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HomeMy WebLinkAboutContract 46728-A1UTY SECRETARY coarRACT NO. 4 0 as — h i 3,o"er�l tegaN AMENDMENT NO. 1 TO CITY SECRETARY CONTRACT NO. 46728 ECONOMIC DEVELOPMENT PROGRAM AGREEMENT BETWEEN CITY OF FORT WORTH AND WINNER LLC This AMENDMENT NO. 1 TO CITY SECRETARY CONTRACT NO. 46728 ("Amendment") is made and entered into by and between the CITY OF FORT WORTH (the "City"), a home rule municipality organized under the laws of the State of Texas, and WINNER LLC ("Company"), a Delaware limited liability company. 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 Amendment: A. The City and Company previously entered into that certain Economic Development Program Agreement, a public document on file in the City Secretary's Office as City Secretary Contract No. 46728 (the "Agreement"). Under the Agreement, the City agreed to pay Company certain annual economic development Program Grants in return for Company's construction and completion of certain improvements by not later than December 31, 2017 on certain property owned by Company at the northeast corner of Alliance Gateway and Park Vista Boulevard (such property including the land identified in Exhibit "A" of the Agreement, plus any additional land within a half -mile radius of such boundaries acquired by Company after the Effective Date defined in the Agreement as the "Land"), with a minimum combined real and personal property investment of $250,000,000.00, all as more specifically outlined in the Agreement. B. The amount of each annual Program Grant is calculated on the basis of certain ad valorem and sales and use tax revenues that are attributable to the Project Improvements and Company's operations on the Land as well as electricity franchise fees paid by Company for use of electricity on the Land and that are received by the City in the Twelve -Month Period ending in the year in which the Program Grant is payable. The City is entitled to retain a portion of these revenues (defined in the Agreement as the "Required Minimum Annual Revenue") each year, but Company can earn back a portion of the Required Minimum Annual Revenue in its annual Program Grants by making increased Construction Cost expenditures for the Project Improvements with Fort Worth Companies and Fort Worth Certified M/WBE Companies (with the portion earned s back defined in the Agreement as the "Local Spending Credit"), all as more specifically �"SCS`\JsD set forth in the Agreement. 00� 26 201� G� G S�C1��A�CN Amendment No. 1 to CSC No. 46728 aOFFICIAL RECORD Economic Development Program Agreement between City of Fort Worth and Winner LLC CITY SECRETARY FT. WORTH, TX 3�pner<<n C. The Agreement defines the "Local Spending Credit" as an amount equal to the sum of (i) One Hundred Thousand Dollars ($100,000.00) multiplied by the Fort Worth Construction Percentage, plus (ii) Fifty Thousand Dollars ($50,000.00) multiplied by the M/WBE Construction Percentage. The parties wish to amend Sections 4.2 and 4.3 of the Agreement to make the examples used therein illustrating how the Local Spending Credit is applied consistent with the definition above. D. Section 5.2.1.1 of the Agreement allows Company to select either 2018 or 2019 as the year in which Company will receive payment of its first Program Grant (Program Year One). However, in order for Company to be eligible to select 2018 as Program Year One, the Agreement stipulates that (i) Company must provide written notice of such election to the City by June 1, 2017 and (ii) Company must have received a Certificate of Completion from the City in accordance with Section 5.1.1 by December 31, 2017 confirming that Company expended at least One Hundred Twenty-five Million Dollars ($125,000,000.00) in Construction Costs for Project Improvements by the Completion Deadline and that New Taxable Tangible Personal Property having an actual cost of at least One Hundred Twenty-five Million Dollars ($125,000,000.00) was installed or otherwise located on the Land by the Completion Deadline. Otherwise, Program Year One defaults to 2019. Regardless of which year is selected as Program Year One, Section 5.2.1 requires the City to pay the first Program Grant to Company on or before June 1 of Program Year One. E. The City received a timely notice from Company that Company wished to select 2018 as Program Year One. However, Company did not submit all of the documentation required by the Agreement necessary for the City to issue the Certificate of Completion until February 28, 2018. As a result, the prerequisites required for Company to be eligible to select 2018 as Program Year One were not met. Nevertheless, Company would like to receive its first Program Grant in 2018. The City is willing to work with Company in order to satisfy such request. However, the amount of time necessary for the City to verify information submitted by Company in various reports required for calculation of the first Program Grant has taken longer than expected, making the June 1 required deadline for payment of the Program Grant impossible. Accordingly, the parties wish to amend the Agreement to specify that Company will receive its first Program Grant in 2018 (meaning that Program Year One will be 2018), but that the City will not be required to pay that Program Grant until October 31, 2018 (subject to the City's verification of all required information). NOW, THEREFORE, in consideration of the mutual benefits and promises contained in the Agreement and this Amendment and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the City and Company agree as follows: Amendment No. 1 to CSC No. 46728 Economic Development Program Agreement between City of Fort Worth and Winner LLC ^.oner� 3 � tegaN AGREEMENT 1. The fourth and fifth sentences of Section 4.2 of the Agreement (Construction Spending Commitment for Fort Worth Companies) are hereby amended to read as follows: In that case, $100,000.00 of the Local Spending Credit attributable to the Fort Worth Construction Commitment would be reduced to $80,000.00 (80% of $100,000.00). If Company expends or causes the expenditure by the Completion Date of Fifty Million Dollars ($50,000,000.00) or more in Construction Costs for the Project Improvements with Fort Worth Companies, the Fort Worth Construction Percentage will be one hundred percent (100%), meaning that Company will be entitled to the full $100,000.00 of the Local Spending Credit attributable to the Fort Worth Construction Commitment. 2. The fifth and sixth sentences of Section 4.3 of the Agreement (Construction Spending Commitment for Fort Worth Certified M/WBE Companies) are hereby amended to read as follows: In that case, $50,000.00 of the Local Spending Credit attributable to the M/WBE Construction Commitment would be reduced to $45,000.00 (90% of $50,000.00). If Company expends or causes the expenditure by the Completion Date of Twenty-five Million Dollars ($25,000,000.00) or more in Construction Costs for the Project Improvements with Fort Worth Certified M/WBE Companies, the M/WBE Construction Percentage will be one hundred percent (100%), meaning that Company will be entitled to the full $50,000.00 of the Local Spending Credit attributable to the M/WBE Construction Commitment. 3. The second sentence of Section 5.2.1 of the Agreement (Base Grants) is hereby amended to read as follows: The first Program Grant payable hereunder (in other words, the Program Grant payable for Program Year One) will be paid by the City on or before October 31, 2018, subject to the City's ability to verify all information required to calculate the amount of that Program Grant under the Agreement. The City will use diligent and good faith efforts to verify all information needed to calculate the Program Grant in order to meet the October 31, 2018 deadline. Amendment No. 1 to CSC No. 46728 Economic Development Program Agreement between City of Fort Worth and Winner LLC 4. Section 5.2.1.1 of the Agreement is hereby deleted in its entirety and replaced with the following: 5.2.1.1. Selection of Program Year One for Receipt of First Program Grant. Company has elected to receive the first Program Grant hereunder in 2018, meaning that Program Year One will be 2018. Company understands and agrees that the tax abatement under the Tax Abatement Agreement will be applied to the 2018 tax year, and the Program Grant paid in 2019 (the second Program Grant payable hereunder) will exclude an amount equal to the taxes abated under the Tax Abatement Agreement. 5. All capitalized terms used but not defined in this Amendment shall have the meanings ascribed to them in the Agreement. 6. This Amendment contains the entire agreement between the parties with respect to the matters set forth herein. All provisions of the Agreement that are not specifically amended by this Amendment shall remain in full force and effect. EXECUTED to be effective as of the later date below: CITY OF FORT WORTH: B n Alanis Assistant City Manager Date: 1019� 1 -1 l 1 ' WINNER LLC, a Delaware limited liability company: By: Name: Wt{l- 2,tv VCAhwll-r-b`1iAM14n Title: Av-M led Ze f'-NtKf Wv2 Date: Amendment No. 1 to CSC No. 46728 Economic Development Program Agreement between City of Fort Worth and Winner LLC ®FF.RCP L REC RF) CITY 5 E CR ETAbRi FT WORTH, TX t'o APPROVED AS TO FORM AND LEGALITY 1 By: Peter Vaky Deputy City Attorney M&C: None Required Form 1295: None Required CONTRACT COMPLIANCE MANAGER: By signing below, I hereby acknowledge that I am the person responsible for the monitoring and administration of this contract, including ensuring all performance and reporting requirements: By: Vj IK Name of City Employee: Title: Attested X: Q Amendment No. 1 to CSC No. 46728 Economic Development Program Agreement between City of Fort Worth and Winner LLC Secretary OFFICIAL RECORD CITY SECRETARY FT WORTH, TX �I►er 3� �n teggN