Res 172-98 12/1/1998RESOLUTION NO.
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WICHITA
FALLS, TEXAS, REPEALING A TAX ABATEMENT AGREEMENT
BETWEEN THE CITY OF WICHITA FALLS AND PRESTON PRODUCTS,
INC.; FINDING AND DETERMINING THAT THE MEETING AT WHICH
THIS RESOLUTION WAS PASSED WAS OPEN TO THE PUBLIC AS
REQUIRED BY LAW.
WHEREAS, on the 17th day of September, 1996, the City of Wichita Falls
entered into a tax abatement agreement with Preston Products, Inc., in accordance with
the terms and conditions of said agreement, attached hereto and made a part hereof for
all purposes; and,
WHEREAS, Preston Products, Inc., has ceased operations and closed said
plant, and has ceased to be an on -going business enterprise; and,
WHEREAS, it is desirable to terminate the previously authorized tax abatement
agreement for the reasons stated herein.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF WICHITA FALLS, TEXAS, THAT:
SECTION 1. A certain tax abatement agreement authorized September 17,
1996, by and between the City of Wichita Falls and Preston Products, Inc., is hereby
rescinded and repealed, and Resolution No. 144 -96, authorizing the Mayor to execute
such agreement, is repealed.
SECTION 2. It is hereby officially found and determined that the meeting at
which this resolution was passed was open to the public as required by law.
PASSED AND APPROVED this the 1 st day of December, 1998.
MAYOR
r'
ATTEST:
)Ad"U' I W_If�
City Clerk
RESOLUTION NO. �o
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
WICHITA FALLS, TEXAS, AUTHORIZING THE MAYOR TO
EXECUTE A TAX ABATEMENT AGREEMENT BETWEEN THE CITY OF
WICHITA FALLS AND PRESTON PRODUCTS, INC.; FINDING AND
DETERMINING THAT THE MEETING AT WHICH THIS RESOLUTION
WAS PASSED WAS OPEN TO THE PUBLIC AS REQUIRED BY LAW.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF WICHITA
FALLS, TEXAS:
SECTION 1. That the Mayor be and is hereby authorized to
execute a tax abatement agreement for a period of ten (10) years
with Preston Products, Inc., in accordance with the terms and
conditions of said agreement, attached hereto and made a part
hereof for all purposes.
SECTION 2. It is hereby found and determined that the
meeting at which this resolution was passed was open to the
public as required by law.
PASSED AND APPROVED this the 17th day of September, 1996.
M Y R
ATTEST:
City Clerk
TAX ABATEMENT AGREEMENT BETWEEN
THE CITY OF WICHITA FALLS AND
PRESTON PRODUCTS, INC.
This Tax Abatement Agreement (this "Agreement ") is entered
into by and between the City of Wichita Falls, Texas (the
"City "), a home rule city and municipal corporation of Wichita
County, Texas, duly acting herein by and through its Mayor, and
Preston Products, Inc. ( "Owner "), a Texas corporation.
Recitals
WHEREAS, on February 21, 1995, the City Council of the
City (the "City Council ") passed Resolution No. 31 -95 (the
"Enabling Resolution ") establishing certain guidelines and
criteria for the designation of reinvestment zones and the
entering into of tax abatement agreements pursuant to the Texas
Property Redevelopment and Tax Abatement Act, as contained in
Chapter 312 of the Local Taxation Title of the Tax Code of the
State of Texas (the "Code "); and,
WHEREAS, the Enabling Resolution constitutes appropriate
guidelines and criteria governing tax abatement agreements to
be entered into by the City as contemplated by the Code; and,
WHEREAS, the Enabling Resolution included a statement by
the City that it elects to be eligible to participate in tax
abatement; and,
WHEREAS, on September 17, 1996, the City passed Ordinance
No. (the "Ordinance ") establishing Tax Abatement
Reinvestment Zone No. 2 (the "Zone ") in the City of Wichita
Falls, Texas for commercial /industrial tax abatement as
authorized by the Code; and,
WHEREAS, it is in the best interest of the City and its
taxpayers, in order to maintain and enhance the commercial and
industrial economic and employment base of the Wichita Falls
area, to enter into this Agreement in accordance with the
Ordinance and the Code; and,
iq
WHEREAS, the City Council finds that the contemplated use
of the Premises (as hereinafter defined), the contemplated
improvements to the Premises in the description and amount as
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 are in
compliance with the Enabling Resolution, the Ordinance and
similar guidelines and criteria adopted by the City and all
applicable law; and,
WHEREAS, a copy of this Agreement has been furnished in
the manner prescribed by the Code to the presiding officers of
the governing bodies of each of the taxing units in which the
Premises to be subject to this Agreement are located.
NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS:
THAT the City, for good and valuable consideration, the
adequacy and receipt of which are hereby acknowledged, which
consideration includes the expansion of primary employment and
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 and Wichita County,
Texas, and the Owner, for good and valuable consideration, the
adequacy and receipt of which are hereby acknowledged, which
consideration includes the tax abatement set forth herein as
authorized by Sections 312.201 through 312.209 of the Code, as
amended, do hereby contract, covenant and agree as follows:
1. General Provisions
1.1: The Owner is the owner of that parcel of land
described on Exhibit A, attached hereto and made a part hereof
for all purposes (such parcel shall hereinafter be referred to
as the "Premises "). The Premises are located entirely within
the city limits of the City and within the Zone.
1.2: The Premises are not in an improvement project
financed by tax increment bonds.
1.3: This Agreement is entered into subject to the rights
of the holders of outstanding bonds of the City.
1.4;. The Premises are not owned or leased by any member
of the City council or by a member of any zoning or planning
Cpl
board or commission of the City or by any member of the
governing body of any taxing unit joining in or adopting this
Agreement.
2. Improvements
2.1: The Owner currently operates a cold - storage
warehouse facility containing approximately 50,000 square feet
on the Premises. The Owner will construct a juice production
facility on the Premises adjacent to the existing building.
These improvements will cost an aggregate of approximately
$3,894,000 and will consist of approximately $608,000 for a new
addition to the existing building containing approximately
24,000 square feet, approximately $2,350,000 for equipment and
approximately $935,000 for improvements to the existing
building and site. When the new juice production facility is
placed in service, the Owner expects to employ approximately 90
to 100 additional employees at the Premises.
3. Rate and Duration of Tax Abatement
3.1: The period of tax abatement pursuant to this
Agreement shall commence on January 1 of the year following the
issuance by the City of a certificate of occupancy for the new
facility described in Section 2.1 and shall continue for a
period of ten (10) years. Improvements constructed on the
Premises, and tangible personal property located thereon, shall
be exempt from taxation by the City in accordance with this
Section 3.1, provided that such exemption shall only be
applicable to the extent that the value of the Premises, and
any tangible personal property located thereon, for the
applicable year exceeds the value of the Premises, and any
tangible personal property located thereon, on January 1, 1996
(as such values are established for ad valorem tax purposes) .
The percentage of the increased value of the Premises and
tangible personal property which will be exempt from ad valorem
taxes during each year of the tax abatement period pursuant to
this Agreement is as follows:
4
Year Percentage
1
100%
2
90%
3
80%
4
70%
5
60%
6
50%
7
40%
8
30%
9
20%
10
10%
3.2: Notwithstanding anything in this Agreement which
might be deemed to be to the contrary, the Owner shall have the
right to protest and contest any appraisal or assessment of the
Premises, or any improvements or tangible personal property or
both located thereon and the tax abatement provided for herein
for such improvements and /or tangible personal property shall
be applied to the amount of taxes finally determined, as a
result of such protest or contest to be due for such property.
4. Records and Cost
4.1: The kind, number and location of all proposed
improvements are described in Section 2.1. In addition,
construction plans and an equipment list for the Premises will
be delivered to the City and shall be deemed to be incorporated
by reference herein and made a part hereof for all purposes.
The Owner shall have the right to make changes in the plans and
equipment list during the construction process so long as the
revised improvements are not materially different from those
described in this Agreement. After completion of the project,
the Owner shall deliver a copy of the "as built" plans for the
improvements and shall certify in writing to the City the costs
of construction and of tangible personal property located
thereon. Such certification shall be signed by all parties to
this Agreement and shall be deemed to be incorporated by
reference and made a part hereof for all purposes. The plans
and other information to be delivered to the City by Owner
pursuant to this Section shall be and remain confidential
information to be utilized by the City only for ad valorem tax
purposes and shall not be revealed to any other person without
the Owner's prior written consent.
5
4.2: At all times during the term of this Agreement, the
City shall have access to the Premises by City employees for
the purpose of inspecting the Premises to insure that the
improvements are constructed in accordance with the
specifications and conditions of this Agreement; provided,
however, that such inspections shall not interfere with the
construction or normal business operations of the Owner on the
Premises.
4.3: The Premises and the improvements constructed thereon
shall at all times during the term of this Agreement be used in
a manner that is consistent with the City's general purpose of
encouraging development of the Zone and the City's
comprehensive zoning ordinance, as amended.
4.4: If the Owner fails to make the improvements to the
Premises as provided by this Agreement, the Owner shall repay
all property tax revenue lost by the City as a result of this
Agreement, subject to any and all lawful offsets, settlements,
deductions or credits to which the Owner may otherwise be
entitled.
4.5: On or before April 1 of each year during the term of
this Agreement, the Owner will certify annually to the
governing body of the City and each other taxing unit joining
in.the terms of this Agreement that the Owner is in compliance
with each applicable term of this Agreement.
4.6: The City may cancel or modify this Agreement if the
Owner fails to comply with the terms and conditions set forth
herein.
5. Sales, Assignment or Lease of Property
5.1: The tax abatement provided for herein shall vest in
the Owner upon completion of the project, but except as
hereinafter provided, such tax abatement is not assignable to
any new owner or lessee of all or any portion of the Premises
without the prior written approval of the City, which approval
will not be unreasonably withheld. Notwithstanding the
foregoing, the tax abatement provided for herein shall be
assignable without prior approval by the City to any parent,
affiliate, subsidiary or other entity in which the Owner has
direct or indirect control or in connection with any sale of
the Premises, or a portion thereof, which are then leased back
(for a period at least equal to the remaining term of this
Agreement) by the Owner or a parent, affiliate, subsidiary or
other entity in which the Owner is in control. For purposes of
A
this Article 5, the term "control" means either: (i) the
ownership of 50% or more of the beneficial or economic interest
or voting power of the 'appropriate entity, or (ii) the
possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of the
controlled entity.
6. Miscellaneous Provisions
6.1: All notices or other communications required or
permitted by this Agreement shall be in writing and shall be
deemed to be properly given when delivered personally to any of
the hereinafter designated addressees or the named
representatives thereof, or when mailed by prepaid certified
mail, return receipt requested, addressed to such party at the
respective addresses set forth below:
If to the City:
City of Wichita Falls
P. 0. Box 1431
Wichita Falls, Texas 76307 -1431
Attention: City Manager
If to the Owner:
Preston Products, Inc.
220 E. Third Street
Burkburnett, Texas 76354
Attention: Mr. Hugh B. Preston,
President
6.2: This Agreement was authorized by resolution of the
City Council approved at its Council meeting on September 17,
1996, authorizing the Mayor to execute this Agreement on behalf
of the City.
7
6.3: This Agreement was entered into by the Owner acting
by and through one or more duly authorized officers of Owner.
6.4: 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.
6.5: Any party hereto may request an estoppel certificate
from another party hereto so long as the certificate is
requested in connection with a bona fide business purpose. The
certificate shall include, but not necessarily be limited to,
statements that this Agreement is in full force and effect
without default if such is the case, the remaining term of this
Agreement, the levels of tax abatement then in effect, and such
other matters reasonably requested by the parties to receive
the certificate.
6.6: The Owner, as a party to this Agreement, shall be
deemed a proper and necessary party in any litigation
questioning or challenging the validity of this Agreement or
any part hereof or any of the underlying ordinances,
resolutions, or City Council actions authorizing the same, and
the Owner shall be entitled to intervene in any such
litigation.
6.7: After the Owner has satisfied the conditions set
forth in this Agreement, the tax abatement provided for herein
shall continue for the duration of this Agreement and shall not
be lost through force majeure events such as acts of God, fire,
tornado, earthquake or other events or circumstances beyond the
Owner's reasonable control.
6.8: This Agreement shall be governed by and construed in
accordance with the laws of the State of Texas. Venue for any
action pursuant to this Agreement shall be in a state district
court in Wichita County, Texas. This Agreement is fully
performable in Wichita County, Texas.
6.9: An executed copy of this Agreement in recordable form
shall be recorded in the Deed Records of Wichita County, Texas.
6.10: Other taxing units in which the Premises are
located may join in the execution of this Agreement by
executing a signatory page acknowledging the joinder of such
taxing unit and granting tax abatement by such taxing unit in
accordance with the terms and conditions hereof; an executed
M
and acknowledged copy of each such signatory page shall be
attached to this Agreement.
City of Wichita Falls, Texas
By:
Kay Yeage , Mayor
ATTEST:
Lydi Torres, City Clerk
Approved as to Form:
Gre ry . Humbach
C i t o r n e y
By:
ATTEST:
Name:
Title:
Preston Products, Inc.
Hugh B. Preston, President
7
STATE OF TEXAS §
COUNTY OF WICHITA §
BEFORE ME, the undersigned authority, a Notary Public in
and for the State of Texas, on this day personally appeared Kay
Yeager, Mayor of the City of Wichita Falls, Texas, a municipal
corporation, known to me to be the person and officer whose
name is subscribed to the foregoing instrument, and
acknowledged to me that she executed the same for the said City
of Wichita Falls, Texas, a municipal corporation, that she was
duly authorized to perform the same by appropriate resolution
of the City Council of the City of Wichita Falls, and that she
executed the same as the act of the said City for the purposes
and consideration therein expressed, and in the capacity
therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this the al�) day
o f -Q � , 1996.
*; LINDA MERRILL
= Notary Public, Stag of Tsr
,ms=s My C*MWS$ ion Fsgra 12.22-
STATE OF TEXAS §
COUNTY OF §
Notary Public, State of Texas
BEFORE ME, the undersigned authority, a Notary Public in
and for the State of Texas, on this day personally appeared
Hugh B. Preston, President of Preston Products, Inc., a Texas
corporation, known to me to be the person and officer whose
name is subscribed to the foregoing instrument, and
acknowledged to me that the same was the act of the said
corporation, and that he executed the same as the act of said
corporation for the purposes and consideration therein
expressed, and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this the day
of , 1996.
NOTARY PUBLIC SEAL:
Notary Public, State of Texas
10
EXHIBIT A
Real Property Description
A 7.53 acre tract of land out of Annie E. Cummings
Survey, A -610, Wichita Falls, Wichita County, Texas,
described by metes and bounds as follows:
BEGINNING at an "X" found in concrete at the Southwest corner
of Lot 1 -B, Block 13, Burlington Call Field Industrial
District, an Addition to the City of Wichita Falls according to
the plat of record at Volume 25, Pages 243 and 244, Wichita
County Plat Records, said point lies in the East right -of -way
line of Lawrence Road for the Southwest corner of this tract;
THENCE along the said East line of Lawrence Road, North 00 44'
East 195.02 feet to a Masonry Nail set at Northwest corner of
Lot 1 -B;
THENCE with South line of Keith Street, North 890 59' East
758.71 feet to a nail found at the Southeast corner of Keith
Street right -of -way;
THENCE North 1° 03' East 60.0 feet to an "X" in concrete in
South line of Lot 2 -A, Block 8;
THENCE North 00 01' 30" East 215.5 feet to an iron rod set in
the North line of Lot 2 -B which is 23 feet South of the
centerline of a Railroad Spur;
THENCE with the North line of Lot 2 -A, North 89° 56' East 48.05
feet to an iron rod set at the beginning of a curve to the left
having a radius of 403..7 feet and a central angle of 44° 521;
THENCE Northeasterly parallel to and 23 feet from said Railroad
Spur centerline for an arc distance of 316.1 feet to an iron
rod set at the Northeast corner of Lot 2 -A;
THENCE South 0° 03' 17" East 332.3 feet to an iron rod found at
the Southeast corner of Lot 2 -A;
THENCE North 890 51' East 50.0 feet to an iron rod found at the
Northeast corner of 2.25 acres conveyed to Preston Products,
Inc., by Deed recorded at Volume 1877, Page 62, Official
Records of Wichita County;
THENCE South 0° 02' East 255.0 feet to an iron rod found at the
Southeast corner of said 2.25 acres;
THENCE South 890 51' West 597.30 feet to a nail found at the
Southeast corner of said Lot 1 -B, Block 13;
THENCE with the South line of Lot 1 -B, West 548.21 feet to the
PLACE OF BEGINNING.
Notice is hereby given that a public hearing has been scheduled
by the City Council of the City of Wichita Falls, Texas, for
September 17, 1996, at 8:30 a.m, in the City Council Chambers
of the Memorial Auditorium, 1300 Seventh Street, Wichita Falls,
Texas, for the purpose of considering the designation of a
reinvestment zone and entering into a tax abatement agreement
concerning the following described real property located within
the City of Wichita Falls, Wichita County, Texas:
A 7.53 acre tract of land out of Annie E. Cummings
Survey, A -610, Wichita Falls, Wichita County, Texas,
described by metes and bounds as follows:
BEGINNING at an "X" found in concrete at the Southwest corner
of Lot 1 -B, Block 13, Burlington Call Field Industrial
District, an Addition to the City of Wichita Falls according to
the plat of record at Volume 25, Pages 243 and 244, Wichita
County Plat Records, said point lies in the East right -of -way
line of Lawrence Road for the Southwest corner of this tract;
THENCE along the said East line of Lawrence Road, North 00 44'
East 195.02 feet to a Masonry Nail set at Northwest corner of
Lot 1 -B;
THENCE with South line of Keith Street, North 890 59' East
758.71 feet to a nail found at the Southeast corner of Keith
Street right -of -way;
THENCE North 1° 03' East 60.0 feet to an "X" in concrete in
South line of Lot 2 -A, Block 8;
THENCE North 00 O1' 30" East 215.5 feet to an iron rod set in
the North line of Lot 2 -B which is 23 feet South of the
centerline of a Railroad Spur;
THENCE with the North line of Lot 2 -A, North 89° 56' East 48.05
feet to an iron rod set at the beginning of a curve to the left
having a radius of 403.7 feet and a central angle of 440 521;
THENCE Northeasterly parallel to and 23 feet from said Railroad
Spur centerline for an arc distance of 316.1 feet to an iron
rod set at the Northeast corner of Lot 2 -A;
THENCE South 00 03' 17" East 332.3 feet to an iron rod found at
the Southeast corner of Lot 2 -A;
2
THENCE North 890 51' East 50.0 feet to an iron rod found at the
Northeast corner of 2.25 acres conveyed to Preston Products,
Inc., by Deed recorded at Volume 1877, Page 62, Official
Records of Wichita County;
THENCE South 00 02' East 255.0 feet to an iron rod found at the
Southeast corner of said 2.25 acres;
THENCE South 89° 51' West 597.30 feet to a nail found at the
Southeast corner of said Lot 1 -B, Block 13;
THENCE with the South line of Lot 1 -B, West 548.21 feet to the
PLACE OF BEGINNING
All interested parties are invited to attend.
I, Bill R. Gulledge, publisher of the Wichita Falls Times
and Record News, hereby certify that the above and foregoing
notice of public hearing was published in the Wichita Falls
Times and Record News on this the day of
, 1996.
Bill R. Gulledge
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SIGNATORY PAGE
EVIDENCING JOINDER INTO
TAX ABATEMENT AGREEMENT
THE STATE OF TEXAS §
COUNTY OF WICHITA §
Wichita County, the undersigned taxing unit, having
jurisdiction over the Premises (as defined in the hereinafter
described Tax Abatement Agreement), joins in the execution of
the Tax Abatement Agreement between the City of Wichita Falls,
Texas, and Preston Products, Inc., for the purpose of granting
abatement of ad valorem taxes in the manner and in accordance
with the terms and conditions set forth in such Tax Abatement
Agreement and authorizes this page to be affixed to said
Agreement. This joinder to the Tax Abatement Agreement was
authorized by the Commissioners' Court of Wichita County,
Texas, at its meeting on the day of ,
1996, whereupon it was duly determined by appropriate order
that the County Judge would execute this joinder on behalf of
Wichita County, Texas.
By:
ATTEST:
Vernon Cannon, County Clerk
By:
Deputy Clerk
County of Wichita, Texas
Nick Gipson, County Judge
13
STATE OF TEXAS §
COUNTY OF WICHITA §
BEFORE ME, the undersigned authority, a Notary Public in
and for the State of Texas, on this day personally appeared
Nick Gipson, County Judge of Wichita County, Texas, known to me
to be the person and officer whose name is subscribed to the
foregoing instrument, and acknowledged to me that the same was
the act of the said County of Wichita, Texas, that he was duly
authorized to perform the same by appropriate resolution of the
Commissioners' Court of Wichita County, Texas, and that he
executed the same as the act of said county for the purposes
and consideration therein expressed, and in the capacity
therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this the day
of , 1996.
NOTARY PUBLIC SEAL:
Notary Public, State of Texas