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Res 077-91 5/7/1991RESOLUTION NO. -77 -91 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WICHITA FALLS, TEXAS, AUTHORIZING THE MAYOR TO EXECUTE A TAX ABATEMENT AGREEMENT WITH NORTHWEST TEXAS REHAB, LIMITED PARTNERSHIP; FINDING AND DETERMINING THAT THE MEETING AT WHICH THIS RESOLUTION IS PASSED IS 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 with Northwest Texas Rehab, Limited Partnership, in accordance with the terms and conditions of said agreement, same 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 is passed is open to the public as required by law and that public notice of the time, place, and purpose of said meeting was given as required. PASSED AND APPROVED this the 7th day of May, 1991. A00. 11.1cole 40011011111) M A Y O R ATTEST: 41Z.M2 City Clerk TAX ABATEMENT AGREEMENT BETWEEN THE CITY OF WICHITA FALLS AND NORTHWEST TEXAS REHAB L.P. 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 Northwest Texas Rehab L.P. ( "Owner" ) , a Delaware limited partnership authorized to do business in the State of Texas, acting by and through Wichita Falls Rehabilitation Hospital, Inc. , a Texas corporation, which is the sole general partner of the Owner. Recitals WHEREAS, on May 15, 1990 the City Council of the City the "City Council" ) passed Resolution No. 94-90 (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 Sections 312.201 through 312 .209, as amended, 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 the day of May, 1991, 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 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 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 shall construct on and within the Premises a new freestanding comprehensive medical rehabilitation hospital containing approximately 56,000 square feet and accommodating approximately 60 beds . The aggregate cost of such hospital shall be approximately $8,000,000, and the hospital shall employ in excess of 100 employees when it is fully operational. 2 i . 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 of a certificate of occupancy for the rehabilitation hospital described herein and shall continue for a period of 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 such improvements and tangible personal property for the applicable year exceeds the value of the Premises, and any tangible personal property located thereon, on January 1, 1991 (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 valoremm taxes during each year of the tax abatement period pursuant to this Agreement is as follows: 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 rehabilitation hospital 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 rehabilitationtion hos ital thehospital, Owner shall deliver a copy of the "as 3 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 rehabilitation hospital 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. 5 . Sale, Assignment or Lease of Property 5 . 1: The tax abatement provided for herein shall vest in the Owner upon completion of the rehabilitation hospital and the issuance of the certificate of occupancy therefor, 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 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. 4 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.O. Box 1431 Wichita Falls, TX 76307-1431 Attention: City Manager If to the Owner: Northwest Texas Rehab L.P. P.O. Box 715 Mechanicsburg, PA 17055 Attention: 6 .2 : This Agreement was authorized by resolution of the City Council approved at its Council meeting on May _, 1991 authorizing the Mayor to execute this Agreement on behalf of the City. 6 . 3: This Agreement was entered into bg the Owner pursuantbyP to authority granted by its limited partnership agreement and the Board of Directors of Wichita Falls Rehabilitation Hospital, Inc. , the Owner's sole general partner on 1991 whereby one or more officers of Wichita Falls Rehabilitation Hospital, Inc. were authorized to execute this Agreement on behalf of the 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. 5 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 and acknowledged copy of each such signatory page shall be attached to this Agreement. CITY OF WICHITA FALLS, TEXAS By Michael Lam, Mayor ATTEST: Wilma Thomas, City Clerk APPROVED AS TO FORM: Greg Humbach, City Attorney 6 k NORTHWEST TEXAS REHAB L.P. By Wichita Falls Rehabilitation Hospital, Inc. , its sole general partner By Name: Title: ATTEST: 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 Michael Lam, 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 he was duly authorized to perform the same by appropriate resolution of the City Council of the City of Wichita Falls, and that he 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 1991. NOTARY PUBLIC'S SEAL: Notary Public for the State of Texas 7 THE STATE OF COUNTY OF BEFORE ME, the undersigned authorit Y. a notary public in and for the State of on this day personallyYPY appeared being the of Wichita Falls Rehabilitation Hospital, Inc . , the sole general partner of Northwest Texas Rehab L.P. , a Delaware limited partnership, 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 Northwest Texas Rehab L.P. , and that he executed the same as the act of said limited partnership for the purpose and consideration therein expressed and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of 1991. NOTARY PUBLIC'S SEAL: Notary Public for the State of C:\CMS\CMSTAXAG.MT 8 EXHIBIT A LEGAL DESCRIPTION A tract of land out of Block 6, League 4, Cherokee County School Lands, Wichita County, Texas, said tract being more specifically described by metes and bounds as follows: Beginning at a 1/2" Iron rod in the West right-of-way line of U.S. 281 Expressway, (Henry S. Grace Freeway) , said 1/2 " iron rod bears South 71° 14 ' West 2079 . 08 feet and South 27° 16 ' West 547 . 10 feet from the Northeast corner of said Block 6, said 1/2" iron rod also being the Southeast corner of Lot 1, Block 1, West Hursh Addition, an addition to the City of Wichita Falls, Texas, and being the Northeast corner and Place of Beginning of this description; Thence South 27° 16 ' West 655 . 05 feet along said West right- of-way line to a Sucker Rod in said West right-of-way line for the Northeast corner of Lot 2B, Block 1, said West Hursh Addition, and the Southeast corner of this tract; Thence North 89° 59 ' West 471. 66 feet along the North line of said Lot 2B to a 1/2 " iron rod in the East right-of-way line of Armory Road, a dedicated street, for the Northwest corner of said Lot 2B and the Southwest corner of this tract; Thence North 00° 50 ' 35" West 761.87 feet along said East right-of-way line to a 1/2 " iron rod in said East right-of-way line for the Southwest corner of Lot 5, Block 1, said West Hursh Addition and the Northwest Corner of this tract; Thence South 89° 03 ' East 446 .25 feet along the South line of said Lot 5 and the South line of Beth Street, a dedicated Street, to a 1/2 " iron rod for the Southwest corner of said Lot 1 and a Northerly corner of this tract; Thence South 62° 44 ' East 353 .66 feet along the South line of said Lot 1 to the Place of Beginning and containing 10.54 Acres, more or less .