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HomeMy WebLinkAboutRes 16-13 Agreement with BRE SolanaTOWN OF WESTLAKE RESOLUTION 16-13 A RESOLUTION BY THE TOWN COUNCIL OF THE TOWN OF WESTLAKE, TEXAS, APPROVING A DEVELOPMENT AGREEMENT WITH BRE SOLANA LLC RELATED TO THEIR DEVELOPMENT KNOWN AS SOLANA IN WESTLAKE, TEXAS. WHEREAS, the Town of Westlake is experiencing planned growth through the attraction of economic development projects such as Fidelity Investments and Deloitte University, residential developments such as Vaquero, Glenwyck Farms, Terra Bella, and Granada, and Entrada which are consistent with the Town's Comprehensive Plan, as well as enrollment growth at Westlake Academy, all of which contribute to demand for improvements to Westlake's infrastructure and public buildings: and, WHEREAS, the Town of Westlake (Town) and BRE Solana, LLC. (the Owner) desire to enter into a partnership to continue this planned growth through an economic development agreement which sets out responsibilities for the Owner and the Town as it relates to the development known as Solana in Westlake: and, WHEREAS, the Town has an economic development policy adopted by Resolution 06-19; and WHEREAS, the Town Council finds that the passage of this Resolution is in the best interest of the citizens of Westlake. NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF WESTLAKE, TEXAS: SECTION 1: That, all matters stated in the Recitals hereinabove are found to be true and correct and are incorporated herein by reference as if copied in their entirety. SECTION 2: That, the Town Council of the Town of Westlake, Texas, hereby approves the Economic Development Program Agreement with the Owner attached hereto as Exhibit "A"; and further authorizes the Town Manager to execute said agreement on behalf of the Town of Westlake. SECTION 3: If any portion of this Resolution shall, for any reason, be declared invalid by any court of competent jurisdiction, such invalidity shall not affect the remaining provisions hereof and the Council hereby determines that it would have adopted this Resolution without the invalid provision. Resolution 16-13 Page 1 of 2 ECONOMIC DEVELOPMENT PROGRAM AGREEMENT This ECONOMIC DEVELOPMENT PROGRAM AGREEMENT ("Agreement") is entered into by and between the TOWN OF WESTLAKE, TEXAS (the "Town"), a Type -A general law municipal corporation organized under the laws of the State of Texas, and BRE SOLANA LLC, a Delaware limited liability company ("Owner"), for the purposes and considerations stated below. The Town and Owner are referred to from time to time as "Parties" herein. WHEREAS, the Town has established an economic development program as authorized by Resolution 06-19, adopted by the Town Council on May 8, 2006 and attached herein as Exhibit "A;" and Whereas, in order to increase and enhance the local tax base and local economy in the Town, and to maximize the economic benefits of the Development (as defined below), Owner agrees to construct in PD1 -1, a new parking garage in the Development, all in accordance with the terms and conditions set forth below. Section 1. RECITALS The Town and Owner hereby agree that the following statements are true and correct and constitute the basis upon which the Town and Owner have entered into this Agreement: A. The Town has concluded that this Agreement is authorized by Chapter 380 of the Texas Local Government Code, Article III, Section 52(a) of the Texas Constitution and is authorized by Resolution No. 06-19, adopted by the Town Council on May 8, 2006, attached hereto as Exhibit "A" and hereby made a part of this Agreement for all purposes, in which the Town has established an Economic Development Incentive Policy and program pursuant to which the Town will, on a case-by-case basis, offer economic incentive packages that include monetary loans and grants of public money, as well as the provision of personnel and services of the Town, to businesses and entities that the Town Council determines will promote local economic development and stimulate business and commercial activity in the Town in return for verifiable commitments from such businesses or entities to cause specific infrastructure, employment and other public benefits to be made or invested in the Town (the "380 Program"). B. Owner is the owner of an approximately 233 acre commercial development located in Planned Development District 1-1 (PD 1-1) and commonly known as "Solana". Page 1 of 11 Section 4. TERM This Agreement shall be effective from the date of execution by the Parties (the "Effective Date") and shall remain in force for the duration of the term of the Agreement as defined herein unless terminated earlier in accordance with this Agreement. The term of this Agreement will be considered to be complete, and the parties' obligations hereunder to have been fully satisfied, upon issuance by the Town of a final Certificate of Occupancy to the Owner for the parking garage and the Owner's receipt of the Town's payment as provided in Section 5.2 hereof. Section 5. TOWN'S AND OWNER'S OBLIGATIONS AND COMMITMENTS 5.1. Owner's Specific Obligations. (a) Owner shall build a parking garage in Solana in the Town of Westlake with an estimated value of approximately Twenty Million Dollars ($20,000,000) and consistent in design and quality with similar facilities in the geographical area. Subject to the foregoing limitation, and to any applicable municipal permitting and approval processes, the design and construction of the parking garage shall be within the Owner's discretion. Said parking garage intended to add value and marketability to the Development by increasing parking spaces available in the Development for employees of lessees, thus increasing the ability of the Owner to retain existing and attract new businesses to locate in the Development. 5.2. Town of Westlake Specific Obligations- Program Resources (a) Contingent upon the Owner fully carrying out its obligations under Section 5.1 of this Agreement, the Town will refund, within thirty (30) calendar days of issuance of a final Certificate of Occupancy for the parking garage, tree mitigation monies previously paid as a part of the Owner's obligations contained in this Agreement in the amount of Two Hundred Seventy One Thousand and Three Hundred Dollars ($271,300). Section 6. DEFAULT, TERMINATION AND FAILURE BY OWNER TO MEET VARIOUS DEADLINES AND COMMITMENTS. 6.1. Failure to Pay Town Taxes or Fees An event of default shall occur under this Agreement if during the term hereof any legally -imposed Town taxes or fees owed on, or generated by the Development become delinquent and Owner or the Affiliate does not either pay such taxes when due or follow the legal procedures for protest Page 3 of 11 referencing this Agreement (or, if Owner has diligently and continuously attempted to cure following receipt of such written notice but reasonably requires more than thirty (30) calendar days to cure, then such additional amount of time as is reasonably necessary to effect cure, as determined by both Parties mutually and in good faith), the Town shall have the right to terminate this Agreement immediately by providing written notice to Owner. 6.4. Effect of Breach The Town shall have no obligation to make the payment set forth in Section 5.2(a), above, during the pendency of any default by Owner hereunder and, in the event of the Town's termination of this Agreement for default prior to the Owner's satisfaction of its obligations under Section 5.1(a), shall be relieved from making such payment. The Town shall have no right to compel or carry out any required performance of Owner hereunder, nor shall the Town have any rights in the Development as a consequence hereof, and both parties specifically disclaim any right to consequential, indirect or punitive damages. Section 7. NO SERVANT, CONTRACTOR OR AGENCY RELATIONSHIP It is expressly understood and agreed that Owner shall not operate as a servant, contractor agent, representative or employee of the Town. Owner shall have the exclusive right to control all details and day-to-day operations relative to its operations and obligations that it is required to perform under the Agreement and shall be solely responsible for the acts and omissions of its officers, agents, servants, employees, contractors, subcontractors, licensees and invitees. Owner acknowledges that the doctrine of respondeat superior will not apply as between the Town and Owner, its officers, agents, servants, employees, contractors, subcontractors, licensees, and invitees. Owner further agrees that nothing in this Agreement will be construed as the creation of a partnership or joint enterprise between the Town and Owner. Section 8. INDEMNIFICATION OWNER, AT NO COST OR LIABILITY TO THE TOWN, AGREES TO DEFEND, INDEMNIFY AND HOLD THE TOWN, ITS OFFICERS, ELECTED AND APPOINTED OFFICIALS, AGENTS, ATTORNEYS, SERVANTS AND EMPLOYEES, HARMLESS AGAINST ANY AND ALL CLAIMS, LAWSUITS, ACTIONS, COSTS AND EXPENSES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, THOSE FOR PROPERTY DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO OWNER'S BUSINESS AND ANY RESULTING LOST PROFITS) AND/OR PERSONAL INJURY, INCLUDING DEATH, Page 5ofll may be conditioned on the Town's receipt of reasonable evidence that such successor has the financial capacity to complete construction of the parking garage. Subject to the foregoing limitations, any lawful successor and assignee of rights and obligations under this Agreement shall be deemed an "Owner" for all purposes under this Agreement with respect to the portion of the Development conveyed to such successor. In the event of any conveyance and assignment by Owner of one or more, but not all, Tracts contained in the Development, the parties acknowledge that the rights and obligations of Owner's successor shall apply only to the Tracts transferred to such successor, and that such successor shall not be liable to the Town for the rights or obligations of the Owner or any other Tract. Upon the request of any such successor, the Town shall execute a recordable instrument evidencing such severance of the rights and obligations hereunder. Section 11. COMPLIANCE WITH LAWS, ORDINANCES, RULES AND REGULATIONS This Agreement will be subject to all applicable Federal, State and local laws, ordinances, rules and regulations, including, but not limited to, all provisions of the Town's codes and ordinances, as amended. Section 12. GOVERNMENTAL POWERS It is understood that by execution of this Agreement, the Town does not waive or surrender any of its governmental powers or immunities that are outside of the terms, obligations, and conditions of this Agreement. Section 13. NO WAIVER The failure of either Party to insist upon the performance of any term or provision of this Agreement or to exercise any right granted hereunder shall not constitute a waiver of that Party's right to insist upon appropriate performance or to assert any such right on any future occasion. Section 14. VENUE AND JURISDICTION If any action, whether real or asserted, at law or in equity, arises on the basis of any provision of this Agreement, venue for such action shall lie in state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas — Fort Worth Division. This Agreement shall be construed in accordance with the laws of the State of Texas. Section 15. NO THIRD PARTY RIGHTS Page 7 of 11 Section 20. ENTIRETY OF AGREEMENT This Agreement, including any exhibits attached hereto and any documents incorporated herein by reference, contains the entire understanding and agreement between the Town and Owner, and any lawful assign and successor of Owner, as to the matters contained herein. Any prior or contemporaneous oral or written agreement is hereby declared null and void to the extent in conflict with any provision of this Agreement. Notwithstanding anything to the contrary herein, this Agreement shall not be amended unless executed in writing by both parties and approved by the Town Council of the Town in an open meeting held in accordance with Chapter 551 of the Texas Government Code. Section 21. COUNTERPARTS This Agreement may be executed in multiple counterparts, each of which shall be considered an original, but all of which shall constitute one instrument. [signature page follows] Page 9 of 11 Exhibit "A" — Resolution 06-19 LIST OF EXHIBITS Page 11 of 11