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2001-039OFFICIAL RECORD RESOLUTION NO. 01-039 A RESOLUTION OF THE CITY OF SOUTHLAKE, TEXAS, APPROVING THE TERMS AND CONDITIONS OF A PROGRAM TO PROMOTE ECONOMIC DEVELOPMENT AND STIMULATE BUSINESS AND COMMERCIAL ACTIVITY IN THE CITY; AUTHORIZING THE MAYOR TO EXECUTE AN AGREEMENT WITH CELLCO PARTNERSHIP, d/b/a VERIZON WIRELESS FOR SUCH PURPOSES; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, Chapter 380 of the Texas Local Government Code authorizes municipalities to establish and provide for the administration of programs that promote economic development and stimulate business and commercial activity in the city; and WHEREAS, the City Council has been presented with a proposed agreement by and between the City of Southlake and Cellco Partnership, d/b/a Verizon Wireless, a copy of which is attached hereto as Exhibit "A" and incorporated herein by reference (hereinafter called the Agreement"); and WHEREAS, upon full review and consideration of the Agreement and all matters attendant and related thereto, the City Council is of the opinion that the Agreement will assist in implementing a program whereby economic development will be promoted and business and commercial activity will be stimulated in the City. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SOUTHLAKE, TEXAS, THAT: SECTION 1. The City Council finds that the terms of the Agreement will promote economic development and stimulate business and commercial activity in the City and otherwise meet the criteria of Section 380.001 of the Texas Local Government Code. SECTION 2. The City Council hereby adopts an economic development program whereby the City of Southlake will make economic development program payments to Cellco Partnership, d/b/a Verizon Wireless, and take other specified actions, in accordance with the terms outlined in the Agreement. SECTION 3. The terms and conditions of the Agreement, having been reviewed by the City Council of the City of Southlake and found to be acceptable and in the best interest of the City and its citizens, are hereby approved. Resolution No. 01-039 adopting Verizon Wireless 380 agreement - Approved June 19, 2001 - Page 1 of 3 SECTION 4. The Mayor is hereby authorized to execute the Agreement and all other documents in connection therewith on behalf of the City substantially according to the terms and conditions set forth in the Agreement. SECTION 5. This Resolution shall become effective from and after its passage. PASSED AND APPROVED this the 19`s day of June, 2001. 111111181", 0• • N- Y City Secretary Cc tacy, Mayor Resolution No. 01-039 adopting Verizon Wireless 380 agreement - Approved June 19, 2001 - Page 2 of 3 EXHIBIT A 380 AGREEMENT Resolution No. 01-039 adopting Verizon Wireless 380 agreement - Approved June 19, 2001 - Page 3 of 3 ECONOMIC DEVELOPMENT PROGRAM AGREEMENT Chapter 380 Agreement) This Economic Development Program Agreement ("Agreement") is made and entered into by and between the City of Southlake, Texas (the "City"), and Cellco Partnership, a Delaware general partnership d/b/a Verizon Wireless (the "Company"). WITNESSETH: WHEREAS, on June 19, 2001, the City adopted Resolution No. 01-039 establishing an Economic Development Program pursuant to Section 380.001 of the Texas Local Government Code ("Section 380.001") and authorizing this Agreement as part of the Economic Development Program established by City Council Resolution (the "Program"); WHEREAS, the Company desires to participate in the Program by entering into this Agreement; and WHEREAS, the City Council finds and determines that this Agreement will effectuate the purposes set forth in the Program, and that the Company's performance of its obligations herein will promote local economic development and stimulate business and commercial activity in the City; 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: 1. Authorization. The City has concluded that this Agreement is authorized by Section 380.001, and is authorized by Resolution of the City. The City has determined that substantial economic benefit and the creation of new opportunities of employment will accrue to the City as a result of the Company's development and operation of the Project as hereinafter defined. This development will increase the taxable value of the Property and indirectly result in creation of additional jobs throughout the City and the value of the benefits of the Project will outweigh the amount of expenditures required of the City under this Agreement. 2. Definitions. The following definitions shall apply to the terms used in this Agreement: C" means the City of Southlake, Texas. Company Affiliate" means any Person directly or indirectly controlling, controlled by, or under common control with the Company. As used in the definition of "Affiliate," the term "control" means, directly or indirectly, 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. Verizon Wireless 380 Agreement - Approved June 19, 2001 - Page 1 of 12 Complaining Party" has the meaning set forth in Section 7 of this Agreement. Construction Sales" means any Sale relating to purchases made on the Premises for the construction or installation of any permanent improvement located, or to be located, on the Premises and which is subject to sales tax under Chapter 321 of the Texas Tax Code. Defaulting Party" has the meaning set forth in Section 7 of this Agreement. Effective Date" means the date that all parties have executed this Agreement. Force Majeure" means any contingency or cause beyond the reasonable control of OWNER including, without limitation, acts of God or the public enemy, war, riot, civil commotion, insurrection, governmental or defacto governmental action (unless caused by acts or omissions of OWNER), fire, explosion or flood, and strikes. Initial Construction" means any construction of any phase of the Project, upon the Premises for which a building permit is required, but does not include any renovation, remodeling, retrofitting, or reconfiguration of any building or structure upon the Premises. Person" means an individual or a corporation, partnership, trust, estate, unincorporated organization, association, or other entity. Premises" means that certain tract of real property located in Tarrant County, Texas, consisting of approximately 25 acres, more or less, as more particularly described on Exhibit A hereto. Project" means the operation and expansion of a network observation and control center, data center, telephony switch center and local network administration headquarters to be constructed and operated on the Premises. Program" has the meaning set forth in the recitals to this Agreement. Pam Payment" means the payments to be made by the City pursuant to Section 4 of this Agreement. Retailer" means (a) the Company and any Company Affiliate, and (b) any "retailer" within the meaning of Section 151.008 of the Texas Tax Code, as amended. Sale" has the meaning set forth in Section 151.005 of the Texas Tax Code, as amended. Sales Tax Schedule" means a report detailing the total sales tax collected (8.25%) on the Premises as a result of the Construction Sales occurring during a Subject Quarter. Section 380.001" has the meaning set forth in the recitals to this Agreement. Verizon Wireless 380 Agreement - Approved June 19, 2001 - Page 2 of 12 Subject Quarter" has the meaning set forth in Section 4(a) of this Agreement. Term" has the meaning set forth in Section 3 of this Agreement. 3. Term. This Agreement shall be effective as of the date of execution by all parties. This Agreement will terminate upon the expiration of 10 years from the Effective Date; provided, however, that if the Company has not commenced occupancy of the Premises by January 1, 2004, in accordance with Section 10(b), this Agreement shall terminate and the City shall have no further obligation hereunder. 4. City's Development Program Incentives. For all Initial Construction by Company upon the Premises during the term of this Agreement, the City shall grant Company the following incentives: a) Sales Tax Program. Within thirty (30) days after the end of each calendar quarter during the Term (a "Subject Quarter"), the Company shall submit to the City a Sales Tax Schedule. Within thirty (30) days after the later of (1) receipt of the Sales Tax Schedule from the Company; or (2) receipt from the Texas Comptroller's office of the sales tax revenues collected on the Premises, the City shall pay the Company an amount equal to a half percent (.5%) of the aggregate amount of Construction Sales for the Subject Quarter each such payment, a "Program Payment"). b) Fee Waivers and Reductions. 1) The Company shall not be required to pay the park dedication fee and the City shall waive the fee. 2) The City shall reduce by fifty percent (50%) the following development related fees: water impact fee, sewer impact fee, street impact fee, building permit fee, planning processing fees, inspection fee and plan review fee for the Project. The City agrees to reimburse the City's Impact Fee Funds in an amount equal to the impact fee reduction(s) provided to the Company. c) Other Incentives. The City shall allocate to the Project (i) building plan review staff to facilitate the accelerated review of submitted construction plans; (ii) building inspectors to facilitate access and timeliness of inspections during construction at the Premises; and (iii) public works inspectors to facilitate access and timeliness of public works inspections during the construction/inspection process. Verizon Wireless 380 Agreement - Approved June 19, 2001 - Page 3 of 12 5. Company Covenants. In consideration of the City's incentives under this Agreement (including the payment of monies to the Company), the Company agrees to: a) take all reasonable steps to cause all Construction Sales to occur on the Premises in order to generate city sales tax revenue to the extent feasible and to perform the administrative oversight, including the collection and documentation of the collection of sales taxes for all Construction Sales occurring on the Premises; b) commence occupancy of the Premises by January 1, 2004, in a building of at least 150,000 square feet, with a minimum construction value of 17,000,000, upon which is located personal property with a minimum value of $12,000,000. Company shall have such additional time to complete the initial phase of the improvements as may be required if City determines that Company has not completed the improvements due to an event of Force Majeure, or if in the reasonable opinion of the City, the Company has made substantial progress toward completion of the initial phase of the improvements. Not withstanding these provisions, the Certificate of Occupancy for Phase I must be obtained by January 1, 2006; c) maintain and operate the Project and the Premises as a Network Observation and Control Center which employs after January 1, 2004, a minimum of 400 full-time employees; d) comply with all applicable federal, state and local laws in the operation of the Project; and e) require its contractor to provide an adequate on-site construction office for use by City employees when heightened attentiveness is desired by Company. This may not be required by Company on phases other than Phase One. 6. Mutual Assistance. The City and the Company shall take all reasonable measures which 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. The Company hereby consents to and agrees to cooperate in any reasonable request by the City, including the request to obtain waivers of confidentiality from the retailers who made the Construction Sales, to obtain copies of sales/use tax returns from the State which contains information pertinent to the calculation of Construction Sales Tax Revenues. Verizon Wireless 380 Agreement - Approved June 19, 2001 - Page 4 of 12 7. Covenants Running with the Land. The Company's rights, covenants, restrictions, burdens, privileges and charges, set forth in this Agreement shall exist at all times as long as this Agreement is in effect, among all parties having any right, title or interest in any portion of all the Property, but which covenants shall absolutely expire without further action by any person upon termination of this Agreement as provided herein. 8. Verification. a) If requested by the City within 30 days after a calendar year, Weaver & Tidwell or such other independent accounting firm which is mutually agreeable to the City and the Company (the "Auditor") shall audit the calculations of Construction Sales for the calendar year, and shall determine whether the Company has properly calculated the Construction Sales Tax Revenues for such year. b) If the Auditor determines that Construction Sales Tax Revenues for the year have been understated, then the City shall pay for the audit and shall pay to the Company the appropriate amount based on the Auditor's conclusion. If the Auditor determines that Construction Sales Tax Revenues for the year have been overstated, then the Company shall pay for the audit and shall pay to the City the appropriate amount based on the Auditor's conclusion. c) All determinations by the Auditor shall be final, nonappealable and conclusive. d) On or before October 1 of each year following the City's issuance of a certificate of occupancy to the Company, the Company shall certify to the City that the Company has met the requirements of Section 10(c) hereof. The Company further agrees to provide the City with information sufficient to verify that this requirement has been met. 9. Representations and Warranties. The City represents and warrants to the Company that the Program and this Agreement are within the scope of its authority and the provisions of its charter and that it is duly authorized and empowered to establish the Program and enter into this Agreement. The Company represents and warrants to the City that it has the requisite authority to enter into this Agreement. 10. Default. a) If either party should default (the "Defaulting Party") with respect to any of its obligations hereunder and should fail, within 30 days after delivery of written notice of such default from the other party (the "Complaining Party") to cure such default, the Complaining Party, by action or proceeding at law or in equity, may be awarded its damages for such default. Notwithstanding anything to the contrary contained herein, any Verizon Wireless 380 Agreement - Approved June 19, 2001 - Page 5 of 12 Program Payments from the City which are not timely paid by the City shall incur interest at the lesser of (a) fifteen percent (15%) per annum, or (b) the highest rate per annum allowed by applicable law from the date such Program Payment is due until paid; provided, however, that no interest shall be due on amounts disputed by the City until such dispute is resolved if the City notifies the Company of the dispute and the disputed amount in writing within 30 days after the later of receipt of the Sales Tax Schedule from the Company or receipt of the sales tax revenues from the Texas Comptroller's Office. b) The Company agrees, that upon an event of default of Section 10 hereunder, and upon receipt of notice from the City, to remit to the City a sum equal to the total of all processing and impact fees waived or credited and the total payments made by the City to the Company pursuant to this Agreement, plus interest at the highest rate per annum allowed by applicable law from the date payments were made, until paid. 11. Indemnification. THE COMPANY IN PERFORMING ITS OBLIGATIONS UNDER THIS AGREEMENT IS ACTING INDEPENDENTLY, AND THE CITY ASSUMES NO RESPONSIBILITIES OR LIABILITIES TO THIRD PARTIES IN CONNECTION WITH THE PREMISES OR IMPROVEMENTS. THE COMPANY AGREES TO INDEMNIFY, DEFEND, AND HOLD HARMLESS THE CITY, ITS OFFICERS, AGENTS, AND EMPLOYEES, IN BOTH THEIR PUBLIC AND PRIVATE CAPACITIES, FROM AND AGAINST CLAIMS SUITS, DEMANDS, LOSSES, DAMAGES, CAUSES OF ACTION, AND LIABILITY OF EVERY KIND, INCLUDING, BUT NOT LIMITED TO, EXPENSES OF LITIGATION OR SETTLEMENT, COURT COSTS, AND ATTORNEYS FEES WHICH MAY ARISE DUE TO ANY DEATH OR INJURY TO A PERSON OR THE LOSS OF, LOSS OF USE OF, OR DAMAGE TO PROPERTY, ARISING OUT OF OR OCCURRING AS A CONSEQUENCE OF THE PERFORMANCE OF THIS AGREEMENT, INCLUDING ANY ERRORS OR OMISSIONS, OR NEGLIGENT ACT OR OMISSION OF THE CITY, ITS OFFICERS, AGENTS OR EMPLOYEES, PROVIDED HOWEVER THAT THIS INDEMNIFICATION SHALL NOT APPLY IF A COURT OF COMPETENT JURISDICTION FINDS THAT THE DAMAGE OR LIABILITY ARISES FROM THE SOLE NEGLIGENCE OF THE CITY, ITS OFFICERS, OR EMPLOYEES. 12. Miscellaneous Matters. a) 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. b) Attorneys Fees. 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. Verizon Wireless 380 Agreement - Approved June 19, 2001 - Page 6 of 12 c). Entire Agreement. This Agreement contains the entire agreement between the parties with respect to the transactions contemplated herein. d). Amendment. This Agreement may only be amended, altered, or revoked by written instrument signed by the Company and the City. e) Successors and Assigns. This Agreement shall be binding on and inure to the benefit of the parties, their respective successors and assigns. The Company may assign all or part of its rights and obligations hereunder (a) to any Affiliate effective upon written notice to the City, or (b) to any Person other than an Affiliate with the prior written approval of the City, which approval shall not be unreasonably withheld. f). 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: Cellco Partnership, d/b/a Verizon Wireless 180 Washington Valley Road Bedminster, NJ 07921 Attention: Network Real Estate With a copy to: Locke, Liddell & Sapp, LLP 2200 Ross Avenue, Suite 2200 Dallas, Texas 75201-6776 Attention: Earl A. Berry, Jr. City: Mayor City of Southlake 1400 Main Street, Suite 460 Southlake, Texas 76092 With a copy to: Taylor, Olson, Adkins, Sralla & Elam, L.L.P. 6000 Western Place, Suite 200 I-30 at Bryant -Irvin Road Fort Worth, Texas 76107 Attention: Wayne K. Olson Verizon Wireless 380 Agreement - Approved June 19, 2001 - Page 7 of 12 g) 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. h) 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. i) 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. 0) 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. THE CITY OF SOUTHLAKE By: Rion Stacy, Mayor ATTEST: CITY SECRETARY Cellco Partnership, a Delaware general partnership d/b/a Verizon Wireless By: e-'Ie.400-; F- e -0 Z- -,/,/ Richard J. Lynch Executive Vice President and Chief Technical Officer APPROVED AS TO FORM AND LEGALITY: CITY AT ORNEY Date: Verizon Wireless 380 Agreement - Approved June 19, 2001 - Page 8 of 12 r THE STATE OF TEXAS § COUNTY OF TARRANT § BEFORE ME, the undersigned authority, on this day personally appeared Rick Stacy, Mayor of the CITY OF SOUTHLAKE, a municipal corporation, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he was duly authorized to perform the same by appropriate resolution of the City Council of the City of Southlake and that he executed the same as the act of the said City for the purposes and consideration therein expressed and in the capacity therein stated.. IVEN UNDER MY HAND AND SEAL OF OFFICE this J day of 2001. Notary Public in and for the State of Texas 10 Fvh`, SANDRA L. LEGRAND I i1 4 t l T7 Notary Public Notary's Printed NameJStateofTexas ; My Appt- Exp. 02-04.2005 ' VV V V v V V YYy My Commission Expires: l%S Verizon Wireless 380 Agreement - Approved June 19, 2001 - Page 9 of 12 THE STATE OF NEW JERSEY § COUNTY OF SOMERSET § BEFORE ME, the undersigned authority, on this day personally appeared Richard J. Lynch, Executive Vice President and Chief Technical Officer of Cellco Partnership, a Delaware general partnership d/b/a Verizon Wireless, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that said instrument was, signed on behalf of said partnership, and said Richard J. Lynch acknowledged said instrument to be his free act and deed. GIVEN UNDER MY HAND AND SEAL OF OFFICE in said County and State this / L- day of 2001. 4'.1,/ `s3z Notary Public in and for the State of New Jersey WILLIAM H. NEVILLE. Notary's Printed Na>WARY PUBLIC OF NEW JERSEY Commission Expkes 4/30/2006 My Commission Expires: Verizon Wireless 380 Agreement - Approved June 19, 2001 - Page 10 of 12 EXHIBIT A TO ECONOMIC DEVELOPMENT PROGRAM AGREEMENT Description of Premises BEING a 25.00 acre tract of land situated in the J.B. Martin Survey, Abstract 1134, Tarrant County, Texas, and being a part of the land conveyed to Maguire Partners -Solana Limited Partnership, by Special Warranty Deed recorded in Volume 14641, Page 232 Deed Records Tarrant County, Texas (D.R.T.C.T.), and filed in County Clerk's File Number D200273882, and being more particularly described as follows: BEGINNING at a 5/8 -inch found iron rod with a plastic cap stamped "HUITT- ZOLLARS" (hereinafter referred to as with "H -Z" cap) at the intersection of the north right-of-way line of Dove Road (a variable width right-of-way) with the west right-of- way line of Kirkwood Boulevard (a variable width right-of-way), as established by the plat of Kirkwood Hollow Phase I, an addition to the City of Southlake and recorded in Cabinet A, Slide 4537 of the Plat Records of Tarrant County, Texas; THENCE North 89 degrees 39 minutes 47 seconds West along the north right-of-way line of said Dove Road, a distance of 280.16 feet to a 5/8 -inch found iron rod with H -Z cap for corner at the southeast corner of a tract of land conveyed to the City Of Southlake by Donation Deed recorded in Volume 14028, Page 263, D.R.T.C.T.; North 00 degrees 35 minutes 38 seconds East along an off -set line in said north right-of- way line, a distance of 29.31 feet to a 5/8 -inch found iron rod with H -Z cap for corner; North 89 degrees 24 minutes 23 seconds West along the north right-of-way line of said Dove Road, a distance of 250.00 feet to a 5/8 -inch found iron rod with H -Z cap for an angle point in said right-of-way line; North 78 degrees 05 minutes 47 seconds West along the north right-of-way line of said Dove Road, a distance of 254.95 feet to a 5/8 -inch found iron rod with H -Z cap for an angle point in said right-of-way line; North 89 degrees 24 minutes 25 seconds West along the north right-of-way line of said Dove Road, a distance of 153.00 feet to a 5/8 -inch found iron rod with H -Z cap for corner, said point being in the northeast right-of-way line of State Highway 114 (a variable width right-of-way); North 23 degrees 48 minutes 03 seconds West along said northeast right-of-way line of State Highway 114, a distance of 807.00 feet to a 1/2 -inch set iron rod with a yellow plastic cap stamped "HALFF ASSOC. INC." (hereinafter referred to as "with cap") for corner, from which a 5/8 -inch found iron rod with H -Z cap bears South 83 degrees 12 minutes 26 seconds East, a distance of 0.22 feet; Verizon Wireless 380 Agreement - Approved June 19, 2001 - Page 11 of 12 THENCE North 66 degrees 10 minutes 55 seconds East, departing said northeast right- of-way line of State Highway 114, a distance of 1,046.34 feet to a point for corner on the southwest right-of-way line of said Kirkwood Boulevard from which a 5/8 -inch found iron rod with H -Z cap bears North 08 degrees 34 minutes 42 seconds East, a distance of 0.12 feet; THENCE South 33 degrees 33 minutes 58 seconds East, along said southwest right-of- way line of Kirkwood Boulevard, a distance of 11.08 feet to the beginning of a tangent curve to the right having a radius of 1,778.00 feet and whose chord bears South 16 degrees 34 minutes 08 seconds East, a distance of 1,039.51 feet; THENCE in a Southeasterly direction along said curve to the right and continuing along said southwest right-of-way line of Kirkwood Boulevard, through a central angle of 33 degrees 59 minutes 40 seconds, an arc distance of 1,054.91 feet to the point of tangency; THENCE South 00 degrees 25 minutes 42 seconds West continuing along the west right- of-way line of Kirkwood Boulevard, a distance of 243.06 feet to THE POINT OF BEGINNING and CONTAINING 1,088,861 square feet or 25.00 acres of land, more or less. Verizon Wireless 380 Agreement - Approved June 19, 2001 - Page 12 of 12