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HomeMy WebLinkAboutCDCRes2017.06.10ANNA COMMUNITY DEVELOPMENT CORPORATION RESOLUTION NO.-E17-0&-1 A RESOLUTION OF THE ANNA COMMUNITY DEVELOPMENT CORPORATION APPROVING AN AMENDMENT TO A BUSINESS DEVELOPMENT INCENTIVE GRANT FOR CAPITAL INVESTMENT PERFORMANCE AGREEMENT WITH KIRBY SMITH MACHINERY, INC. AND KSMI PROPERTIES, LLC AND PREVIOUSLY AUTHORIZED GRANT OF FUNDS UNDER SAID AGREEMENT WHEREAS, the Anna Community Development Corporation (the "CDC') has approved a grant of 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 that it 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") further detailed in the agreement attached hereto as Exhibit A ("the Agreement"); and WHEREAS, the CDC has determined that an amendment to the Agreement be made regarding additional obligations by Kirby -Smith Machinery, Inc. and KSMI Properties, LLC related to future storm water management as outlined in the attached Amendment (Exhibit B); 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 Amendment to the Agreement The CDC hereby approves the Amendment to the Business Development Incentive Grant for Capital Investment Performance Agreement ("Amendment"), attached hereto as EXHIBIT B, incorporated herein for all purposed, and authorizes the CDC President to execute same 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. ANNA CDC RESOLUTION NO.-�o 17'06to CbC PAGE 1 OF 2 PASED AND AP ROVED by the Anna Community Development Corporation on this ,day of 2017. APPROVED: Nathan Pike President CDC ATTEST: 41u tta.�l ac k e Zte Secretary CDC ANNA CDC RESOLUTION NO..����'�G�iO (enc) PAGE 2 OF 2 Exhibit B AMENDED BUSINESS DEVELOPMENT INCENTIVE GRANT FOR CAPITAL INVESTMENT PERFORMANCE AGREEMENT This Amended Business Development Incentive Grant for Capital Investment Performance Agreement (this "Amended 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 and the Company entered into that certain Business Development Incentive Grant for Capital Investment Performance Agreement (the "Agreement"), which, among other things provided for the future transfer to the Company of real property currently owned by the Anna Community Development Corporation and the Anna Economic Development Corporation to the Company; and WHEREAS, the Anna Community Development Corporation and the Company desire to amend the Agreement under this Amended Agreement to restate certain dates and deadlines, including but not limited to the dates related to the transfer of said real property under the Real Estate Sales Contract to be entered into by and between the parties and the Anna Economic Development Corporation; and WHEREAS, the Parties intend to modify the Agreement only to the extent expressly set forth in this Amended Agreement; and WHEREAS, the Agreement in its original form and substance before the amendments set forth in this Amended Agreement is attached as Exhibit 1; and WHEREAS, capitalized terms in this Amended Agreement shall have the meanings set forth in the Agreement; NOW, THEREFORE, in consideration of the foregoing, the mutual benefits, promises and undertakings of the parties to this Amended 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 Amended 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. AMENDED BUSINESS DEVELOPMENT INCENTIVE GRANT FOR CAPITAL INVESTMENT PERFORMANCE AGREEMENT PAGE 1 OF 5 Section 2. Effective Date. The Effective Date of this Amended Agreement shall be the date that the last of the following events have occurred: (1) the Anna Community Development Corporation Board has duly resolved to enter into this Amended Agreement; (3) the Parties to this Amended Agreement have duly executed this Amended Agreement; (4) the City of Anna, Texas City Council ("City Council") has by duly adopted resolution approved of this Amended Agreement. Section 3. Amendment of Agreement Regarding Certain Deadlines. (a) Under Section 3(c), 3(d), 3(e), 3(fl, 4(a), and 6 of the Agreement, certain performance deadline dates run from the date of the conveyance of the Property to the Company. The parties desire that all such deadline dates be amended to run from the Effective Date of this Amended Agreement rather than the date of conveyance of the Properly to the Company. All amendments to the Agreement necessary to make said modifications shall be deemed to have occurred on the Effective Date of this Amended Agreement. (b) Section 3(h) of the Amended Agreement is deleted in its entirety and replaced with the following: "(h) Within 60 days of the Effective Date of this Amended Agreement, the Anna Community Development Corporation and the Company shall enter into a Real Estate Sales Contract to convey the Property to the Company, said Real Estate Sales Contract to be substantially in the form set forth in the attached Exhibit 2." Section 4. Amendment of Agreement Regarding Additional Obligations for Improvements Section 3(d) is amended by adding the following new subsections: Provide and install per plans approved by City: (1) a storm water detention facility on southeastern corner of the Property; and (2) underground storm water piping across the southern boundary line of the Property extending to the west side of the Street; (iv) Grant to the City an appropriately sized and routed easement in perpetuity for said storm water piping across the Property; and (v) Grant to the City an assignable and appropriately sized and routed easement in perpetuity across the southern boundary line of the AMENDED BUSINESS DEVELOPMENT INCENTIVE GRANT FOR CAPITAL INVESTMENT PERFORMANCE AGREEMENT PAGE 2OF5 Property for the provision of a natural gas line to be installed by others. Section 5. Amendment of Agreement Regarding Notice Address. Under Section 7(a) of the Agreement regarding written notices to be provided under the Agreement, the street address for Clark McCoy of Wolfe, Tidwell & McCoy, is corrected to read as follows: Clark McCoy Wolfe, Tidwell & McCoy, LLP 2591 Dallas Parkway, Suite 300 Frisco, TX 75034 Section 6. Miscellaneous. (a) Entire Agreement; Amendments. All provisions of the Agreement that are not modified by this Amended Agreement shall continue to be binding on and inure to the benefit of the Parties to it and their respective heirs, executors, administrators, legal representatives, successors, and permitted assigns. The Agreement, as amended by this Amended Agreement, constitutes the sole agreement between the Anna Community Development Corporation and the Company. Any prior Agreements, promises, negotiations, or representations, verbal or otherwise, not expressly stated in the Agreement, as amended by this Amended Agreement, are of no force and effect. (b) Governing Law; Venue. This Amended 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 Amended Agreement shall lie exclusively in a court in a state court of Collin County, Texas. (c) Counterparts. This Amended 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 Amended Agreement is determined to be unenforceable, then the remaining provisions of this Amended 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. AMENDED BUSINESS DEVELOPMENT INCENTIVE GRANT FOR CAPITAL INVESTMENT PERFORMANCE AGREEMENT PAGE 3OF5 Exhibit B IN WITNESS WHEREOF, the parties hereto have executed this Agreement, which shall be effective on the date that is described in Section 2 of this Agreement. Anna Community Development Corporation By:_/� G Nathan Pike, its President STATE OF TEXAS § COUNTY OF COLLIN § LAURETTA KAY BLACKETER '* t= My Notary ID # 129369379 ' 9TF . • �� ` Expires April 1, 2021 Before me, the undersigned notary public, on the day of , 2017, personally appeared Nathan Pike known to me (or proved to me) to b he 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. (--XowArZ) No* Public, State of Texas [REMAINDER OF PAGE LEFT BLANK INTENTIONALLY] AMENDED BUSINESS DEVELOPMENT INCENTIVE GRANT FOR CAPITAL INVESTMENT PERFORMANCE AGREEMENT PAGE 4 OF 5 Kirby — Smith Machinery, Inc. -ry-KPresident STATE OF TEXAS § COUNTY OF, § Before me, the undersigned notar public, on the \\ day of G\Q- 2017, personally appeared known to me (or proved to e) to be the person whose name is subscribed to fh64regoing instrument and acknowledged to me that he executed the same in hi capacity as President of Kirby — Smith Machinery, Inc. and on behalf of KnI P �c+,��-� ez Notary Public, State of Texas- KSMI Properties, LLC By: H. E. Kirby, its Managi tuber STATE OF TEXAS § COUNTY OF § ----------•------------- ,,, C. BLEWETr ; w Notary Public State of Oklahoma Commission 0 07007027 Expiros 07124/19 Before me, the undersigned notary public, on the �k day of VWa_, 2017, personally appeared H. E. Kirby known to me (or proved to me) to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same in his capacity as Managing Member of KSMI Properties, LLC and on behalf of said entity. L �� I L-J—k ZhK�k— Notary Public, State of Texas.. (3V* ko��©vv�� ------- ------ C. Bt.EWETT i SEAL Notary Public ; State of Oklahoma ; omwi9 i Commission # 07007027- Expires ------- AMENDED BUSINESS DEVELOPMENT INCENTIVE GRANT FOR CAPITAL INVESTMENT PERFORMANCE AGREEMENT PAGE 5 OF 5