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HomeMy WebLinkAboutC2013-207 - 7/16/2013 - Approved_r ,, Kinney Hotel Partners LTD CHAPTER 380 WHEREAS, the Company desires to construct a high-end boutique hotel catering to business travelers and vacationers within the city y- %s as more particularly described m<» Project Plan attached hereto as Exhibit "A" (the "Project," as more particularly defined below); ax,d WHEREAS, y <2 %d will be located in downtown Corpus « « ©« «d y: an area which was designated the Downtown Catalyst Area by Ordinance No. 029781, approved March 26, 2013 by the Corpus © »< risti City Council; and WHEREAS, the City recognizes the positive economic impact that the Project will bring to the City through development and diversification of the economy, the attraction of a ©: businesses, and the additional revenue generated by %»« \ » ;2 <§ «2/ and Page 2 of 18 Kinney Hold Chapter 380 05-31-13 MEREAS, in consideration of the capital investment in the development and construction of the Project, which contributes to the City's economic development, the City agrees to waive the Development Fees for the project; and WHEREAS, to ensure that the benefits the City provides under this Agreement are utilized in a manner consistent with Article III, Section 52-a of the Texas Constitution, Chapter 380 and other law, the Company has agreed to comply with certain conditions to the receipt of those benefits; NOW, THEREFORE, in consideration of the mutual benefits described in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the City and the Company agree as follows: 1.1 Revresentations of the City. The City hereby represents to the Company that as of the date hereof; (A) The City is a duly created and existing municipal corporation and home rule municipality of the State of Texas under the laws of e State of Texas and is duly qualified and authorized to carry on the governinental firtictions and operations as contemplated by this Agreement. (D) The execution, delivery and performance of this Agreement by the City do not require the consent or approval of any person that has not been obtained. Page 3 of 18 Kinney Hotel Chapter 380 05-3113 1.2 Representations of the Company. The Company hereby represents to the City that as of the date hereof, (A) The Company is duly authorized and existing and in good standing as a limited partnership under the laws of Texas, and shall remain in good standing in Texas during the Term Wipasug= (C) The Company agrees to evidence, no later than the date it Commences Construction dtf the Project, which evidence is subject to the administrative approval of the City or its ilesignee(s), whose approval shall not unreasonably be withheld, sufficient available funds to Complete the Project. The recitals to this Agreement are hereby incorporated for all purposes. The terms, "Agreement," "Chapter 380," "City," "the Company," and "Project" shall have the above meanings, and the following words or phrases shall have the following meanings: F. I "Act of Default" or "Default" means failure to timely, fully, and completely comply with *ne or more requirements, obligations, performance criteria, duties, terms, conditions or warranties of this Agreement. 2.2 "Commence Construction" means (i) to commence the work of constructing the improvements or features with aW approvals thereof and permits required by applicable Page 4 of 18 Kinney Hotel Chapter 390 05-31-13 governmental authorities obtained as necessary to begin construction; and (ii) onsite construction tf-flx Ate and being pursued for the Project. 2.3 "Completion" or "'Complete" means the date no later than two years from the eftecti iate of this agreement, subject to extension upon approval by the City or for Force Majeure May due to obtaining required permits, that the Company has made and evidenced fulfillment of the Investment Requirement for the Project. I 2.4 "Compliance" means timely, fully and completely performing or meeting each and every term, requirement, obligation, performance criteria, duty, condition or warranty as stated in this W=� 2.5 "Development Fees" means any and all fees imposed by City upon Developer (includirm- but not limited to Devel•per's affiliates, assigns, successors, related parties, contractors subcontractors) in any way related to Developer's platting, zoning, permitting, designin building, constructing or developing the Project. Development Fees shall include but not - limited to permitting/approval fees, inspection fees and supervision fees. I 2.6 "Effective Date" means the first date by which this Agreement has been signed by all of the parties hereto. 2.7 "Federal Bankruptcy Code"' means Title 11, United States Code, as amended, and any successor statute. 2.8 "Fiscal Year" shall mean the twelve consecutive month period designated by the City as its fiscal year. As of the date of this Agreement, the City's fiscal year commences on August I st and ends on the next succeeding July 3 1 st. Page 5 of 18 Kinney Hotel Chapter 3 80 05-31-13 2.10 "Insolvent" means failure to timely pay debts in the ordinary course of business or failu 11 to pay all debts when and as they become due, or insolvent within the meaning of the Feder 2.11 "Investment Requirement" means an investment of capital in the Project of no less than Four Million Five Hundred Thousand dollars ($4,500,000) as described in Exhibit "A" and Exhibit "B" attached hereto. The Company must provide documents evidencing the investment provided in the course of the Project pursuant to Article 8 herein. 2.12 "Property" means the real property on which the Project will be built, including imrovements and equipment theren, as may change frm time to time, as descri in Exhi attached hereto. I p o • bed ` 2.14 "Term" means the period defined in Article III of this Agreement. 02EMM 3.1 The term of this Agreement (the "Term") will begin on the Effective Date, as defined Section 2.6 herein, and shall continue for two years. i Page 6 of 18 Kinney Hotel Chapter 380 05-31-13 4.1 Requirement to Complete -Proiect: The Company shall provide reasonable evidence to the City that they have satisfied the Investment Requirement required for Completion of the Project. Should the Company Commence the Project but &§2t« /« 4n within two years, the Project is considered abandoned and the company will be considered in Default. (A) The Company shall make Reasonable Efforts to fill construction jobs © Residents of the Corpus Christi MSA. "Reasonable Efforts"' shall be defined as: (i) ©- Company shall publish job fair schedules and, to the extent practicable, job postings in the Corpus Christi area Page 7 of 18 Kinney Hotel Chapter 380 05-31-13 (C) The Company anJor its construction contractor, if any, shall designate a coordinator of local services who will act as a liaison between any individuals, businesses and contractors residing or doing business in the Corpus Christi MSA who are interested in obtaining information about providing goods or services related to the construction of the project. OF THE COMPANY If the Company shall have made intentionally any false or substantially misleading statement herein or failed to timely and fully perform as required in this Ageement, such shall be an Act of Default by the Company, subject to Section 9.1 herein. Failure to comply with any one covenant or warranty shall constitute an Act of Default by the Company, subject to Section 9.1 herein. Page 8 of 18 Kinney Hotel Chapter 3 80 05-31613 6.1 Litigation. No litigation or governmental proceeding is pending or, to the knowledge of the Company or their officers, threatened against or affecting the Company or the Property that may result, in the sole judgment of the Company, in any material adverse change in the Company's business, properties or operation. 6.3 Bankruntcv. There are no bankruptcy proceedings or other proceedings currently pending or contemplated, and the Company has not been informed of any potential involuntary bankruptcy proceedings. 6.4 Licenses and Aj!�. To the best of their knowledge, the Company has acquired or is in the process of acquiring and maintained all necessary rights, licenses, permits and authority to develop the Project in the City and will continue to use commercially reasonable efforts to maintain all necessary rights, I icenses, permits and authority. 6.6 Timely Completion. The Company acknowledges and agrees that if it fails to Complete the Project within the time periods herein provided, the City has the right to terminate this Agreement as herein provided. 6.7 Ownership Changes. The Company shall notify City in writing of any changes in *wnership of any part of the Project or of the Company within seven (7) days after the Company's knowledge thereof 6.8 Succession of OwnershiR. No change of ownership or management of any part of the Project and/or a change of ownership or management of the Company shall abate, waive, terminate or in any way relieve the Company of its obligations herein. Page 9 of 18 Kinney Hotel Chapter 380 05-31-13 6.9 Non-discrimination. The Company agrees that, as to all of the programs and activities arising out of this Agreement, it will not discriminate against any person on the basis of race, color, national origin, sex, or by reason of being disabled. Subject to the terms of Article V herein, the, City, under the following circumstances, and at its sole discretion, may temporarily suspend waiver of Development Fees under this Agreement and/or terminate this Agreement, without liability to the Company, and all future Development Fee waiver obligations shall automatically cease: @WON,, 11wila"A t. I- : I I . MIMMMMXM� =M�M' 7.3 BankruRtcy Petition. The filing by the Company • a petition or an answer seekin2 chapter 7 bankruptcy under the Federal Bankruptcy Code. 7.4 Failure to Comply with Audit Requirements. The failure of the Company to reasonably cooperate with the City in the monitoring process described in Article VIII below. Page 10 of 18 Kinney "otel Chapter 380 05-31-13 9.3 Cily Delay. Any delay for any amount of time by City in providing notice of Default the Company hereunder, shall in no event be deemed or constitute a waiver ♦ such Default City of anv ♦ its rights and remedies available in law ♦ in equity. 9.4 City Waive . Any waiver granted by City to the Company of an Act of Default shall not be deemed or constitute a waiver of any other existing or future Act of Default by the Company or of a subsequent Act of Default of the same act or event by the Company. I in , 114 1 1 toll' 4, WN Page 11 of 18 Kinney Hotel Chapter 380 05-31-13 Should City fail to timely, fully and completely comply with any one or more of the requirements, obligations, duties, terms, conditions or wan-anties of this Agreement, such failure lk-by . - 6 1. vs-to cure anilf-remove-the I TVq R, fro IMI 11.1 Permitting. Subject to the Company's complying with all applicable laws, City agrees cooperate with the Company to expeditiously process permits required for the Project to be in state of Completion. I 11.2 Attorneys' Fees. If any legal action or proceeding is commenced between City and WM- Company based on this Agreement, the prevailing party in the legal action will be entitled recover its reasonable attorneys' fees and expenses incurred by reason of such action, to tj -extent allowed by law. 11.3 Binding Effect. This Agreement will be binding on and inure to the benefit of the parties Ynd their respective successors and assigns. 11.5 Termination. If the Company elects not to proceed with the Project as contemplated this Agreement, the Company will notify City in writing, and this Agreement and the RR 'R R f both parties will be deemed terminated and of no Rifther force or effect as of the date of su notice. I Page 12 of 18 Kinney Howl Chapter 3 80 05-31413 Company: Kinney Hotel Partners LTD Attn.: General Partner 329 Peerman Place Corpus Christi, Texas 78411 with a copy to: City Attorney P.O. Box 9277 Corpus Christi, Texas 78469-9277 ® (361) 826-3360 Facsimile: (361) 826-3239 11.7 Inte!Mretation. Each of the parties has been represented by counsel of their choosing the negotiation and preparation of this Agreement. In the event of any dispute regarding interpretation of this Agreement, this Agreement will be interpreted fairly and reasonably net strongly for nor against any party based on draftsmanship. I Page 13 of 18 Kinney Hotel Chapter »005-3&13 1111� III 1110 1 1 !1 11111 1 a 1 111 11. 11 No Third P@1!y Beneficiaries. This Agreement is not intended to confer any rights, privileges or causes of action upon any third party. 11.12 Counte fir; rts. This Agreement may be executed simultaneously in two or more counterparts, each of which will be deemed an origin4 but all of which will constitute one and the same instrument. A facsimile signature will be deemed to be an original signature for afl W„k.� 11.13 Exhibits. The following exhibits are attached to and incorporated into this Agreement for all purposes: Exhibit "A:" Project Description Exhibit "B:" Property Description 11.14 Variances. The City, in its sole discretion, may grant and approve variances to the Company from the performance criteria and development standards described herein upon application in writing therefore by the Company. 11.16 Damages not included. Damages awarded in an adjudication brought against City or the Company arising under the Agreement, including any amendments thereto, may not include: (i) consequential damages, except as expressly allowed under Section 11.15 above; (ii) exemplary damages; or (iii) damages for unabsorbed home office overhead. Page 14 of 18 Kinney Hatel Chapter 3 80 05-31-13 12.1 Entire Agreement. This Agreement embodies the complete Agreement of the parties hereto, superseding all oral or written, previous and contemporary, agreements between the parties relating to matters in this agreement; and, except as otherwise provided herein, this Agreement cannot be modified or amended without a written agreement of the parties. I'M i 1 11 WORM I I �� I �I I EXECUTED to be effective as of this 31 — day of M �� 2013 Signed on this day of ---,2013 Page 15 of 18 Kinney Hotel Chapter 3 80 03-31-13 UN 1""4141 "1 R VQ 1 11 R U I M k, I Signed on this \9 day of 2013 Annando Chapa, City Secretary L9 Ronald L. City Manager Page 16 of 18 Kinney Hotel Chapter 380 05-3113 I W. "- & Emnin"I The Kinney will be located at SCHATZEL TRACT 1, an addition in the City of Corpu Ch i * Nueces County, Texas, as shown by the map of the plat thereof recorded in Volume 34,s ""rs] Paj e 4 Map Records of Nueces County, Texas, to which reference is here made for all pertine Page 18 of 18 Kinney Hotel Chapter 380 05-31-13