HomeMy WebLinkAbout(02) PR13543: CAMELLIA PLAZAinteroffice
MEMOKANDUM
To: Mayor, City Council, City Manage~
From: Mark T. Sokolow, City Attorney f~
Date: April 28, 2006
Subject: P. R. No. 13543;
Special Council Meeting of May 3, 2006
Attached is P. R. No. 13543 a Resolution authorizing the
City Manager to approve a sales tax refund agreement with
Camellia Plaza, L. P. Attached is a draft of the Agreement. I
will be meeting with Mr. Scully and Mr. Nguyen Tuesday morning to
finalize a few of the remaining details, which will be presented
to you at the Special Council Meeting. Exhibit "A" and Exhibit
"B" to the Agreement are still being prepared. Nevertheless,
this is the tract at the corner of Highway 73 and Spur 93.
MTS:ts
Attachment
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P. R. No. 13543
04/28/06 tm
R~SOLUTZON ~0.
A RESOLUTION AUTHORIZINO THE CITY MANAGER TO
APPROVE A SALES TAX REFUND AGREEMENT WITH
CAMELLIA PLAZA, L. P.
WHEREAS, there is presently an 8.5% sales tax composed of the
following:
· To the State of Texas 6.25%
· To the City 1.00%
· To Jefferson County .50%
· To the EDC .50%
WHEREAS, per Chapter 378 Local Government Code, V.T.C.A., the
City has created a neighborhood empowerment zone, which will allow
it to refund sales taxes for this commercial development since it
will increase economic development in the zone; and
WHEREAS, Camellia Plaza, L. P., has offered to construct
retail centers, stores, and a hotel in Port Arthur; and
WHEREAS, the City Council deems it in the best interests of
the citizens of Port Arthur to approve a Sales Tax Refund Agreement
with Camellia Plaza, L. P.
NOW THEREFORE, BE IT RESOLVED BY TEE CITY COUNCIL OF THE CITY
OF PORT ARTHUR~
Section 1. That the facts and opinions in the preamble are
true and correct.
Section 2. That the City Manager is authorized to
execute a Sales Tax Refund Agreement with Camellia Plaza, L. P.
in substantially the same form as delineated in the attached
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Exhibit "A".
Section 3. That a copy of the caption of this Resolution
be spread upon the Minutes of the City Council.
READ, ADOPTED AND APPROVED on this __ day of ,
A.D., 2006, at a Special Meeting of the City Council of the City
of Port Arthur, Texas, by the following vote:
AYES: Mayor ;
City Council ;
;
NOES:
OSCAR ORTIZ, MAYOR
ATTEST..
EVANGELINE GREEN, CITY SECRETARY
APPROVED AS TO FORM.'
MARK T. SOKOLOW, CITY ATTOR/~EY
APPROVED FOR ADMINISTRATION..
STEVE FITZGIBBONS, CITY MANAGER
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EXHIBIT "A"
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FOR RETAIL FACILITY REDEVELOPMENT ~ EXPANSION
BET',~EN
THE CITY OF PORT ~.THUR ~ C~ELLIA PLAZA, L. P.
This Sales Tax Refund Agreement (this "Agreement") is
entered into as of the day of , 20__ (the "Effective
Date") by and between the City of Port Arthur (the "City"), a
Texas municipal corporation of the County of Jefferson and State
of Texas, and Camellia Plaza, L. P.
Article 1. General Provisions
1.01. This Agreement is authorized and governed by (i)
Chapter 378 (Neighborhood Empowerment Zone) of the Texas Local
Government Code, Sections 378.001 through 378.004, (ii} Chapter
380 (Miscellaneous Provisions Relating to Municipal Planning and
Development) of the Texas Local Government Code, Sections
380.001 through 380.003, {iii) the City's Resolution No.
approving this Agreement, and (iv) the City's Resolution No.
designating the Zone.
1.02. Camellia Plaza, L. P., is negotiating a contract
to purchase certain land (the "Property") in the City of Port
Arthur, Jefferson County, Texas described on Exhibit A attached
hereto and made a part hereof. The Property is situated within
the City as a Neighborhood Empowerment Zone pursuant to
Resolution enacted on Camellia Plaza,
L. P., proposes to construct retail centers, stores, and a hotel
as delineated in projections, as described in Exhibit "B"
provided to the City by Camellia Plaza, L. P., on the Property,
which the City has found will contribute to an increase in
economic development in the Zone.
1.03. The Property is not part of an improvement
project financed with tax increment bonds.
Article 2. Grant and Refund Schedule and Term
2.01. As partial consideration for the construction of
the retail centers, stores, and a hotel in the Zone, the City
agrees to refund to Camellia Plaza, L. P., a portion (which
portion is set forth below) of the sales tax proceeds from
retail sales at these retail centers, stores, and hotel, (the
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"Sales Tax Refund"). The parties acknowledge the provisions of
existing state law (i.e., Chapters 151 and 321, Texas Tax Code)
whereby retail sales at the retail centers, stores and a hotel
to be located in the property described in Exhibit ~A" are
subject to a total tax of 8.25% (the "Total Tax"). The Total
Taxes will be collected by Camellia Plaza, L. P., or by the
occupants of the retail centers, hotel, and stores on each
applicable retail sale, reported and paid to the Texas
Comptroller of Public Accounts, and thereafter disbursed as
follows:
· To the State of Texas 6.25%;
· To the City 1.00% (the "City Portion");
· To Jefferson County 0.50%; and
· To the City of Port
Arthur EDC 0.50%.
Only the City portion of the Total Tax shall be subject to
this Agreement. The Sales Tax Refund in each calendar year
(i.e., January 1 through December 31) will equal:
(i) 100% of the City Portion (1¢) collected with
respect to retail sales at the retail centers,
stores, and hotel described in Exhibit "A" up to
a maximum of $200,000 for the first year.
(ii) 50% of the City Portion collected with respect to
retail sales at the retail centers, stores, and
hotel as described in Exhibit "A" for the second
year to the tenth year, up to a maximum of
$200,000 per year.
(iii) The total refund shall not exceed $2,000,000.
(iv) The refund shall be proportionately reduced if
Camellia Plaza, L. P., does not build a 30,000
square foot retail center, as amount of square
feet divided by 30,000.
2.02. The period of the Sales Tax Refund (the "Refund
Period") will commence on the __ day of , 20__,
the Commencement Date and will expire on the __ day of
, 20__, unless sooner terminated in accordance
with the terms and conditions herein set forth in this
agreement.
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2.03. This Agreement shall terminate on the earlier to
Occur of (i) the expiration of the Refund Period and (ii) the
date that the sum of the Sales Tax Refund paid to Camellia
Plaza, L. P., equals $2,000,000.
2.04. The City will pay to Camellia Plaza, L. P.,
thereof during the Refund Period either (a) within thirty (30)
days after receipt of the City Portion from the Texas
Comptroller of Public Accounts and the receipt of the
documentation as noted in Article 6 of this Agreement, or (b) at
the City's option (but only after written notice to Port Arthur
Camellia Estate, L.P..,) in monthly installments based upon the
reasonably estimated Sales Tax Refund for the applicable
calendar year.
2.05. Notwithstanding anything to the contrary
contained herein, the substantial completion of the retail
centers, stores, and a hotel with a certificate of compliance by
the City shall be a condition precedent to the obligations of
the City under this Agreement.
Article 3. Additional Incentives Provided by
the City of Port Arthur
3.01. As partial consideration for the construction of
the retail center and a hotel in the Zone and the creation of
jobs and other economic benefits to the Zone anticipated in
connection with the operation of the retail centers, stores, and
a hotel, the City agrees to expedite the process for all
hearings, reviews, inspections, and contacts with City staff in
order to ensure the timely completion of the construction
process, and to consider any other reasonable requests made by
Port Arthur Camellia Estate, L.P., in order to assist it in
constructing the retail centers, stores, and a hotel. The City
will either pay or waive all building permit fees and tap fees
to be charged to Camellia Plaza, L. P., for the retail centers,
stores, and a hotel. Nevertheless, Camellia Plaza, L. P., is
responsible to pay for all construction costs, which includes,
but is not limited to, the cost to tap into the City's water and
sewer system and to pay for all meters.
3.02. The City agrees to review this Agreement and
consider additional incentives if Camellia Plaza, L. P. is able
to attract a company who will build an approximately 100,000
square foot facility {big box).
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Article 4. Effect of Sale and Assignment
4.01. Camellia Plaza, L. P. shall have the right,
without the City's consent, to transfer or assign this Agreement
to an Affiliate (as such term is hereinafter defined) of
Camellia Plaza, L. P. or any other business that will occupy the
entire retail centers, stores, and a hotel for the purpose of
operating a retail business, provided that Camellia Plaza, L. P.
shall notify the City in writing of such transfer or assignment
within ten (10) after the effective date thereof. For purposes
of this Agreement, the term ~Affiliate" shall mean:
{1) A parent corporation of Camellia Plaza, L. P.;
(2) Any wholly subsidiary of Camellia Plaza, L. P. or
Camellia Plaza, L. P.'s parent corporation;
(3) Any business entity succeeding to substantially all of
Camellia Plaza, L. P.'s assets as a result of a
consolidation or merger; or
(4) Any business entity to which all or substantially all
of Camellia Plaza, L. P.'s assets as to this property
have been sold.
4.02. The Transfer or assignment of this Agreement to
an entity which does not satisfy the requirements of Section
4.01 above shall require the City's consent as evidenced by a
Resolution of the City Council after receipt by the City of
Camellia Plaza, L. P.'s written notification of such proposed
transfer at least ten {10) days before the effective date
thereof, provided that the City's consent shall not unreasonably
be withheld, conditioned, or delayed, but shall be conditioned
upon the express assumption, pursuant to an Assignment of and
Assumption of Obligations Under Sales Tax Refund Agreement in
substantially the form attached hereto as Exhibit ~C", by such
transferee/assignee of all of Camellia Plaza, L. P.'s
obligations set forth in this Agreement.
4.03. Any attempted transfer or assignment of this
Agreement in violation of the terms set forth in this Article 4
shall be void ab initio, and shall entitle the City to terminate
this Agreement by written notice to Camellia Plaza, L. P.,
whereupon the parties hereto shall be relieved of all duties
hereunder except that Camellia Plaza, L. P. shall be entitled to
its share of the Sales Tax Refund accrued prior to the date of
such termination; provided, however, that such termination shall
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not be effective if, within ten days after its receipt of the
City's termination notice, Camellia Plaza, L. P.shall notify the
City that Camellia Plaza, L. P. has rescinded such attempted
transfer or assignment.
4.04. Effective as of the effective date of a transfer
or assignment pursuant to Section 4.01 or 4.02 above, Camellia
Plaza, L. P. will be released of any further duties or
obligations under this Agreement.
Article 5. Independent Contractor/Ind"mnity
5.01. In executing this Agreement and in performing
their respective obligations hereunder, the City and Camellia
Plaza, L. P. are acting independently and not in any form of
partnership or joint venture. The City assumes no
responsibilities or liabilities to any third parties in
connection with this Agreement.
Article 6. Documentation
6.01. The parties agree that the dollar amount of
retail sales tax eligible for the Sales Tax Refund will be
calculated based upon sales and sales tax information furnished
by the office of the Comptroller of the State of Texas or any
successor agency charged with collecting such information and
preparing such reports (the ~Comptroller's Office".) Each
calendar year (or month, if the City elects to pay the Sales Tax
Refund in monthly installments) during the applicable Refund
Period, Camellia Plaza, L. P. will authorize the Comptroller's
office to furnish to the City a report of Camellia Plaza, L. P.
or of the occupants of the retail centers, stores, and hotel
collections and payments of sales tax for the retail centers,
stores, and a hotel during such calendar year (or month, as
applicable.) The retail centers, stores, and hotel occupants
will also provide to Camellia Plaza, L. P. or his assignee, a
copy of their sales tax reports, who will thereafter forward it
to the City.
Article 7. Notice
7.01. Ail notices required or permitted by this
Agreement will be delivered either (a) by certified mail,
postage prepaid, effective five (5) days after mailing, or (b)
by hand delivery or by a nationally recognized overnight
courier, in either case effective upon delivery, in all cases
addressed as follows (or to such other address as a party may
z.camellia plaza, lp_refund agreement
specify to the other party by notice delivered in accordance
with the terms hereof):
TO~ CAMELLIA PLAZA, L. P.
ATTN: Douglas Lam
9707 Chipstead Circle
Spring, TX 77379
TO THE CITY: City of Port Arthur
ATTN: Stephen Fitzgibbons
City Manager
P. O. Box 1089
Port Arthur, TX 77641-1089
Article 8. Miscellaneous
8.01. This Agreement was approved by the City Council
of the City at its meeting on the __ day of , 20
8.02. If any section, subsection, paragraph, sentence,
phrase, or word of this Agreement is held invalid for any
reason, the balance of this Agreement will remain in effect and
will be read as if the parties intended at all times not to
include the invalid section, subsection, paragraph, sentence,
phrase, or word.
8.03. This Agreement will be construed under the laws
of the State of Texas.
8.04. This Agreement may be executed by the parties in
multiple counterparts, all of which counterparts when taken
together constituting one Agreement.
Article 9. Termination Clauses
9.01. This Agreement can be terminated by the City of
Port Arthur if Camellia Plaza, L. P. does not own the property
described in Exhibit "A" by October 1, 2006.
9.02. This Agreement can be terminated by the City of
Port Arthur if Port Arthur Camellia Estate, L.P. does not
commence construction by December 4, 2006.
9.03. This Agreement can be terminated by the City of
Port Arthur if Camellia Plaza, L. P. does not complete
construction of a retail center of at least 30,000 square feet
by the 15th day of August, 2008.
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9.04. If the events delineated in Sections 9.01, 9.02,
or 9.03 occur, the City of Port Arthur shall give Camellia
Plaza, L. P. ten (10) days written notice thereof.
z,camellia plaza, lp_refund agreement
SI~N&TURE PA~E TO SALES TAX REFUND A~REEMENT
FOR RETAIL CENTER DEVELOPMENT
BETWEEN
THE CITY OF PORT ARTHUR AND CAMELLIA PLAZA, L. P.
EXECUTED by the parties hereto to be effective as of the
date first set forth above.
CITY OF PORT ARTHUR, a Texas Municipal
Corporation (the ~'City")
BY:
Name: Stephen Fitzgibbons
Title: City Manager
CAMELLIA PLAZA, L. P.
BY:
BY:
Name:
Title:
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EXHIBIT
TO THE A~REEMI~NT
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EXHIBIT "B"
TO THE A~REEMENT
z.camellia plaza, lp_refund agreement
EXHIBIT "C"
TO THE A~I~HEMENT
(SHE ATTACHED ASSIGNMENT)
z.camellia plaza, lp_refund agreement
ASSIStanT OF ~-~- ASSUMPTION OF OBLIGATIONS
TH~S ~SSI~E~ OF
S~S T~ RSF~ ~RE~E~ (hereina[ter called this
,'~ss~ent") made the
between C~ellia plaza, L. 9., a corporation duly o~anized and
existin~ under the laws of the State of Texas, with its
principal place of business at
(hereinafter called "Assignor") and
, a corporation duly organized
and existin~ under the laws of the State of Texas, with its
principal place of business at
(hereinafter called ~Assi~ee"), and the City of Port Arthur, a
municipal corporation of the County of Jefferson and State of
Texas, with its principal place of business at 444 4th Street,
Port Arthur, Texas 77640 (hereinafter called the "City".)
WITNESS~TH:
~ER~, the City and Assignor entered into a Sales Tax
Refund A~reement (hereinafter called the -A~re~ent") dated
, 20~, a copy of which is attached
hereto as Exhibit "1", whereby Assignor bec~e entitled to
certain rights and privileges and subject to certain duties and
obligations, all as more particularly described in the
A~reement; and
~REAS, the City is willin~ to consent to such an
assi~ent on the te~s set forth herein.
NOW, THEREFORE, in consideration of the sum of Ten Dollars
($10.00) and No/100, and other ~ood and valuable consideration
exchanged amon~ the parties hereto, the receipt and sufficiency
of all which is hereby acknowledged and confessed, it is agreed:
1. Assignor by these presents does sell, ~rant, assign,
and convey unto Assignee all of Assignor's right, title, and
interest in and to the A~reement, and Assignor fully authorizes
and empowers Assignee to exercise all rights as Assignor under
the terms of said A~reement, and in the same manner as Assignor
might or could do thereunder.
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2. Assignee hereby expressly assumes all of the terms
covenants, and conditions of the Agreement, and expressly agrees
to be bound thereby and assumes full performance thereunder.
3. Nothing herein contained shall in any way operate to
modify or abrogate any requirements in the Agreement respecting
any further or future assignment of the Agreement, or the rights
or obligations thereunder, in whole or in part.
4. The parties hereto do hereby expressly ratify and
reaffirm the Agreement, and the terms, covenants, and conditions
therein contained.
5. Expressly subject to the terms herein contained, the
City does hereby consent to the within assignment of the
Agreement. It is further agreed and understood between all
parties to this Assignment, that upon the assumption of the
obligations contained in the Agreement by Assignee, Assignor
shall be relieved of all rights, privileges, duties, and
obligations thereunder.
IN WITNESS THEREOF, the parties hereto have executed this
Assignment as of the day and year first above written, and the
City further manifests its approval of this Assignment by a
Resolution.
SIGNED on the day of , 20
CITY OF PORT ARTHUR
BY:
Stephen Fitzgibbons, City Manager
SIGNED on the __ day of , 20__.
CAMELLIA PLAZA, L. P.
BY:
SIGNED on the day of , 20__.
ASSIGNEE
BY:
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