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HomeMy WebLinkAboutContract 33141 CITY SECRETARY . CONTRACT NO. ECONOMIC DEVELOPMENT PROGRAM AGREEMENT This ECONOMIC DEVELOPMENT PROGRAM AGREEMENT ("Agreement") is entered into by and between the CITY OF FORT WORTH, TEXAS (the "City"), a home rule municipal corporation organized under the laws of the State of Texas and ACME BRICK COMPANY("Company"), a Delaware corporation. RECITALS The City and Company hereby agree that the following statements are true and correct and constitute the basis upon which the City and Company have entered into this Agreement: A. The City has created an Economic and Community Development Department in order to, among other things, oversee economic development programs authorized by Texas law and approved by the City Council, including those authorized by Chapter 380 of the Texas Local Government Code, to promote state and local economic development and to stimulate business and commercial activity in the City, as further outlined in Resolution No. 2704, adopted by the City Council on January 30, 2001. B. In accordance with the 2005 Comprehensive Plan, adopted by the City Council on February 22, 2005 pursuant to M&C G-14691, the City's economic development programs are based on a model of custom-designed incentives and partnership programs with private businesses on a case-by-case analysis of individual projects to help ensure growth and diversification in the local economy. C. Company's corporate headquarters are located in the City at 2821 West Seventh Street. Company currently employs approximately 150 persons at its current corporate headquarters. Company has outgrown its current corporate headquarters and has explored locations for a new corporate headquarters, including locations outside the City. Factoring in incentives offered by other municipalities,Company's costs to locate a new corporate headquarters in the City will be significantly higher than those required for a location in another community. Accordingly,the City wishes to provide Company with an economic incentive to locate its new corporate headquarters in the City, as more specifically set forth in this Agreement. D. In return for the economic incentives provided by the City pursuant to this Agreement, Company, will locate a new corporate headquarters in the City and will consolidate certain statewide taxable sales to the City. The present value of the incentives payable under this Agreement have been earmarked by Company for investment in the new corporate headquarters and the incentives represent a partial reimbursement of that capital investment. Page 1 Economic Development Program Agreement between City of Fort Worth and Acme Brick Company E. The City Council recognizes the economic importance to the City of Company's current corporate headquarters operations in the City and wishes to retain that presence in the City. The City Council also believes that Company's capital investment in the construction of a new corporate headquarters will result in valuable new investment in the City and will result in the retention of a corporate headquarters and employment therein. In addition, based on all information previously known or provided to the City Council, the City Council believes that Company's consolidation of certain statewide taxable sales to the City will generate substantial tax revenue to the City's Crime Control District and other beneficial economic activity within the City. As a result, the City Council believes that this project will promote local economic development and will stimulate business and commercial activity in the City. F. This Agreement is authorized by Chapter 380 of the Texas Local Government Code. NOW, THEREFORE, in consideration of the mutual benefits and promises contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: AGREEMENT 1. INCORPORATION OF RECITALS. The City Council hereby finds, and the City and Company hereby agree, that the recitals set forth above are true and correct and form the basis upon which the parties have entered into this Agreement. 2. DEFINITIONS. In addition to terms defined in the body of this Agreement, the following terms shall have the definitions ascribed to them as follows: Affiliate means all entities, incorporated or otherwise, under common control with, controlled by or controlling Company. For purposes of this definition, "control" means fifty percent(50%)or more of the ownership determined by either value or vote. Alternative Location means any parcel of real property, other than the Anticipated Location, located within the City's corporate limits and that has been annexed by the City for full purposes. Anticipated Location means the real property located in the City, consisting of approximately 5.5 acres located east of Bryant Irvin Road and North of the Trinity River. Paget _ Economic Development Program Agreement between City of Fort Worth and Acme Brick Company Available Texas Taxable Sales means Company's available Texas sales of Taxable Items that Company consolidates within the City. Available Texas Taxable Sales shall exclude (i) Texas sales of Taxable Items already consolidated at Company's Euless, Texas location, (ii) Texas sales of Taxable Items processed as walk-up orders at Company's locations outside the City, and (iii) any Texas sales of Taxable Items that, pursuant to the Texas Comptroller of Public Accounts, state law, or for any other reason, may not be consolidated in the City. Company Sales Tax Revenues means a one percent (1%) available municipal sales tax, such as the one percent(1%)tax presently in effect pursuant to Texas Tax Code §§ 321.101(a) and 321.103, resulting from sales tax received by the City and collected by Company on Available Texas Taxable Sales. Company Sales Tax Revenues specifically exclude (i) the Crime Control District Sales Tax imposed by the City pursuant to Texas Tax Code § 323.105 and Local Government Code § 363.005, and (ii) the Transit Authority Sales Tax paid to the City by the Fort Worth Transportation Authority pursuant to City Secretary Contract No. 19689, as previously or subsequently amended or restated, from sales tax imposed by the Fort Worth Transportation Authority pursuant to Texas Tax Code Chapter 322; and (iii) Excluded Company Sales Tax Revenues, if any. If the City ever charges less than a one percent (1%) available sales tax, then Company Sales Tax Revenues shall be computed to reflect that lesser percentage. If the City ever charges less than a one percent (1%) available sales tax and then subsequently adds a sales tax that increases such lower percentage and whose use is not otherwise controlled or regulated, in whole or in part, by another governmental entity, authority or applicable law, ordinance, rule or regulation, then Company Sales Tax Revenues shall be computed to reflect that increased percentage up to a maximum aggregate of one percent(1%). Completion Date means the date as of which a final certificate of occupancy has been issued for the Required Improvements. Completion Deadline means December 31, 2008. Comptroller Approval means a private letter ruling from the Texas Comptroller of Public Accounts indicating that, under a factual scenario substantially similar to Company's plan to consolidate the Available Texas Taxable Sales in the City, that the City would be a "place of business of the retailer" (with Company being the "retailer"), as that definition is used in Section 321.002(a)(3) of the Texas Tax Code; provided that such private letter ruling will not specifically identify either the City or Company by name. Construction Costs means site pre-development and development costs; hard construction costs; contractor fees; the costs of supplies and materials; new fixtures, furniture, equipment, and taxable personal property purchased for use at the Development Property; engineering fees; architectural fees; and other professional and development fees expended directly in connection with construction of the Required Improvements. Page 3 Economic Development Program Agreement between City of Fort Worth and Acme Brick Company Corporate Headquarters means the primary location of Company's administrative operations in the United States of America that contains the primary office of Company's chief administrative officer and at which Company provides, at all times (i) during the first fifteen (15) years following the Completion Date, a minimum of one hundred (100) Full-time Jobs and (ii) in each year thereafter until expiration of the Term, a minimum number of Full-time Jobs that is equal to the number of Full-time Jobs required for the previous year, less five (5) (i.e. 95 Full-time Jobs in year 16; 90 Full-time Jobs in year 17; 85 Full-time Jobs in year 18; etc.). Development Property means the real property on which the Required Improvements are or will be located, whether at the Anticipated Location or at an Alternative Location. Excluded Company Sales Tax Revenues means (i) Company Sales Tax Revenues whose use is restricted by any state law adopted after the Effective Date of this Agreement and that would otherwise be available for the Program under the state laws in effect on the Effective Date of this Agreement and (ii) the amount of Company Sales Tax Revenues equal to that amount by which any Program Grant may be reduced in accordance with this Agreement. Existing Location means the real property in the City located at 2821 West Seventh Street. Force Majeure means (i) with respect to Company an event beyond the party's reasonable control, including, without limitation, inclement weather and other acts of God, fires, strikes, national disasters, wars, riots, material or labor restrictions, delays caused by unforeseen structural issues, unreasonable delays by the City in issuing any permits, consents or certificates of occupancy (based on the amount of time that the City customarily requires in undertaking such activities and based on the then-current workload of the City department(s) responsible for undertaking such activities), but shall not include delays due to purely financial matters involving Company, such as, without limitation, delays in the obtaining of adequate financing, or due to purely internal or external business matters of Company, and (ii) with respect to the City, an event beyond the City's reasonable control, including, without limitation, inclement weather and other acts of God, fires, strikes, national disasters, wars, riots, material or labor restrictions or acts of Company or third parties. Fort Worth Certified M/WBE Company means a minority or woman-owned business that has received certification as either a minority business enterprise (MBE) or a woman business enterprise (WBE) by either the North Texas Regional Certification Agency (NTRCA) or the Texas Department of Transportation (TxDOT), Highway Division, and whose principal business office is located within the corporate limits of the City from which the service claimed is provided. Fort Worth Company means a business that has a principal office located within the corporate limits of the City from which the service claimed is provided. Page 4 Economic Development Program Agreement between City of Fort Worth and Acme Brick Company Full-time Job means a job filled by one (1) individual for a period of not less than forty (40) hours per week or another measurement used to define full-time employment by Company in accordance with Company's then-current corporate-wide personnel policies and regulations. Program means the economic development program authorized by Chapter 380 of the Texas Local Government Code, established in general by City Council Resolution No. 2704 and outlined specifically in this Agreement. Program Grants means the economic development grants paid by the City to Company in accordance with this Agreement and as part of the Program. Required Improvements means at least 70,000 square feet of improvements constructed as a Corporate Headquarters for Company at the Anticipated Location or an Alternative Location. Sales Tax Certificate means a certificate or other statement in a form reasonably acceptable to the City setting forth Company's collection of sales and use tax imposed by the City and received by the City from the State of Texas for Available Texas Taxable Sales consolidated in the City for a given month during the Term, as more specifically outlined in Section 4.2.5. Taxable Items shall have the same meaning assigned by Chapter 151 of the Texas Tax Code, as amended. 3. TERM This Agreement shall be effective as of the first day of the month following the later date as of which both the City and Company have executed this Agreement (the "Effective Date") and shall expire on the thirty-second (32nd) anniversary of the Effective Date, unless terminated earlier as provided by and in accordance with this Agreement (the "Term"); provided, however, that any obligation of a party arising prior to expiration or termination of this Agreement shall survive the expiration or termination. 4. OBLIGATIONS AND COMMITMENTS OF COMPANY. 4.1. Construction of New Corporate Headquarters; Interim Maintenance of Existing Corporate Headquarters. In accordance with the terms and conditions of this Agreement, (i) Company shall expend or cause to be expended by the Completion Date at least $10 million in Construction Costs for the Required Improvements and (ii) the Completion Date must occur on or before the Completion Deadline. In the event Pages Economic Development Program Agreement between City of Fort Worth and Acme Brick Company " " �' that Company selects an Alternative Location as the Development Property, Company shall provide to the City in writing a legal description or the metes and bounds of such Development Property before applying for a building permit for the Required Improvements. From the Effective Date until the Completion Date, Company shall maintain its existing Corporate Headquarters operations at the Existing Location or an Alternative Location and shall provide at least one hundred (100) Full-time Jobs at the Existing Location or an Alternative Location during this period of time. 4.1.1. Overall Construction Costs. 4.1.1.1. By December 31,2006. By December 31, 2006, Company must expend or cause to be expended at least $1 million in Construction Costs for the Required Improvements (the "Initial Development Property Investment Commitment"). If Company fails to meet the Initial Development Property Investment Commitment, Company will only be eligible to receive a reduced amount of Program Grants available for payment under this Agreement for the period from January 1, 2007 until the Completion Date. 4.1.1.2. By Completion Date. As more specifically set forth in Section 5.2.3.1 of this Agreement, in order to receive the maximum amount of Program Grants available for payment to Company under this Agreement for months after the Completion Date, Company must expend or cause to be expended by the Completion Date at least $14 million in Construction Costs for the Required Improvements (the "Final Development Property Investment Commitment'). If by the Completion Date Company expends or causes to be expended between$10 million and $14 million for the Required Improvements, Company will be eligible to receive a reduced amount of Program Grants available for payment under this Agreement for months following the Completion Date. 4.1.2. Construction Commitments with Fort Worth Companies. By the Completion Date, Company shall expend or cause to be expended at least fifteen percent (15%) of all Construction Costs for the Required Improvements, regardless of the total amount of such Construction Costs, with Fort Worth Companies (the "Fort Worth Construction Commitment'). Page � l� Economic Development Program Agreement 1 f ? between City of Fort Worth and Acme Brick Company r i 9 4.1.3. Construction Commitments with Fort Worth Certified M/WBE Companies. By the Completion Date, Company shall expend or cause to be expended at least fifteen percent (15%) of all Construction Costs for the Required Improvements, regardless of the total amount of such Construction Costs, with Fort Worth Certified M/WBE Companies (the "M/WBE Construction Commitment"). Dollars spent with Fort Worth Certified M/WBE Companies shall also count as dollars spent with Fort Worth Companies for purposes of the Fort Worth Construction Commitment set forth in Section 4.1.2. 4.1.4. Good Faith Effort to Exceed Construction Commitments. Company understands and agrees that the Fort Worth Construction Commitment and the M/WBE Construction Commitment are commitments to spend a minimum number of dollars with Fort Worth Companies and Fort Worth Certified M/WBE Companies, respectively. Company hereby agrees to make a good faith effort to expend or cause to be expended at least twenty-five percent (25%) of all Construction Costs for the Required Improvements with Fort Worth Companies and at least twenty-five percent (25%) of all Construction Costs for the Required Improvements with Fort Worth Certified M/WBE Companies, with the understanding that Fort Worth Certified M/WBE Companies shall also count as Fort Worth Companies for purposes of this goal. Company shall work with the City's M/WBE Office as requested by the City in order to try to attain this spending goal. 4.2. Reports. 4.2.1. Plan for Use of Fort Worth Certified M/WBE Companies. Within sixty (60) calendar days following execution of this Agreement or prior to the submission of an application by or on behalf of Company for a permit to initiate construction of any of the Required Improvements, whichever is earlier, Company will file a plan with the City as to how Company intends to achieve the M/WBE Construction Commitment (as outlined in Section 4.1.3) as well as Company's good faith goal to exceed the M/WBE Construction Commitment(as outlined in Section 4.1.4). Company agrees to meet with the City's M/WBE Office and Minority and Women Business Enterprise Advisory Committee as reasonably necessary for assistance in implementing such plan and to address any concerns that the City may have with such plan. Pagel r Economic Development Program Agreement i between City of Fort Worth and Acme Brick Company 4.2.2. Monthly Spending Reports. From the date of execution of this Agreement until the Completion Date, in order to enable the City to assist Company in meeting Company's commitment and Company's good faith goal for construction spending with Fort Worth Certified M/WBE Companies, Company will provide the City with a monthly report in a form reasonably acceptable to the City that specifically outlines the then-current aggregate Construction Costs expended by and on behalf of Company with Fort Worth Certified M/WBE Companies for construction of the Required Improvements. Company agrees to meet with the City's M/WBE Office and Minority and Women Business Enterprise Advisory Committee as reasonably necessary for assistance in implementing such plan and to address any concerns that the City may have with such plan. 4.2.3. Final Construction Spending Report. Within thirty (30) calendar days following the Completion Date, in order for the City to assess whether Company satisfied the requirements of Section 4.1 and the degree to which Company met the Final Development Property Investment Commitment, the Fort Worth Construction Commitment and the M/WBE Construction Commitment (as defined and set forth in Sections 4.1.1.2, 4.1.2 and 4.1.3, respectively), and to determine the Program Grant Percentage, as defined in Section 5.2.3, Company will provide the City with a report in a form reasonably acceptable to the City that specifically outlines the Construction Costs expended by and on behalf of Company for construction of the Required Improvements, together with supporting invoices and other documents necessary to demonstrate that such amounts were actually paid by or on behalf of Company, including, without limitation, final lien waivers signed by Company's general contractor. This report shall also include actual Construction Costs expended by Company for construction of the Required Improvements with Fort Worth Companies and Fort Worth Certified M/WBE Companies, together with supporting invoices and other documents necessary to demonstrate that such amounts were actually paid by or on behalf of Company to such companies. 4.2.4. Monthly Employment Report. Following the Completion Date, Company shall include with each Sales Tax Certificate submitted in accordance with Section 4.2.5 a report, in a form reasonably acceptable to the City, that sets forth the total number of individuals who held Full-time Jobs at Company's Corporate Headquarters as of the first day of the month covered by the Sales Tax Certificate (or such other day requested by Company and reasonably acceptable to the City). Page 8 Economic Development Program Agreement between City of Fort Worth and Acme Brick Company 4.2.5. Sales Tax Certificates. Throughout the Term, Company shall provide the City with a Sales Tax Certificate within sixty (60) calendar days following the last day of the month covered by the Sales Tax Certificate. Company shall also provide the City with any additional supporting documentation reasonably required by the City to verify Company Sales Tax Revenues for purposes of calculating the amount of Program Grants payable pursuant to this Agreement. The Sales Tax Certificate shall at a minimum contain, include or be accompanied by the following: 4.2.5.1. A copy of all sales and use tax returns and reports, sales and use tax prepayment returns, direct payment tax returns and reports, sales and use tax audit assessments, including amended sales and use tax returns or reports, filed by Company for the applicable month showing sales and use tax collected (including sales and use tax imposed by the City and paid directly to the State of Texas pursuant to a direct payment certificate) by Company for Available Texas Taxable Sales consolidated in the City during that month; and 4.2.5.2. Information concerning any refund or credit received by Company of sales or use tax paid or collected by Company (including any sales and use tax paid directly to the State of Texas pursuant to a direct payment permit) which has previously been reported by Company as sales and use tax paid or collected for Available Texas Taxable Sales consolidated in the City during a previous month. 4.3. Audits. The City, at its own cost and expense, will have the right throughout the Term to audit the financial and business records of Company that relate to the duties and obligations of Company under this Agreement or that contain information necessary for the City to calculate or verify any Program Grant payable hereunder (collectively, the "Records"). Company shall make all Records available to the City at Company's Corporate Headquarters or at another location in the City acceptable to the parties following at least forty-eight (48) hours' advance notice by the City and shall otherwise cooperate fully with the City during any audit. Page 9 Economic Development Program Agreement L between City of Fort Worth and Acme Brick Company 4.4. Comptroller Approval. Company, at no cost to the City, shall be fully responsible for coordinating and achieving consolidation of Company's Available Texas Taxable Sales in the City and for obtaining and providing a copy of the Comptroller Approval to the City. 5. CITY OBLIGATIONS. 5.1. Issuance of Completion Certificate. Within thirty (30) calendar days following receipt by the City of the final construction spending report required by Section 4.2.3 and assessment by the City of the information contained therein, if the City is able to verify that Company expended or caused to be expended at least $10 million in Construction Costs for the Required Improvements and that the Completion Date occurred on or before the Completion Deadline, the City shall issue Company a certificate stating the amount of Construction Costs that Company expended or caused to be expended by the Completion Date for the Required Improvements as well as the Program Grant Percentage that, in accordance with Section 5.2.3, Company has earned(the "Certificate of Completion"). 5.2. Program Grant Payments. Subject to Sections 6.2 and 6.4 and all other terms and conditions of this Agreement, Company will be entitled to receive from the City a monthly Program Grant in an amount equal to a percentage of Company Sales Tax Revenues for that month, as verified from the Sales Tax Certificate covering that month that is filed by Company in accordance with Section 4.2.5 and as calculated in accordance with this Section 5.2. 5.2.1. From Effective Date Until December 31, 2006. Each monthly Program Grant covering months between the Effective Date and December 31, 2006 will equal one hundred percent (100%) of Company Sales Tax Revenues for that month. 5.2.2. From January 1,2007 Until Completion Date. If the Initial Development Property Investment Commitment, as outlined in Section 4.1.1.1, was met as of December 31, 2006, each monthly Program Grant covering months between January 1, 2007 and the Completion Date will equal one hundred percent (100%) of Company Sales Tax Revenues for that month. If the Initial Development Property Investment Commitment was not met as of December 31, 2006, each Page 10 Economic Development Program Agreement between City of Fort Worth and Acme Brick Company monthly Program Grant covering months between January 1, 2007 and the Completion Date will equal sixty percent (60%) of Company Sales Tax Revenues for that month, and the remaining forty percent (40%) of Company Sales Tax Revenues shall constitute Excluded Company Sales Tax Revenues. 5.2.3. After Completion Date. Each monthly Program Grant covering months after the Completion Date shall equal the sum of the Final Development Property Construction Percentage plus the Fort Worth Construction Percentage plus the M/WBE Construction Percentage, as applicable and as defined in Sections 5.2.3.1, 5.2.3.2 and 5.2.3.3, respectively (collectively, the "Program Grant Percentage"), as follows: 5.2.3.1. Completion of Required Improvements (Maximum 60% Component). Each monthly Program Grant payable for a month after the Completion Date shall include an amount that is based on the percentage by which the Final Development Property Investment Commitment, as outlined in Section 4.1.1.2, was met (the "Final Development Property Construction Percentage"). The Final Development Property Construction Percentage will equal the product of sixty percent (60%) multiplied by the percentage by which the Final Development Property Construction Percentage was met, which will be calculated by dividing the actual Construction Costs expended for the Required Improvements by $14 million. For example, if $12 million in Construction Costs were expended for the Required Improvements, the Final Development Property Construction Percentage will be 51.43%, which is .60 x [$12 million/$14 million], or .60 x .8571, or .5143. If$14 million or more were expended for the Required Improvements, the Final Development Property Construction Percentage will be sixty percent(60%). In no event shall the Final Development Property Investment Commitment exceed sixty percent (60%). Notwithstanding anything to the contrary herein, if (i) Company expends or causes to be expended less than $10 million in Construction Costs for the Required Improvements or (ii) the Completion Date does not occur on or before the Completion Deadline, regardless of the amount of Construction Costs expended for the Required Improvements, an event of default shall occur, as more specifically outlined in Section 6.1. Page 11 �'7 Economic Development Program Agreement between City of Fort Worth and Acme Brick Company y 5.2.3.2. Fort Worth Construction Cost SnendinE (Maximum 20% Component). Each monthly Program Grant payable for a month following the Completion Date shall include an amount that is based on the percentage by which the Fort Worth Construction Commitment, as outlined in Section 4.1.2, was met (the "Fort Worth Construction Percentage"). The Fort Worth Construction Percentage will equal the product of twenty percent (20%) multiplied by the percentage by which the Fort Worth Construction Commitment was met, which will be calculated by dividing the actual Construction Costs expended by the Completion Date for the Required Improvements by the number of dollars comprising the Fort Worth Construction Commitment, as determined in accordance with Section 4.1.2. For example, if pursuant to Section 4.1.2, the Fort Worth Construction Commitment is $2.1 million and only $1.1 million in Construction Costs were expended by the Completion Date with Fort Worth Companies, the Fort Worth Construction Percentage will be 10.47%, which is .20 x [$1.1 million/$2.1 million], or .20 x ..5238, or .1047. If the Fort Worth Construction Commitment were met or exceeded, the Fort Worth Construction Percentage will be twenty percent(20%). In no event will the Fort Worth Construction Percentage exceed twenty percent (20%). 5.2.3.3. M/WBE Construction Cost Spending (Maximum 20% Component). Each monthly Program Grant payable for a month following the Completion Date shall include an amount that is based on the percentage by which the M/WBE Construction Commitment, as outlined in Section 4.1.3, was met (the "M/WBE Construction Percentage"). The M/WBE Construction Percentage will equal the product of twenty percent (20%) multiplied by the percentage by which the M/WBE Construction Commitment was met, which will be calculated by dividing the actual Construction Costs expended by the Completion Date for the Required Improvements by the number of dollars comprising the M/WBE Construction Commitment, as determined in accordance with Section 4.1.3. For example, if pursuant to Section 4.1.3, the N4/WBE Construction Commitment is $2.1 million and only $1.1 million in Construction Costs were expended by the Completion Date with Fort Worth Certified M/WBE Companies, the M/WBE Construction Percentage will be 10.47%, which is .20 x [$1.1 million/$2.1 million], or .20 x .5238, or .1047. If the M/WBE Construction Commitment were met or exceeded, the Page 12 Economic Development Program Agreement between City of Fort Worth and Acme Brick Company M/WBE Construction Percentage will be twenty percent(20%). In no event will the N4/WBE Construction Percentage exceed twenty percent(20%). 5.3. No Offsets. For purposes of determining the Program Grant Percentage applicable to Program Grants payable after the Completion Date, a reduction to the maximum available Final Development Property Construction Percentage, Fort Worth Construction Percentage or M/WBE Construction Percentage on account of a failure to fully meet the Final Development Property Investment Commitment, the Fort Worth Construction Commitment or the M/WBE Construction Commitment, respectively, may not be offset by exceeding another of those Commitments. In other words, if the M/WBE Commitment was missed by $500,000 but the Fort Worth Construction Commitment was exceeded by $500,000 or more and the Final Development Property Construction Percentage was fully met, the Program Grant Percentage will still be subject to reduction pursuant to Section 5.2.3.3 on account of the failure to meet the M/WBE Construction Commitment in full. 5.4. Deadline for Payments. Program Grants payable for each month pursuant to and in accordance with this Agreement shall be paid to Company within sixty (60) calendar days following receipt by the City of the Sales Tax Certificate covering such month. 5.5. True-ups on Basis of Amended Returns; Refunds. In the event that Company files an amended sales and use tax return or report for Available Texas Taxable Sales consolidated in the City or the State of Texas determines that (i) additional sales and use tax is due and owing from Company's Available Texas Taxable Sales consolidated in the City or (ii) the amount of Company Sales Tax Revenues received by the City in a given month exceeds the amount of Company Sales Tax Revenues that the City should have received in that month, then the following Program Grant payable by the City shall be increased or decreased, as the case may be, by the collective difference between the amount of Company Sales Tax Revenues used to calculate the affected Program Grant or Grants and the amount of Company Sales Tax Revenues that the City actually received in the affected month or months (a "True-up Amount"). In the event that either Company or the City is unable to recover the True-up Amount due to the termination, expiration or impending expiration of this Agreement, then (i) the City shall be obligated to continue making Program Grants, calculated in accordance with this Agreement until Company has received all True-up Amounts owed and (ii) Company shall be obligated to reimburse the City the full True-up Amount within thirty (30) calendar days' advance written notice from the City. Page 13 Economic Development Program Agreement between City of Fort Worth and Acme Brick Company 5.6. Retention by City of Excluded Company Sales Tax Revenues. Company understands and agrees that any Excluded Company Sales Tax Revenues shall be retained and used by the City for any lawful purpose and will not be available for the Program or used to calculate the payment of any future Program Grants to Company. 5.7. Source of Program Grant Funds. It is understood and agreed that all Program Grants paid pursuant to this Agreement shall come from currently available general revenues of the City and other legally available sources, and not directly from Company Sales Tax Revenues received by the City. 5.8. Development Assistance. 5.8.1. Anticipated Location. In the event that Company selects the Anticipated Location as the Development Property, the City will (i) use reasonable efforts to expedite plat approval of the Anticipated Location; (ii) use reasonable efforts to expedite all review and permitting procedures required by the City in connection with the construction of the Required Improvements and development of the Development Property; (iii) allow Company to recommend a name for the primary road constructed within the Anticipated Location from existing public right-of-way, provided that such road is dedicated to the City as a public right-of-way without any cost to the City; and (iv) waive all building permit and temporary encroachment fees directly related to the construction of the Required Improvements and development of the Development Property; and (v) allow temporary access to the Anticipated Location directly from Bryant Irvin Road during construction of the Required Improvements until a permanent access road is completed, which Company shall complete or cause to be completed by the Completion Date. 5.8.2. Alternative Location. In the event that Company selects an Alternative Location as the Development Property, the City will (i) use reasonable efforts to expedite all review and permitting procedures required by the City in connection with the construction of the Required Improvements and development of the Development Property and (ii) waive all building permit and temporary encroachment fees directly related to the construction of the Required Improvements and development of the Development Property. Page 14 Economic Development Program Agreement between City of Fort Worth and Acme Brick Company j 6. DEFAULT; TERMINATION. 6.1. Failure to Complete Required Improvements. Company shall be in default under this Agreement if(i) Company fails to expend or cause to be expended by the Completion Date at least $10 million in Construction Costs for the Required Improvements or (ii) the Completion Date does not occur on or before the Completion Deadline. In such an event, the City will have the right to terminate this Agreement by providing written notice to Company and will be relieved of any obligation to pay Company any Program Grants hereunder. 6.2. Failure to Use Required Improvements as Corporate Headquarters. Following the Completion Date, if Company fails to use the Required Improvements as its Corporate Headquarters at any time for an aggregate period of thirty (30) calendar days (other than in connection with and for the duration of an event of Force Majeure) (the "Grace Period"), an event of default shall not occur, but(i)for any full month following the Grace Period in which the Required Improvements were not used by Company as its Corporate Headquarters, the City shall have no obligation to pay Company a Program Grant for that month, in which case all Company Sales Tax Revenues for that month shall constitute Excluded Company Sales Tax Revenues, and (ii) for any portion of a month following the Grace Period in which the Required Improvements were not used by Company as its Corporate Headquarters, the Program Grant payable for such month shall equal Company Sales Tax Revenues for that month multiplied by the Program Grant Percentage multiplied by a fraction, the numerator of which shall equal the number of days in that month in which the Required Improvements were used by Company as its Corporate Headquarters and the denominator of which shall equal the number of days in that month. 6.3. Failure to Submit Construction Spending Reports. If Company fails to submit any monthly construction spending report relating to work on the Required Improvements, as required by and in accordance with Section 4.2.2, the City shall notify Company in writing and Company shall submit such report within ten (10) calendar days following receipt of the City's notice. If Company is delinquent in the provision of three (3) or more such reports, the City shall notify Company in writing and Company shall have thirty (30) calendar days to submit all such delinquent reports to the City. If the City has not received all such delinquent reports following such thirty (30) day cure period, Company shall be in default under this Agreement and the City shall have the right to terminate this Agreement immediately by providing written notice of such intent to Company. If Company fails to submit the final construction spending report, as required by and in accordance with Section 4.2.3, the City Page 15 Economic Development Program Agreement between City of Fort Worth and Acme Brick Company shall notify Company in writing and Company shall have thirty(30) calendar days to submit such report to the City. If the City has not received this final construction spending report following such thirty (30) day cure period, and the City is therefore unable to issue the Certificate of Completion in accordance with Section 5.1 within thirty (30) calendar days following the Completion Deadline due to Company's failure to submit this final construction report, then the Completion Date shall be deemed to have not occurred by the Completion Deadline and Section 6.1 shall apply. 6.4. Failure to Submit Employment Reports or Sales Tax Certificates. For any month in which Company fails to submit an employment report, as required by Section 4.3.4, the City's obligation to pay Company a Program Grant for that month in accordance with this Agreement shall be suspended until the City has received such employment report. For any month in which Company fails to submit a Sales Tax Certificate, as required by and in accordance with Section 4.3.5, the City's obligation to pay Company a Program Grant for that month in accordance with this Agreement shall be suspended until the City has received such Sales Tax Certificate. The failure by Company to submit any employment report or Sales Tax Certificate shall not constitute a default by Company under this Agreement or give the City the right to terminate this Agreement. 6.5. Failure to Pay City Taxes. Company shall be in default under this Agreement if any ad valorem taxes on the Required Improvements, the Development Property, or tangible personal property located within the Required Improvements or otherwise on the Development Property that are owed to the City by Company or an Affiliate become delinquent and Company or the Affiliate, as the case may be, does not either pay such taxes in full or properly follow the legal procedures for protest and/or contest of any such taxes within thirty (30) calendar days following receipt of written notice from the City. In the event such default remains uncured following such thirty (30) day period, the City shall have the right to terminate this Agreement immediately by providing written notice to Company and shall have all other rights and remedies that may be available to it under law or in equity. 6.6. Violation of Applicable Law. 6.6.1. City Code Violations. Company shall be in default under this Agreement if any written citation is issued to Company or an Affiliate due to the occurrence of a material violation of a provision of the City Code on any portion of the Development Property then owned by Company or an Affiliate or on or Page 16 Economic Development Program Agreement between City of Fort Worth and Acme Brick Company " within any improvements thereon (including, without limitation, any material violation of the City's Building or Fire Codes and any other City Code violations related to the environmental condition of the Development Property; the environmental condition of other land or waters which is attributable to operations on such portion of the Development Property then owned by Company or an Affiliate or to matters concerning the public health, safety or welfare) and such citation is not paid in full or the recipient of such citation does not properly follow the legal procedures for protest and/or diligent contest of any such citation within thirty (30) calendar days following receipt by Company of written notice from the City specifically referencing this Section 6.6.1. If the default remains uncured after such time, the City shall issue a second written notice of default to Company specifically referencing this Section 6.6.1, in which case Company shall have an additional sixty (60) calendar days (or if Company or the Affiliate, as the case may be, has diligently pursued cure of the default but such default is not reasonably curable within sixty (60) calendar days, then such amount of time that reasonably is necessary to cure such default). Company shall be in default under this Agreement if Company or an Affiliate is convicted of the charges set forth in any such citation (whether by payment of the citation or a guilty or no contest plea to the charges set forth in the citation) and does not fully cure the offense within the cure period set forth above, in which case the City, as its sole and exclusive remedy under this Agreement, shall have the right to terminate this Agreement immediately by providing written notice to Company and shall have all other rights and remedies that may be available to the City under the law with respect to such violation of the City Code. 6.6.2. Violations of State or Federal Law. Company shall be in default under this Agreement if the City is notified by a governmental agency or unit with appropriate jurisdiction that the City, Company or an Affiliate is in violation of any material state or federal law, rule or regulation on account of the Development Property, improvements on the Development Property or any operations thereon (including, without limitation, any material violations related to the environmental condition of the Development Property; the environmental condition of other land or waters which is attributable to operations on the Development Property; or to matters concerning the public health, safety or welfare) and such violation (i) is not caused solely by the City, and (ii) is not fully cured within thirty (30) calendar days following receipt by Company of written notice from the City specifically referencing this Section 6.6.2. If the event of default remains uncured after such time, the City shall issue a second written notice of default to Company specifically referencing this Section 6.6.2, in which case Company shall have an additional sixty (60) calendar days in which to cure such default (or if Page 17 Economic Development Program Agreement between City of Fort Worth and Acme Brick Company Company or the Affiliate, as the case may be, diligently pursues cure of the default but such default is not reasonably curable within sixty (60) calendar days, then such amount of time that reasonably is necessary to cure such default). Company shall be in default under this Agreement if Company or an Affiliate fails to cure such violation within the cure period set forth above, in which case the City, as its sole and exclusive remedy under this Agreement, shall have-the right to terminate this Agreement immediately by providing written notice to Company and shall have all other rights and remedies that may be available to the City under the law with respect to such violation of state or federal law. 6.7. Failure to Meet Good Faith Goal to Exceed Construction Commitments. If Company fails to meet its good faith goal to expend or cause to be expended at least twenty-five percent (25%) of all Construction Costs for the Required Improvements with Fort Worth Companies and at least twenty-five percent(25%) of all Construction Costs for the Required Improvements with Fort Worth Certified M/WBE Companies, as set forth in Section 4.1.4, Company shall not be in default under this Agreement and no reduction in Program Grants payable to Company hereunder shall be assessed. However, Company will provide the City with a written report explaining the specific efforts that Company made to achieve such good faith goal and why, in Company's opinion, Company was not able to achieve such good faith goal. 6.8. In General. Unless stated elsewhere in this Agreement, Company shall be in default under this Agreement if Company breaches any term or condition of this Agreement. In the event that such breach remains uncured after thirty (30) calendar days following receipt of written notice by the City referencing this Agreement (or, if Company has diligently and continuously attempted cure following receipt of such written notice but reasonably requires more than thirty (30) calendar days to cure, then such additional amount of time as is reasonably necessary to effect cure, as determined by both parties mutually and in good faith), the City shall have the right to terminate this Agreement immediately by providing written notice to Company. 6.9. By Mutual Agreement. The parties may terminate this Agreement by mutual written agreement. Page 18 Economic Development Program Agreement between City of Fort Worth and Acme Brick Company 7. INDEPENDENT CONTRACTOR. It is expressly understood and agreed that Company shall operate as an independent contractor in each and every respect hereunder and not as an agent, representative or employee of the City. Company shall have the exclusive right to control all details and day-to-day operations relative to the Development Property and the Corporate Headquarters, and shall be solely responsible for the acts and omissions of their officers, agents, servants, employees, contractors, subcontractors, licensees and invitees. Company acknowledges that the doctrine of respondeat superior will not apply as between (i) the City and (ii) Company, their officers, agents, servants, employees, contractors, subcontractors, licensees, and invitees. Company further agrees that nothing in this Agreement will be construed as the creation of a partnership or joint enterprise between (i)the City and (ii) Company. 8. INDEMNIFICATION. COMPANY SHALL BE LIABLE FOR AND HEREBY AGREES TO DEFEND, INDEMNIFY AND HOLD THE CITY, ITS OFFICERS, AGENTS AND EMPLOYEES, HARMLESS AGAINST ANY AND ALL CLAIMS, LAWSUITS, COSTS AND EXPENSES FOR PERSONAL INJURY (INCLUDING DEATH, PROPERTY DAMAGE OR OTHER HARM FOR WHICH RECOVERY OF DAMAGES IS SOUGHT THAT MAY ARISE OUT OF OR BE OCCASIONED BY COMPANY'S BREACH OF ANY OF THE TERMS OR PROVISIONS OF THIS AGREEMENT, OR BY ANY NEGLIGENT OR GROSSLY NEGLIGENT ACT OR OMISSION, MALFEASANCE OR MISCONDUCT OF COMPANY OR ANY AFFILIATE, THEIR OFFICERS, AGENTS, ASSOCLATES, EMPLOYEES, CONTRACTORS (OTHER THAN THE CITY) OR SUBCONTRACTORS, IN THE PERFORMANCE OF THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, THE UNDERTAKING OF THE DEVELOPMENT OF THE DEVELOPMENT PROPER TYAND THE CONSTRUCTION OF THE REQUIRED IMPROVEMENTS; EXCEPT THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH SHALL NOT APPLY TO ANY LIABILITY RESULTING FROM THE SOLE NEGLIGENCE OF CITY, ITS OFFICERS,AGENTS, EMPLOYEES OR SEPARATE CONTRACTORS, AND IN THE EVENT OF JOINT AND CONCURRENT NEGLIGENCE OF BOTH COMPANY AND THE CITY, RESPONSIBILITY, IF ANY, SHALL BE APPORTIONED COMPARATIVELY IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. 9. NOTICES. All written notices called for or required by this Agreement shall be addressed to the following, or such other party or address as either party designates in writing, by certified mail, postage prepaid, or by hand delivery: Page 19 Economic Development Program Agreement between City of Fort Worth and Acme Brick Company City: Company: City of Fort Worth Acme Brick Company Attn: City Manager Attn: Chief Financial Officer 1000 Throckmorton 2821 West 7th Street Fort Worth,TX 76102 Fort Worth,TX 76107 with copies to: with a copy to: the City Attorney and Kelly,Hart&Hallman Economic/Community Development Attn: Attorney for Acme Brick Co. Director at the same address 201 N. Main Street, Suite 2500 Fort Worth,Texas 76102 The City or Company may change its address for notice specified above by providing the other party with thirty days' advance written notice of such change of address. 10. ASSIGNMENT AND SUCCESSORS. The City acknowledges that any of Company's commitments, requirements and other obligations under this Agreement may be satisfied in the aggregate by Company and/or by one or more of Company's Affiliates,without the necessity of assigning all or a portion of Company's interest in this Agreement to such Affiliates, and the term "Company" shall be deemed to include Company and all of its Affiliates for all purposes under this Agreement. For example, (i) the employment commitments set forth in this Agreement may be satisfied collectively by Company and its Affiliates, (ii) the Development Property may be purchased and owned by a different legal entity than the legal entity through which the Available Texas Taxable Sales are consolidated, so long as all such entities are Affiliates of the Company, and (iii) Company may undertake a sale- leaseback transaction related to the Development Property. Company may at any time assign, transfer or convey any of its interest in this Agreement to one or more Affiliates without the approval of the City, provided that within thirty (30) calendar days of such assignment, transfer or conveyance Company provides the City with written notice of the transaction and the name and address of a contact with the Affiliate. Prior to the Completion Date, Company may not assign, transfer or convey any of its interest in this Agreement to another party other than an Affiliate unless (i) the City Council approves such assignment, transfer or conveyance, which approval shall not unreasonably be withheld or delayed, and finds that the proposed assignee or successor in interest is financially capable of completing the Required Improvements and will use the Required Improvements as a Corporate Headquarters and (ii)the proposed assignee or successor in interest first executes a written agreement with the City under which such assignee or successor in interest agrees in writing to assume all covenants and obligations of Company under this Agreement. After the Completion Date Company may at any time assign,transfer or otherwise convey any of its rights or obligations under this Agreement to a third party provided that such third party first executes a written agreement with the City Page 20 Economic Development Program Agreement between City of Fort Worth and Acme Brick Company P under which such third party agrees in writing to assume all covenants and obligations of Company under this Agreement and with the understanding that Section 6.2 shall apply. From and after the effective date of any lawful assignment, transfer or conveyance, any assignee or successor in interest of Company hereunder, whether or not an Affiliate, shall be deemed to be "Company"under this Agreement for all purposes. 11. COMPLIANCE WITH LAWS, ORDINANCES,RULES AND REGULATIONS. This Agreement will be subject to all applicable federal, state and local laws, ordinances, rules and regulations, including, but not limited to, all provisions of the City's Charter and ordinances, as amended. In the event of any change in state law or other governmental rule or regulation following the Effective Date of this Agreement which has the effect of restricting or limiting the amount of the Company Sales Tax Revenues that would otherwise be available for purposes of calculating the Program Grants payable hereunder under the state laws and other governmental rules and regulations in effect on the Effective Date of this Agreement or which has the effect of restricting the City's right to make the Program Grant payments provided in this Agreement, or if any opinion or ruling of any agency or court invalidates or finds that all or any portion of the Program Grant payments or this Agreement to be unlawful or unauthorized, then (i) Program Grant payments shall be reduced or terminated, as the case may be, only to the extent required to comply with such law, rule, regulation, holding or opinion, and (ii) in such event, the City and Company agree to negotiate in good faith an amendment to this Agreement or a new agreement for the purpose of attempting to provide Company with a total economic benefit package equal to the total economic benefit that the Company would otherwise have received under this Agreement. 12. GOVERNMENTAL POWERS. It is understood that by execution of this Agreement, the City does not waive or surrender any of it governmental powers or immunities; provided, however, that by executing this Agreement, the City agrees and acknowledges that the City is waiving immunity from suit solely for the purpose of allowing enforcement and interpretation of this Agreement, if necessary. 13. NO WAIVER. The failure of either party to insist upon the performance of any term or provision of this Agreement or to exercise any right granted hereunder shall not constitute a waiver of that party's right to insist upon appropriate performance or to assert any such right on any future occasion. Page 21 Economic Development Program Agreement between City of Fort Worth and Acme Brick Company 14. VENUE AND JURISDICTION. If any action, whether real or asserted, at law or in equity, arises on the basis of any provision of this Agreement, venue for such action shall lie in state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas—Fort Worth Division. This Agreement shall be construed in accordance with the laws of the State of Texas. 15. NO THIRD PARTY RIGHTS. The provisions and conditions of this Agreement are solely for the benefit of the City and Company, and any lawful assign or successor of Company, and are not intended to create any rights, contractual or otherwise,to any other person or entity. 16. FORCE MAJEURE. It is expressly understood and agreed by the parties to this Agreement that if the performance of any obligations hereunder is delayed on account of an event of Force Majeure, the party so obligated will be excused from doing the same for an amount of time equal to the duration of the event of Force Majeure. 17. INTERPRETATION. In the event of any dispute over the meaning or application of any provision of this Agreement, this Agreement shall be interpreted fairly and reasonably, and neither more strongly for or against any party,regardless of the actual drafter of this Agreement. 18. CAPTIONS. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 19. ENTIRETY OF AGREEMENT. This Agreement, including any exhibits attached hereto and any documents incorporated herein by reference, contains the entire understanding and agreement between the City and Company, and any lawful assign and successor of Company, as to the matters contained herein. Any prior or contemporaneous oral or written agreement is hereby declared null and void to the extent in conflict with any provision of this Agreement. Notwithstanding anything to the contrary herein,this Agreement shall not be Page 22 Economic Development Program Agreement between City of Fort Worth and Acme Brick Company amended unless executed in writing by both parties and approved by the City Council of the City in an open meeting held in accordance with Chapter 551 of the Texas Government Code. 20. COUNTERPARTS. This Agreement may be executed in multiple counterparts, each of which shall be considered an original,but all of which shall constitute one instrument. [signatures on following page] Page 23 Economic Development Program Agreement between City of Fort Worth and Acme Brick Company EXECUTED to take effect on the Effective Date: CITY OF FORT WORTH: ACME BRICK COMPANY: By: C By: C_ r Dale Fisseler Jud ter Assistant City Manager Vic reside d CFO Date: Date: T— APPROVED AS TO FORM AND LEGALITY: By: Peter Vaky 617 Assistant City Attorney M&C: C -2/2 70 1-2q-06 Attested B�� 6L; Marty Hendrix City Secretary Page 24 Economic Development Program Agreement between City of Fort Worth and Acme Brick Company r Page 1 of 2 City of Fort Worth, Texas Mayor and Council Communication COUNCIL ACTION: Approved on 1/24/2006 DATE: Tuesday, January 24, 2006 LOG NAME: 17EDAACME REFERENCE NO.: C-21270 SUBJECT: Authorize Execution of an Economic Development Program Agreement with Acme Brick Company for the Establishment of a Corporate Office Headquarters RECOMMENDATION: It is recommended that the City Council: 1, Authorize the City Manager to execute the attached Economic Development Program Agreement with Acme Brick Company, subject to non-material changes subsequently agreed to by the City's legal counsel; and 2. Find that the terms and conditions of the Agreement outlined below constitute a custom-designed economic development program as authorized by Resolution No. 2704 and Chapter 380 of the Texas Local Government Code. DISCUSSION: Acme Brick Company (Acme) currently has its corporate headquarters in the City at 2821 West Seventh Street. Acme has outgrown this facility and has explored locations for a new corporate headquarters, including locations outside the City. Factoring in incentives offered by other municipalities, Acme's costs to locate a new corporate headquarters in the City are significantly higher than those required for a location in another community. Accordingly, City staff recommends approval of the attached Economic Development Program Agreement (Agreeement), which provides Acme with an economic development incentive to locate its new corporate headquarters in the City and, accordingly, to retain jobs that will be provided at its new corporate headquarters. Under the proposed Agreement, Acme will i.) maintain its current corporate headquarters in the City and maintain at least 100 jobs at that facility; ii.) construct a new corporate headquarters at a location on Bryant Irvin Road or, potenially, another location in the City, and obtain a final certificate of occupancy on that facility by December 31, 2008, with a requirement that $1 million in construction costs have been expended by December 31, 2006; iii.) expend at least $10 million in construction costs for the new corporate headquarters; iv.) expend at least 15% of total construction costs for the new corporate headquarters, regardless of the total amount, with Fort Worth companies as well as at least 15% of such construction costs with Fort Worth certified M/ BE companies; v.) make a good faith effort to exceed those spending commitments by spending at least 25% of total construction costs for the new corporate headquarters, regardless of the total amount, with Fort Worth companies and at least 25% of such construction costs with Fort Worth certified M/ BE companies (with the understanding that dollars spent with Fort Worth certified M/WBE companies shall also count as dollars spent with Fort Worth companies; vi.) provide at least 100 jobs in the new corporate headquarters for at least 15 years following completion; vii.) designate the City as the location of certain sales of building materials, which will result in a 2% new sales tax revenue stream to the City, which will be split between the City's general fund 1% sales tax (New Sales Tax Revenue) and the Crime Control and Prevention District(.5%) and Transit Authority, as appicable (.5%). http://www.cfwnet.org/council_packet/Reports/mc_print.asp 2/9/2006 Page 2 of 2 In return, the City will pay Acme certain economic development program grants, as authorized by Chapter 380 of the Texas Local Government Code, for a period of 32 years. From the effective date of the Agreement until the new corporate headquarters is complete, the City will pay Acme monthly economic development grants equal to 100% of New Sales Tax Revenue that the City received for that month, as verified in sales tax certificates filed with the State Comptroller for the same month. However, if Acme fails to expend at least $1 million on the new corporate headquarters by December 31, 2006, its grants from that point until completion date will be redued to 60% of New Sales Tax Revenue, and the City will retain the remaing 40%. Beginning in the first full month following completion of the new corporate headquarters, Acme's monthly grants will be based on the degree to which it met its construction spending requirements, as follows: Overall Construction Spending (60%): If Acme expended $14 million or more in construction costs for the new corporate headquarters, Acme will receive a component toward its future monthly grants equal to 60% of New Sates Tax Revenue. If Acme expended between $10 million and $14 million, this 60% component will be reduced by the percentage by which Acme failed to expend $14 million. If Acme expended less than $10 million, Acme will be in default under the Agreement and the City will have the right to terminate the Agreement. Fort Worth Construction Spending (20%): If Acme expended at least 15% of total construction costs for the new corporate headquarters with Fort Worth Companies, Acme will receive a component toward its future monthly grants equal to 20% of New Sales Tax Revenue. If Acme fails to meet this commitment, this 20% componenet will be reduced by the percentage by which Acme failed to meet the commitment. Fort Worth M/WBE Contruction Spending (20%): If Acme expended at least 15% of total construction costs for the new corporate headquarters with Fort Worth certified M/WBE companies, Acme will receive a component toward its future monthly grants equal to 20% of New Sales Tax Revenue. If Acme fails to meet this commitment, this 20% component will be reduced by the percentage by which Acme failed to meet the commitment. Regardless of the amount of the grants paid by the City to Acme under the Agreement, the City will benefit by retaining the new sales taxes for the Crime Control and Prevention District and for transit authority purposes. The proposed project is located in COUNCIL DISTRICT 3. FISCAL INFORMATION/CERTIFICATION: The Finance Director certifies that this action will not require any direct expenditure of City funds in the current fiscal year. TO Fund/Account/Centers FROM Fund/Account/Centers Submitted for City Manager's Office b Dale Fisseler (6140) Originating Department Head: Tom Higgins (6192) Additional Information Contact: Jay Chapa (5804) http://www.cfwnet.org/council_packet/Reports/mc_print.asp 2/9/2006