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Res 089-98 6/16/1998RESOLUTION NO. 89— 9 B 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 ABB CONTROL, 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 ABB Control, 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 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 16th day of June, 1998. ATTEST: City Clerk MAYO TAX ABATEMENT AGREEMENT BETWEEN THE CITY OF WICHITA FALLS AND ABB CONTROL, 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 ABE Control, Inc. ( "Owner "), a Delaware corporation duly qualified to do business in the State of Texas. Recitals WHEREAS, on March 18, 1997 the City Council of the City (the "City Council ") passed Resolution No. 44 -97 (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 June 16, 1998, the City passed Ordinance No. (the "Ordinance ") establishing Tax Abatement Reinvestment Zone No. (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 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 retention or 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 Chapter 312 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 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. Description of Project 2.1: The Owner currently owns and operates its existing manufacturing and office facilities on the Premises. The project which is the subject of this Agreement involves the construction of an addition to the existing building, renovations to the existing building and the addition of a substantial amount of new equipment which will modernize and enhance the Owner's manufacturing, warehousing and material handling capabilities. The estimated costs of the project are as follows: 2 Construction of 19,000 square foot addition to existing building $ 900,000 Furnish and equip the addition 300,000 Renovations to existing building 300,000 Machinery and equipment 2,000,000 TOTAL $3,500,000 The Owner intends to commence the project as soon as possible in 1998 and complete the project by December 31, 2000. 3. Rate and Duration of Tax Abatement 3.1: The period of tax abatement pursuant to this Agreement shall commence on January 1, 1999 and shall continue for a period of 10 years. Improvements constructed on the Premises 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, as improved, for the applicable year exceeds the value of the Premises on January 1, 1998 (as such values are established for ad valorem tax purposes) and to the extent the tangible personal property located on the Premises was not located on the Premises at any time before the period covered by this Agreement. 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: Year Percentage 1 100% 2 90%5 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. 3 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 apart 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 herein and made a part hereof for all purposes. 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 substantially as described in 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 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. 4 Sale, 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 this Article 5, the term "control" means either: (i) the ownership of 5015 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 othe permitted by this Agreement shall b to be properly given when delive hereinafter designated addressees thereof, or when mailed by prepaid requested, addressed to such party forth below: If to the City: r communications required or in writing and shall be deemed red personally to any of the or the named representatives certified mail, return receipt at the respective addresses set City of Wichita Falls P.O. Box 1431 Wichita Falls, TX 76307 -1431 Attention: City Manager If to the Owner: ABB Control, Inc. 1206 Hatton Road Wichita Falls, TX 76302 Attention: Mr. John C. Bridgman, President 6.2: This Agreement was authorized by resolution of the City Council approved at its Council meeting on June 16, 1998 authorizing the Mayor to execute this Agreement on behalf of the City. 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 M granting tax abatement by such taxing unit in accordance with the terms and conditions hereof; an executed and acknowledged copy of each such signatory page shall be attached to this Agreement. ATTEST: Lydia Torres, City Clerk APPROVED AS TO FORM: Gregory D. Humbach, City Attorney ATTEST: Name: Title: 7 CITY OF WICHITA FALLS, TEXAS By Kay Yeager, Mayor ABB CONTROL, INC. By John C. Bridgman, President THE 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 the same was the act of 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 purpose and consideration therein expressed and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of 1998. NOTARY PUBLIC'S SEAL: Notary Public for the State of Texas THE 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 John C. Bridgman, President of ABB Control, Inc., a Delaware 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 purpose and consideration therein expressed and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of 1998. NOTARY PUBLIC'S SEAL: c: \TAXABATE.AG \ABB.TAX Notary Public for the State of Texas EXHIBIT A Real Property Description A tract of land out of Block No. Four (4), Kemp & Newby Subdivision out of the Cherokee County School Lands, A -33, Wichita County, Texas, described by metes and bounds as follows: BEGINNING at an iron rod found at the intersection of the West Right -of -way line of South Freeway (U.S. 281 Expressway) and the North Right -of -way line of Hatton Road, said iron rod bears North 500 09' 05" West 88.24 feet from the Southeast corner of said Block 4, Kemp & Newby Subdivision; THENCE along said North Right -of -way line of Hatton Road as follows: THENCE North 890 11' 06" West 127.83 feet to an iron rod for corner; THENCE South 050 24' 07" West 8.15 feet to an iron rod; THENCE North 880 53' 30" West 491.96 feet to an iron rod at the Southwest corner of this tract; THENCE leaving said North Right -of -way line of Hatton Road, North 010 06' 47" East 310.05 feet to an iron rod; THENCE North 010 06' East 290.60 feet to an iron rod at the Northwest corner of this tract; THENCE South 890 O1' 25" East 673.76 feet to an iron rod lying in the West Right -of -way line of South Freeway (U.S. 281 Expressway), at the Northeast corner of this tract; THENCE along said West Right -of -way line of South Freeway (U.S. 281 Expressway) as follows: South 000 48' 40" West 286.66 feet to an iron rod; THENCE South 070 08' 24" West 286.0 feet to a Texas Highway Department monument; THENCE South 490 03' 31" West 33.36 feet to the place of BEGINNING and containing 9.16 acres of land, more or less. c: \TAXABATE.AG \ABB.RPD