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RE 2006-1212.2 .\. ,~ \:> \0 ~ 11\\11\1\\11\\111\\1111\\11\\111\\1\111\\1 m\1 1\11\ \\1\1 \111 \\\\ RESOLUTI(20070018865~ 15 PGS RESOLUTION NO. Z~- /2/2. ~ A RESOLUTION OF THE CITY OF COPPELL, TEXAS, APPROVING THE TERMS AND CONDffiONS OF A TAX ABATEMENT AGREEMENT BY AND BETWEEN THE CITY OF COPPELL, TEXAS AND CABOT INDUSTRIAL VALUE FUND; AUTHORIZING ITS EXECUTION BY THE MAYOR; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Council has been presented a proposed Tax Abatement Agreement by and between the City of Coppell, Texas and Cabot Industrial Value Fund, a copy of which is attached hereto and incorporated herein by reference; and WHEREAS, upon full review and consideration of the Agreement, and all matters related thereto, the City Council is of the opinion and fmds that the terms and conditions thereof should be approved, and that the Mayor should be authorized to execute the Agreement on behalf of the City of Coppell, Texas; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF COPPELL, TEXAS, THAT: SECTION 1. The Agreement attached hereto having been reviewed by the City Council of the City of Coppell, Texas, and found to be acceptable and in the best interest of the City and its citizens, be, and the same is hereby, in all things approved, and the Mayor is hereby authorized to execute the Agreement on behalf of the City of Coppell, Texas. SECTION 2. The City Council fmds that the improvements proposed to be built upon the Premises described in the Agreement will enhance the economic vitality of the community through a combination of new capital investment, increased sales tax revenues, and the creation of additional job opportunities. SECTION 3. The tax abatement to be granted by the Agreement will not include inventory, and supplies. SECTION 4. The improvements proposed for the Premises will accomplish the tax abatement guidelines of the City of Coppell, Texas. 1 67072 SECTION 5. The City Manager delivered to the presiding officer of the governing body of each taxing unit in which the property subject to the Agreement is located, a written notice that the City of Coppell, Texas, intends to enter into the Agreement. The notice given by the City Manager included a copy of the Agreement approved by this Resolution. SECTION 6. This Resolution and the Tax Abatement Agreement are hereby approved by the affirmative vote of the majority of the members of the City Council of the City of Coppell, Texas, at a regularly scheduled meeting of the City Council. SECTION 7. This Resolution shall become effective immediately from and after its passage. DULY RESOLVED AND ADOPTED by the City Council of the City of Coppell, Texas, on thiSthe/~daYOf~ ~ aoA.l2006. ATTEST: ~~ Lffi Y B CITY SECRETARY 2 67072 COUNTY OF DALLAS ~ ~ ~ TAX ABATEMENT AGREEMENT STATE OF TEXAS This Tax Abatement Agreement (the "Agreement") is entered into by and between the City of Coppell, Texas (the "City"), and Cabot II - TXlLOl, LP ("Owner"), acting by and through their authorized representatives. WIT N E SSE T H: WHEREAS, the City Council of the City of Coppell, Texas, (the "City"), passed an Ordinance (the "Ordinance") establishing Tax Abatement Reinvestment Zone No. 53 (the "Zone"), for commercial/industrial tax abatement, as authorized by the Property Redevelopment and Tax Abatement Act, Chapter 312 of the Texas Tax Code, as amended (the "Tax Code"); and WHEREAS, the City has adopted guidelines for tax abatement (the "Tax Abatement Guidelines"); and WHEREAS, the Tax Abatement Guidelines contain appropriate guidelines and criteria governing tax abatement agreements to be entered into by the City as contemplated by the Tax Code; and WHEREAS, the City has adopted a resolution stating that it elects to be eligible to participate in tax abatement; and WHEREAS, in order to maintain and enhance the commercial and industrial economic and employment base of the Coppell area, it is in the best interests of the taxpayers for the City to enter into this Agreement in accordance with said Ordinance, the Tax Abatement Guidelines and the Tax Code; and WHEREAS, Owner owns the real property described in Exhibit "A" ("Land") and intends to construct three (3) flex/light industrial buildings containing approximately 714,010 square feet of space in the aggregate (collectively the "Improvements") on the Land; and WHEREAS, Owner's development efforts described herein will create permanent new jobs in the City; and WHEREAS, the City Council fmds that the contemplated use of the Premises (hereinafter defmed), the contemplated Improvements thereto in the amount set forth in this Agreement, and the other terms hereof are consistent with encouraging development of the Zone in accordance with the purposes for its creation and/or in compliance with the Tax Abatement Guidelines, the Ordinance adopted by the City, the Tax Code and all other applicable laws; and WHEREAS, the City Council fmds that the Improvements sought are feasible and practicable and would be of benefit to the Premises to be included in the Zone and to the City after expiration of this Agreement; and Cabot Industrial Value Fund Tax Abatement Agreement -Page 1 67030 WHEREAS, a copy of this Agreement has been furnished, in the manner prescribed by the Tax Code, to the presiding officers of the governing bodies of each of the taxing units in which the Premises is located; and WHEREAS, the City desires to enter into an agreement with the Owner for the abatement of taxes pursuant to Chapter 312 of the Tax Code as amended; NOW, THEREFORE, in consideration of the mutual benefits and promises contained herein and for good and other valuable consideration, the adequacy and receipt of which is hereby acknowledged, including the expansion of primary employment, the attraction of major investment in the Zone, which contributes to the economic development of Coppell and the enhancement of the tax base in the City, the parties agree as follows: Article I Defmitions Wherever used in this Agreement, the following terms shall have the meanings ascribed to them: "Base Year Taxable Value" shall mean the Taxable Value for the Land for the year in which the Tax Abatement Agreement is executed (2006). "Building 4" shall mean a flex/light industrial building containing approximately 549,848 square feet of space to be constructed on the Land. "Building 5" shall mean a flex/light industrial office building containing approximately 101,581 square feet of space to be constructed on the Land. "Building 6" shall mean a flex/light industrial office building containing approximately 62,581 square feet of space to be constructed on the Land. "Commencement of Construction" shall mean that: (i) the plans have been prepared and all approvals thereof required by applicable governmental authorities have been obtained for construction of the last Building comprising the Improvements; (ii) all necessary permits for the construction of the last Building comprising the Improvements on the Land pursuant to the respective plans therefore having been issued by all applicable governmental authorities; and (iii) grading of the Land or the construction of the vertical elements of the last Building comprising the Improvements has commenced. "Completion of Construction" shall mean: (i) substantial completion of the last Building comprising the Improvements; and (ii) a final certificate of occupancy has been issued for last of the buildings comprising the Improvements. "Effective Date" shall mean the last date of execution of this Agreement. Cabot Industrial Value Fund Tax Abatement Agreement -Page 2 67030 "Event of Bankruptcy or Insolvency" shall mean the dissolution or termination of a party's existence as a going business, insolvency, appointment of receiver for any part of a party's property and such appointment is not terminated within ninety (90) days after such appointment is initially made, any general assignment for the benefit of creditors, or the commencement of any proceeding under any bankruptcy or insolvency laws by or against such party, and such proceeding is not dismissed within ninety (90) days after the filing thereof. "First Year of Abatement" shall mean January 1 of the calendar year immediately following the date of issuance of the first final certificate of occupancy for the last of the buildings comprising the Improvements. "Force Majeure" shall mean any contingency or cause beyond the reasonable control of a party including, without limitation, acts of God or the public enemy, war, riot, civil commotion, insurrection, adverse weather, government or de facto governmental action (unless caused by acts or omissions of such party), fires, explosions or floods, strikes, slowdowns or work stoppages. "Improvements" shall collectively mean the Buildings 4,5 and 6 containing approximately 714,010 square feet of space in the aggregate to be constructed on the Land located at the southeast corner of North Pointe Drive and Sandy Lake Road in Coppell, Texas (and other ancillary facilities such as reasonably required parking and landscaping more fully described in the submittals filed by Owner with the City, from time to time, in order to obtain a building permit(s). "Land" means the real property described in Exhibit A. "Premises" shall collectively mean the Land and the Improvements following construction thereof. "Taxable Value" means the appraised value as certified by the Appraisal District as of January 1 of a given year. Article II General Provisions 2.1 Owner is the owner of, the Land, which Land is located within the city limits of the City and within the Zone. Owner intends to construct the Improvements on the Land. 2.2 The Premises are not in an improvement project financed by tax increment bonds. 2.3 This Agreement is entered into subject to the rights of the holders of outstanding bonds of the City. 2.4 The Premises are not owned or leased by any member of the Coppell City Council or any member of the Coppell Planning and Zoning Commission, or any member of the governing body of any taxing units joining in or adopting this Agreement. Cabot Industrial Value Fund Tax Abatement Agreement -Page 3 67030 2.5 The Owner agrees to provide to the tenants of the Premises, the benefit of the tax abatement of the Improvements granted herein. Owner shall, upon written request, provide the City, with satisfactory evidence that the benefits of this Tax Abatement Agreement have been provided to any such tenants. 2.6 Owner shall before May 1, of each calendar year that the Agreement is in effect, certify in writing to the City that it is in compliance with each term of the Agreement. 2.7 The Land and the Improvements constructed thereon at all times shall be used in the manner: (i) that is consistent with the City's Comprehensive Zoning Ordinance, as amended, and (ii) that, during the period taxes are abated hereunder, is consistent with the general purposes of encouraging development or redevelopment within the Zone. Article ill Tax Abatement Authorized 3.1 This Agreement is authorized by the Tax Code and in accordance with the City Tax Abatement Guidelines, and approved by resolution of the City Council. 3.2 Subject to the terms and conditions of this Agreement, and provided the combined Taxable Value for the Improvements, excluding the Land, is at least Twenty Million Dollars ($20,000,000) as of January 1 of the First Year of Abatement and as of January 1 of each year thereafter that this Agreement is in effect, the City hereby grants Owner an abatement of seventy- five percent (75%) of the Taxable Value of the Improvements for a period of five (5) consecutive years. The actual percentage of Taxable Value of the Improvements subject to abatement for each year this Agreement is in effect will apply only to the portion of the Taxable Value of the Improvements that exceeds the Base Year Taxable Value. 3.3 The period of tax abatement herein authorized shall be for a period of five (5) consecutive years. 3.4 During the period of tax abatement herein authorized, Owner shall be subject to all taxation not abated, including but not limited to, sales tax and ad valorem taxation on land, inventory and supplies. 3.5 The term of the Agreement shall begin on the Effective Date and continuing until the 6th Anniversary Date of the First Year of Abatement. Article IV Improvements 4.1 Owner owns, the Land and intends to construct or caused to be constructed thereon the Improvements. Nothing in this Agreement shall obligate Owner to construct the Improvements on the Land but said action is a condition precedent to tax abatement pursuant to this Agreement. Cabot Industrial Value Fund Tax Abatement Agreement -Page 4 67030 4.2 As a condition precedent to the initiation of the Owner's tax abatement pursuant to this Agreement, Owner agrees, subject to events of Force Majeure, to cause Commencement of Construction of the Improvements to occur within two (2) months after the Effective Date, and to cause Completion of Construction of the Improvements to occur within twelve (12) calendar months thereafter, as good and valuable consideration for this Agreement, and that all construction of the Improvements will be in accordance with all applicable state and local laws, codes, and regulations, (or valid waiver thereof). 4.3 Construction plans for the Improvements constructed on the Land will be fIled with the City, which shall be deemed to be incorporated by reference herein and made a part hereof for all purposes. 4.4 Owner agrees to maintain the Improvements during the term of this Agreement in accordance with all applicable state and local laws, codes, and regulations. Owner agrees that the Improvements shall be used only as flex/industrial buildings for a period of five (5) years commencing on the date the first final certificate of occupancy is issued for the last of the two buildings comprising the Improvements. 4.5 The City, its agents and employees shall have the right of access to the Premises during construction to inspect the Improvements at reasonable times and with reasonable notice to Owner, and in accordance with Owner's visitor access and security policies, in order to insure that the construction of the Improvements are in accordance with this Agreement and all applicable state and local laws and regulations (or valid waiver thereof). Article V Default: Recapture of Tax Revenue 5.1 In the event Owner: (i) fails to cause Completion of Construction of the Improvements in accordance with this Agreement or in accordance with applicable State or local laws, codes or regulations; (ii) has delinquent ad valorem or sales taxes owed to the City (provided Owner retains its right to timely and properly protest such taxes or assessment); (iii) has an "Event of Bankruptcy or Insolvency"; or (iv) breaches any of the terms and conditions of this Agreement, then Owner after the expiration of the notice and cure periods described below, shall be in default of this Agreement. As liquidated damages in the event of such default, the Owner shall, within thirty (30) days after demand, pay to the City all taxes which otherwise would have been paid by the Owner to the City without benefit of a tax abatement for the Improvements, with interest at the statutory rate for delinquent taxes as determined by Section 33.01 of the Tax Code as amended but without penalty. The parties acknowledge that actual damages in the event of default termination would be speculative and difficult to determine. The parties further agree that any abated tax, including interest as a result of this Agreement, shall be recoverable against the Owner, its successors and assigns and shall constitute a tax lien against the Premises, and shall become due, owing and shall be paid to the City within thirty (30) days after termination. 5.2 Upon breach by Owner of any obligations under this Agreement, the City shall notify the Owner in writing, who shall have thirty (30) days from receipt of the notice in which to cure any such default. If the default cannot reasonably be cured within a thirty (30) day period, and Cabot Industrial Value Fund Tax Abatement Agreement -Page 5 67030 the Owner has diligently pursued such remedies as shall be reasonably necessary to cure such default, then the City may extend the period in which the default must be cured. 5.3 If the Owner fails to cure the default within the time provided as specified above or, as such time period may be extended, then the City at its sole option shall have the right to terminate this Agreement, by written notice to the Owner. 5.4 Upon termination of this Agreement by City, all tax abated as a result of this Agreement, shall become a debt to the City as liquidated damages, and shall become due and payable not later than sixty (60) days after a notice of termination is made. The City shall have all remedies for the collection of the abated tax provided generally in the Tax Code for the collection of delinquent property tax. The City at its sole discretion has the option to provide a repayment schedule. The computation of the abated tax for the purposes of the Agreement shall be based upon the full Taxable Value of the Improvements, without tax abatement for the years in which tax abatement hereunder was received by the Owner, as determined by the Appraisal District, multiplied by the tax rate of the years in question, as calculated by the City Tax Assessor-Collector. The liquidated damages shall incur penalties as provided for delinquent taxes and shall commence to accrue after expiration of the sixty (60) day payment period. Article VI Annual Application for Tax Exemption It shall be the responsibility of the Owner pursuant to the Tax Code, to fIle an annual exemption application form with the Chief Appraiser for each Appraisal District in which the eligible taxable property has situs. A copy of the exemption application shall be submitted to the City upon request. Article VII Annual Rendition The Owner shall annually render the value of the Improvements to the Appraisal District and provide a copy of the same to the City upon written request. Article VIII Miscellaneous 8.1 Notice. All notices required by this Agreement shall be addressed to the following, or other such other party or address as either party designates in writing, by certified mail, postage prepaid, or by hand or overnight delivery: If intended for Owner, to: Cabot 11- TXlLOl, LP C/o Cabot Properties, Inc. One Beacon St. #1700 Boston, MA 02108 Cabot Industrial Value Fund Tax Abatement Agreement -Page 6 67030 With copy to: Attn: Henry J. Knapek Transwestem Commercial Services 5001 Spring Valley Drive Suite 600W Dallas, Texas 75244 If intended for City, to: Attn: City Manager City of Coppell, Texas P. O. Box 478 Coppell, Texas 75019 Peter G. Smith Nichols, Jackson, Dillard, Hager & Smith, L.L.P. 1800 Lincoln Plaza 500 N. Akard Dallas, Texas 75201 8.2 Authorization. This Agreement was authorized by resolution of the City Council approved by its Council meeting authorizing the Mayor to execute this Agreement on behalf of the City. 8.3 Severability. In the event any section, subsection, paragraph, sentence, phrase or word herein is held invalid, illegal or unconstitutional, the balance of this Agreement shall stand, shall be enforceable and shall be read as if the parties intended at all times to delete said invalid section, subsection, paragraph, sentence, phrase or word. 8.4 Governing Law. This Agreement shall be construed under the laws of the State of Texas. Venue for any action under this Agreement shall be the State District Court of Dallas County, Texas. This Agreement is performable in Dallas County, Texas. 8.5 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and constitute one and the same instrument. 8.6 Entire Agreement. This Agreement embodies the complete agreement of the parties hereto, superseding all oral or written previous and contemporary agreements between the parties and relating to the matters in this Agreement, and except as otherwise provided herein cannot be modified without written agreement of the parties to be attached to and made a part of this Agreement. 8.7 Recordation. A certified copy of this Agreement shall be recorded by the City, at no cost to Owner, in the Deed Records of Dallas County, Texas. Cabot Industrial Value Fund Tax Abatement Agreement -Page 7 67030 8.8 Recitals. The determinations recited and declared in the preambles to this Agreement are hereby incorporated herein as part of this Agreement. 8.9 Exhibits. All exhibits to this Agreement are incorporated herein by reference for all purposes wherever reference is made to the same. 8.10 Chamber of Commerce. During the term of this Agreement, Owner agrees to maintain continuous corporate membership in the Coppell Chamber of Commerce. 8.11 Assignment. This Agreement shall be binding on and inure to the benefit of the parties to it and their respective heirs, executors, administrators, legal representatives, successors, and permitted assigns. This Agreement may not be assigned without the prior written consent of the City Manager. (Signature page to follow) Cabot Industrial Value Fund Tax Abatement Agreement -Page 8 67030 EXECUTED in duplicate originals the /2~ay of ,2006. By: Attest: B~~a~ 'bby B , ity Secretary By: City Attorney (12- EXECUTED in duplicate originals the ~ day of [Xf;{Mbb/l.-;2006. Cabot II-TXlLOl, LP By: Name: Title: Cabot Industrial Value Fund Tax Abatement Agreement -Page 9 67030 City's Acknowledgment State of Texas ~ ~ County of Dallas ~ This instrument was acknowledged Before Me on the ~ay of ~ ~.../ 2006, By Douglas N. Stover, Mayor of the City of Coppell, Texas, a Texas municipality, on behalf of said municipality. ~-//-oB My Commission Expires: Owner's Acknowledgment State of ~s Mk County ocQu(0) II-- ~ ~ ~ This instrument was acknowledged before me on the ~ S.Jc~1 P. V~ r't ~. , the Vi U. '(~-l a da...I,.Oa/t L.ru. Pal <l1Q, on behalf of said Li./.1J , day of ^.tCh'YlW, 2006 Cabot 11- TXL01,LP, aJr'.ht/ 21,2/)// ~iI&dJ Notary Public, State of'JJl&s Mk ~ ANDREA L, l'/;C20CH {f}fl~ Notary Public Commonwealth of Massachusetts My Commission Expires October 27, 2011 My Commission expires: Cabot Industrial Value Fund Tax Abatement Agreement -Page 10 67030 Exhibit "A" Legal Description of Land LEGAL DESCRIPTION FIELD NOTES TRACT 2 BEING a 64.29 acre tract of land in the Jesse Moore Survey, Abstract No. 968, in the City of Coppell, Dallas County, Texas, and being a part of that tract of land described in deed to Ballantyne Jack, L.L.e., now known as AmberPoint at Coppell, L.L.e., a Delaware limited liability company, as recorded in Volume 2001173, Page 3803, deed Records of Dallas County, Texas (D.R.D.C.T.), and being all of Lot 2 of Block A of Amberpoint Business Park at Coppell, an addition to the City of Coppell as recorded in Volume 2002027, Page 00071, D.R.D.e.T., and being more particularly described by metes and bounds as follows: BEGINNING at a Vz-inch iron rod with yellow plastic cap stamped "HALFF ASSOe. INe." (hereafter referred to as "with cap") set for the intersection of the east line of Northpoint Drive (variable width right-of-way, 60 feet wide at this point) with the south right-of-way line of Sandy Lake Road (variable width right-of-way) as dedicated by said plat of Amberpoint Business Park; THENCE South 89 degrees 44 minutes 26 seconds East, along said south right-of-way line, a distance of 1145.07 feet to a Vz-inch iron rod with cap found for corner; THENCE South 00 degrees 15 minutes 34 seconds West, continuing along said south right-of- way line, a distance of 10.00 feet to a Vz-inch iron rod with cap found for corner; THENCE South 89 degrees 44 minutes 26 seconds East, continuing along said right-of-way line, a distance of 265.56 feet to a Yz-inch iron rod with cap found for corner at the intersection of said south right-of-way line with the west right-of-way line of State Road (variable width right-of- way) as dedicated by said plat of Amberpoint Business Park 35 foot wide dedication); THENCE South 00 degrees 13 minutes 41 seconds East, along said west right-of-way line, a distance of 1493.77 feet to a Vz-inch rod with cap found for corner; THENCE South 00 degrees 31 minutes 15 seconds West, continuing along said west right-of- way line, a distance of 378.85 feet to a Vz-inch iron rod with cap found for the intersection of said west right-of-way line of that tract of land described in Special Warranty Deed to the City of Coppell as recorded in Volume 96164, Page 207, D.R.D.e.T.; THENCE North 89 degrees 44 minutes 06 seconds West, departing said west right-of-way line and along said north line, a distance of 2479.88 feet to a Yz-inch iron rod with cap found for corner on the southeasterly line of said Northpoint Drive for the point of curvature of a circular Cabot Industrial Value Fund Tax Abatement Agreement -Page 11 67030 curve to the left having a radius of 447.80 feet, whose chord bears North 61 degrees 32 minutes 06 seconds East a distance of 68.46 feet; THENCE Northeasterly, along said southeasterly right-of-way line and said curve to the left, through a central angle of 08 degrees 46minutes 03 seconds for an arc distance of 68.52 feet to an "X" cut in concrete set for the point of reverse curvature of a circular curve to the right having a radius of 322.76 feet, whose chord bears North 63 degrees 10 minutes 07 seconds East a distance of 67.67 feet; THENCE Northeasterly, continuing along said south right-of-way line and along said curve to the right, through a central angel 12 degrees 02 minutes 05 seconds for an arc distance of 67.79 feet to a Vz inch iron rod found for the point of compound curvature of a circular curve to the right having a radius of 420.00 feet, whose chord bears North 79 degrees 35 minutes 53 seconds East a distance of 151.81 feet; THENCE Northeasterly, continuing along said south right-of-way line and along said curve to the right, through a central angle of 20 degrees 49 minutes 27 seconds for an arc distance of 152.65 feet to a Vz-inch iron rod found for the point of tangency; THENCE South 89 degrees 59 minutes 23 seconds East, continuing along said south right-of- way line, a distance of 315.43 feet to a Vz-inch iron rod with cap found for the point curvature of a circular curve to the left having a radius of 480.00 feet, whose chord bears North 45 degrees 02 minutes 07 seconds East a distance of 678.53 feet; THENCE Northeasterly, continuing along said southeasterly right-of-way line and along said curve to the left, through a central angle of 89 degrees 57 minutes 00 seconds for an arc distance of 753.56 feet to a Vz-inch iron rod with cap found for the point of tangency; THENCE North 00 degrees 03 minutes 37 seconds East, along the east right-of-way line of said Northpoint Drive, a distance of 1307.49 feet to the POINT OF BEGINNING AND CONTAINING 2,800,665 square feet or 64.29 acres of land, more or less. Cabot Industrial Value Fund Tax Abatement Agreement -Page 12 67030 . I<e fvlJ h -fo. 0'~J 0.( Cvppf i I pD fX>X CjY76 Copp-e II, IX 7So{ Cj At-4v,,: f',. 1 &. ./ ~ t.tCV7 FILED AND RECORDED OFFICIAL PUBLIC RECORDS Dallas County TEXAS January 12, 2007 04:24:10 PM FEE: $68.00 20070018865