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HomeMy WebLinkAboutRes 2013-03-01 CDC Improvement Funding-Anna 455 Commercial.pdfCITY OF ANNA, TEXAS RESOLUTION NO. 2013-03-01 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ANNA, TEXAS AUTHORIZING AND APPROVING THE ANNA COMMUNITY DEVELOPMENT CORPORATION TO EXECUTE AN IMPROVEMENT FUNDING AND REIMBURSEMENT AGREEMENT WITH ANNA 455 COMMERCIAL, LP WHEREAS, the City of Anna City Council intends to allow the Anna Community Development Corporation (the "CDC") to execute an agreement with Anna 455 Commercial, LP ("Anna 455") for the temporary funding of certain improvements and reimbursement of said funding; and WHEREAS, the City of Anna City Council has found and determined that the expenditure is in the best interest of the CDC and approves the amount of the agreement with the terms of the performance criteria as described in Exhibit A; NOW THEREFORE, BE IT RESOLVED BY THE CITY OF ANNA CITY COUNCIL, THAT: Section 1. Recitals Incorporated The recitals set forth above are incorporated herein for all purposes as if set forth in full. Section 2. Authority for Expenditure The City Council of the City of Anna, Texas hereby authorizes the CDC to enter into the Agreement with Anna 455 Commercial for funds in an amount up to $20,000 to be conditioned on performance criteria as described in Exhibit A. PASSED AND APPROVED by the City Council of the City of Anna this 26th day of March, 2013. ATTEST: , Natha RES, 2013-03-01 CDC Improvement Funding & Reimbursement—Anna 455 Commercial PAGE 1 OF 1 03-26-13 This Improvement Funding and Reimbursement Agreement (this "Agreement") is made by and between the Anna Community Development Corporation ( the "CDC"), and Anna 455 Commercial, LP ("Anna 455") on the 26th day of March , 2013 (the "Effective Date"). WHEREAS, on or about April 24, 2012, the City of Anna, Texas (the "City") created a public improvement district under Chapter 372 of the Texas Local Government Code, pursuant to that certain Petition for the Creation of a Public Improvement District within City of Anna, Collin County, Texas, (the "Petition") submitted to the City on January 23, 2012, by Brookshire Grocery Company, Anna Market Center, Ltd., Independent Bank Group and LSB Partners, Inc.; and WHEREAS, the City levied assessments on the owners of property located in said district, which is more specifically identified as the FM 455 Median Break Public Improvement District (the "District"); WHEREAS, the City's levy of assessments on the owners of property located within the District was in equal shares for the purpose of funding the costs of certain improvements to specially benefit the properties in the District including the construction of a median break (the "Improvements") located within the District on the street designated as Farm to Market Road 455 and also known as White Street ("FM 455"); WHEREAS, Anna 455 owns or is in the process of purchasing 19.85 acres within the District of undeveloped real property (collectively, the "Property") located north of FM 455 within the District and described more particularly in Exhibit "A" to this Agreement, said Exhibit "A" being attached hereto and incorporated herein by reference; WHEREAS, Anna 455's share of the cost of the Improvements associated with the Property was calculated to be and was assessed by the City in the amount not to exceed $36,411.14 (the "Anna 455 Assessment Amount"); WHEREAS, the construction of the Improvements is anticipated to be undertaken by the Texas Department of Transportation ("TxDOT "), and it is expected that the City will be invoiced by TxDOT for the cost of construction, at which time the City will pay TxDOT for the construction costs of the Improvements and will collect the assessments levied on the owners of the properties within the District, including the Property; WHEREAS, Anna 455 has requested that the CDC assist Anna 455 in connection with its payment of the Anna 455 Assessment Amount, and after considering Anna 455's request, the CDC's Board of Directors (the "Board") has determined that it should provide partial and temporary reimbursement to Anna 455 once Anna 455 has paid the Anna 455 Assessment Amount; WHEREAS, the Board desires to commit up to $20,000 to partially and temporarily reimburse Anna 455 for its full payment of the Anna 455 Assessment Amount; provided, however, that said partial and temporary reimbursement by the CDC shall be in exchange for Anna 455's promise to fully reimburse the CDC for said partial funding at a later date and under the terms as set forth in more detail in this Agreement; and WHEREAS, after conducting a public hearing on May 10, 2012 regarding the partial funding or reimbursement described in the forgoing recital (hereinafter sometimes referenced as the "Project"), the Board found that the Project promotes new or expanding business development; WITNESSETH: Anna 455 and the CDC ("Parties" when referenced collectively), for the mutual promises and consideration set forth herein, hereby agree as follows: IMPROVEMENT FUNDING AND REIMBURSEMENT AGREEMENT PAGE 1 OF 4 Section 1. Recitals Incorporated The foregoing recitals are incorporated into this Agreement as if set forth in full for all purposes Section 2. Effective Date and Triggering Events Once executed in full by the Parties, this Agreement shall be effective as of March 26, 2013, except that the CDC obligations under Section 4 of this Agreement shall not arise unless and until both of the following triggering events have occurred: (1) the City of Anna City Council adopts a resolution authorizing the Project after giving the resolution at least two readings; (2) notice of the Project has been published for 60 days and the requirements of Texas Local Government Code § 505.160 have been satisfied; and (3) Anna 455 has become the owner of the entirety of the Property and has provided adequate verification of ownership to the CDC's Chief Administrative Officer. Section 3. District Assessments This Agreement in no way alleviates or modifies Anna 455's obligation to pay to the Anna 455 Assessment Amount and as a condition precedent to the CDC's obligations under this Agreement, Anna 455 agrees to pay to the City the full amount of the Anna 455 Assessment Amount at the time that the City seeks collection of said amount. Anna 455 further makes the material representation that it shall pay to the City, in addition to the Anna 455 Assessment Amount, any additional amounts sought by the City, under the terms of the levy of assessments as set forth in City of Anna, Texas Ordinance No. 578-2012 in the event that actual costs of the Improvements exceed estimated costs. Section 4. CDC's Obligation to Pay Anna 455 Within 10 days after Anna 455 provides notice to the CDC that it has made payment in full to the City of the Anna 455 Assessment Amount, the CDC shall pay to Anna 455 $20,000; provided, however, that the CDC's obligation to pay Anna 455 under this section shall not arise unless and until: (1) all of the triggering events set forth in Section 2 of this Agreement have occurred; and (2) Anna 455 has provided written notice to the CDC that it has paid the Anna 455 Assessment Amount in full, along with documentary proof of said payment, such as a copy of a cancelled check or other reasonable evidence of payment. Section 5. Anna 455's Obligation to Reimburse CDC (a) After the CDC performs its obligation to pay Anna 455 under Section 4 of this Agreement, Anna 455 shall reimburse the CDC in the amount of $20,000, and said reimbursement shall be due and owing on or before the earlier of the following dates: (1) four years after the Effective Date of this Agreement; or (2) the date that Anna 455 or any owner of any part of the Property submits a proposed final plat to the City for purposes of subdividing and developing any part of the Property. (b) As used in this subsection (a), the term "final plat" does not include any plat that may be required for: (1) the sole purpose of conveying (and not developing) of any part of the Property into resulting tracts, with the determination of purpose being made exclusively by the Board; or (2) the sole purpose of constructing a roadway to be dedicated for public use. (c) Should the CDC have ceased to exist before the earlier of the two dates set forth in subsection (a) of this section, then Anna 455 shall make its reimbursement payment otherwise due to the CDC under this Agreement to the City. IMPROVEMENT FUNDING AND REIMBURSEMENT AGREEMENT PAGE 2 OF 4 Section 6. Term and Termination The term of this Agreement is from March 26, 2013 until all of the obligations of both Parties, if triggered, have been met in accordance with the provisions of this Agreement. Section 7. Amendment This Agreement may not be amended except pursuant to a written instrument signed by the Parties. Section 8. Notice To be effective, notice as required by this Agreement shall be in writing and delivered via U.S. certified mail, return receipt requested, at the addresses listed below: Him CDC President CDC Chief Administrative Office Anna Community Development Corp. 111 N. Powell Parkway Anna, Texas 75409 ANNA 455 Anna 455 Commercial, LP Attn: Craig Curry 10950 Research Road Frisco, Texas 75033 Each party shall notify the other in writing within 10 days of any change in the mailing -address information listed in this section. Section 9. Undocumented Workers To the extent that the any funds paid by the CDC to Anna 455 under this Agreement qualify as public subsidies as set forth in Tex. Gov't Code, Chapter 2264, Subchapter B, Anna 455 is bound by the requirements and prohibitions of said subchapter with respect to undocumented workers, as defined in Texas Gov't Code § 2264.001. It is acknowledged, understood and agreed that in its application for any amounts qualifying as public subsidies that are the subject of this Agreement, Anna 455 certified to the CDC that it does not and will not knowingly employ an undocumented worker. Notwithstanding anything to the contrary in this Agreement, if Anna 455 is convicted of a violation under 8 U.S.C. §1324a(f), Anna 455 shall repay the amount of any funds that qualify as public subsidies under Texas Gov't Code § 2264.001 and that are received by Anna 455 from the CDC as of the date of such violation not later than 120 days after the date Anna 455 is notified by the CDC of the violation, plus interest from the date any such funds were paid to Anna 455, 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 COSADC) as its prime or base commercial lending rate. The payment of interest shall be as if it had been accruing from the date the funds were paid to Anna 455 until the date the funds are repaid to the CDC. Section 10. Entire Agreement This Agreement represents the entire and integrated Agreement between the Parties and supersedes all prior negotiations, representations and/or agreements, either written or oral. IMPROVEMENT FUNDING AND REIMBURSEMENT AGREEMENT PAGE 3 OF 4 Section 11. 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 or in the United States District Court for the Eastern District of Texas, Sherman Division. Section 12. 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 13. 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 14. 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 party'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. If any event or condition results in the creation of amounts of refuse in excess of ordinary amounts, then the parties shall discuss, but shall not be bound to conclude, terms and conditions for collection of those excess amounts. IN WITNESS WHEREOF, duly authorized agents of the CDC and Anna 455 have executed this Agreement on behalf of their respective principals as follows: Cas Anna Community Development Corporation By: its President Attest: CDC Secretary ANNA 455 Anna 455 Commercial, LP, a Texas limited partnership By: Anna 455 Commercial GP, LLC, its general partner (printed name) IMPROVEMENT FUNDING AND REIMBURSEMENT AGREEMENT PAGE 4 OF 4