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RE 2011-1213.2RESOLUTION NO A90 / / — /. 3.2 A RESOLUTION OF THE CITY OF COPPELL, TEXAS, APPROVING THE TERMS AND CONDITIONS OF A TAX ABATEMENT AGREEMENT BY AND BETWEEN THE CITY OF COPPELL, TEXAS, AND SCENTSY, INC.; 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 Scentsy, Inc., 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 finds 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 Council finds 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. 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 1 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 this the 13 day of �o �,L� r , 2011. ATTEST: Z RISTEL PETTMOS, CITY SEC TARY AS TO FORM: AI ORNEY - 21 -11:TM 52536) 2 EXHIBIT "A" (copy of Tax Abatement Agreement to be attached) STATE OF TEXAS § § TAX ABATEMENT AGREEMENT COUNTY OF DALLAS § This Tax Abatement Agreement (the "Agreement ") is entered into by and between the City of Coppell, Texas (the "City "), and Scentsy, Inc., an Idaho corporation (the "Lessee "), acting by and through their authorized representatives. WITNESSETH: WHEREAS, the City Council of the City of Coppell, Texas (the "City "), passed an Ordinance (the "Ordinance ") establishing Tax Abatement Reinvestment Zone No. 69 (the "Zone ") for the real property described in Exhibit "A" (the "Land "), 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 corporate 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, Lessee has or intends to lease approximately 145,962square feet of warehouse and distribution space for home goods at 500 Freeport Parkway, Coppell, Texas (hereinafter defined as the "Leased Premises "), for a period of at least five (5) years (hereinafter defined as the "Lease "), and intends to locate and maintain Tangible Personal Property (hereinafter defined) at the Leased Premises; and WHEREAS, the development efforts of the Lessee described herein will create permanent new jobs in the City; and WHEREAS, the City Council finds that the contemplated use of the Improvements, 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 Page 1 Tax Abatement Agreement City of Coppell and Scentsy, Inc. (TM 52535) WHEREAS, the City Council finds that the Improvements (hereinafter defined) sought are feasible and practicable and would be of benefit to the Land to be included in the Zone and to the City after expiration of this Agreement; and 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 Property is located; and WHEREAS, the City desires to enter into an agreement with the Lessee 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 the City 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: "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. "City" shall mean the City of Coppell, Texas. "Effective Date" shall mean the last date of execution of this Agreement. "First Year of Abatement" shall mean January 1, of the calendar immediately following the date a certificate of occupancy is issued to the Lessee for the occupancy of the Leased Premises. "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. Page 2 Tax Abatement Agreement City of Coppell and Scentsy, Inc. (TM 52535) "Freeport Goods" shall have the same meaning as assigned by Section 11.251 of the Tax Code and Article VIII, Section 1 j of the Texas Constitution and located on the Property. Freeport Goods does not include "Goods in Transit" as defined by Tax Code, Section 11.253. "Goods in Transit" shall have the same meaning assigned by Tax Code, Section 11.253. "Improvements" shall mean the existing building on the Land located at 500 Freeport Parkway, Coppell, Texas. "Inventory" shall mean tangible personal property consisting of inventory located at the Leased Premises owned or leased by Lessee but excluding Freeport Goods, Goods -in- Transit. "Land" means the real property described in Exhibit "A ". "Lease" shall mean the lease of the Leased Premises by Lessee for a period of not less than five (5) years commencing on the Lease Inception Date. "Lease Inception Date" shall mean the date the term of the Lease commences but not later than December 31, 2011. "Leased Premises" shall mean 150,000 square feet of office and warehouse /distribution space in the Improvements. "Lessee" shall mean Scentsy, Inc., an Idaho corporation. "Premises" shall mean collectively, the Land and Improvements, but excluding the Tangible Personal Property. "Tangible Personal Property" shall mean tangible personal property, equipment, furniture and fixtures owned or leased by Lessee that is added to the Leased Premises subsequent to the execution of this Agreement, but excluding Freeport Goods and Goods in Transit. "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 The Lessee has or intends to enter into the Lease. The Lessee intends to locate and maintain Tangible Personal Property at the Leased Premises. 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. Page 3 Tax Abatement Agreement City of Coppell and Scentsy, Inc. (TM 52535) 2.4 The Premises and Tangible Personal Property 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. 2.5 Lessee 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 this Agreement. 2.6 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 III 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 Taxable Value of the Inventory is at least $2.5 Million Dollars as of First Year of Abatement and as of January 1 of each calendar year thereafter during the term of this Agreement, the City hereby grants Lessee an abatement of seventy five percent (75 %) of the Taxable Value of the Tangible Personal Property for a period of five (5) consecutive years beginning with the First Year of Tax Abatement. The actual percentage of Taxable Value of the Tangible Personal Property subject to abatement for each year this Agreement is in effect will apply only to the Tangible Personal Property that is added to the Improvements. 3.3 The period of tax abatement herein authorized shall be for a period of five (5) consecutive years beginning with the First Year of Tax Abatement. 3.4 During the period of tax abatement herein authorized, Lessee 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 Lessee agrees to locate and maintain Inventory not otherwise exempt from ad valorem taxation at the Leased Premises with a Taxable Value of at least $2.5 Million Dollars ($2,500,000.00) as of the First Year of Abatement and as of January 1 of each calendar year thereafter during the term of this Agreement. 3.6 The term of this Agreement shall begin on the Effective Date and continue until March 1 of the calendar year following the sixth (6th) anniversary date of the First Year of Abatement, unless sooner terminated as provided herein. Page 4 Tax Abatement Agreement City of Coppell and Scentsy, Inc. (TM 52535) Article IV Improvements 4.1 Nothing in this Agreement obligates the Lessee to enter into the Lease, occupy the Leased Premises or locate Tangible Personal Property including the Inventory at the Leased Premises, but said action is a condition precedent to tax abatement pursuant to this Agreement. 4.2 As a condition precedent to the initiation of the Lessee's tax abatement pursuant to this Agreement, Lessee agrees to enter into the Lease on or before December 31, 2011. Lessee agrees and covenants to continuously lease and occupy the Leased Premises for a period of at least five (5) years commencing on the Lease Inception Date. 4.3 Lessee agrees to maintain the Leased Premises during the term of this Agreement in accordance with all applicable state and local laws, codes, and regulations. 4.4 The City, its agents and employees shall have the right of access to the Leased Premises during Lessee's occupancy of the Leased Premises to inspect the Leased Premises at reasonable times and with reasonable notice to Lessee, and in accordance with Lessee's visitor access and security policies, in order to insure that the use of the Leased Premises 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 Lessee: (i) fails to occupy the Leased Premises 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 Lessee retains its right to timely and properly protest such taxes or assessment); (iii) suffers an event of "Bankruptcy or Insolvency "; or (iv) breaches any of the terms and conditions of this Agreement which is not otherwise cured within the applicable cure period, then Lessee 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 Lessee shall, within thirty (30) days after termination, pay to the City all taxes which otherwise would have been paid by the Lessee to the City without benefit of a tax abatement for the Tangible Personal Property, 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 Lessee, its successors and assigns and shall constitute a tax lien against the Tangible Personal Property, and shall become due, owing and shall be paid to the City within thirty (30) days after termination. 5.2 Upon breach by Lessee of any obligations under this Agreement, the City shall notify the Lessee 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 Page 5 Tax Abatement Agreement City of Coppell and Scentsy, Inc. (TM 52535) the Lessee 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 Lessee 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 Lessee. 5.4 Upon termination of this Agreement by City for uncured default by Lessee, all tax abated as a result of this Agreement, shall become a debt to the City as liquidated damages, as set forth in Section 5.1 above, and shall become due and payable not later than thirty (30) days after a notice of termination is provided. 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 Tangible Personal Property, without tax abatement for the years in which tax abatement hereunder was received by the Lessee, 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 thirty (30) day payment period. Article VI Annual Application for Tax Exemption It shall be the responsibility of the Lessee pursuant to the Tax Code, to file an annual exemption application form with the Chief Appraiser of the 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 Lessee shall annually render the value of the Tangible Personal Property to the Appraisal District and provide a copy of the same to the City upon written request. Article VIII Miscellaneous 8.1 Notice Any notice required or permitted to be delivered hereunder shall be deemed received three (3) days thereafter sent by United States Mail, postage prepaid, certified mail, return receipt requested, addressed to the party at the address set forth below or on the day actually received as sent by courier or otherwise hand delivered: Page 6 Tax Abatement Agreement City of Coppell and Scentsy, Inc. (TM 52535) If intended for Lessee, to: Attn: Tim Larsen, CPA Scentsy, Inc. 3698 E. Lanark Meridian, Idaho 83642 Telephone: 208.895.1225 If intended for City, to: Attn: City Manager City of Coppell, Texas P. O. Box 478 Coppell, Texas 75019 Telephone: 972.3 04.3 677 Facsimile: 972.304.3673 With a copy to: Peter G. Smith Nichols, Jackson, Dillard, Hager & Smith, L.L.P. 1800 Lincoln Plaza 500 N. Akard Dallas, Texas 75201 Telephone: 214.965.9900 Facsimile: 214.965.0010 Email: psmith @njdhs.com 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 governed by the laws of the State of Texas without regard to any conflict of law rules. Exclusive venue for any action under this Agreement shall be the State District Court of Dallas County, Texas. The parties agree to submit to the personal and subject matter jurisdiction of said court. 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. Page 7 Tax Abatement Agreement City of Coppell and Scentsy, Inc. (TM 52535) 8.6 Entire Agreeme nt . 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 Recitals The determinations recited and declared in the preambles to this Agreement are hereby incorporated herein as part of this Agreement. 8.8 Exhibits All exhibits to this Agreement are incorporated herein by reference for all purposes wherever reference is made to the same. 8.9 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. 8.10 Conditions Precedent This Agreement is conditioned on and subject to the following: (i) the Lessee entering into the Lease on or before December 31, 2011; and (ii) Lessee providing a fully executed copy of the Lease to the City. 8.11 Employment of Undocumented Workers During the term of this Agreement, the Lessee agrees not to knowingly employ any undocumented workers and if convicted, by a final non - appealable conviction, of a violation under 8 U.S.C. Section 1324a (f), the Lessee shall repay the taxes abated herein as of the date of such final non - appealable conviction within 120 days after the date the Lessee is notified by the City of such final non - appealable conviction, plus interest at the rate of 6% compounded annually from the date of such final non - appealable conviction until paid. 8.12 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 to the City from the Lessee, regardless of whether the amount due arises pursuant to the terms of this Agreement or otherwise and regardless of whether or not the debt due the City has been reduced to judgment by a court. (Signature Page to Follow) Page 8 Tax Abatement Agreement City of Coppell and Scentsy, Inc. (TM 52535) EXECUTED in duplicate originals the day of ��9 %�e� r, 2011. Agi EXECUTED in duplicate originals the CITY OF COP , TEXAS By: Douglas N. tover, Mayor Attest: By: Christel Pettinos,--Cify Secretary day of SCI FOR Ia Page 9 Tax Abatement Agreement City of Coppell and Scentsy, Inc. (TM 52535) EXHIBIT "A" Legal Description of the Land Block A, Lot 3R of the Duke- Freeport Addition (49.566 acres). Page 1 Exhibit "A" to Tax Abatement Agreement City of Coppell and Scentsy, Inc. (TM 52535)