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HomeMy WebLinkAboutCDCRes2017.01.02ANNA COMMUNITY DEVELOPMENT CORPORATION RESOLUTION NO. )Dl 7 -O-C :� k6c) A RESOLUTION OF THE ANNA COMMUNITY DEVELOMENT CORPORATION APPROVING A BUSINESS DEVELOPMENT INCENTIVE GRANT FOR CAPITAL INVENSTMENT PERFORMANCE AGREEMENT WITH KIRBY SMITH MACHINARY, INC. AND KSMI PROPERTIES, LLC AND AUTHORIZING THE GRANT OF FUNDS UNDER SAID AGREEMENT WHEREAS, the Anna Community Development Corporation (the "CDC') desires to grant funds in support of a community development project that will create and retain new primary jobs, as that term is defined under Texas Local Government Code 501.002, and that will result in new capital investment within the corporate limits of the City of Anna, Texas ("City"); and WHEREAS, the CDC has received a project proposal from and Kirby — Smith Machinery, Inc. and KSMI Properties, LLC who has represented will create and retain a significant number of new primary jobs and that will result in new capital investment, all within the corporate limits of the City within a 36-month period (the "Project"); and WHEREAS, the CDC has determined that it would be beneficial to the CDC and to the City for the CDC to grant funds for costs of the Project provided that the promised primary jobs are created within a 36-month period and infrastructure improvements outlined in the attached Agreement (Exhibit A), and that said jobs are maintained within the corporate limits of the City for at least ten years, such that if said jobs are not created or retained as promised, Kirby Smith Machinery, Inc. and KSMI Properties, LLC must repay all or a portion of the grant proceeds back to the CDC, as more specifically set forth in the Agreement; and WHEREAS, the CDC has found that if successful the Project will promote new or expanded business development; NOW, THEREFORE, BE IT RESOLVED BY THE ANNA COMMUNITY DEVELOPMENT CORPORATION 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 CDC hereby approves the Business Development Incentive Grant for Capital Investment Performance Agreement ("Agreement"), attached hereto as EXHIBIT A, incorporated herein for all purposed, and authorizes the CDC President to execute same ANNA CDC RESOLUTION NO �©07-4-- (cOC,i PAGE 1 OF 2 on its behalf, subject to approval as to form by legal counsel for the CDC, final content by the CDC Chief Administrative Officer, and approval by the City Council. Section 3. Approval of Funding The CDC hereby authorizes the Chief Administrative Officer to expend funds as grant proceeds in accordance with the Agreement. PASSED AND All -PROVED by the Anna Community Development Corporation on this �� �L` ,day of 2017. tJ APPROVED: 11 IL gn:�k - J# Houcek Sherilyn 4 President CDC Secretary ANNA CDC RESOLUTION NO. 9-0 i t G;� (c DO PAGE 2 OF 2 Exhibit A BUSINESS DEVELOPMENT INCENTIVE GRANT FOR CAPITAL INVESTMENT PERFORMANCE AGREEMENT This Business Development Incentive Grant for Capital Investment Performance Agreement (this "Agreement") is made and entered into by and between the Anna Community Development Corporation and Kirby -- Smith Machinery, Inc. and KSMI Properties, LLC (collectively, the "Company"). WITNESSETH: WHEREAS, the Anna Community Development Corporation is willing to provide a grant in the form of land for the use of the Company, provided that the Company meets certain criteria relating to Capital Investments, and the creation and retention of at least 10 New Jobs consisting of Primary jobs as that term is defined in Texas Local Government Code §501.002(12); and WHEREAS, the Company is required to return all or a portion of the value of the grants under this Agreement to the Anna Community Development Corporation if the performance criteria under this Agreement are not materially met by the Company; and WHEREAS, the Anna Community Development Corporation and the Company desire to set forth their understanding and agreement as to the incentive grants, obligations -of the Company regarding Capital Investment, New Job creation and maintenance, and the payment by the Company to the Anna Community Development Corporation under certain circumstances as set forth in this Agreement; NOW, THEREFORE, in consideration of the foregoing, the mutual benefits, promises and undertakings of the parties to this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto covenant and agree as follows: Section 1. Recitals Incorporated. The above -stated recitals are incorporated into this Agreement as if set forth in full and constitute material representations by the Company and the Anna Community Development Corporation to induce the other party to enter into this Agreement. Section 2. Definitions. "Capital Investment" means the Company's capital expenditure of at least $8,000,000 of which approximately $1,500,000 will be invested in machinery and equipment, and approximately $6,500,000 will be invested in the building of the Facility(ies). "City" or "the City" means the City of Anna, Texas. BUSINESS DEVELOPMENT INCENTIVE GRANT FOR CAPITAL INVESTMENT PERFORMANCE AGREEMENT PAGE IOF12 "Facility" or "Facilities" means the place(s) of business of the Company, including the principal place of business and any other business locations, within the corporate limits of the City. "Kirby -Smith Project" means the subject of this Agreement, which is the Company's North Dallas retail equipment sales and leasing facility located within the corporate limits of the City of Anna intended to result in the creation of at least 10 New Jobs at the Facility(ies) and the Company's Obligation to Maintain and other duties it must perform under this Agreement. "New Job" means a Primary job, as that term is defined in Texas Local Government Code §501.002(12), and includes only jobs that are new, permanent, and full-time employment positions filled by individuals for an indefinite duration at the Facility for which the standard fringe benefits are paid by the Company for the employee, and for which the Company pays a minimum wage of at least $15/hr. Each New Job must require a minimum of either: (1) 40 hours of an employee's time per week for the entire normal year of the Company's operations, which "normal year" must consist of at least 52 weeks; or (2) 2,080 hours per year, subject to applicable federal or Texas state law requiring the Company to grant an employee any type of leave or other time away from the job. "Obligation to Maintain" means the Company's contractual responsibility under this Agreement to maintain at the Facility(ies)—beginning on the Performance Date and ending ten years after the Start Date —the active and paid employment status of at least one individual in each of the 10 New Job positions required to be created under this Agreement, except that after any such individual's termination, resignation, or other departure from active paid status, the Company shall have a reasonable period of time (but in no event longer than 60 business days or a longer time period if necessary to comply with the minimum requirements of the Family Medical Leave Act or other applicable federal or Texas state law governing mandatory employee leave or time away from the job) to fill the position with an active, paid employee. "Performance Date" means the date that all 10 of the New Jobs required to be created and filled under this Agreement have been created and filled and the Capital Investment has been made in full as described in this Agreement. "Start Date" means the date upon which the Company establishes and begins to operate its business at the Facility after a Certificate of Occupancy has been issued within the corporate limits of the City. "Targets" mean the Company's obligation to meet the following two criteria: (1) invest the entire amount of the Capital Investment in the Kirby -Smith Project; and (2) create and fill at least 10 New Jobs at the Facility. BUSINESS DEVELOPMENT INCENTIVE GRANT FOR CAPITAL INVESTMENT PERFORMANCE AGREEMENT PAGE 2 OF 12 'Work" means any and all of the Company's efforts, pursuits, activities, and endeavors performed or attempted and associated or in connection with or related to the Kirby - Smith Project, including but not limited to all efforts, pursuits, activities, and endeavors performed by its organizers, directors, officers, agents, employees, representatives, contractors or any subcontractors. Section 3. Incentive Grant and Consideration for Incentive Grant. (a) The grant to be provided by the Anna Community Development Corporation under this Agreement is approximately 7.012 acres of land generally located at the Northeast Corner of State Highway 5 and the Collin County Outer Loop defined in more detail in the attached Exhibit A (the "Property"), valued at $3 per square foot for an estimated value of $914,760 (the "Property's Value"). The Property must be used by the Company exclusively for placing the Kirby -Smith Project into operation and maintaining the same at the Property location in accordance with this Agreement. (b) The Anna Community Development Corporation will convey the Property to KSMI Properties, LLC for $10.00 good and valuable consideration; (c) Within six (6) months subsequent to the conveyance of the Property to the KSMI Properties, LLC, the Anna Community Development Corporation or its designee will: (i) Cause the City of Anna to make available domestic water service to the Property including without limitation the requisite fire hydrants/valves across the southern boundary line of the Properly to the eastern boundary line of the Property located in the center of Clemmons Creek; (ii) Work with the Company in platting of electrical and sanitary sewer easements to serve the Property. (d) In return for provision of the incentives to be provided to the Company under this Agreement, the Company covenants and agrees to perform in accordance with subsections (e) and (f), below, and as follows. Within twelve (12) months subsequent to the conveyance of the Property to the Company, it shall: (i) Reimburse the Anna Community Development Corporation for design and construction costs associated with the domestic water line and the requisite fire hydrants/valves across the southern boundary line of the Property to the eastern boundary line located in the center of Clemmons Creek; BUSINESS DEVELOPMENT INCENTIVE GRANT FOR CAPITAL INVESTMENT PERFORMANCE AGREEMENT PAGE 3 OF 12 (ii) Provide a minimum 44 foot wide "local commercial" (additional details attached) street with a 60 foot wide divided entry extending from the Collin County Outer Loop north along the west boundary line of the Property and terminating in a fire truck turnaround (all together, the "Street"); and (iii) Extend a sanitary sewer line and requisite manholes from the center of Clemmons Creek to the western side of the Street; Reference attached Exhibit 'L' illustrating the foregoing (i), (ii) and (iii) requirements. (e) Within eighteen (18) months subsequent to the conveyance of the Property to the Company, subject to site plan and other customary developmental approvals by the City, the Company will construct or cause to be constructed a retail equipment sales and leasing facility (with a gross area of not less than 20,000 square feet). (f) Within thirty-six (36) months subsequent to the conveyance of the Property to the Company, it shall have created a minimum of 10 New Jobs and will have invested the Capital Investment in support of buildings and equipment for the Kirby -Smith Project. (g) This Agreement is subject to the duly authorized approval of the Company, the Anna Community Development Corporation Board of Directors, and the City of Anna City Council and absent said approvals this Agreement shall be null and void notwithstanding any other provision or statement in this Agreement. After the last of said approvals and the duly authorized approval of this Agreement by the Company as evidenced by the properly notarized execution of this Agreement by its President, this Agreement shall be in full force and effect (the "Effective Date"). Notwithstanding this provision or any other provision of this Agreement, the parties respective obligations under this Agreement are conditioned and contingent upon the Anna Community Development Corporation's acquisition of the Property on or before the 31 st day of December, 2016. If for any reason the Anna Community Development Corporation fails to acquire the Property on or before said date, then, unless said Property acquisition is extended by the Anna Community Development Corporation in its sole and absolute discretion, this Agreement shall be null and void with neither party having any rights or obligations under this Agreement. (h) Within 30 days subsequent to the Effective Date, the Anna Community Development Corporation and the Company shall enter into a Purchase and Sale Agreement to convey the Property to the Company, said agreement to be substantially in the form set forth in the attached Exhibit B. BUSINESS DEVELOPMENT INCENTIVE GRANT FOR CAPITAL INVESTMENT PERFORMANCE AGREEMENT PAGE 4 OF 12 Section 4. Performance Date and Obligation to Maintain. (a) Performance Date. The Company is responsible to ensure that the Performance Date occurs —and the Targets that the Company must meet in connection with said date are met —on or before the expiration of 36 months after the conveyance of the Property to the Company. (b) Obligation to Maintain. The Company must fulfill its Obligation to Maintain for ten years after the Start Date. Section 5. Payment Obligations of the Company and Other Remedies. (a) Payment for Failure to Meet Targets., the Company must pay 100% of the Property's Value, i.e., $914,760 (plus interest at the rate of 3% per annum or the highest rate allowed by law, whichever is lower, with interest accruing cumulatively on the total amount of Property's Value beginning on the expiration of 36 months after the date of the closing of the sale of the Property to the Company under this Agreement) if it fails to meet either of the Targets within the 36-month period set forth in Section 4(a) of this Agreement. (b) Payment after Performance Date. If the Company meets its Targets within the 36-month period set forth in Section 4(a) of this Agreement, then the Company shall only be obligated to pay the Property's Value, i.e., $914,760 (plus interest at the rate of 6% per annum or the highest rate allowed by law, whichever is lower, with interest accruing cumulatively on the total amount of the Property's Value beginning on the first date of the Company's failure to meet its Obligation to Maintain) if it fails to meet its Obligation to Maintain. If the Company fails to meet its Obligation to Maintain, the amount to be paid will be determined by the date upon which the failure to meet the Obligation to Maintain first occurs, according to the schedule set forth below and made a part of this subsection. [REMAINDER OF PAGE LEFT BLANK INTENTIONALLY] BUSINESS DEVELOPMENT INCENTIVE GRANT FOR CAPITAL INVESTMENT PERFORMANCE AGREEMENT PAGE 5OF12 First date of failure to meet Percentage of $914,760 Obligation to Maintain to be paid by Company Anytime after the Performance Date, but before the expiration of 3 years after the Performance Date 100% +interest Anytime between the expiration of 3 years after the Performance Date, but before the expiration of 5 years after the Start Date 75% Anytime between the expiration of 5 years after the Start Date, but before the expiration of eight years after the Start Date 50% Anytime between the expiration of eight years after the Start Date, but before the expiration of nine years after the Start Date 25% Anytime between the expiration of nine years after the Start Date, but before the expiration of ten years after the Start Date 15% Upon the expiration of ten years after the Start Date and at all No payment obligation times thereafter BUSINESS DEVELOPMENT INCENTIVE GRANT FOR CAPITAL INVESTMENT PERFORMANCE AGREEMENT PAGE 6 OF 12 (d) Payment Dates. Any payments required under this Section 5 shall be due from the Company to the Anna Community Development Corporation within ten business days of the Determination Date, or within ten business days of the date that the Anna Community Development Corporation or the City provides written notice to the Company of its failure to meet the Obligation to Maintain or its obligations with respect to the Performance Date. (e) Remedies. In the event that the Company fails to timely pay any amounts due under this Section 5 or if the Company otherwise materially breaches this Agreement, the Company agrees that the Anna Community Development Corporation or the City, on behalf of the Anna Community Development Corporation, has the option to initiate legal action to collect all amounts not yet paid and the value of all incentives, grants, and other benefits provided to the Company under this Agreement. If legal action is initiated, Company agrees to pay all fees, cost and expenses, including but not limited to attorneys' fees and related expenses incurred by the Anna Community Development Corporation or the City related to said collections and legal proceedings. The remedies stated in this Agreement are cumulative of and do not limit any other remedies that the Anna Community Development Corporation or the City may have at law or in equity. [REMAINDER OF PAGE LEFT BLANK INTENTIONALLY] BUSINESS DEVELOPMENT INCENTIVE GRANT FOR CAPITAL INVESTMENT PERFORMANCE AGREEMENT PAGE 7 OF 12 Section 6. Company Reporting. The Company shall provide, at the Company's expense, detailed verification in form and substance satisfactory to the Anna Community Development Corporation of the Company's progress on the Targets, including but not limited to proof of its Capital Investment in machinery, equipment, and construction of the Facility(ies) as required under this Agreement, and, as applicable, the Company's Obligation to Maintain. Such progress reports will be provided annually, starting at twelve months from the date that the Company after conveyance of the property to the Company, but may be required quarterly upon written request by the Anna Community Development Corporation or the City, and at such other times as the Anna Community Development Corporation or the City may require during the period of ten years from the Start Date. Without limiting the scope or type of actions or inactions on the part of the Company that may result in a material breach of this Agreement, the Company's failure to comply with this Section will be considered a material breach of this Agreement. Section 7. Notices. (a) Any notices required or permitted under this Agreement shall be given in writing, and shall be deemed to be received upon receipt or refusal after mailing of the same via United States certified mail, postage fully pre -paid, return receipt requested or by overnight courier (refusal shall mean return or certified mail not accepted by the addressee): If to the Company, to: KIRBY-SMITH P.O. Box 270300 Oklahoma City, OK 73137 If to the Anna Community Development Corporation, to: Anna Community Development Corporation Attention: Chief Administrative Officer PO Box 776 Anna, Texas 75409 and with a copy to: Clark McCoy Wolfe, Tidwell & McCoy, LLP 2591 Dallas Parkway, Suite 205 Frisco, TX 75034 BUSINESS DEVELOPMENT INCENTIVE GRANT FOR CAPITAL INVESTMENT PERFORMANCE AGREEMENT PAGE 8OF12 (b) Either party may change its addresses for notice by providing written notice of same to the other party and to the City via the manner set forth in subsection (a), above. Section 8. Miscellaneous. (a) Entire Agreement; Amendments. This Agreement constitutes the entire agreement between the parties hereto as to the subject matter contained herein and may not be amended or modified, except in writing signed by each of the parties. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. Neither Party may assign its rights and obligations under this Agreement without the prior written consent of the other party which shall not be unreasonably withheld. (b) Governing Law; Venue. This Agreement is made, and is intended to be performed, in the corporate limits of the City and shall be construed and enforced by local and state laws within the State of Texas. Jurisdiction, forum and venue for any litigation arising out of, relating in any way to, or involving this Agreement shall lie exclusively in a court in a state court of Collin County, Texas. (c) Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be an original, and all of which together shall be one and the same instrument. (d) Severability. If any provision of this Agreement is determined to be unenforceable, then the remaining provisions of this Agreement shall, in the discretion of the Anna Community Development Corporation, be voidable or interpreted as in effect as if such unenforceable provision were not included herein. (e) Indemnification and Limitation of Liability. It is expressly understood and agreed that the Anna Community Development Corporation has no right of control, supervision, or direction over the Kirby -Smith Project or the Work nor does the Anna Community Development Corporation have any control, supervision or direction of the means, methods, sequences, procedures, and techniques utilized to undertake and complete the Work. There shall be no joint control of the Kirby - Smith Project or the Work. THE COMPANY AGREES TO FULLY DEFEND, INDEMNIFY AND HOLD HARMLESS THE ANNA COMMUNITY DEVELOPMENT CORPORATION AND THE CITY FROM ANY CLAIM, PROCEEDING, CAUSE OF ACTION, JUDGMENT, PENALTY, OR ANY OTHER COST OR EXPENSE ARISING OR GROWING OUT OF, ASSOCIATED OR IN CONNECTION WITH THE KIRBY SMITH PROJECT OR THE WORK, PROVIDED, HOWEVER, THAT THE COMPANY SHALL NOT BE REQUIRED TO INDEMNIFY THE ANNA COMMUNITY DEVELOPMENT CORPORATION BUSINESS DEVELOPMENT INCENTIVE GRANT FOR CAPITAL INVESTMENT PERFORMANCE AGREEMENT PAGE 9 OF 12 OR THE CITY FOR ANY DAMAGES OR OTHER AMOUNTS INCURRED BY EITHER OF THEM FOR WHICH THE SOLE PROXIMATE CAUSE IS THE NEGLIGENCE, GROSS NEGLIGENCE OR INTENTIONAL CONDUCT OF THE ANNA COMMUNITY DEVELOPMENT CORPORATION, THE CITY, OR THEIR EMPLOYEES, OFFICERS, REPRESENTATIVES OR AGENTS. THE COMPANY'S DUTY TO INDEMNIFY AND HOLD HARMLESS INCLUDES, BUT IS NOT LIMITED TO, ATTORNEY FEES AND RELATED EXPENSES INCURRED BY THE ANNA COMMUNITY DEVELOPMENT CORPORATION OR THE CITY IN DEFENDING THEMSELVES OR IN ENFORCING THIS AGREEMENT. THIS PROVISION IS NOT INTENDED TO AND DOES NOT WAIVE ANY OF THE ANNA COMMUNITY DEVELOPMENT CORPORATION'S OR THE CITY'S GOVERNMENTAL IMMUNITIES, INCLUDING WITHOUT LIMITATION IMMUNITY FROM SUIT AND LIABILITY. THIS AGREEMENT IS NOT INTENDED TO BENEFIT ANY THIRD PARTIES. (fib Assignment or Sale. The Company may assign, sell, transfer or lease (including through merger/acquisition transactions) all or any part of the Kirby -Smith Project, the Company (via a sale of the Company's stock and/or assets, as applicable) or this Agreement to another person or entity without any prior approval of the Anna Community Development Corporation. In the event that the Company assigns, sells, transfers or leases all or any part of the Kirby -Smith Project or this Agreement to a separate entity or person, the assignment must provide that the assignee shall assume all of the obligations of the Company under this Agreement or the portion(s) of those obligations, as applicable, that pertain to the part of the Kirby -Smith Project or this Agreement that is assigned or sold. (g) Reserved. (h) Dissolution of Development Corporation. Should the Anna Community Development Corporation become dissolved at any time before the expiration of ten years after the Start Date, this Agreement shall inure in all ways to the benefit of the City, and the City shall be deemed to replace the Anna Community Development Corporation as the party who has contracted with the Company under this Agreement. This Agreement shall never be interpreted to be a sale of goods or services to the City. (i) Undocumented Workers. In accordance with Chapter 2264 of the Texas Government Code, the Company certifies that neither it, nor a branch, division, or department of the Company, will ever knowingly employ an undocumented worker and that if, after receiving any grant under this Agreement, the Company, or a branch, division, or department of the Company, is convicted of a violation under 8 U.S.C. §1324a(f), the Company shall pay the total amount of all grants or the value thereof as stated in this Agreement theretofore received under this BUSINESS DEVELOPMENT INCENTIVE GRANT FOR CAPITAL INVESTMENT PERFORMANCE AGREEMENT PAGE 10 OF 12 Agreement with interest at 10% per annum or the highest rate allowed by law, whichever is lower, not later than the 120th day after the date the Anna Community Development Corporation or the City notifies the Company in writing of the violation. (j) Real Estate Representation: The Company and Anna Community Development Corporation warrant that they have no real estate representatives in connection with this sale other than Funderburgh Realty (representing Seller) and that there are no other individuals or entities entitled to participate in professional services fees relative to this potential transaction. IN WITNESS WHEREOF, the parties hereto have executed this Agreement, which shall be effective on the date that is described in Section 3(g) [is this reference correct?] of this Agreement. Anna Community Development Corporation By: VjAo� J n Houcek, its President STATE OF TEXAS § COUNTY OF COLLIN § Y Lauretta Kay Blacheter * My Commission Expires •'•, 04/01 /20'17 Before me, the undersigned notary public, on the PA day of , 2017, personally appeared Constance Ann Stump known to me (or proved ti e) to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that she executed the same in her Capacity as President of the Anna Community Development Corporation and on behalf of the Anna Community Development Corporation. �i MMAT P.M. kE M WEW A I XA� W 0,7�.-ry Public,- te of Texas"�'- [REMAINDER OF PAGE LEFT BLANK INTENTIONALLY] BUSINESS DEVELOPMENT INCENTIVE GRANT FOR CAPITAL INVESTMENT PERFORMANCE AGREEMENT PAGE 11 OF 12 Kirby - Smith Machinery, Inc. C By: I resident STATE OF OKLAHOMA AS— § § COUNTY OF OKLAHOMA60LLIN— § // Before me, the undersigned notary public, on the day of/ 04*4�201 personalty appeared know me (or prod to me) o be the person whose name is subscribed to the fategoing instrument and acknowledged to me that he executed t e sam in his pac' as P sident of Kirb — S ery, Inc, and on behalf Of 190E v # KSMI Properties,, _ /Z , STATE OF TEXAS COUNTY OF COLLIN § Before me, the undersigned notary public, on the .--3— day of�1�TZ0 personally appeared H. E. Kirby known to me (or proved to me) to be the perso hose ame Is subscribed to the foregoin (and acknowledged to executed the same in his capacity as Managin MI Properties, TLC d on behal said entity. 0 Notary Public, at of kla aTexas OkCAM unxnu BUSINESS DEVELOPMENT INCENTIVE GRANT FOR CAPITAL INVESTMENT PERFORMANCE AGREEMENT PAGE120F12