ORDER NO. 30003 CITY OF KERRVILLE ECONOMIC IMPROVEMENT CORPORATION FUNDING PROJECT FOR HILL COUNTRY SHOOTING CENTER Came to be heard this the 13th day of November, 2006, with a motion made by Commissioner Nicholson, seconded by Commissioner Baldwin. The Court unanimously approved by vote of 4-0-0 to: Approve the City of Kerrville Economic Improvement Corporation's project to provide funding to the Hill Country Shooting Center located adjacent to Cypress Creek Road (FM 1341) in Kerr County. 3 000 3 I ~ a COMMISSIONERS' COURT AGENDA REQUEST PLEASE FURNISH ONE ORIGINAL AND NINE COPIES OF THIS MADE BY: Pat Tinley OFFICE: County MEETING DATE: November 13, 2006 TIME PREFERRED: SUBJECT: Consideration and approval of the City of Kerrville Economic Improvement Corporation's project to provide funding to the Hill Country Shooting Center located adjacent to Cypress Creek Road (FM 1341) in Ken County. EXECUTIVE SESSION REQUESTED: (PLEASE STATE REASON) NAME OF PERSON ADDRESSING THE COURT: County Judge/ Mindy Wendele ESTIMATED LENGTH OF PRESENTATION: IF PERSONNEL MATTER -NAME OF EMPLOYEE: Time for submitting this request for Court to assure that the matter is posted in accordance with Title 5, Chapter 551 and 552, Government Code, is as follows: Meeting scheduled for Mondays: THIS REQUEST RECEIVED BY: THIS REQUEST RECEIVED ON: 5:00 P.M. previous Tuesday. All Agenda Requests will be screened by the County Judge's Office to determine if adequate information has been prepared for the Court's formal consideration and action at time of Court Meetings. Your cooperation will be appreciated and contribute towards you request being addressed at the earliest opportunity. See Agenda Request Rules Adopted by Commissioners' Court. Page 1 of 1 Kerr County Jud4e/Commissioners' Court From: "Mindy Wendele" dulindyW@Kemille.org> To: "Kerr County Judge/Commissioners' Court ~E-mail)" Sent: Wednesday, November 01, 2006 10:28 AM Attach: FA103106.PDF Subject: Nov. 13 commissioners meeting Hi Kathy- Here's the EIC approved funding agreement for the Hill Country Shooting Sports Center. Is there anything else you need for support documentation for the 11-13-06 commissioner court's meeting? m- Mindy N. Wendele, Director Business Programs-City of Kerrville 800 Junction Hwy., Kerrville, TX 78028 Preserve America Community A 2006 National Main Street City 830.792.8343 www. kerrville. org/economicdev 11/1/2006 ECONOMIC DEVELOPMENT GRANT AGREEMENT BETWEEN HILL COUNTRY SHOOTING SPORTS CENTER AND THE CITY OF KERRVILLE, T2rXA$ ECONOMIC IINPROVEMENT CORPORATION This Agreement entered into by and between HII.L COUNTRY SHOOTING SPORTS CENTER, INC. ("HCSSC', a Texas nonprofit corporation, acting herein by and through its duly authorized director, Jack Burch ("HCSSC Officer', and the CITY OF KERRVILLE, TEXAS, ECONOMIC IMPROVEMENT CORPORATION ("EIC"~> a Texas >nonprofit corporation established pursuant to Section 4B of Tex. Rev. Civ. Stet. Art. 5190.6 (otherwise known as the Development Corporation Act of 1979, hereafter referred to as "the Act's, acting by and through its duly authorized President, T. Kyle Priour. WiTNESSETH: WHEREAS, the EIC was formed to administer the sales and use tax approved by the citizens of Kerrville, Texas, in May 1945 and collected for projects iixluding but not limited to: Buildings, equipment, facilities, expenditures and improvements which are required or suitable for use for professional and amateur (including children's) sports, athletic, entertainment and tourist purposes and events, including stadiums, auditoriums, exhibition facilities and other related improvements that enhance any ofthose items; and WHEREAS, pursuant to Section 4B of the Act, the EIC is authorized to provide funding to construct projects which the EIC finds to be encompassed within the definition of "Projects" as that word is defined by Section 2 and Section 4B of the Act; and WHEREAS, HCSSC operates a shooting facility and hosts various competitions and activities, some of which ate part of U.S. Olympic training or competitions; and WIIEREAS, HCSSC seeks to construct an air hall which will be used in furtherance of its operations and as a means of staging additions! events and competitions, which will help attract additional competitors and other tourists; and WHEREAS, HCSSC has applied for a plant fiorn EIC for funds necessary to construct the air hall; and WHEREAS, EIC has determined that such a grant complies with the Act and is in keeping with the mission of EIC and City ofKerrvi!!e Economic bnprovement Corporation 4B Soles Tar Funding Request Guidelines and procedures in that it will enhance business development and the "quality of life" within the community; and WHEREAS, EIC finds that it will be in the public interest to enter into an agreement with HCSSC to provide sales tax revenues collected pursuant to the Act ("4B Revenues' to HCSSC for costs related to the construction of the air hall; and •.- WHEREAS, on September 18,2006, in a meeting that was open to the public in accordance with the Texas Open Meetings Act, EIC held a public hearing pursuant to Section 4B(n) of the Act related to the proposed expenditure of 4B revenues for the purposes provided above; NOW THEREFORE, for and in consideration ofthe recitals set forth above and the promises made herein, HCSSC and EIC agree as follows: ARTICLE I. EIC'S OBLIGATIONS A. The EIC hereby grants HCSSC Five Hundred Thousand and No/100 Dollars ($500,000.00) ("Grant's for costs related to the construction of an Olympic 10.meter airrifle/air pistol °Olympic Air Hall," which will be an approximately 31,500 square foot buildir-g and which will include competition areas, offiices, storerooms, spectator areas, and a kitchen facility ("Project'. The Project shall be substantially as specified in the spreadsheet attached as Exhibit A and as depicted in Ezhibit B. B. Subject to the temrs and conditions set forth in Article II, the Grant shall be provided to HCSSC by EIC and EIC shall administer the Grant on a reimbursable basis. Prior to any payment from EIC, HCSSC must first submit written evidence of costs, such as invoices, receipts and bills of sale for review and approval. Following each submission and verification thereof which may include on-site inspections to confirm construction, EIC shall then reimburse HCSSC for the cost. C. Payments made by EIC to HCSSC from 4B Revenues shall be limited to the payments of "costs" as defined by the Act. D. In no event shall the total amount of the Grant exceed Five Hundred Thousand and No/100 Dollars ($500,000.00). E. HCSSC specifically agrees that EIC shall only be liable to HCSSC for the actual amount of the Grant to be conveyed to HCSSC and shall trot be liable to HCSSC for any other actual or consequential damages, direct or indirect, interest, attorney fees, or costs ofcant for any act of default by EIC under the terms of this Agreement. ARTTCLE IL HCSSC'S OBLIGATIONS A. HCSSC agrees to complete its construction of the Project on or before June 30, 2007. Failure to complete construction of the Project by this date shall terrninate the obligation of EIC to make any additional payments of the Graot. B. HHCSSC shall keep and maintain complete and accurate records relating to the costs of construcling the Project, separate and identifiable from its other records, for three (3) years following the termination of this Agreement. IIC and its representatives shall be entitled to inspect the records during the term ofthis Agreemrnt and for throe (3) years thereafter, upon reasonable notice. EIC Cnant A®eemeat with HCSSC Page 2 of 9 C. Following the initial payment from EIC to HCSSC, HCSSC shall make written quarterly reports to EIC, or before the last day of each calendar quarter. Said reports, at a minimum, shall include information on the status of the Project and the estimated opening date of the Project. D. HCSSC shall onty be liable to EIC for the actual amount of the Grant to be conveyed to HCSSC and shall not be liable to EIC for any other actual or consequential damages, direct or indirect, interest, attorney fees, or cost ofcourt for any act of default by HCSSC underthe terms of this Agreement. ARTICLE III. REIINBURSEMENT A. If HCSSC fails to operate and open the entire Project to public use by lone 30, 2007, the HCSSC shall repay EIC One Hundred Thousand and No/100 Dollars (SI00,000.00). The repayment shall be made as soon as commercially practicable after the receipt of a written demand by EIC, but in no event later than thirty (30) days from the receipt of such written demand. Upon repayment thenmt; HCSSC shall have no finther obligation under this Agreement. EIC shall have the discretion to consider relevant circtunstarrces before demanding repayment and may require partial repayment in appropriate circumstances. Failure to reimburse EIC within thirty (30) days of HCSSC's receipt of such demaral shall constitute a breach of this Agreement. B. Notwithstanding any otherprovision in this Agreement, HCSSC shall inter event be required to repay any amount in excess of the Grant monies actually received under this Agreerncet. ARTICLE TY. SALE OF PROJECT, MERGER OR CONSOLIDATION OF HCSSC A. A sale of all or substantially all of the assets of HCSSC shall rat release HCSSC from its duties and responsibilities to EIC under the terms of this Agreement and shall not result in the assignment ofthis Agreementby such acquiringerUitywithoutpriorwrilten consent 5om EIC, which will not be unreasonably withheld; provided, that the HCSSC's proposed successor shall have ffie financial condition to fiilly satisfy HCSSC's duties and responsibilities hereunder and agrees to assume HCSSC's responsibilities under this Agreement. EIC may, in its sole discretion, reasonably determ-ine whether such proposed srrceessor's Snancial condition is satisfactory. B. In the event of any proposed merger or other consolidation of HCSSC with any third party not affiliated with HCSSC, HCSSC shall at Least thirty (30) days prior to any such merger or consolidation provide EIC with information and assurance reasonably aa~eptable to EIC and HCSSC regarding: (1) Ute surviving entity's assumption and satisfaction of HCSSC's ob6gatior>s hereunder and (2) the financial condition of the surviving entity upon such merger or other consolidation to demonshate that the surviving entity shall have the 5nancial condition to fully satisfy HCSSC's duties and responsibilities hereunder. Failure to provide such information shall be considered a breach of this Agreement. EIC Grant Agreement with HCSSC Page 3 of 9 C. Notwithstanding anything in this Agreement to the contrary, it is expressly understood and agreed that EIC shall have no rights to approve or disapprove any sale or merger transaction of any kind involving HCSSC or its affiliates. In the event of any sale or merger involving HCSSC or its affiliates, the surviving entity shall assume HCSSC's obligations and rights hereunder and be entitled to any and all benefits to be received pursuant to this Agreement. ARTICLE V. HCSSC'S REPRESENTATIONS AND WARRANTIES A. HCSSC represents and warrants as of the date hereof: (1) HCSSC is a Texas tsonprofit corporation existing in good standing and authorized to do business in the State of Texas; (2) Execution of this Agreement has been duly sutlsorized by HCSSC and this Agreement is not in contravention of HCSSC's corporate charter, or any agreement or instrument to which HCSSC is a party or by which it may be bound as of the date hereof (3) No litigation or governmental proceeding is pending, or, to the k~wledge ofHCSSC Officer, threatened against or affecting HCSSC, which may result in a material adverse change in HCSSC's business, properties or operations sufficient to jeopardize HCSSC's legal existence; and (4) No written application, written statement or corresspondence delivered by HCSSC to EIC in co~ection with this Agreement, or in connection with any transaction contemplated hereby, to the knowledge of HCSSC Officer, contains any untrue statement of a material fact or fails to state any material fact necessary to keep the statements contained therein from being misleading. B. Except as expressly set forth in this Article V, HCSSC makes no other representation or warranty of any kind in connection wills or related to the provisions of this Agreement. ARTICLE VI. EIC'S REPRESENTATIONS AND WARRANTIES A. EIC represents and warrants as of the date hereof: (1) EIC> to the best of the knowledge of its Board of llirectors, is legally authorized to enter into this Agreement by virtue of the statute under which it is governed and by the authorities and power; vested in it as a corporation duly and properly organized under the Act; (2) Execution of this Agreement has been duly authorized by EIC; EIC Chant Agteemtffi with HCSSC Page 4 of 9 (3) No litigation or governmental proceeding is pending, or, to the knowledge of any of EIC's officer:, threatened against or affecting EIC, which may result in EIC's inability to meet its obligations under this Agreement; and (4) EIC has no reasonable basis for believing that it has or will have incurred debts beyond its ability to pay as such debts mature, including but not limited to the obligations set forth in this Agreement. B. Except as expressly set forth in this Article VI, EIC makes no other representation or warranty of any kind in connection with or related to tbe provisions of this Agreement_ ARTICLE VIL MAJOR FORCES PREVENTING HCSSC FROM CARRYING OUT ITS OBLIGATIONS UNDER THIS AGREEMENT If, by reason of force majetue, such as fire, flood, windstorm, drought, or other act of God, act of war, act of terrorism, labor strike, or economic downturn affecting HCSSC, HCSSC is reasonably unable to fulfill its obligations under this Agreement, HCSSC shall use reasonable and diligent efforts to rectify the situation to allow it to perform its obligations specified herein with all due haste. In the event that the situation cannot be rectified within six (6) months after the occurrence of the force majeure, either party may terminate this Agreement by providing thirty (30) days advance written notice to the other without finiher liability hereunder except that termination under this provision shall not excuse HCSSC firm any applicable reimbursement obligations under Article ID of this Agreement. ARTICLE VIII. CONDTI'IONS UNDER WffiCA EIC MAY SUSPEND PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT Under any of the following conditions EIC may, at its option, after fifteen (15) days written notice to HCSSC, suspend its further performance rmder this Agreement until such time as HCSSC shall have cured the condition(s) and so notified EIC, in writing, that the condition(s) have been cured: A. The HCSSC becomes insolvcet. "Insolvent" is defined to mean one either has ceased to pay its debts in the ordinary course of business or caffiot pay its debts as they become due, or is insolvent within the meaning of the federal banlmrptcy law. B. The appointment of a receiver of HCSSC, or ofall or any substantial part of its property, and the failure of such receiver to be discharged within sixty (6(1) days Urereafler. C. The adjudication of HCSSC as banlwpin D. The filing by HCSSC of a petition to be adjudged as bankrupt, or a petition or answer seeking reorganization or admitting the material allegations of a petition filed against it in any bankruptcy or reorganization proceeding. EIC Grant Agreement with HCSSC Pace 5 of 9 Should any of these conditions not be cured by HCSSC within a period of three (3) months EIC may, at its option, with written notice to HCSSC, temtinate this Agreement and the HCSSC shall have no further obligations hereunder. ARTICLE I?G REMEDIES A. Except as otherwise provided in this Agreement, in the event of any default in or breach of this Agreement, by any party hereto, or any successor to such party, such defaulting or breaching party (or successor) shall upon written notice from the other, proceed immediately to cure or remedy such default or brexh, and, in any evem, within sixty (60) days after receipt ofsuch notice. In the event that remedial action is not taken or not diligently pursued and the default or breach shall not be cured or remedied within a reasonable time (but in no evert later than ninety (90) days from the date of notification of such breach), the aggrieved Party may institute such proccedings as may be necessary or desirable in its opinion to cure and r~redy such default or breach, including but not limited to, seelong specific performance and/or injunctive relief, arforeement by mandamus or by the appointment of a receiva~ in equity with power to charge and collect rents, purchase price payments, and ban payments and to apply the revenues from the project in accordance with this Agreement, as required by the Act. B. Upon breach of this Agrcement by either party and the failure to cure as permitted by this Article IX, thenon-breaching party shall have the sole right and discrdion to either terminate this Agreement or pursue any and all remedies which may be provided by law and this Agreement. Each party ack