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HomeMy WebLinkAboutRes 06-20 Adopting an Economic Development Incentive Agreement with Maguire Partners-SolanaE&O TOWN OF WESTLAKE RESOLUTION NO. 06-20 A RESOLUTION OF THE BOARD OF ALDERMEN OF THE TOWN OF WESTLAKE, TEXAS ADOPTING AN ECONOMIC DEVELOPMENT INCENTIVE AGREEMENT WITH MAGUIRE PARTNERS-SOLANA LIMITED PARTNERSHIP. WHEREAS, in an effort to promote and enhance economic development, the Town adopted Resolution No. 06-19 which enacted the Town's Economic Development Incentive Policy (the "Policy"); and WHEREAS, the Policy has been adopted pursuant to thea n granted to the Town by Chapter 380 of the Texas Local Government Code ("'anter 380"); and WHEREAS, in accordance with the Policy, Maguife Partners -Solana Limited Partnership (the "Company") has submitted an Application for certain' economic incentives, as described herein; and s J �l� L lc— A e WHEREAS, the Company desires to enter into this Agreement pursuant to Chapter 380; and WHEREAS, the Town desires to provide, pursuant to Chapter 380, incentives to the Company to develop the Project (defined in attached Exhibit A). NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF ALDERMEN OF THE TOWN OF WESTLAKE, TEXAS: SECTION 1: The above findings are hereby found to be true and correct and are incorporated herein in its entirety. SECTION 2: The Board of Aldermen of the Town of Westlake, Texas, adopts the attached Town of Westlake Economic Development Agreement with Maguire Partners -Solana Limited Partnership, Exhibit A, and authorize the Town Manager to execute the agreement. PASSED AND APPROVED ON THIS 8TH DAY OF MAY, 2006. ATTEST: Go -V - &a �_a �� J an Dwi.,nell, Town Secretary �?,"Pwvk MIAMI Trent O. Petty, To Manager vfPF"I 9 9 T, lAs /fir-. Q -j • PRIM Attorney ECONOMIC DEVELOPMENT INCENTIVE AGREEMENT This Economic Development Incentive Agreement ("Agreement") is made and entered into by and between the Town of Westlake, Texas, a type A general law municipality of the State of Texas (the "Town"), and Maguire Partners -Solana Limited Partnership, a Texas limited partnership (the "Company'), as of October 1, 2005 (the "Effective Date"). WITNESSETH: WHEREAS, in an effort to promote and enhance economic development, the Town adopted Resolution No. tit0-'Z which enacted the Town's Economic Development Incentive Policy (the "Policy"); WHEREAS, the Policy has been adopted pursuant to the authorization granted to the Town by Chapter 380 of the Texas Local Govennnent Code ("Chapter 380");- WHEREAS, 80"); WHEREAS, in accordance with the Policy, the Company has submitted an Application for certain economic incentives, as described herein; WHEREAS, the Company desires to enter into this Agreement pursuant to Chapter 380; WHEREAS, the Town desires to provide, pursuant to Chapter 380, incentives to the Company to develop the Project (defined below); and NOW, THEREFORE, in consideration of the mutual benefits and premises contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: Authorization. The Town has concluded that this Agreement is authorized by Chapter 380, complies with the Policy, and is authorized by Resolution of the Town. 2. Definitions. The following definitions shall apply to the terms used in this Agreement: "Benchmark" means the date which is one (1) year after the later of (i) the date upon which the Company or Company Affiliate shall complete the Project and receive a CO for all premises under construction with respect to the Project, or (ii) the date upon which First American (hereinafter defined) shall complete the First American Project (hereinafter defined) and receive a CO for all premises under construction with respect to the First American Project, which CO Insurance Date for the Project and the First American Project shall be no later than December 31, 2007. "Buildings" means those buildings within the Project to be constructed, reconstructed or remodeled by or on behalf of the Company or any Company Affiliate or First American, and more specifically known as #1, 42, #4, 95, 46, #7, and #8 Campus Circle Drive, Westlake, Texas. "Chapter 380" has the meaning set forth in the recitals to this Agreement. "CO" means a certificate of occupancy issued by the Town. "CO Issuance Date" is the later of the date on which the Company receives a CO with respect to the final phase of the Project or the date on which First American receives a CO with respect to the First American Project, which later date shall in no event occur later than the Benchmark. "Company Affiliate" means any Person, directly or indirectly controlling, controlled by, or under common control with the Company. As used in this definition, the term "control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities, by contract or otherwise. "Construction Property" means any materials and/or taxable services purchased by the Company or an Affiliate of the Company for construction, remodeling, expansion or renovation of the Project. "Construction Rebate Payment" has the meaning set forth in Section 4 c of this Agreement. "Construction Sales Tax Due Date" means, with respect to each Construction Subject Year, the latest of (i) 60 days after the end of the Construction Subject Year, or (ii) ten days after the Town receives the Construction Sales Tax Schedule for the Construction Subject Year, or (iii) 30 days after the Town receives (or is credited with) the relevant sales tax revenue from the Texas Comptroller. "Construction Sales Tax Schedule" has the meaning set forth in Section 4(a) of this Agreement. "Construction Subject Year" has the meaning set forth in Section 4(b) of this Agreement. "Effective Date" has the meaning set forth in the introductory paragraph of this Agreement. "First American" means collectively, First American Real Estate Solutions LLC, a California limited liability company and First American Title Insurance Company, a California corporation, each being tenants of portions of the Project. "First American Project" means the construction, remodeling, expansion or renovation and operation of one or more Buildings totaling a minimum of 55,000 gross square feet, with a total new construction cost of a minimum of $15,000,000, and creating collectively with the Project, a minimum of 300 new full-time employees within 6 months of the CO Issuance Date. 2 "Force M4j eure" means, without limitation, acts of God, or the public enemy, war, riot, civil commotion, insurrection, governmental or de facto governmental action other than the Town's legislative zoning authority or enforcement of codes or ordinances (unless caused by acts or omissions of the Company), fire, explosions, floods, strikes, adverse weather, or any other extraordinary event beyond the control of the Company that makes it reasonably impracticable to accomplish a desired objective. "Person" means an individual or a corporation, partnership, trust, estate, unincorporated organization, association, or other entity. "Project" means the construction, remodeling, expansion or renovation and operation of one or more Buildings totaling a minimum of 600,000 gross square feet including parking, with a total new construction cost of a minimum of $15,000,000, and creating collectively with the First American Project, a minimum of 300 new full-time employees within 6 months of the CO Issuance Date, and (b) any expansion, renovation or modification of such Buildings during the Term, and (c) any other development, construction, renovation or modification activity on the Project during the Term. "Project Site" means that certain tract of real property located in Tarrant County, Texas, described on Exhibit A hereto. "Construction Sales Tax Revenues" means 50% of the revenues paid to the Town from the municipal sales and use tax imposed and collected by the Town under Chapter 321 of the Texas Tax Code for Construction Property for the Buildings or Project, it being understood that all municipal sales and use taxes dedicated pursuant to sections 4A and 4B of article 5190.6 of Texas Revised Civil Statutes, as amended, and any municipal sales and use taxes derived from or paid from telecommunication services, shall be excluded from the definition of Construction Sales Tax Revenues. "Sale" has the meaning set forth in section 151.005 of the Texas Tax Code, as amended. "Tax Code" means the Texas Tax Code, as amended from time to time. "Term" has the meaning set forth in Section 3 of this Agreement. 3. Term. This Agreement shall be effective as of the Effective Date and shall remain in full force and effect until the last Construction Rebate Payment due and payable is paid in full (the "Term"). Provided, however, that no Construction Rebate Payment shall be owed for the Sale of Construction Property that occurs after December 31, 2007. 93 4. Construction Property Sales Tax Incentive: (a) The Company or Company Affiliate shall establish the Project as the sitas for the Sale of all Construction Property to be purchased for or used in the Project during the Term of this Agreement. (b) Within ninety days after the end of each calendar year during the Term (or, with respect to the period beginning on January 1 and ending on the last day of the Term, within ninety days following the end of the Term) (each, a "Construction Subject Year"), the Company shall submit to the Town a schedule detailing the purchases of Construction Property occurring during such Construction Subject Year (each, a "Construction Sales Tax Schedule"). As backup for each Construction Sales Tax Schedule, the Company shall submit such data as the parties reasonably agree is appropriate to support documentation of purchases of Construction Property. (c) On or before the Construction Sales Tax Due Date for a Construction Subject Year, the Town shall rebate (in cash) to the Company fifty percent of Construction Sales Tax Revenues paid by the Company and Company Affiliates and actually received by the Town from the Comptroller of Public Accounts with respect to any Construction Property (each a "Construction Rebate Payment"). (d) If requested by the Town within 30 days after its receipt of the relevant Construction Sales Tax Schedule, a regionally or nationally recognized independent accounting firm that is reasonably approved by the Town and the Company (the "Auditor") shall audit the calculations of Construction Sales Tax Revenues for the relevant Construction Sales Tax Schedule, and shall determine whether the Company has properly calculated the Project Site retail sales tax for such Construction Subject Year. (e) If the Auditor determines that Construction Sales Tax Revenues for the Construction Subject Year have been understated, then the Town shall pay to the Company the appropriate amount based on the Auditor's conclusion, and shall pay the Auditor's fees. If the Auditor determines that Construction Sales Tax Revenues for the Construction Subject Year have been overstated, then the Company shall promptly pay to the Town the appropriate amount based on the Auditor's conclusion, and shall pay the Auditor's fees. (f) All determinations by the Auditor shall be final, nonappealable and conclusive. Default. (a) If the Town defaults with respect to any of its obligations hereunder and fails, within thirty (30) days after delivery of written notice of such default from the Company, to cure such default (or such longer time as is reasonably necessary to address a default due to Force Majeure or to address a default that cannot be cured with such 30 -day period, provided that the Town is diligently attempting to cure), then the Company, by action or proceeding at law or in equity, may be awarded its damages for such default, including all reasonable attorneys' fees and costs incurred in connection with such default. Subject to Section 6(b) below, if the Company defaults with respect to any of its obligations hereunder, and fails, within thirty (30) days after delivery of written notice of such default from. the Town, to cure such default or such longer time 0 as is reasonably necessary to address a default due to Force Majeure or to address a default that cannot be cured within such 30 -day period provided that the Company is diligently attempting to cure, then the Town may terminate this Agreement as its sole remedy and after such termination, the Company shall not be entitled to receive any further Construction Rebate Payments. (b) Notwithstanding anything to the contrary contained in this Agreement, the Town's sole remedy for the Company's failure to meet the Benchmark shall be the elimination of all future Construction Rebate Payments. 6. Responsibilities of the Company, (a) The Company and/or its Affiliates) shall cause the Buildings within the Project to achieve the Benchmark. (b) During the Term, all private development with respect to the Project shall be in compliance with all Town codes and ordinances, including the provisions set forth in the Unified Development Code. 7. Mutual Assistance. The Town and the Company shall take all reasonable measures that are necessary or appropriate to carry out the terms and provisions of this Agreement and to aid and assist each other in carrying out such terms and provisions. 8. Representations and Warranties. The Town represents and warrants to the Company that this Agreement is within the scope of its authority and the provisions of its charter, and that it is duly authorized and empowered to enter into this Agreement under Chapter 380. 9. Section or Other Headings. Section or other headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. 10. Attorneys. In the event any legal action or proceeding is commenced to enforce or interpret provisions of this Agreement, the prevailing party in any such legal action shall be entitled to recover its reasonable attorneys' fees and expenses incurred by reason of such action. 11. Entire Agreement. This Agreement contains the entire agreement between the parties with respect to the transactions contemplated herein. 5 12. Amendment. This Agreement may only be amended, altered, or revoked by written instrument signed by the Company and the Town. 13. Successors and Assigns. This Agreement shall be binding on and inure to the benefit of the parties to this Agreement and Company Affiliates, and their respective successors and assigns. The Company may assign all or part of its rights and obligations hereunder: (a) without the prior written approval of the Town, to any Company Affiliate; (b) without the prior written approval of the Town, to any Person that acquires all or a portion of the Buildings or Project or any improvement thereon and then leases such property to the Company or any Company Affiliate, (c) without the prior written approval of the Town, to any assignee that can meet its portion of the Benchmark with respect to the purchased portion of the Buildings or Project, modified on a pro rata basis based on the square footage of Buildings or Project acquired by such assignee compared to the total square footage of the Buildings or Project; and (d) to any Person not described in clause (a), (b) or (c) above, with the prior written approval of the Town, which shall not be unreasonably withheld, conditioned or delayed. Any assignment in violation of this Section 13 shall (i) not affect any rebates with respect to which the Company or any Company Affiliate is already entitled, and (ii) permit the Town or the Company (by written notice to the other) to remove the portion of the Buildings or Project that was transferred in violation of this Section 13 so that the remainder of the Buildings or Proj ect continue to be covered by this Agreement. 14. Notice. Any notice and/or statement required and permitted to be delivered shall be deemed delivered by depositing same in the United States mail, certified with return receipt requested, postage prepaid, addressed to the appropriate party at the following addresses, or at such other addresses provided by the parties in writing; Company: Maguire Partners—Solana Limited Partnership Nine Village Circle, Suite 500 Westlake, Texas 76262 Attention: Tom Allen With an additional copy to: (which shall not constitute notice) Thompson & Knight LLP Burnett Plaza, Suite 1600 501 Cherry Street, Unit #1 Fort Worth, Texas 76102 Attention: Susan E. Coleman R Town: Office of the Town Manager Town of Westlake 2650 J. T. Ottinger Rd. Westlake, Texas 76262 With an additional copy to. Boyle & Lowry, L.L.P. (which shall not constitute 4201 Wingren, Suite 108 notice) Trying, Texas 75062 Attention: L. Stanton Lowry 15. Interpretation. Regardless of the actual drafter of this Agreement, this Agreement shall, in the event of any dispute over its meaning or application, be interpreted fairly and reasonably, and neither more strongly for or against any party. 16. Applicable Law. This Agreement is made, and shall be construed and interpreted under the laws of the State of Texas and venue shall lie in Tarrant County, Texas. 17. Severability. In the event any provision of this Agreement is illegal, invalid, or unenforceable under present or future laws, then, and in that event, it is the intention of the parties hereto that the remainder of this Agreement shall not be affected thereby, and it is also the intention of the parties to this Agreement that in lieu of each clause or provision that is found to be illegal, invalid, or unenforceable a provision be added to this Agreement which is legal, valid and enforceable and is as similar in terms as possible to the provision found to be illegal, invalid or unenforceable. 18. Acquisition of the Project Site. The effectiveness and validity of this Agreement shall not be affected or impacted by when the Company or any Company Affiliate acquires the Project Site. 19. 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 to Follow] 7 A EST: t T Secretary 11:10m"JO[S7Cll�i�1�T►`1IYI/.�: � By: _r7��' �' Trent Petty, Toy Manager MAGUIRE PARTNERS - SOLANA LIMITED PARTNERSHIP, a Texas limited partnership By: Maguire Partners -Solana GP Limited Liability Company, a Delaware limited liability company, its General Partner JALLITY By: Nam Torn Allen Title: dent THE STATE OF TEXAS § COUNTY OF TARRANT § BEFORE ME, the undersigned authority, on this day personally appeared TRENT PETTY, Town Manager of the TOWN OF WESTLAKE, a municipal corporation, known to me to be the person acknowledged to me that the same was the act of the said TOWN OF WESTLAKE, TEXAS, a municipal corporation, that he was duly authorized to perform the same by appropriate resolution of the Board of Aldermen of the Town of Westlake and that he executed the same as the act of the said Town for the purposes and consideration therein expressed and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this I (a day of ., 2006. THE STATE OF TEXAS § COUNTY OF TARRANT § BEFORE ME, the undersigned authority, on this day personally appeared Tom Allen, Vice President of Maguire Partners -Solana GP Limited Liability Company, a Delaware limited liability company, general partner of MAGUIRE PARTNERS-SOLANA LIMITED PARTNERSHIP, a Texas limited partnership, on behalf of said partnership, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same for the purposes and consideration therein expressed, in the capacity therein stated and as the act and deed of said entities. GIVEN UNDER MY HAND AND SEAL OF OFFICE this 13 day of, 2006. JUDY ICING MY GommWon Exp Not Public in anal f NOvember 3, 2007 the State of Texas Notary's Printed Name X GINGER R AMITR (4�x�,.w XTAIIYKft&TATE FMU Notary Pub c 11 and for C01111$bi0a EXPIRE$: the State 0 as SEPTEMBER Is, 3006 G K Notary's ted Name THE STATE OF TEXAS § COUNTY OF TARRANT § BEFORE ME, the undersigned authority, on this day personally appeared Tom Allen, Vice President of Maguire Partners -Solana GP Limited Liability Company, a Delaware limited liability company, general partner of MAGUIRE PARTNERS-SOLANA LIMITED PARTNERSHIP, a Texas limited partnership, on behalf of said partnership, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same for the purposes and consideration therein expressed, in the capacity therein stated and as the act and deed of said entities. GIVEN UNDER MY HAND AND SEAL OF OFFICE this 13 day of, 2006. JUDY ICING MY GommWon Exp Not Public in anal f NOvember 3, 2007 the State of Texas Notary's Printed Name X EXHIBIT A TO ECONOMIC DEVELOPMENT PROGRAM AGREEMENT Proiect Site Lot 1, Block 1, Westlake/Southlake Park Addition No. 1, Town of Westlake, Tarrant County, Texas Exhibit A YDS 0U aU ,. MARY LOUISE NICHOLSON COUNTY CLERK 100 West Weatherford Fort Worth, TX 76196-0401 »"'•• 'O PHONE (817) 884-1195 TOWN OF WESTLAKE 1500 SOLANA BLVD BLDG 7 STE 7200 WESTLAKE, TX 76262 Submitter: TOWN OF WESTLAKE DO NOT DESTROY WARNING - THIS IS PART OF THE OFFICIAL RECORD. Filed For Registration: 2/8/2019 12:41 PM Instrument#: D219025448 OPR 14 PGS $64.00 By: ri D219025448 ANY PROVISION WHICH RESTRICTS THE SALE, RENTAL OR USE OF THE DESCRIBED REAL PROPERTY BECAUSE OF COLOR OR RACE IS INVALID AND UNENFORCEABLE UNDER FEDERAL LAW.