of which Party prepared the initial draft of this Agreement, this Agreement shall, in the event of any dispute, whatever its meaning or application, be interpreted fairly and reasonably and neither more strongly for or against any Party. 11. Entire Agreement. This Agreement constitutes 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, except City approved amendments to this Agreement; provided, however, that if there was a previous agreement between the Parties any such agreement is void and the Parties have no rights or obligations thereunder. 12 Paragraph Headings. The paragraph headings contained in this Agreement are for convenience only and will in no way enlarge or limit the scope or meaning of the various and several paragraphs. 13. 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. 14. 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. 15. Indemnification. BUSINESS AGREES TO DEFEND, INDEMNIFY AND HOLD THE CITY OF ANNA 10 AND THE ANNA COMMUNITY DEVELOPMENT CORPORATION AND THEIR RESPECTIVE OFFICERS, AGENTS AND EMPLOYEES (COLLECTIVELY, "RELEASE PARTIES"), HARMLESS FROM AND AGAINST ANY AND ALL REASONABLE LIABILITIES, DAMAGES, CLAIMS, LAWSUITS, JUDGMENTS, ATTORNEY FEES, COSTS, EXPENSES AND ANY CAUSE OF ACTION THAT DIRECTLY RELATES TO ANY OF THE FOLLOWING: ANY ACT OR OMISSION OR BREACH OR NON-PERFORMANCE BY BUSINESS UNDER THIS AGREEMENT EXCEPT THAT THE INDEMNITY PROVIDED HEREIN SHALL NOT APPLY TO ANY LIABILITY RESULTING FROM THE ACTION OR OMISSIONS OF THE RELEASED PARTIES. THE PROVISIONS OF THIS SECTION ARE SOLELY FOR THE BENEFIT OF THE PARTIES HERETO AND NOT INTENDED TO CREATE OR GRANT ANY RIGHTS, CONTRACTUAL OR OTHERWISE, TO ANY OTHER PERSON OR ENTITY. 16. Additional Instruments. The Parties agree and covenant to cooperate, negotiate in good faith, and to execute such other and further instruments and documents as may be reasonably required to fulfill the public purposes provided for and included within this Agreement. 17. Force Ma1eure. Whenever a period of time is herein prescribed for action to be taken by the Business, the Business shall not be liable or responsible for, and there shall be excluded from the computation of any such period of time, any delays due to causes of any kind whatsoever which are caused by Force Majeure. [SIGNATURE PAGES) FOLLOW]: 11 Executed on this day of 2020. Business: Signed: By: Title: Executed on this �►J�'tlay of z&LaL 2020. CI' 12