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HomeMy WebLinkAboutRES 1996-019 RESOLUTION NO. 96-19 �� A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF `�'p'~"' GRAPEVINE, TEXAS APPROVING A REIMBURSEMENT AGREEMENT BETWEEN THE CITY OF GRAPEVINE AND GRAPEVINE MILLS, L.L.C.;AUTHORIZING AND DIRECTING THE MAYOR TO EXECUTE SAME AND PROVIDING AN EFFECTIVE DATE BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF GRAPEVINE, TEXAS: Section 1 . That in conjunction with the Grapevine Mills Project, a reimbursement agreement between the City of Grapevine Mills L.L.C. is hereby approved, a copy of which is attached hereto labeled Exhibit "A", and incorporated herein for all purposes. Section 2. That,the Mayor is hereby authorized and directed to execute said �=sR agreement. Section 3. That this resolution shall take effect from and after its passage. � PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF GRAPEVINE, TEXAS on this the �8th day of .lune , 1996. APPROVED: William D. Tate Mayor ATTEST: Lin a Huff City Secretary � APPROVED AS TO FORM: �� _ j 3 . � , i � � f � w� �....__..,4, c. . ._ t' � ,�.e� �� . �-_ John F. Boyle, Jr. City Attorney ,��:-� � � RES. N0. 96-19 2 �`°'� REIMBURSENIENT AGREENIENT "'�"� THIS REIMBURSEMENT AGREEMENT (this "Agreement"), is made and entered into as of the j�f�, day of .Su n� , 1996 by and between the CITY OF GRAPEVINE, TEXAS, a home rule municipality located in the counties of Tarrant, Dallas and Denton, Texas (the "City"), and GRAPEVINE MILLS, L.L.C., a Delaware limited liability company ("Developer"). (The City and Developer are sometimes hereinafter referred to individually as a "Party" and collectively as the "Parties".) RECITALS: A. The City and Developer have entered into that certain Redevelopment Agreement dated `Tun� � , 1996 (the "Redevelopment Agreement"), with respect to the Reinvestment Zone (as defined in the Redevelopment Agreement; all capitalized terms not defined in this Agreement shall have the meanin�s ascribed to them in the Redevelopment Agreement), pursuant to which Redevelopment A�reement the City has agreed (i) to undertake to construct certain Public Improvements and to incur Project Costs in connection with such Public Improvements and pay for such Project Costs using the proceeds of the City Instrument ��� or from the City's implementation of other economic development or financing programs ' authorized by statute or the home-rule powers of the City, and (ii) to use the proceeds of the �� City Instrument or from the City's implementation of other economic development or financing programs authorized by statute or the home-rule powers of the City to pay the costs of those eli�ible Project Costs. B. The City desires to let contracts for the construction of certain Public Improvements listed on Schedule A attached hereto and made a part hereof (the "Pre-City Instrument Public Improvements") prior to the issuance of the City Instrument and the availability of Instrument Proceeds, Tax Increment or funds from the implementation by the City of any other economic development or financing programs authorized by statute or the home-rule powers of the City. C. Pursuant to applicable Texas law, the City may not let such contracts without providing for a source of funds to pay the contract sum of such contracts. D. The City has requested, and Developer has agreed, to provide the funds initially to pay for that portion of the contract sum of such contracts due and payable prior to the issuance of the City Instrument and the availability of Instrument Proceeds, Tax Increment or funds from the implementation by the City of any other economic development or financing � JSA2063 06/19/96 1453 �""� programs authorized by statute or the home-rule powers of the City, subject to reimbursement by the City as provided in this Agreement. �' NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants and agreements herein contained, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties do hereby ajree as follows: 1. Incorporation of Recitals. The representations, covenants and recitations set forth in the foregoing recitals are material to this Agreement and are hereby incorporated into and made a part of this Agreement as though they were fully set forth in this Section 1. 2. Coo.peration. The Parties agree to take such actions, including the execution and delivery of such documents, instruments, petitions and certifications (and, in the City's case, the adoption of such ordinances and resolutions), as may be necessary or appropriate, from time to time, to carry out the terms, provisions and intent of this Agreement and to aid and assist each other in carrying out said terms, provisions and intent. 3. PaYment and Reimbursement. (a) After execution and delivery of this Agreement by the City and Developer, the City shall let the contracts identified on Schedule A for the Pre-City Instrument � •� Public Improvements identified on Schedule A. ��,�� (b) Each time the City receives a request for payment under such contracts, the City shall notify the Developer that it has received a request for payment, the amount of the request for payment and that the City is processing such request for payment. As and to the extent that payments become due under such contracts prior to the earlier of (i) the issuance of the City Instrument, and (ii) the availability of funds from che implementation by the City of any other economic development or financing programs authorized by statute or the home-rule powers of the City; the City shall notify Developer of such payments coming due and request payment no less than ten (10) business days prior to the date on which each such payment is due. Such latter notice shall be in writing and shall identify the contract, the contractor, the Pre-City Instrument Public Improvements which is the subject of such contract the amount then due under such contract, and shall be accompanied by evidence of the City's approval of the payment of such amount under such contract. Upon receipt of such notice and the accompanying documents, Developer shall, no later than the date such payment is due, advance to the City funds equal to the amount then due under such contract as stated in the notice and the City shall immediately use such funds solely to pay such amounts due under such contract and provide Developer with evidence reasonably acceptable to Developer evidencing such payment. � JSA2063 06/19/96 1453 • 2 „�:.,,�. (c) Developer shall provide the City with a letter of credit from an institution reasonably acceptable to the City in the amount of the costs of those contracts listed on Schedule A reasonably expected by Developer and the City to become due prior to the �`�� anticipated date of the earlier of (i) the issuance of the City Instrument, and (ii) the availability of funds from the implementation by the City of any other economic development or financing programs authorized by statute or the home-rule powers of the City, or such other security as is reasonably acceptable to the City to evidence Developer's ability to advance such funds to the City when and as needed. (d) Concurrently with the earlier to occur of (i) the issuance of the City Instrument, and (ii) the availability of funds from the implementation by the City of any other economic development or financing programs authorized by statute or the home- rule powers of the City, the City shall reimburse Developer for all amounts advanced to the City pursuant to this Agreement, plus interest on such amounts at a rate equal to the lesser of(1) Developer's actual cost of funds for such amounts and (2) nine percent (9%) per annum, from the date such amounts were advanced to the City by Developer through the date Developer is reimbursed for such amounts by the City. (e) Developer and the City may, from time to time, jointly agree to add additional contracts and Pre-City Instrument Public Improvements to Schedule A. Developer hereby designates Erick Collazo as its representative to make and agree to "�`�` changes to Schedule A and the City hereby designates the City Manager as its representative to make and agree to changes to Schedule A. Either party may designate � a different person by notice to the other Party. 4. Powers. (a) The City hereby represents and warrants to Developer that the City has full constitutional and lawful right, power and authority, under currently applicabie law, to execute and deliver and perform the terms and obligations of this Agreement, and all of the foregoing have been or will be duly and validly authorized and approved by all necessary City proceedings, �ndings and actions. Accordingly, this Agreement constitutes the legal, valid and binding obligation of the City, is enforceable in accordance with its terms and provisions and does not require the consent of any other governmental authority. (b) Developer hereby represents and warrants to the City that Developer has full lawful right, power and authority to execute and deliver and perform the terms and obligations of this Agreement and all of the foregoing have been or will be duly and validly authorized and approved by all necessary actions of Developer. Concurrently with Developer's execution of this Agreement, Developer has delivered to the City copies of the resolutions or other corporate actions authorizing the execution of this Agreement and evidencing the authority of the persons signing this Agreement on behalf of Developer to do so. Accordingly, this Agreement constitutes the legal, valid and binding � obligation of Developer, and is enforceable in accordance with its terms and provisions. JSA2063 06/19/96 1453 3 '"�� 5. Time of Essence. Time is of the essence of this Agreement. The Parties will make every reasonable effort�to expedite the subject matters hereof and acknowledge that the successful performance of this Agreement requires their continued cooperation. All dates and time periods provided for in this Agreement shall be delayed during any pending or threatened litigation that would affect the ability to issue the City Instrument, acquire the Property or commence or continue with construction of the Public Improvements or the Project, for a time period equal to the duration of such litigation. 6. Default. (a) A Party shall be deemed in default under this A;reement (which shall be deemed a breach hereunder) if such Party fails to materially perform, observe or comply with any of its covenants, agreements or obligations hereunder or breaches or violates any of its representations contained in this Agreement. (b) Before any failure of any Party to this Aareement to perform its obligations under this Agreement shall be deemed to be a breach of this Agreement, the Party claiming such failure shall notify, in writing, the Party alleged to have failed to perform of the alleged failure and shall demand performance. No breach of this Agreement may be found to have occurred if performance has commenced to the reasonable satisfaction of the complaining Party within thirty (30) days of the receipt of � � such notice, subject, however, to the terms and provisions of Section 6(c). Each of the Parties shall have the affirmative obligation to mitigate its dama�es in the event of a �,, default by the other Party. (c) Notwithstanding anything in this Agreement which is or may appear to be to the contrary, if the performance of any covenant or obliaation to be performed hereunder by any Party is delayed as a result of circumstances which are beyond the reasonable control of such Party (which circumstances may include, without limitation, pending or threatened litigation, acts of God, war, acts of civil disobedience, fire or other casualty, shortage of materials, adverse weather conditions (such as, by way of illustration and not limitation, severe rain storms or below freezing temperatures, or tornados) labor action, strikes or similar acts) the time for such performance shall be extended by the amount of time of such delay. The Party claiming delay of performance as a result of any of the foregoing "force majeure" events shall deliver written notice of the commencement of any such delay resulting from such force majeure event not later than seven (7) days after the claiming Party becomes aware of the same, and if the. claiming Party fails to so notify the other Party of the occurrence of a "force majeure" event causing such delay, the claiming Party shall not be entitled to avail itself of the provisions for the extension of performance contained in this Section 6(c). 7. Amendment. Except as otherwise provided in Section 3(e) of this Agreement, this Agreement, and any exhibits attached hereto, may be amended only by the mutual agreement of the Parties evidenced by a written amendment, by the adoption of an ordinance or � 1SA2063 06/19/96 1453 4 ""��'" resolution of the City approvinQ such written amendment, as provided by law, and by the execution of such written amendment by the Parties or their successors in interest. '� 8. Entire Agreement. This Agreement (including all Exhibits attached to this Agreement) sets forth all agreements, understandings and covenants between and amona the Parties relative to the matters herein contained; provided, however, that the terms of this Agreement and those contained in the Redevelopment Agreement shall be construed in pari materia so as to give effect to the intent of the Parties. This Agreement supersedes all prior agreements, negotiations and understandings, written and oral (except for the Redevelopment Agreement) and, together with the Redevelopment Agreement, shall be deemed a full integration of the entire aareement of the Parties. 9. Severabilitv. If any provision, covenant, aareement or portion of this Agreement, or its application to any person, entity or property, is held invalid, such invalidity shall not affect the application or validity of any other provisions, covenants, agreements or portions of this Agreement and, to that end, all provisions, covenants, a�reements or portions of this A�reement are declared to be severable. 10. TeYas Law. This Agreement shall be construed in accordance with the laws of the State of Texas, and any actions concerning this Agreement shall be brought in either the Texas State District Courts of Tarrant County, Texas or the United States District Court for the �n"� Northern District of Texas. �,� 11. Notice. Any notice to be given or served hereunder or under any document or instrument executed pursuant hereto shall be in writing and shall be (i) delivered personally, with a receipt requested therefor; or (ii) sent by telecopy facsimile; or (iii) sent by a nationally recognized overnight courier service; or (iv) delivered by United States registered or certified mail, return receipt requested, postage prepaid. All notices shall be addressed to the Parties at their respective addresses set forth below, and shall be effective (a) upon receipt or refusal if delivered personally or by telecopy facsimile; (b) one (1) business day after depositing with such an overniQht courier service or (c) two (2) business days after deposit in the United States mails, if mailed. A Party may chan�e its address for receipt of notices by service of a notice of such chanQe in accordance with this Section 11. All notices by telecopy facsimile shall be subsequently confirmed by U.S. certified or registered mail, return receipt requested. If to the City: City of Grapevine 413 South Main Street Grapevine, Texas 76051 Attn: City Manager Fax No.: (817) 424-0520 � � JSA2063 06/l9/96 1453 5 �� with a copy to: John F. Boyle, Jr. Boyle & Lowry, L.L.P. 4201 Wingren, Suite 108 ,�.�:� Irving, Texas 75062-2763 Fax No.: (214) 650-7105 _ - If to Developer: The Milis Corporation Sawgrass Mills-Development Office 12801 West Sunrise Boulevard Sunrise, Florida 33323 Attn: Nicholas J. Sharr Fax No.: (954) 846-2311 and Mills-Grapevine Limited Partnership c/o The Mills Corporation 1300 Wilson Boulevard Arlington, VA 22209 Attn: James Dausch Fax No.: (703) 526-5111 ��R and Simon Property Group (Texas), L.P. c/o Simon Property Group, Inc. National City Center P.O. Box 7033 Indianapolis, Indiana 46207 Attn: Thomas J. Schneider � Fax No.: (317) 685-7221 with a copy to: Jeffrey S. Arnold Rudnick & Wolfe 203 North LaSalle Street Suite 1800 Chicago, Illinois 60601 Fax No.: (312) 236-7516 12. CounterQarts. This Agreement may be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same agreement. 13. No Recordation. The Parties agree that this Agreement may not and shall not be recorded without the prior written consent of Developer. JSA2063 06/19/96 1453 6 �- � 14. Consent or Approval. Except as otherwise provided in this Agreement, whenever consent or approval of either Party is required, such consent or approval shall not be unreasonably withheld. �. :� 15. Term of Agreement. The term of this Agreement shall commence on the date first above written and shall continue until the date (the "Termination Date") on which Developer has been fully reimbursed for all amounts advanced to the City and interest on such amounts in accordance with Section 3(d) of this A�reement. Notwithstanding anything to the contrary contained in this Agreement, Developer shall not be obligated to advance any amounts to the City in connection with any Pre-City Instrument Public Improvements or contracts for such Pre-City Instrument Public Improvements after the earlier to occur of (i) the issuance of the City Instrument, and (ii) the availability of funds from the implementation by the City of any other economic development or financing programs authorized by statute or the home-rule powers of the City. 16. Internretation. This Agreement has been jointly negotiated by the Parties and shall not be construed against a Party because that Party may have primarily assumed responsibility for the drafting of this Agreement. 17. Exhibits and Schedules. All exhibits and schedules attached hereto are declared to be a part of this Agreement and are incorporated herein by this reference. �,,;,,� � � JSA2063 06/19/96 1453 7 ��� IN WITNESS WHEREOF, the Parties have duly executed this Agreement pursuant to all requisite authorizations as of the date first above written. � CITY: CITY OF GRAPEVINE, TEXAS, a home rule municipality By: �� William D. Tate, City Mayor ATTE T: I.in Huff, City tary APPROVED AS TO FORl�1: ,�.,::. John F. Boyle, Jr., City ttorney °� � � 1SA2063 06/19/96 1453 8 � �� DEVEI,OP�R: , Gg�l►P'EYI1�I$MII.LS�L.L.C.,a Delawdre liiniDed �;.,� liabi�ty �Y . BY: 11�LIS-('1tAPE�VINE LIl1�iI'I'ED � PARTNI�RSHIP. a Dalaware limitcd � parmcrship, o�oc of ita two mcmbcn By: Mills-Grapevine Cozporanoa. a Delawara corporation, aoie general i►�T�'" - ch t18: Executi Vice President I f ' Attest: ,�'� - i I � � I � f � � I � �� � . I. �� i:; � ,' �` �' � '� . 1SA24b3 06/19/96 1433 • ��, � 9 .� :� �.:, � �.�;:. G.,. _ _ ,:�t' ;.�E`iT BY�RL'D,�f CK & �i'OLFE � �— 8-96 � 6�06P�1 � CH I CaGv— �1-�r5»zszs�ts•= �: � July 9, 1996 ,��,:� The City of Grapevine, Texas, a home nile munici}�aliry located in the counties of �'�' Tarrant, Dallas and Denton, Texas (the "City"), and Grdpevine Mills, L.L.C., a Delaware limited liability company ("Developer"), entered into that certain Reimbursement Agreement dated -�unc; � �' , 1996 (the "Agxeement"). (All capitalized terms used herein shall have the meanings ascribed to them in the Agreement.) Section 3(e) of the Agreement provides that Developer and the City may, from time to time, jointiy a�rrce to add additi.onal contracts and Pre-City Instrument Public Improvements to Schetiule A to the Agreement solely tipon the agreement of the following designated representatives of the Parties: Erick Callazo for Developer and the City Manager for the City. Erick Collazo, oa behalf of Developer and Trent Petty, the City Manager, on bcl�alf of tlie City, hereby agree that Schedule A attached he�eto and made a part hereof is substituted for the Schedule A originally attached to the Agreetnent and that a11 changes made to Schedule A attached hereeo and made a part hcreof from the Schedule A originally attached to the Agreement are hereby approved. FOR CTTY: By: ��a Trent Petty, y Manager FOR DE IAPER: By: Erick Collazo � JSA2080 � �E�iT BY�RLUN 1 CK & wOLFE � 7- 8-96 : 6�07P�1 � CH i CaGv� �1�a�-��r��ts•= �� � SCHEDULE A �� PR�CITY INSTRLTII�N'T PUBLIC IMPROVFI�IT5 Description of Public Im�rovement Contractar Contract Date Contract Sum l. Relocation of CITGO , 1996 $357,000 (est.) fuel pipeline Petroleum . Corporation 2. Barthwork Svuthern States July 9, 1996 $2,492,370 Equipment � �� �"' JSA2080 � SCHEDULE A PRE-CITY INSTRUMENT PUBLIC IMPROVEMENTS Description of Public Improvement Contractor Contract Date Contract Sum Pipeline relocation Citgo June 18, 1996 $3 57,166.43 �: �;.•,:� ��;:_ �;�,: A-1