15-011 RESOLUTION NO. 15 -011
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 CENCOR REALTY SERVICES, INC.,
A TEXAS CORPORATION, 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, On February 17, 2015 the City Council approved a Chapter 380 Agreement (the
"Agreement ") by and between the City and Cencor Realty Services, Inc., a Texas Corporation, to
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 Cencor Realty Services, Inc., 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 SOUTH LAKE, 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 amendments to the economic development program
whereby the City of Southlake will make economic development program payments to Cencor
Realty Services, Inc. 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.
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 17 day of February, 2015
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John Terrell, Mayor
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Lori Payne, TR , ••
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CITY OF SOUTHLAKE, TEXAS
AND
CENCOR REALTY SERVICES, INC.
CHAPTER 380 ECONOMIC DEVELOPMENT
PROGRAM AGREEMENT
This CHAPTER 380 ECONOMIC DEVELOPMENT PROGRAM AGREEMENT
( "Agreement ") is made and entered into by and between the City of Southlake, Texas, a Texas
home rule municipality ( "City "), and Carroll /1709, Ltd. ( "Company "). City and Company may
sometimes hereafter be referred to individually as a "Party" and collectively as the "Parties."
WHEREAS, Company is the owner of a retail development within the City commonly
known as the Shops of Southlake ( "Development ");
WHEREAS, the City desires to build intersection, traffic lanes, crosswalks, pavers,
signage and traffic signal improvements at South Carroll Avenue and Zena Rucker Rd. to
improve traffic flow, public safety and business activity within the City; and
WHEREAS, the Parties wish to align the drive aisles at Zena Rucker Rd. with the drive
aisles east of South Carroll Avenue on the Development and cause to have other improvements
completed on the Development; and
WHEREAS, the City desires to provide, pursuant to Chapter 380 of the Texas Local
Government Code ("Chapter 380 "), an incentive to Company for the construction of an
additional drive lane, pavers, a crosswalk, a median, and signage on the Development; and
WHEREAS, the City has the authority under Article 52 -a of the Texas Constitution and
Chapter 380 to make loans or grants of public funds for the purposes of promoting local
economic development and stimulating business and commercial activity within the City; and
WHEREAS, the City has determined that a grant of funds to the Company will serve the
public purpose of promoting local economic development, and stimulating business and
commercial activity within the City.
NOW THEREFORE, for and in consideration of the agreements contained herein, and
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties agree as follows:
SECTION 1.
FINDINGS INCORPORATED
The foregoing recitals are hereby incorporated into the body of this Agreement and shall
be considered part of the mutual covenants, consideration and promises that bind the Parties.
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SECTION 2.
PROGRAM APPROVED
A program authorized under Chapter 380 is hereby established to bring the expansion of
the Development, including the Improvements, to the City. The terms of this Agreement shall
implement the program.
SECTION 3.
TERM
This Agreement shall be effective as of the Effective Date and shall terminate when the
Program Grants are paid in full, unless terminated earlier pursuant to the terms of this
Agreement.
SECTION 4.
DEFINITIONS
The following words shall have the following meanings when used in this Agreement:
The terms "Agreement," "City," "Company," and "Development," shall have the
meanings provided above.
"Commencement of Construction" means that: (i) the plans have been prepared and all
approvals thereof and permits with respect thereto required by applicable governmental
authorities have been obtained for construction of the Improvements; and (ii) grading of the land
on which the improvements are to be located has commenced.
"Construction Costs" means the cost of design and construction document preparation,
and construction and installation of the Improvements, site grading and such other reasonable
industry- standard costs.
"Effective Date" means the date this Agreement is signed by both Parties.
"Event of Default" means and includes any of the Events of Default set forth below in
the section entitled "Events of Default."
"Inspection and Final Acceptance" means the process by which the City reviews the
completed construction of the Improvements to determine the validity and quality of the work
performed is acknowledged by the City through an issuance of a final acceptance letter to the
Company stating the Improvements have been completed according to City standards.
"Program Grant" or "Program Grant Payment" means the economic development grants
paid by the City to Company in accordance with this Agreement.
"Term" means the term of this Agreement as specified in Section 3 of this Agreement.
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"Improvements" means the work completed on the Development which includes a drive
lane, a median, crosswalks, pavers, and signage and all other appurtenances related to the
improvements at Zena Rucker Rd. and South Carroll Avenue, that Company will install, as
shown on the attached Exhibit A.
SECTION 5.
OBLIGATIONS OF COMPANY
Company covenants and agrees with the City that, while this Agreement is in effect, it
shall comply with the following terms and conditions:
(a) Construction Standards. Company agrees to install the Improvements in compliance with
the attached Exhibit A, and in compliance with all applicable local, state, and federal
regulations, and will acquire all necessary permits and obtain all required approvals.
(b) Commencement of Construction. Company agrees Commencement of Construction will
occur on or before March 1, 2015.
(c) Time of Completion. The Improvements must be constructed and completed prior to
September 30, 2015.
(d) Construction Costs. Company agrees that it will be solely responsible for paying all
Construction Costs prior to receiving the Program Grant Payment.
(e) Performance. Company agrees to perform and comply with all terms, conditions, and
provisions set forth in this Agreement and in all other instruments and agreements
between Company and City, and any related agreements between Company and City.
(f) Access to Information. Company agrees to provide the City, upon reasonable notice,
access to information related to the Improvements, and access to information necessary to
fulfill this Agreement, throughout the term of this Agreement.
(g) Undocumented Workers. Company certifies that Company does not and will not
knowingly employ an undocumented worker in accordance with Chapter 2264 of the
Texas Government Code, as amended. If during the Term of this Agreement, Company
is convicted of a violation under 8 U.S.C. § 1324a(f), Company shall repay the amount of
the public subsidy provided under this Agreement plus interest, at the rate of the prime
rate plus two percent (6 %) per annum, not later than the 120th day after the date the City
notifies Company of the violation.
SECTION 6.
OBLIGATIONS OF CITY
City covenants and agrees that, while this Agreement is in effect, it shall comply with the
following terms and conditions and make the following Program Grants, provided Company is in
full compliance with the terms and conditions of this Agreement:
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(a) Program Grant Payment. No later than 90 days after Inspection and Final Acceptance
of the Improvements, and provided Company has first submitted a written request for payment,
including sufficient documentation of Construction Costs, City will pay Company a Program
Grant Payment in an amount not to exceed $84,000 for the work and items depicted on Exhibit
B.
SECTION 7.
EVENTS OF DEFAULT
Each of the following shall constitute an Event of Default under this Agreement:
(a) Default. Failure of Company or City to comply with or to perform any other term,
obligation, covenant or condition contained in this Agreement or in any related
documents, or failure of Company or City to comply with or to perform any other term,
obligation, covenant or condition contained in any other agreement between the City and
Company.
(b) False Statements. Any written warranty, representation or statement made or furnished to
the receiving Party under this Agreement or any document(s) related hereto furnished to the
receiving Party is /are false or misleading in any material respect, either now or at the time
made or furnished, or if the furnishing Party obtains actual knowledge that any such
warranty, representation or statement has become false or misleading after the time that it
was made, and the furnishing Party fails to provide written notice to the receiving Party of
the false or misleading nature of such warranty, representation or statement within ten (10)
days after the furnishing Party learns of its false or misleading nature.
(c) Insolvency. The dissolution or termination of Company's existence as a going business or
concern, Company's insolvency, appointment of receiver for any part of Company's
property, any assignment of all or substantially all of the assets of Company for the benefit
of creditors of Company, or the commencement of any proceeding under any bankruptcy or
insolvency laws by or against Company unless, in the case of involuntary proceedings, such
proceedings are discharged within sixty (60) days after filing.
SECTION 8.
EFFECT OF AN EVENT OF DEFAULT
(a) General Defaults. In the Event of Default under this Agreement, including without
limitation, Section 7 above, the non - defaulting Party shall give written notice to the
defaulting Party of any default, and the defaulting Party shall have thirty (30) days to cure
said default. Should said default remain uncured as of the last day of the applicable cure
period and the non - defaulting Party is not otherwise in default, the non - defaulting Party
shall have the right to immediately terminate this Agreement. In the event the City
terminates this Agreement as a result of the foregoing, it will have no further obligation
to make any remaining Program Grant Payments. Additionally, Company will owe City
repayment of the previous Program Grant Payments made to Company, plus interest at
the rate of the prime rate per annum. Company shall pay such funds to City within sixty
(60) days of termination.
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SECTION 9.
MISCELLANEOUS PROVISIONS
The following miscellaneous provisions are a part of this Agreement:
(a) Amendments. At any time, City and Company may determine that this Agreement should
be amended for the mutual benefit of the Parties, or for any other reason, including an
amendment to induce Company to maintain its operations in the City when this
Agreement could otherwise be terminated. City and Company agree to consider
reasonable requests for amendments to this Agreement which may be made by any of the
Parties hereto, lending institutions, bond counsel or financial consultants. Any
amendments to this Agreement must be in writing and signed by the appropriate
authorities of both City and Company.
(b) Applicable Law and Venue. This Agreement shall be governed by and construed in
accordance with the laws of the State of Texas, and all obligations of the parties created
hereunder are performable in Tarrant County, Texas. Venue for any action arising under
this Agreement shall lie in the state district courts of Tarrant County, Texas.
(c) Assignment. This Agreement may not be assigned without the express written consent of
the other Party.
(d) Binding Obligation. This Agreement shall become a binding obligation on the signatories
upon execution by all signatories hereto. City warrants and represents that the individual
executing this Agreement on behalf of City has full authority to execute this Agreement
and bind City to the same. Company warrants and represents that the individual executing
this Agreement on Company's behalf has full authority to execute this Agreement and
bind it to the same.
(e) Caption Headings. Caption headings in this Agreement are for convenience purposes
only and are not to be used to interpret or define the provisions of the Agreement.
(f) Counterparts. This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original and all of which shall constitute one and the same
document.
(g) Entire Agreement. This Agreement constitutes the entire understanding and agreement of
the Parties as to the matters set forth in this Agreement. No other understanding, oral or
otherwise, in direct conflict with this Agreement shall be deemed to exist or to bind any
of the Parties hereto. All prior written or oral offers, counteroffers, memoranda of
understanding, proposals and the like are superseded by this Agreement. No alteration of
or amendment to this Agreement shall be effective unless given in writing and signed by
the Party or Parties sought to be charged or bound by the alteration or amendment.
Neither Party is relying on any statement, representation, nor warranty of the other Party
not expressly set out in this Agreement. Each of the undersigned authorized
representatives of the Parties warrants and represents and does hereby state and represent
that no promise or agreement which is not herein expressed has been made to him or her
in executing this Agreement, and that none of them are relying upon any statement or
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representation of any agent of the Parties. Each Party is relying on its own judgment and
each Party has been represented by independent counsel its choosing. This Agreement
shall not be construed against the drafter hereof, but shall be construed as if all Parties
drafted the same.
(h) Force Majeure. It is expressly understood and agreed by the Parties to this Agreement
that if the performance of any obligations hereunder is delayed by reason of war, civil
commotion, acts of God, inclement weather, fire or other casualty, or court injunction, the
Party so obligated or permitted shall be excused from doing or performing the same
during such period of delay, so that the time period applicable to such obligation or
requirement shall be extended for a period of time equal to the period such Party was
delayed.
(i) Further Acts and Releases. City and Company each agrees to take such additional acts
and execute such other documents as may be reasonable and necessary in the
performance of their obligations hereunder.
(j) Governmental Powers; Waiver of Immunity. By execution of this Agreement, the City
does not waive or surrender any of its governmental powers, immunities or rights.
(k) No Third Party Beneficiaries. The performance of the respective obligations of City and
Company under this Agreement are not intended to benefit any party other than City or
Company, except as expressly provided otherwise herein. No person or entity not a
signatory to this Agreement shall have any rights or causes of action against any Party to
this Agreement as a result of that Party's performance or non - performance under this
Agreement, except as expressly provided otherwise herein.
(1) Notices. Any notice or other communication required or permitted by this Agreement
(hereinafter referred to as the "Notice ") is effective when in writing and (i) personally
delivered either by facsimile (with electronic information and a mailed copy to follow)
or by hand or (ii) three (3) days after notice is deposited with the U.S. Postal Service,
postage prepaid, certified with return receipt requested, and addressed as follows:
if to Company: Carroll /1709, Ltd.
3102 Maple Ave., Suite 500
Dallas, TX, 75201
Attention: David C. Palmer
if to City: City of Southlake, Texas
1400 Main Street, Suite 460
Southlake, Texas 76092
Attention: Mayor
With a copy to: Taylor, Olson, Adkins, Sralla & Elam, LLP
6000 Western Place, Suite 200
I -30 at Bryant -Irvin Road
Fort Worth, Texas 76107
Attention: Drew Larkin
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(m) Right of Offset. The City may at its option, offset any amounts due and payable under
this Agreement against any debt (including taxes) lawfully due and owing to the City
from the Company, regardless of whether the amount due arises pursuant to the terms
of this Agreement or otherwise, and regardless of whether or not the debt has been
reduced to judgment by a court.
(n) Relationship of Parties. The Parties shall not be deemed in a relationship of partners or
joint ventures by virtue of this Agreement, nor shall either Party be an agent,
representative, trustee or fiduciary of the other. Neither Party shall have any authority to
bind the other to any agreement.
(o) Severability. City and Company declare that the provisions of this Agreement are
severable. If it is determined by a court of competent jurisdiction that any term,
condition or provision hereof is void, voidable, or unenforceable for any reason
whatsoever, then such term, condition or provision shall be severed from this Agreement
and the remainder of the Agreement enforced in accordance with its terms.
(p) COMPANY EXPRESSLY AGREES TO FULLY AND COMPLETELY DEFEND,
INDEMNIFY, AND HOLD HARMLESS THE CITY, AND ITS OFFICERS, AND
EMPLOYEES, AGAINST ANY AND ALL CLAIMS, LAWSUITS, LIABILITIES,
JUDGMENTS, COSTS, AND EXPENSES FOR PERSONAL INJURY
(INCLUDING DEATH), PROPERTY DAMAGE OR OTHER HARM, DAMAGES
OR LIABILITY FOR WHICH RECOVERY OF DAMAGES IS SOUGHT,
SUFFERED BY ANY PERSON OR PERSONS, THAT MAY ARISE OUT OF OR
BE OCCASIONED BY ANY NEGLIGENT, GROSSLY NEGLIGENT,
WRONGFUL, OR STRICTLY LIABLE ACT OR OMISSION OF COMPANY OR
ITS AGENTS, EMPLOYEES, OR CONTRACTORS, ARISING OUT OF THE
PERFORMANCE OF THIS AGREEMENT. COMPANY'S OBLIGATIONS
UNDER THIS SECTION WILL SURVIVE THE TERM OF THIS AGREEMENT.
IN WITNESS WHEREOF, the City and Carroll /1709, Ltd., have executed this Agreement as of
the 17 day of February, 2015.
THE CITY OF SOUTHLAKE
By:
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uTHlq� John Terrell, Mayor
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Lori Payne, TR °' °••• °•••'
CITY SECRETARY
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APPROVED AS TO FORM:
CITY ATTORN
CARROLL /1709, LTD., A TEXAS LIMITED
PARTNERSHIP
By: Carroll /1709 One, L.C. a Texas Limited
Liability Co pa y
By: .t
Dav . Palmer
Its: Vice President
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