HomeMy WebLinkAboutEDCRes2009.05.03CITY OF ANNA, TEXAS
RESOLUTION NO. 2QQf- AEg
A RESOLUTION OF THE CITY OF ANNA, TEXAS APPROVING A SITE
IMPROVEMENT REIMBURSEMENT AGREEMENT BETWEEN THE ANNA
ECONOMIC DEVELOPMENT CORPORATION AND DRITON ULAJ, OWNER OF
JOE'S ITALIAN BISTRO
WHEREAS, the City Council ("Council") of the City of Anna, Texas ("City") has reviewed
the Site Improvement Reimbursement Agreement ("Agreement"), attached hereto as
Exhibit A and desires to approve said Agreement, subject to Driton Ulaj fully executing
and delivering an Addendum in the form attached hereto as Exhibit B; and
WHEREAS, said Addendum satisfies the requirements of Texas Gov't Code §2264.001
with respect to repayment of public subsidies required for convictions for violations of 8
U.S.C. §1 324a(f), et. seq. pertaining to undocumented workers;
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 Site Improvement Reimbursement Agreement
The Council hereby approves the Agreement, attached hereto as EXHIBIT A,
incorporated herein for all purposes, subject to Driton Ulaj fully executing and delivering
an original copy of the Addendum to the Anna Economic Development Corporation and
delivering a copy of same to the City. The Agreement shall not be effective until
execution and delivery of same has occurred.
PASSED AND APPROVED by the City Council of the City of Anna, Texas on this lk
-76
day of ffla%/ 2009.
9 1
0 A a Wilkison, City Secretary
CITY OF ANNA, TEXAS RESOLUTION NO.,AM?!! Or--03 PAGE 1 OF 1
1
SITE IMPROVEMENT REIMBURSEMENT AGREEMENT
THIS SITE IMPROVEMENT REIMBURSEMENT AGREEMENT (this "Agreement") is
made by and between ANNA ECONOMIC DEVELOPMENT CORPORATION, a Texas
non-profit corporation ("EDC"), and DRITON ULAJ d/b/a JOE'S ITALIAN BISTRO
("ULAJ") upon the following terms and conditions:
Section 'I. Authority and Effective Date
The EDC is a tax -supported non-profit corporation, whose primary income is from sales
tax collected within the City of Anna, Texas ("City) and dedicated exclusively to
economic development. This sales -tax grant to ULAJ is authorized under V.A.C.S. Art.
5190.6, Sec. 4A. The EDC exists for the purpose of benefiting and accomplishing public
purposes of the City of Anna, Texas, by promoting, assisting, and enhancing economic
development activities for the City as provided by the Development Corporation Act of
1979, Texas Revised Civil Statutes Annotated Article 5190.6, as amended. The EDC
duly authorized its President to enter into this Agreement on the 6th day of March, 2009
at a duly noticed public meeting.
This Agreement and all obligations hereunder are subject to and shall be effective only
upon formal approval by the City of Anna City Council ("City Council") at a duly noticed
public meeting. The effective date shall be the date whereupon all of the following have
occurred: execution of the parties hereto and approval by the City Council as described
above.
Section 2. Definitions
For purposes of this Agreement, the following meanings shall apply:
(1) EDC shall mean the Anna Economic Development Corporation of the City of
Anna, Texas.
(2) City shall mean the City of Anna, Texas.
(3) ULAJ, shall refer to an individual person, Driton Ulaj doing business as JOE'S
ITALIAN BISTRO, said business being located on the Property.
(4) Property shall mean the real property, premises, and improvements
commonly known as 403 N. Powell Parkway, Anna, Texas 75409.
(5) Site Improvements shall mean the parking areas and sidewalks consisting of
approximately, but not less than, 21,493 square feet of flatwork with aprons
and 550' of curb constructed at the Property, and as otherwise required to be
designed and constructed under the Legal Requirements.
SITE IMPROVEMENT REIMBURSEMENT AGREEMENT
PAGE 1 OF 9
(6) Legal Requirements shall mean all applicable laws, orders and regulations of
governmental authorities having jurisdiction including without limitation, all
applicable requirements and approvals under by The Anna City Code of
Ordinances and all associated design standards.
(7) Development Reimbursement Amount shall mean $50,000 to be paid to ULAJ
at the time(s) and to the extent required under this Agreement.
(8) Notice of Violation shall mean written notice of any type issued or sent to or
received by ULAJ or any contractor performing work at the Property of any
violation or alleged violation of any Legal Requirements applicable to the Site
Improvements.
(9) Notice shall mean any notice or other communication required, permitted, or
contemplated by this Agreement.
Section 3. General Requirements
3.01 Premises
The business, JOE'S ITALIAN BISTRO, a restaurant, is currently located on or
will be located on the Property, and will require the Site Improvements, for which
ULAJ has received bid prices to furnish the necessary materials and labor.
3.02 Obligations Related to Site Improvements
ULAJ intends to construct the Site Improvements. ULAJ has estimated costs of
at least $107,465.00 for the Site Improvements. ULAJ must, on or before August
26, 2009, complete construction of the Site Improvements after having properly
and timely obtained, at his sole cost, the following:
(a) the City's final site -plan, engineering, landscape -plan and re -platting (if needed)
and other approvals needed from the City for the Site Improvements in
accordance with the Legal Requirements and this Agreement (in the event of a
conflict between a provision of this Agreement and the Legal Requirements, the
most restrictive provision shall govern);
(b) a building permit issued by the City for the Site Improvements by submitting a
plan and any additional information showing the design of the Site Improvements
in such detail as is required to obtain a building or construction permit from the
City and satisfy all Legal Requirements applicable to such design (provided,
however, that this obligation is deemed not have been met if a Notice of Violation
has been issued or sent to or received by ULAJ or any contractor performing
work for ULAJ, and said Notice of Violation has not been cured or otherwise
resolved; the issuance of a permit for construction by the City shall be
presumptive evidence of such compliance); and,
SITE IMPROVEMENT REIMBURSEMENT AGREEMENT
PAGE 2 OF 9
(c) other necessary permits for construction of the Site Improvements on the
Property.
3.03 Deadline for Completion of Obligations and Business Opening
(a) On or before August 26, 2009, ULAJ must deliver written Notice to the EDC
certifying that all of the conditions set forth in 3.02(a)-(c) above have been
satisfied and the restaurant, JOE'S ITALIAN BISTRO, located on the Property,
must be opened to the public for business. The parties hereby agree that the
Development Reimbursement Amount shall be for the purpose of funding an
engineering inspection of the Site Improvements and for reimbursing ULAJ for a
portion of the costs he pays in connection with the construction of the Site
Improvements.
(b) If subsequent to August 26, 2009, a Notice of Violation relating to the Property or
Site Improvements is issued to ULAJ or any contractor performing or having
performed work for ULAJ, the EDC shall have the right to defer the release of
any part of the Development Reimbursement Amount being held in escrow until
Resolution of such Notice of Violation. In this subsection, "Resolution" means
that:(i) all violations of Legal Requirements set forth in such Notice of Violation
have been cured; or (ii) the governmental authority that issued such Notice of
Violation withdraws such Notice of Violation or determines that in fact such Legal
Requirements were satisfied or were not applicable to the Property or the Site
Improvements or that, in fact, no violation of Legal Requirements had occurred;
or (iii) such Notice of Violation is dismissed or resolved in ULAJ's favor through
the appropriate administrative, alternative dispute, judicial or other legal
proceedings.
Section 4. Escrow and Compensation
(a) The EDC shall place the Development Reimbursement Amount into an escrow
account, solely within the control of the EDC, within 30 days following the
effective date of this Agreement so long as no Event of Default (as described in
Section 7 below) shall have occurred and be continuing within said time period.
(b) In consideration of the obligations to be discharged by ULAJ under this
Agreement, the EDC agrees to pay ULAJ the total sum of the Development
Reimbursement Amount in partial payments in the following amounts, provided
that ULAJ is in full compliance with all of his obligations under this Agreement at
the times that said funds become due as follows: (i)$25,000, reduced by any
costs associated with the engineer's inspection to be paid upon engineer's
inspection and approval of the Site Improvements as described in Section 6.01 of
this Agreement, said inspection to be conducted within 30 days of the opening of
the business, JOE'S ITALIAN BISTRO, conditioned on said business being
SITE IMPROVEMENT REIMBURSEMENT AGREEMENT
PAGE 3OF9
opened to serve the public on or before August 26, 2009; (ii) $12,500 on August
26, 2010; and (iii) $12,500 on August 26, 2011.
Section 5. Representations
5.01 EDC'S Representations
The EDC makes the following representations to ULAJ:
(a) The EDC is a non-profit corporation governed under Texas law and is presently
in existence and good standing.
(b) The EDC has the authority to execute this Agreement and to perform the EDC's
obligations hereunder, subject to the approval of the EDC Board of Directors and
the Anna City Council.
(c) The individual executing this Agreement on behalf of the EDC has full authority to
do so for and on behalf of the EDC.
5.02 ULAJ's Representations and Covenants
ULAJ makes the following representations and covenants to the EDC.
(a) ULAJ is a natural person that resides at the following address: 2000 Hawken Dr.,
Plano, Texas 75023.
(b) ULAJ has all necessary power and authority to execute this Agreement and to
perform ULAJ 's obligations hereunder and there are no lawsuits, bankruptcies or
other proceedings that would prevent or hinder ULAJ from rendering full
performance in accordance this Agreement.
Section 6. Construction and Job Creation/Retentions Provisions
6.01 Completion of Construction Required
ULAJ acknowledges and agrees that completion of construction of the Site
Improvements and opening of the restaurant, JOE'S ITALIAN BISTRO on the
Property by August 26, 2009 are part of the conditions to the EDC's obligations
under this Agreement and if said conditions are not satisfied by the time(s)
prescribed in this Agreement (along with the other conditions set forth in this
Agreement); (i) the EDC shall not be obligated to pay ULAJ any part of the
Development Reimbursement Amount and (ii) the EDC shall have the right to
terminate this Agreement as provided in this Agreement. In order for construction
to be deemed completed, an engineer of the EDC's choosing shall inspect the
Site Improvements and approve same. Any costs associated with the inspection
by the engineer shall be deducted from the Development Reimbursement
SITE IMPROVEMENT REIMBURSEMENT AGREEMENT
PAGE 40F9
Amount and ULAJ shall only be entitled to the Development Reimbursement
Amount, less the actual cost of inspection.
6.02 Job Creation/Retention Required
ULAJ acknowledges and agrees that by August 26, 2009 ,the business known as
JOE'S ITALIAN BISTRO, alone or in combination with any other businesses
located at the Property, shall have created at least six new jobs for employees
whose place of work is at the Property and must retain said number of jobs filled
by employees for two years after said jobs are created. Failure to create or retain
said jobs shall require ULAJ to PAY to the EDC $200 for every 30 consecutive
days that any of the above -required new jobs is not created or retained, up to a
limit of the Development Reimbursement Amount. Each said payment shall be
due within five business days after any period of 30 consecutive days in which
said number of jobs have not been filled. For purposes of this subsection, "job"
means a full-time or part-time position of employment requiring at least 20 hours
of work per week that did not exist at the time that this Agreement was executed.
ULAJ must provide the EDC, at the address in Section 10, copies of JOE'S
ITALIAN BISTRO quarterly reports to the Texas Workforce Commission ("TWC")
within 10 business days of such reports being submitted to the TWC. ULAJ must
also allow the EDC reasonable access to its employment records for inspection
to the extent required by the EDC to verify compliance with this subsection. To
the extent that any jobs are created by a business on the Property other than
JOE'S ITALIAN BISTRO, ULAJ must contract with such business and shall
require as a term of any contract with such business that it also submit to the
EDC, at the address in Section 10, copies of its quarterly reports to the TWC
within 10 business days of such reports being submitted to the TWC, and that
such business(es) must also allow the EDC reasonable access to employment
records for inspection to the extent required by the EDC to verify compliance with
this subsection. "Reasonable access" means physical access to inspect
employment records (or redacted employment records that protect privacy
interests recognized by law) that can confirm or disprove compliance with this
subsection and such access must be granted within 72 hours of a written request
by the EDC. Failure to grant reasonable access is a material breach of this
Agreement.
Section 7. Events of Default; Termination of Rights
7.01 Each of the following shall constitute an "Event of Default" under this Agreement:
(a) Upon the expiration of the notice -and -cure period set forth in the first sentence of
Section 7.02 below, the EDC's failure to make any payment of any portion of the
Development Reimbursement Amount at the time and to the extent required
under this Agreement.
SITE IMPROVEMENT REIMBURSEMENT AGREEMENT
PAGE 5 OF 9
(b) Upon the expiration of the notice -and -cure period set forth in the first sentence of
Section 7.02 below, ULAJ's failure to timely obtain proper permits and approvals
to construct the Site Improvements.
(c) Upon the expiration of the notice -and -cure period set forth in the first sentence of
Section 7.02 below, ULAJ's failure to perform or timely construct, open for
business, or otherwise comply with his obligations in accordance with the
specifications set out in this Agreement.
(d) Upon the expiration of the notice -and -cure period set forth in the first sentence of
Section 7.02 below, ULAJ's failure to perform the requirements set forth in
Section 3 and Section 6 of this Agreement.
(e) A breach of a representation under Section 5.01 by the EDC.
(f) A breach of a representation under Section 5.02 by ULAJ.
(g) Any other material breach of this Agreement.
7.02 In the event of the occurrence of a default described under Section 7.01 above,
the non -defaulting party may give written notice to the other party of such default,
and the defaulting party shall have 30 calendar days thereafter to cure said
default. Should said default remain uncured after such cure period and the non -
defaulting party is not otherwise in default hereunder, then the non -defaulting
parry's obligations under this Agreement shall terminate without further action by
either party.
7.03 This Agreement terminates upon occurrence of any of the following:
(a) by mutual written agreement of the parties;
(b) subject to Section 7.02 above after an Event of Default;
(c) at the EDC's option if ULAJ has failed to complete construction of the Site
Improvements and open for business on or before August 26, 2009 as set forth in
more detail in this Agreement.
No waiver by the parties hereto of any default or breach of any term, condition, or
covenant of this Agreement shall be deemed a waiver of any subsequent default or
breach of the same or any other term, condition, or covenant contained herein. None of
the terms, covenants, or conditions of this Agreement can be waived by either the EDC
or ULAJ except by appropriate written instrument.
S1TEyMPROVEMENT REIMBURSEMENT AGREEMENT
PAGE 6 OF 9
Section 8. Captions
The captions or headings of sections in this Agreement are inserted for convenience
only, and shall not be considered in construing the provisions hereof should any
questions of intent arise.
Section 9. Successors
The terms, conditions and covenants contained in this Agreement shall apply to, inure
to the benefit of, and be binding upon the parties hereto and their respective successors
in interest and assigns, except as otherwise herein expressly provided.
Section 10. Notices
Notice as required by this Agreement shall be in writing delivered to a party via U.S.
certified mail, return receipt requested, at the addresses listed below:
EDC
EDC President
Anna Economic Development Corporation
101 N. Powell Parkway
Anna, Texas 75409
ULAJ
Driton Ulaj
403 North Powell Parkway
Anna, TX 75409
Each party shall notify the other in writing within 10 days of any change in the
information listed in this section.
Section 11. No Wavier of Immunity
Nothing in this Agreement waives any governmental immunity available to the EDC
under Texas law. The provisions of this paragraph are solely for the benefit of the
parties hereto and are not intended to create or grant any rights, contractual or
otherwise, to any other person or entity.
Section 12. Entire Agreement
This Agreement embodies the entire agreement between the EDC and ULAJ relative to
the Property and Site Improvements and supersedes all other agreements, including all
prior negotiations conducted either in writing or orally. There are no oral or written
agreements existing between the EDC or ULAJ relative to the Property and Site
Improvements that are not expressly set forth herein.
SITEWROVEMENT REIMBURSEMENT AGREEMENT
PAGE? OF 9
Section 13. Governing Law and Venue
This Agreement shall be governed by the laws of the State of Texas as to interpretation
and performance. Any and all legal action necessary to enforce this Agreement shall be
brought in a court of competent jurisdiction in Collin County, Texas.
Section 14. Time of the Essence
Time is of the essence of this Agreement and each provision hereof.
Section 15. Severability
The provisions of this Agreement are severable. In the event that any paragraph,
section, subdivision, sentence, clause, or phrase of this Agreement shall be found to be
contrary to the law, or contrary to any rule or regulation having the force and effect of
the law, such decisions shall not affect the remaining portions of this Agreement.
Section 16. Time Periods
Unless otherwise specified, any time period or deadline provided in this Agreement shall
be measured in calendar days. If any such time period or deadline expires on a
Saturday, Sunday, or legal holiday recognized by the State of Texas, such time period
or deadline shall be extended to the first business day thereafter.
Section 17. Contract Interpretation
This Agreement is the result of negotiation between the parties, and shall, in the event
of any dispute over the meaning or application of any portion thereof, be interpreted
fairly and reasonably, and not to be more strictly construed against one party than
another, regardless of which party originally drafted the section in dispute.
Section 18. Force Majeure
If a party is prevented or delayed from performing any of its obligations hereunder due
to a natural or manmade event or condition not caused by such party and beyond such
parry's reasonable control, then such party's performance of those obligations shall be
suspended until such time as the event or condition no longer prevents or delays
performance.
Section 19. No Joint Venture
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.
SITE IMPROVEMENT REIMBURSEMENT AGREEMENT
P AGE 8 OF 9
Section 20. Amendment
This Agreement may only be amended by a written agreement executed by both
parties.
IN WITNESS WHEREOF, EDC and ULAJ have executed this Agreement:
Driton Ulaj d/b/a JOE'S ITALIAN BISTRO
STATE OF TEXAS §
COUNTY OF COLLIN §
Before me, the undersigned notary public, personally appeared Driton Ulaj, known to
me (or proved to me) to be the person whose name is subscribed to the foregoi
instrument.
r
4Notary ic, State of NTexas
B. a
Vonni 8/tump,'R6elddAit
Anna Economic Development Corporation �` Stephanie R Crawford
f®r My Commission Expires
STATE OF TEXAS §Q 10i18n010
COUNTY OF COLLIN §
Before me, the undersigned notary public, personally appeared Connie Stump known to
me (or proved to me) 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 Economic Development Corporation, and on behalf of Anna
Economic Development Corporation.
Stephanie R Crawford Notary Public, State of Texas
My Commission Expires
9� �+ 10/10010
SITE IMPROVEMENT REIMBURSEMENT AGREEMENT
PAGE 9 OF 9
Addendum
Addendum to Site Improvement Reimbursement Agreement ("Agreement") by
and between ANNA ECONCOMIC DEVELOPMENT CORPORATION, a Texas
non-profit corporation ("EDC"), and DRITION ULAJ d/b/a JOE'S ITALIAN
BISTRO ("ULAJ") upon the following terms and conditions:
During the term of the Agreement, Ulaj agrees not to knowingly employ any
undocumented workers as defined in Tex. Govt. Code Sec. 2264.001. If
convicted of a violation under 8 U.S.C. §1324a(f), Ulaj shall repay the amount of
the Grants and any other funds received by Ulaj from the City as of the date of
such violation not later than 120 days after the date Ulaj is notified by the City of
a violation of this provision, plus interest from the date the reimbursement(s) was
paid to Ulaj, at the rate periodically announced by the Wall Street Journal as the
prime or base commercial lending rate, or if the Wall Street Journal shall ever
cease to exist or cease to announce a prime or base lending rate then at the
annual rate of interest from time to time announced by Citibank, N.A. (or by any
other New York money center bank selected by the City) as its prime or base
commercial lending rate. The payment of interest shall be as if it had been
accruing from the date the reimbursement(s) was paid to the Company until the
date the reimbursement(s) are repaid to the City."
IN WITNESS WHEREOF, EDC and ULAJ have executed this Agreement:
C6(A •
Driton Ulaj d/b/a JOE'S ITALIAN BISTRO
STATE OF TEXAS §
COUNTY OF COLLIN §
Before me, the undersigned notary public, personally appeared Driton Ulaj,
known to me (or proved to me) to be the person whose name is subscribed to the
foregoing instrument.
JLh A% J
• Y AU
N tary ublic State of Texas a�?-� Natha J Wilkison
2c H My Commission Expires
v4.Of. +e 11/1312009
Exhibit B
Addendum
Pagel of 2
Anna Ecogomic Development Corpo on
By: W-M 6 4 smz
Connie Stump, Presiden
Anna Economic Development Corporation
STATE OF TEXAS §
COUNTY OF COLLIN §
Before me, the undersigned notary public, personally appeared Connie Stump
known to me (or proved to me) 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 Economic Development Corporation, and on
behalf of Anna Economic Development Corporation.
110
_�5 •ary Public,of
=ot Y N%&- Stephanie R Crawford
My Commission Expires
10118 010
OF
Addendum Page 2 of 2
Addendum
Addendum to Site Improvement Reimbursement Agreement ("Agreement") by
and between ANNA ECONCOMIC DEVELOPMENT CORPORATION, a Texas
non-profit corporation ("EDC"), and DRITION ULAJ d/b/a JOE'S ITALIAN
BISTRO ("ULAY) upon the following terms and conditions:
During the term of the Agreement, Ulaj agrees not to knowingly employ any
undocumented workers as defined in Tex. Govt. Code Sec. 2264.001. If
convicted of a violation under 8 U.S.C. §1324a(f), Ulaj shall repay the amount of
the Grants and any other funds received by Ulaj from the City as of the date of
such violation not later than 120 days after the date Ulaj is notified by the City of
a violation of this provision, plus interest from the date the reimbursement(s) was
paid to Ulaj, at the rate periodically announced by the Wall Street Journal as the
prime or base commercial lending rate, or if the Wall Street Journal shall ever
cease to exist or cease to announce a prime or base lending rate then at the
annual rate of interest from time to time announced by Citibank, N.A. (or by any
other New York money center bank selected by the City) as its prime or base
commercial lending rate. The payment of interest shall be as if it had been
accruing from the date the reimbursement(s) was paid to the Company until the
date the reimbursement(s) are repaid to the City."
IN WITNESS WHEREOF, EDC and ULAJ have executed this Agreement:
d", c6(o)
Driton Ulaj d/b/a JOE'S ITALIAN BISTRO
STATE OF TEXAS §
COUNTY OF COLLIN §
Before me, the undersigned notary public, personally appeared Driton Ulaj,
known to me (or proved to me) to be the person whose name is subscribed to the
foregoing instrument.
9 F q -1-j"
N tary P ublic State of Texas � `"?U19, r;� r:a Wi{kison
z My Commission Expires
9 of +a 11.13/2009
Exhibit B
Addendum
Page 1 of 2
E
Anna Ecogemic Development Corpo 'on
By:
Connie Stump, Presiden
Anna Economic Development Corporation
STATE OF TEXAS §
COUNTY OF COLLIN §
Before me, the undersigned notary public, personally appeared Connie Stump
known to me (or proved to me) 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 Economic Development Corporation, and on
behalf of Anna Economic Development Corporation.
Addendum Page 2 of 2