STATE OF TEXAS COUNTY OF COLLIN

Transcription

1 STATE OF TEXAS COUNTY OF COLLIN ECONOMIC DEVELOPMENT AGREEMENT This ("Agreement") is made by and between the City of Richardson, Texas ("City"), and Image Hotel Systems, Ltd., a Texas limited partnership, d/b/a Image Technology Systems ("Company") (each a "Party" and collectively the "Parties"), acting by and through their respective authorized representatives. WI T N E S S E T H: WHEREAS, the Company is under contract to lease or has land (the "Land") and improvements containing at least 10,000 square feet of space in Richardson, Texas (the "Improvements") (collectiyely the "Land" and "Improvements" referred to as the "Property"); and WHEREAS, the Company has advised the City that a contributing factor that would induce the Company to lease the Property and occupy the Improvements would be an agreement by the City to proyide an economic development grant to the Company to defray a portion of the costs of the relocation to the Improvements for the Company; and WHEREAS, promoting the location of new business enterprises within the City will promote economic development, stimulate commercial activity, generate additional sales tax and will enhance the property tax base and economic vitality of the City; and WHEREAS, the City has adopted programs for promoting economic development, and this Agreement and the economic development incentives set forth herein are given and provided by the City pursuant to and in accordance \\ith those programs; and WHEREAS, the City is authorized by Article III, Section 52-a ofthe Texas Constitution and Texas Local Government Code Chapter 380 to provide economic development grants to promote local economic development and to stimulate business and commercial activity in the City; and WHEREAS, the City has determined that making an economic development grant to the Company in accordance \\ith the City's economic development program \\ill (i) further the objectives of the City; (ii) benefit the City and the City's inhabitants; and (iii) promote local economic development and stimulate business and commercial acth-ity in the City; and WHEREAS, the City Council does hereby approve this agreement as a program for making an economic development grant to Company for the purpose of stimulating and maintaining its commercial activity within the City, and to promote the generation of sales tax, the enhancement of the property tax base, and to maintain and increase the economic vitality of the City; Page 1 Economic De,-elopment Agreement

2 NOW THEREFORE, in consideration of the foregoing, and on the terms and conditions hereinafter set forth, and other valuable consideration the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: Article I Definitions For purposes of this Agreement, each of the following terms shall have the meaning set forth herein unless the context clearly indicates othemise: "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 such Party's property and such appointment is not terminated within one hundred twenty (120) 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 one hundred twenty (120) days after the filing thereof. "City" shall mean the City of Richardson, Texas. "Commencement Date" shall mean the date the final certificate of occupancy is issued by the City for the occupancy of the Improvements by the Company. "Company" shall mean Image Hotel Systems, Ltd., a Texas limited partnership, d/b/a Image Technology Systems. "Consummated" shall have the same meaning assigned by Texas Tax Code, Section , or its successor. "Effective Date" shall mean the last date of execution hereof. "Expiration Date" shall mean the fifth (5th) Commencement Date. anniversary date of the "Force Majeure" shall mean any contingency or cause beyond the reasonable control of a Party including, \\ithout limitation, acts of God or the public enemy, war, terrorist act, or threat thereof, riot, civil commotion, insurrection, government action or inaction (unless caused by the intentionally wrongful acts or omissions of the Party), fires, earthquake, tornado, hurricane, explosions, floods, strikes, slowdowns or work stoppages. "Grant" shall mean a cash grant in the amount of Fifteen Thousand Dollars ($15,000.00) to offset costs paid and incurred for the Company relocation to the Property to be paid as set forth herein. "Grant Period" shall mean consecutive twelve (12) month periods during the term of this Agreement beginning with the Commencement Date. Page 2

3 "Impositions" shall mean all taxes, assessments, use and occupancy taxes, charges, excises, license and permit fees, and other charges by public or goyernmental authority, general and special, ordinary and extraordinary, foreseen and unforeseen, which are or may be assessed, charged, levied, or imposed by any public or governmental authority on the Company or any property or any business owned by Company within the City. "Improvements" shall mean a building located in Richardson, Texas containing at least 10,000 square feet of office space. "Land" shall mean the land on which the Improvements are situated. "Lease" shall mean the Company's lease of at least 10,000 square feet of space in the Improvements for a period of at least fiye (5) years. "Lease Inception Date" shall mean the commencement date of the Lease term but no later than June 1, "Leased Premises" shall mean at least 10,000 square feet of space m the Improvements. Payment Request" shall mean a written request to the City for payment of the Grant accompanied by a fully executed copy of the Lease and such other documents as the City may reasonably request evidencing the Lease. "Property" shall collectively mean the Land and Improvements. "Required Use" shall mean office space for the Company's business operations for property management software solutions. "Sales and Use Tax" shall mean the one percent (1 %) Sales and Use Tax imposed by the City pursuant to Chapter 321 ofthe Texas Tax Code, on the sale of Taxable Items by the Company Consummated at the Leased Premises during the applicable Grant Period. "Sales Tax Certificate" shall mean a report provided by the State of Texas to the City in accordance \\ith Texas Tax Code, Section (or other applicable provision of the Texas Tax Code), which lists the amount of Sales and Use Tax (including any refunds, credits or adjustments) paid to the State of Texas for the sale of Taxable Items by the Company Consummated at the Leased Premises, or if such report is not available, a certificate or other statement, containing such information in a form provided by the Company reasonably acceptable to the City setting forth the total sale of Taxable Items Consummated at the Leased Premises and the Company's collection of Sales and Use Tax (including any refunds, credits or adjustments) paid to the State of Texas, for the sale Page 3

4 of Taxable Items by the Company Consummated at the Leased Premises during the applicable Grant Period, and such other information as the City may reasonably request. "Sales Tax Receipts" shall mean the City's receipts of Sales and Use Tax from the State of Texas from the Company's collection of Sales and Use Tax (it being expressly understood that the City's one percent (1 %) sales and use tax receipts are being used only as a measurement for its use of general funds to make a grant for economic development purposes) as a result of sale of Taxable Items by Company for the applicable Grant Period Consummated at the Leased Premises. "State of Texas" shall mean the Office of the Texas Comptroller, or its successor. "Taxable Items" shall mean both "taxable items" and "taxable services" as those terms are defined by Chapter 151, Texas Tax Code, as amended. Article II Term The term of this Agreement shall begin on the last date of execution hereof (the "Effective Date") and continue until the Expiration Date, unless sooner terminated as provided herein. Article III Economic DeYelopment Grant 3.1 Grant. Subject to the Company's continued satisfaction of all the terms and conditions of this Agreement, and the Company's obligation to repay the Grant pursuant to Section 5.2 hereof, the City agrees to provide the Company with the Grant to be paid within five (5) business days after City receipt of the Payment Request following the Commencement Date. 3.2 Grant Limitations. City shall not be obligated to pay any commercial bank, lender or similar institution for any loan or credit agreement made by the Company. None of the City's obligations under this Agreement shall be pledged or otherwise encumbered in favor of any commercial lender and/or similar financial institution. 3.3 Current Revenue. The Grant made hereunder shall be paid solely from lawfully available funds. Under no circumstances shall the obligations of the City hereunder be deemed to create any debt within the meaning of any constitutional or statutory provision. The Grant shall be paid from the general funds of the City or from such other funds of the City consistent with Article III, Section 52( a) of the Texas Constitution. Page 4

5 Article IV Conditions to the Economic Development Grant The obligation of the City to proyide the Grant shall be conditioned upon the continued compliance with and satisfaction of each of the terms and conditions of this Agreement by the Company and each of the conditions set forth in this Article. 4.1 Good Standing. The Company shall not have an uncured breach or default of this Agreement or a Related Agreement. 4.2 Required Use. During the term of this Agreement following the Commencement Date and continuing thereafter until the Expiration Date, the Leased Premises shall not be used for any purpose other than the Required Use, and the operation and occupancy of the Leased Premises in conformance with the Required Use shall not cease for more than thirty (30) days except in connection with and to the extent of an event offorce Majeure. 4.3 Continuous Lease and Occupancy. During the term of this Agreement following the Commencement Date and continuing thereafter until the Expiration Date, the Company shall continuously lease and occupy the Leased Premises. Company shall occupy the Leased Premises on or before June 1, Sales Tax Receipts. City shall have received Sales Tax Receipts from the State of Texas for each Grant Period during the term of this Agreement. 4.5 Sales Tax Certificate. Company shall provide City with Sales Tax Certificate within ninety (90) days after end of each Grant Period during the term of this Agreement. 4.6 Sourcing of Sales and Use Tax. Company shall have taken the necessary action to cause the Company's sale of Taxable Items to be sourced to the City such that the City receives Sales Tax Receipts from the State of Texas for the sale of Taxable Items by the Company. 4.7 Payment Request. The Company shall have provided the City with the Payment Request. Article V Termination; Repayment 5.1 Termination. This Agreement terminates on the Expiration Date, and may, prior to the Expiration Date, be terminated upon any one or more of the following: (a) (b) by mutual written agreement ofthe Parties; upon written notice by either Party, if the other Party defaults or breaches any of the terms or conditions of this Agreement or a Related Agreement and such default or breach is not cured within thirty (30) days after written notice thereof; Page 5

6 (c) (d) (e) upon written notice by City, if any Impositions owed to the City or the State of Texas by Company shall have become delinquent (provided, howeyer, Company retains the right to timely and properly protest and contest any such taxes or Impositions); upon written notice by City, if Company suffers an event of Bankruptcy or Insolvency; or upon written notice by either Party if any subsequent Federal or State legislation or any decision of a court of competent jurisdiction declares or renders this Agreement invalid, illegal or unenforceable. 5.2 Repayment. In the event the Agreement is terminated by the City pursuant to Section 5.1 (b), (c), (d) or (e), the Company shall immediately refund to the City an amount equal to the Grant paid by the City to the Company immediately preceding the date of such termination, plus interest at the rate of interest periodically announced by the Wall Street Journal as the prime or base commercial lending rate, or if the Wall Street Journal shall ever cease to exist or cease to announce a prime or base lending rate, then at the annual rate of interest from time to time announced by Citibank, N.A. (or by any other New York money center bank selected by City) as its prime or base commercial lending rate, from the Effective Date until paid. The repayment obligation of Company set forth in this section 5.2 hereof shall survive termination. 5.3 Offsets. 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 Company, regardless of whether the amount due arises pursuant to the terms of this Agreement, a Related Agreement or otherwise and regardless of whether or not the debt due the City has been reduced to judgment by a court. Article VI Miscellaneous 6.1 Binding Agreement. The terms and conditions of this Agreement are binding upon the successors and permitted assigns of the Parties hereto. 6.2 Limitation on Liability. It is understood and agreed between the Parties that the Company and City, in satisfying the conditions of this Agreement, have acted independently, and the City assumes no responsibilities or liabilities to third parties in connection with these actions. 6.3 No Joint Venture. It is acknowledged and agreed by the Parties that the terms hereof are not intended to and shall not be deemed to create a partnership or joint venture among the Parties. 6.4 Authorization. Each Party represents that it has full capacity and authority to grant all rights and assume all obligations that are granted and assumed under this Agreement. The undersigned officers and/or agents of the Parties hereto are the properly authorized officials and have the necessary authority to execute this Agreement on behalf of the Parties hereto. Page 6

7 6.5 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 such other address as such Party may subsequently designate in writing), or on the day actually received if sent by courier or otherwise hand delivered. If intended for City, to: Attn: Dan Johnson City Manager City of Richardson, Texas 411 W. Arapaho Road Richardson, Texas75080 With a copy to: Peter G. Smith Nichols, Jackson, Dillard, Hager & Smith, L.L.P Ross Tower 500 North Akard Dallas, Texas If intended for Company, to: Attn: David A wad Image Hotel Systems, Ltd., d/b/a Image Technology Systems 1615 Dorchester Drive, Suite 100 Plano, Texas Entire Agreement. This Agreement is the entire Agreement between the Parties with respect to the subject matter covered in this Agreement. There is no other collateral oral or written Agreement between the Parties that in any manner relates to the subject matter of this Agreement, except as provided in any Exhibits attached hereto Governing Law. The Agreement shall be governed by the laws of the State of Texas, without giving effect to any conflicts of law rule or principle that might result in the application of the laws of another jurisdiction; and exclusive venue for any action concerning this Agreement shall be in the State District Court ofdallas County, Texas. The Parties agree to submit to the personal and subject matter jurisdiction of said court. 6.8 Amendment. This Agreement may only be amended by the mutual written agreement of the Parties. The City Manager shall have the authority to execute any amendments or related instruments related thereto. 6.9 Legal Construction. In the event any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect other provisions, and it is the intention of the Parties to this Agreement that in lieu of each provision that is found to be illegal, invalid, or unenforceable, a provision shall be added to this Agreement which is legal, valid and enforceable and is as similar in terms as possible to the provision found to be illegal, invalid or unenforceable. Page 7

8 6.10 Exhibits. All exhibits to this Agreement are incorporated herein by reference for all purposes wherever reference is made to the same Successors and Assigns. This Agreement may not be assigned \\"ithout the prior written consent of the City Manager Recitals. The recitals to this Agreement are incorporated herein Counterparts. This Agreement may be executed in counterparts. Each of the counterparts shall be deemed an original instrument, but all of the counterparts shall constitute one and the same instrument Survival of Covenants. Any of the representations, warranties, covenants, and obligations of the Parties, as well as any rights and benefits of the Parties, pertaining to a period of time following the termination of this Agreement shall survive termination Employment of Undocumented Workers. During the term ofthis Agreement, the Company agrees not to knowingly employ any undocumented workers, and if convicted of a violation under 8 U.S.C. Section 1324a (f), the Company shall repay the Grant provided herein and any other funds received by the Company from the City as of the date of such violation within 120 business days after the date the Company is notified by the City of such violation, plus interest at the rate of 6% compounded annually from the date of violation until paid. The Company is not liable for a violation of this section by a subsidiary, affiliate, or franchisees of the Company or by a person with whom the Company contracts Conditions Precedent. This Agreement is subject to and contingent upon: (i) the Company entering into the Lease on or before ~ 2014; and (ii) the Company occupying the Leased Premises on or before June 1, (Signature Page to Follow) Page 8

9 ATTEST: By : Aimee Nemer, City Secretary APPROVED AS TO FORM: y ~ City Attorney EXECUTED on this 3 l day of '2AN U0tJ ' IMAGE HOTEL SYSTEMS, LTD., d/b/a IMAGE TECHNOLOGY SYSTEMS By: By: Image Hotel Management, LLC, Its General Partner David A wad, Partner Page 9