IrvingCC Packet 2011-11-22

8/3/2019 IrvingCC Packet 2011-11-22

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IRVING CITY COUNCIL

SPECIAL MEETING AGENDA

TUESDAY, NOVEMBER 22, 201110:00 AM

COUNCIL CONFERENCE ROOM -- CIVIC CENTER COMPLEX - 825 West Irving Boulevard, Irving, TX 75060

This meeting can be adjourned and reconvened, if necessary, within 24 hours on the followingday in the First Floor City Council Conference Room.

ANY ITEM ON THIS POSTED AGENDA COULD BE DISCUSSED IN EXECUTIVE SESSION AS LONG AS IT IS WITHIN ONE OF THEPERMITTED CATEGORIES UNDER SECTIONS 551.071 THROUGH 551.076 AND SECTION 551.087 OF THE TEXAS GOVERNMENT CODE.

This facility is wheel chair accessible and handicap-parking spaces are available. Requests for interpretation services of assistivehearing devices must be made 48 hours prior to the meeting. Contact the City Secretarys Office at (972) 721-2493 o(TDD) 1-800-RELAY TX (1-800-735-2989) for assistance.

DISCUSSION TOPIC

1. Resolution - Approving a Chapter 380 Economic Development Program Agreement withHeritage District, LLC, to Provide Funding for the Quarterly Interest Payment to ComericaBank

EXECUTIVE SESSION

CERTIFICATION

I, the undersigned authority, do hereby certify that this Notice of Meeting was posted on the Kiosk at the City Hall of the City of Irving, Texas, aplace convenient and readily accessible to the general public at all times, and said Notice was posted by the following date and time: Friday,November 18, 2011 at 5:00 p.m., and remained so posted at least 72 hours before said meeting convened.

_____________________________________________ _______________Shanae Jennings, Acting City Secretary Date Notice Removed


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AGENDA ITEM SUMMARY

Meeting: 11/22/2011 DOC ID: 4268Recommending Department: Financial Services LSR No: 13182

Resolution -- Approving a Chapter 380 Economic Development Program

Agreement with Heritage District, LLC, to Provide Funding for theQuarterly Interest Payment to Comerica Bank

Administrative Comments

1. This item supports Strategic Goal No. 3: Economic Development.

2. Impact: This agreement will maintain the Comerica Bank credit facility that hasprovided funding for the Heritage Crossing Project.

3. This incentive agreement will provide the funds to Heritage District, LLC, to makethe quarterly interest payment to service the Comerica Bank credit facility. Fundsadvanced by the City will be repaid at the time the Comerica note terminates or

December 1, 2012.

4. Funding in an amount not to exceed $230,000.00 is available in the EconomicDevelopment Fund.

Recommendation

The resolution be approved.

ADDITIONAL COMMENTS:

Contract Required: Yes Review Completed By: Karen Brophy

Previous Action: N/A Council Action: N/A.

CURRENT YEAR FINANCIAL IMPACT:

1020-2906-561501-907064 Budget: $230,000.00 Actual: $230,000.00Budget Adjustment/Transfer Required: No

REVISION INFORMATION:

Prepared: 11/18/2011 09:31 AM by Jennifer PhillipsLast Updated: 11/18/2011 11:10 AM by Belinda Rowlett

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CITY OF IRVING

COUNCIL RESOLUTION NO. (ID # 4268)

BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF IRVING, TEXAS:

SECTION I. THAT the City Council hereby approves the attached Chapter 380 ProgramAgreement for Economic Development Incentives between the City of Irving andHeritage District, LLC, to fund a quarterly interest payment to Comerica Bank in theamount of $230,000.00, and the Mayor is authorized to execute said agreement.

SECTION II. THAT this expenditure shall be charged to Account No. 1020-2906-561501-907064.

SECTION III. THAT this resolution shall take effect from and after its final date of passage, and it isaccordingly so ordered.

This is to certify that current year funds are available for expenditure in the current budget year. Theavailability of any amounts estimated for future budget years are subject to funds being appropriated for

that purpose by the City Council.

__________________________________Max S. Duplant, CPA

Chief Financial Officer

PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF IRVING, TEXAS,

on November 22, 2011.

________________________________BETH VAN DUYNE

MAYOR

ATTEST:

_______________________________Shanae JenningsActing City Secretary

APPROVED AS TO FORM:

_______________________________Charles R. AndersonCity Attorney

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THE STATE OF TEXAS CHAPTER 380 PROGRAMAGREEMENT FOR

ECONOMIC DEVELOPMENT

COUNTY OF DALLAS INCENTIVES

THIS AGREEMENT is executed by and between HERITAGE DISTRICT, LLC,a Texas limited liability company (hereafter referred to as Owner), its address being7008 Salem Ave., Lubbock, Texas 79424-2293, and the CITY OF IRVING, TEXAS, ahome-rule city and municipal corporation of Dallas County, Texas, (hereafter referred toas City).

W I T N E S S E T H:

WHEREAS, City has created the South Irving Heritage District Initiativeeconomic development program for the public purposes of development and

diversification of the economy of the city, to facilitate the acquisition, clean-up and sitepreparation of select real estate in the target area (hereafter referred to as Program); and

WHEREAS, providing a loan of funds to Owner in exchange for Ownerscontinued work in the Program area will promote local economic development and willfacilitate redevelopment of the property advancing the goals of the Program; and

WHEREAS, City has determined that the Program will directly establish a publicpurpose and that all transactions involving the use of public funds and resources in theestablishment and administration of the Program contain controls likely to ensure thatpublic purpose is accomplished; and

WHEREAS, Chapter 380 of the Local Government Code provides statutoryauthority for establishing and administering the Program provided herein; NOWTHEREFORE,

The City and Owner, for and in consideration of the mutual covenants andpromises contained herein, do hereby agree, covenant and contract as set forth below:

1. Term.

This Agreement shall be effective as of the date of execution by all parties. ThisAgreement will terminate on the date City has collected from the Owner the dollaramount of the loan, and interest, pursuant to this Agreement (Loan Amount). If afterDecember 1, 2012 the Loan Amount has not been repaid, the Owner shall repay City theLoan Amount.

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November 22, 2011Chapter 380 Loan Agreement

(2)

2. Owner Requirements.

In consideration of the City entering into this Agreement providing for thepayment of funds constituting a loan, Owner agrees to comply with all terms andconditions of that certain note where Owner is Maker or Borrower and Comerica Bank is

Lender (the Comerica Note).

For the interest payment request, Owner shall deliver to the City a promissorynote in the form of Exhibit A attached to and incorporated herein executed by Owner anddated the date of the Loan. During the term of the promissory note, it shall bear interestat a rate of 3.2 %. The note shall become due and payable in full within 30 days after thefirst occurrence of any of the following:

(1) Termination of the Comerica Note.(2) December 1, 2012.

Owner further agrees to:

(1) Purchase services and materials for the Program from vendors within theCity of Irving, if available in Irving at a competitive price.

(2) Render the real property to the Dallas Central Appraisal District andremain current on all property taxes for the term of this Agreement.

(3) Covenant and certify that Owner does not and will not knowingly employan undocumented worker as that term is defined by Section 2264.01(4) ofthe Texas Government Code. In accordance with Section 2264.052 of theTexas Government Code, if the Owner is convicted of a violation under 8U.S.D. Section 1324a(f), the Owner shall repay to the City the full amountof the Grant made under Section 3 of this Agreement, plus ten percent(10%) per annum from the date the Loan was made. Repayment shall bepaid within one hundred twenty (120) days after the date the Ownerreceives notice of violation from the City.

(4) Should Owner fail to comply with any material term of this Agreement,the Owner shall have thirty (30) days after written notice from City tocome into compliance. If the noncompliance is not cured within thatperiod, the Owner agrees to remit to the City a sum equal to the Loanmade by the City to the Owner pursuant to this Agreement, plus interest atten percent (10%) per annum from the date the loan was made.

3. Loan by City.

In exchange for Owners compliance with all terms and provisions of thisAgreement, City shall provide Owner a loan from lawfully available funds in an amountnot to exceed $230,000. Loan payment shall be made by City to Owner solely forOwners actual payment to Comerica Bank of interest only on the Comerica Note, asevidenced by invoices from the bank.

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(3)

4. Work.

The Owner shall be solely responsible for the performance of the Work of theProgram and shall comply with all applicable subdivision regulations, buildingcodes and other ordinances of the City.

5. Indemnification.

THE OWNER 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 PROPERTY OR

IMPROVEMENTS. THE OWNER AGREES TO INDEMNIFY, DEFEND,

AND HOLD HARMLESS THE CITY, ITS OFFICERS, AGENTS,

EMPLOYEES, AND VOLUNTEERS IN BOTH THEIR PUBLIC AND

PRIVATE CAPACITIES, FROM AND AGAINST CLAIMS, SUITS,

DEMANDS, LOSSES, DAMAGES, CAUSES OF ACTION, ANDLIABILITY 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, OR

DAMAGE TO PROPERTY, ARISING OUT OF OR OCCURRING AS A

CONSEQUENCE OF THE PERFORMANCE OF THIS AGREEMENT,

EXCLUDING ANY ERRORS OR OMISSIONS, OR NEGLIGENT ACT

OR OMISSION OF THE CORPORATION, ITS OFFICERS, AGENTS OR

EMPLOYEES.

6. Access to Information.

The Owner agrees to provide the City access to information related to the Workduring regular business hours upon reasonable notice. The City shall have theright to require the Owner to submit any necessary information, documents,invoices, receipts or other records to verify costs and completion of the Work.

7. General Provisions.

a. Mutual Assistance. The Owner and the City shall do all things necessaryor appropriate to carry out the terms and provisions of this Agreement andto aid and assist each other in carrying out the terms and provisions.

b. Representations and Warranties. The Owner represents and warrants tothe City that it has the requisite authority to enter into this Agreement.The Owner represents and warrants to the City that it will not violate anyfederal, state or local laws in performing the Work, that all proposed Workshall conform to the applicable building codes, zoning ordinances and allother ordinances and regulations.

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(4)

c. Section or Other Headings. Section or other headings contained in thisAgreement are for reference purposes only and shall not affect in any waythe meaning or interpretation of this Agreement.

d. Attorneys Fees. In the event any legal action or process is commenced toenforce or interpret provisions of this Agreement, the prevailing party inany such legal action shall be entitled to recover its necessary andreasonable attorneys' fees and expenses incurred by reason of such action,in accordance with Section 271.159 of the Texas Local Government Code.

e. Amendment. This Agreement may only be amended, altered, or revokedby written instrument signed by the Owner and approved by the Citythrough its City Council.

f. Binding Agreements; Successors and Assigns. This Agreement shall be

binding on and inure to the benefit of the parties, their respectivesuccessors and assigns. The Owner may assign all or part of its rights andobligations hereunder only upon prior written approval of the City, whichapproval shall not be unreasonably withheld or delayed.

g. Notice. Any notice and/or statement required and permitted to bedelivered shall be deemed delivered by depositing same in the UnitedStates mail, certified with return receipt requested, postage prepaid,addressed to the appropriate party at the following addresses, or at suchother addresses provided by the parties in writing:

OWNER: Heritage District, LLCAttn: Delbert G. McDougal, Manager7008 Salem Ave.Lubbock, Texas 79424-2293

CITY: City of IrvingCity Managers Office825 W Irving BlvdIrving, Texas 75060

h. Interpretation. Regardless of the actual drafter of this Agreement, thisAgreement shall, in the event of any dispute over its meaning orapplication, be interpreted fairly and reasonably, and neither more stronglyfor or against any party.

i. Applicable Law. This Agreement is made, and shall be construed andinterpreted under the laws of the State of Texas and venue shall lie inDallas County, Texas.

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(5)

j. Severability. In the event any provision of this Agreement is illegal,invalid, or unenforceable under present or future laws, then, and in thatevent, it is the intention of the parties hereto that the remainder of thisAgreement shall not be affected thereby, and it is also the intention of theparties 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 thisAgreement which is legal, valid and enforceable and is as similar in termsas possible to the provision found to be illegal, invalid or unenforceable.

k. Counterparts. This Agreement may be executed in multiplecounterparts, each of which shall be considered an original, but all ofwhich shall constitute one instrument.

l. Default. If a party should default (the "Defaulting Party") with respect toany of its obligations hereunder and should fail, within thirty (30) daysafter delivery of written notice of such default from another party (the

"Complaining Party") to cure such default, the Complaining Party, byaction or proceeding at law or in equity, may be awarded its damagesand/or specific performance for such default.

m. Force Majeure. If either party hereto shall be delayed or hindered in orprevented from the performance of any act required hereunder by reasonof strikes, lock-outs, inability to procure materials, failure of power,governmental moratorium or other governmental action or inaction(including, failure, refusal or delay in issuing permits, approvals orauthorizations), injunction or court order, terrorist attacks, riots,insurrection, war, fire, earthquake, flood or other natural disaster or otherreason of a like nature not the fault of the party delaying in performingwork or doing acts required under the terms of this Agreement (butexcluding delays due to financial inability), then performance of such actshall be excused for the period of the delay and the period for theperformance of any such act shall be extended for a period equivalent tothe period of such delay.

n. Independent Parties. Nothing herein shall be construed as creating apartnership or joint enterprise between the City and the Owner.Furthermore, the parties hereto acknowledge and agree that the doctrine ofrespondeat superior shall not apply between the City and the Owner, norbetween the City and any officer, director, member, agent, employee,contractor, subcontractor, licensee, or invitee of the Owner.

o. No Rights Conferred on Others. Nothing in this Agreement shall conferany right upon any person other than the City and the Owner and no otherperson is considered a third party beneficiary to this Agreement.

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(6)

p. Approval Not Guaranteed. Nothing contained in this Agreement shallbe construed as obligating the City to approve any application required fordevelopment within the Program that is not in conformity with the City'sadopted development regulations as of the Effective Date, except asexpressly otherwise contemplated herein.

q. Entire Agreement. This Agreement contains the entire agreementbetween the parties with respect to the transaction contemplated herein.

EXECUTED on this _______ day of November, 2011.

CITY OF IRVING, TEXAS

By:BETH VAN DUYNE, MayorATTEST:

__________________________________Shanae Jennings, City Secretary

APPROVED AS TO FORM:CHARLES R ANDERSON, City Attorney

BY:

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(7)

EXECUTED on this _______ day of ___________________________, 2011.

HERITAGE DISTRICT, LLC

A Texas limited liability company

By:Delbert G. McDougal, Manager

THE STATE OF TEXAS

COUNTY OF DALLAS Acknowledgment

BEFORE ME, the undersigned authority, a Notary Public in and for the State ofTexas, on this day personally appeared Delbert G. McDougal, known to me (or provedto me on the oath of ___________________ or through _____________________

(description of identity card or other document)) to be the person whose name issubscribed to the foregoing instrument, and acknowledged to me that he executed samefor and as the act and deed ofHeritage District, LLC and as Manager thereof, and forthe purposes and consideration therein expressed and in the capacity therein stated.

GIVEN UNDER MY HAND AND SEAL OF OFFICE this the _______ day of________________, 2011.

____________________________________Notary Public In and ForThe State of Texas____________________________________

My Commission Expires: Notary's Printed Name

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Exhibit A

Promissory note

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PROMISSORY NOTE

$______________ Irving, Texas November _____, 2011

FOR VALUE RECEIVED, the undersigned, HERITAGE DISTRICT, LLC, a Texas

limited liability company (Maker), hereby unconditionally promises to pay to the order of theCity of Irving, Texas (Payee), at 825 West Irving Boulevard, Irving, Texas 75060, or suchother address given to such Maker by Payee, the principal sum indicated above or so much asmay be advanced or has accrued and is owing from time to time, in lawful money of the UnitesStates of America. This Note relates to the South Irving Heritage District Initiative economicdevelopment program and that certain note where Maker is Borrower and Comerica Bank isLender (the Comerica Note).

(a) The principal amount of this Note, $______________, has been advanced byPayee to or for the benefit of Maker in one advance as of the date hereof. This Note shall bearinterest at the rate of three and two/tenths percent (3.2 %) per annum, compounded annually, but

in no event shall such rate of interest exceed the Maximum Rate (defined below).

(b) The term Maximum Rate, as used herein, shall mean, with respect to the holderhereof, the maximum nonusurious interest rate, if any, that at any time, or from time to time, maybe contracted for, taken, reserved, charged, or received on the indebtedness evidenced herebyunder the laws which are presently in effect of the United States and the State of Texasapplicable to such holder and such indebtedness or, to the extent permitted by law, under suchapplicable laws of the United States and the State of Texas which may hereafter be in effect andwhich allow a higher maximum nonusurious interest rate than applicable laws now allow.

(c) For purposes of calculating any interest accrued hereon, interest shall be

calculated on the basis of a 365 or 366-day year, as appropriate.

(d) The outstanding principal amount of this Note, together with any accrued andunpaid interest thereon, shall be due and payable in full on the first occurrence of any of thefollowing events:

1. Upon the release or termination of the Comerica Note, or2. December 1, 2012 (such date shall be referred to herein as the Maturity Date).

(e) Should the principal of, or any installment of the principal or interest become dueand payable on any day other than a business day, the maturity thereof shall be moved forward to

the immediately preceding business day. Payments made to Payee hereunder shall be applied inthe following order: first, to all outstanding late charges and other fees and expenses payable byMaker to Payee hereunder; second, to all accrued interest and unpaid interest with such paymentsapplied to payment of accrued interest with respect to each Advance in the order such Advancewas made; and last, after all accrued interest has been paid, to principal with payments applied topayment of each Advance in the order such Advance was made.

(f) All payments of principal and interest shall be made to Payee in lawful money ofthe Unites States of America.

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PROMISSORY NOTE PAGE 2

November, 2011

(g) Maker may elect to prepay this Note in whole or in part from time to time withoutpremium or penalty.

(h) Notwithstanding anything contained in this Note to the contrary, Payee shallnever be deemed to have contracted for or be entitled to receive, collect, or apply as interest onthis Note, any amount in excess of the amount permitted and calculated at the Maximum Rate,

and, in the event Payee ever receives, collects, or applies as interest any amount in excess of theamount permitted and calculated at the Maximum Rate, such amount which would be excessiveinterest shall be applied to the reduction of the unpaid principal balance of this Note, and, if theprincipal balance of this Note is paid in full, any remaining excess shall forthwith be paid toMaker. In determining whether or not the interest paid or payable under any specificcontingency exceeds the Maximum Rate, Maker and Payee shall, to the maximum extentpermitted under applicable law: (i) characterize any non-principal payment (other than paymentswhich are expressly designated as interest payments hereunder) as an expense, fee, or premium,rather than as interest; (ii) exclude voluntary prepayments and the effect thereof; and (iii) spreadthe total amount of interest throughout the entire contemplated term of this Note.

(i) Maker, and each surety, endorser, guarantor, or other party ever liable forpayment of any sums of money on this Note, jointly and severally waive diligence, demand forpayment, presentment, protest, notice of interest, and non-payment, or other notice of default,notice of intention to accelerate the maturity of this Note, and notice of acceleration of thematurity of this Note, and agree that their liability under this Note shall not be affected by anyrenewal or extension in the time of payment hereof, or by any indulgences, or by any release orchange in the security for the payment of this Note, and hereby consent to any and all renewals,extensions, indulgences, releases, or changes, regardless of the number of such renewals,extensions, indulgences, releases, or changes.

(j) No waiver by Payee of any of its rights or remedies hereunder or under any other

document evidencing or securing this Note or otherwise shall be considered a waiver of anyother subsequent right or remedy of Payee; no delay or omission in the exercise or enforcementby Payee of any rights or remedies shall ever be construed as a waiver of any right or remedy ofPayee; and no exercise or enforcement of any such rights or remedies shall ever be held toexhaust any right or remedy of Payee.

(k) An Event of Default shall exist hereunder if Maker shall fail or refuse to paywhen due any principal of, or interest upon, this Note, or an event of default occurs under thatcertain Chapter 380 Program Agreement for Economic Development Incentives dated as of evendate herewith between Maker and Payee.

(l) Upon the occurrence of any Event of Default, the holder hereof may, at its option,declare the entire unpaid balance of principal and accrued interest on this Note to be immediatelydue and payable. In addition, upon the occurrence of an Event of Default, this Note shall bearinterest at a rate equal to the lesser of (1) ten percent (10%) per annum, or (2) the MaximumRate.

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PROMISSORY NOTE PAGE 3

November, 2011

(m) This Note is being executed and delivered, and is intended to be performed in

the State of Texas. Except to the extent that the laws of the United States may apply to the

terms hereof, the substantive laws of the State of Texas shall govern the validity,

construction, enforcement, and interpretation of this Note. In the event of a dispute

involving this Note or any other instruments executed in connection herewith, the

undersigned irrevocably agrees that venue for such dispute shall lie in any court of

competent jurisdiction in Dallas County, Texas.

(n) If this Note is placed in the hands of an attorney for collection, or if it is collectedthrough any legal proceedings at law or in equity or in bankruptcy, receivership, or other courtproceedings, Maker promises to pay all costs and expenses of collection including, but notlimited to, courts costs and the reasonable attorneys fees of the holder hereof.

Executed as of the day and year first above written.

HERITAGE DISTRICT, LLC.,

a Texas limited liability company

By:Delbert G. McDougal, Manager

Documents

IrvingCC Packet 2011-11-22