HomeMy WebLinkAboutContract 51838 CITY SECRETARY
CONTRACT N0. 5 3 0
ECONOMIC DEVELOPMENT PROGRAM AGREEMENT
This ECONOMIC DEVELOPMENT PROGRAM AGREEMENT
("Agreement") is 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
NT WINDOW,INC., a Texas corporation("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
Agreement:
A. Company is a manufacturer of windows that has outgrown its current
facility in unincorporated Tarrant County, Texas and is searching for a location to
establish a new headquarters and manufacturing facility. Among the locations that
Company is considering for this expansion project is an existing facility located at 2900
West Seminary Drive in the City (the "Development Site") that was constructed in 1958
and has stood vacant for the past six (6) years. In return for the economic development
incentives set forth in this Agreement, Company proposes to renovate the existing facility
on the Development Site to meet current Building Code requirements, as more
specifically set forth in Exhibit "A", attached hereto and hereby made a part of this
Agreement for all purposes (the "Required Improvements").
B. The Required Improvements will benefit the City by repurposing an aging
and vacant commercial building, with opportunities for employment and tax base growth.
As recommended by the City's 2017 Comprehensive Plan, adopted by the City Council
pursuant to Ordinance No. 22629-03-2017 (the "Comprehensive Plan"), and in
accordance with Resolution No. 3716-03-2009, the City has established an economic
development program pursuant to which the City will, on a case-by-case basis, offer
economic incentives authorized by Chapter 380 of the Texas Local Government Code
that include monetary loans and grants of public money, as well as the provision of
personnel and services of the City, to businesses and entities that the City Council
determines will promote state or local economic development and stimulate business and
commercial activity in the City in return for verifiable commitments from such
businesses or entities to cause specific employment and other public benefits to be made
or invested in the City (the"380 Program").
C. The City has determined that the feasibility of the proposed business
expansion project described herein is contingent on Company's receipt of the Program
Grants, as provided in this Agreement. The City Council has determined that the
proposed development and use of the Required Improvements will benefit and stimulate
the local economy and that the 380 Program is an appropriate means to achieve this
-o% project. In addition, the City Council has determined that by a tering into is
OFFICIAL RECORD
Go �E� Economic Development Program Agreement �ITY E�1'o" " ��
between City of Fort Worth and NT Window,Inc. F� WORTH, �'R
Agreement the potential economic benefits that will accrue to the City under the terms
and conditions of this Agreement are consistent with the City's economic development
objectives, as outlined in the Comprehensive Plan, 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 has found, 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 other terms defined in the body of this Agreement, the following
terms will have the definitions ascribed to them as follows:
380 Program has the meaning ascribed to it in Recital B.
Affiliate means RF Heritage, LLC; FR Rendon Investments; and any other entity,
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.
Base Grant Percentage has the meaning ascribed to it in Section 6.1.
Certificate of Completion has the meaning ascribed to it in Section 5.
Completion Date means the date as of which all of the Required Improvements
have been completed and all occupiable space within the Required Improvements has
received a temporary or permanent certificate of occupancy.
Completion Deadline means December 31, 2019.
Comptroller means the Texas Comptroller for Public Accounts.
Construction Costs means Hard Construction Costs, plus the following costs
expended by Company or an Affiliate directly in connection with construction of the
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Required Improvements: engineering, architectural and other design and consulting fees;
construction management fees; costs of governmental permits and inspection fees related
to site preparation and construction; and costs of insurance, taxes and financing,
including capitalized interest, directly related to construction of the Required
Improvements. For removal of doubt, property acquisition costs do not constitute
"Construction Costs."
Development Site has the meaning ascribed to it in Recital A.
Development Site Personal Property Tax Revenues means City ad valorem
taxes on New Taxable Tangible Personal Property located on the Development Site. The
taxable appraised value of New Taxable Tangible Personal Property located on the
Development Site for any given year will be established solely by the appraisal district
that has jurisdiction over the Development Site at the time.
Development Site Real Property Tax Revenues means City ad valorem taxes
on the Development Site and any improvements thereon, including the Required
Improvements, minus the taxes attributable to the base collective taxable appraised value
of the Development Site and all improvements thereon for the 2018 tax year, which base
collective taxable appraised value is Two Million One Hundred Thousand Dollars
($2,100,000.00). The taxable appraised value of the Development Site and any
improvements located thereon, including the Required Improvements, for any given year
will be established solely by the appraisal district that has jurisdiction over the
Development Site at the time.
Development Site Sales Tax Revenues means revenues received by the City
from the one percent (1%) available City sales tax that is presently in effect pursuant to
Texas Tax Code §§ 321.101(a) and 321.103, resulting from taxes collected by Company
or an Affiliate on Sales transacted on the Development Site; provided, however, that
Development Site Sales Tax Revenues specifically excludes all revenues from (a) the
Crime Control District Sales Tax imposed by the City pursuant to Texas Tax Code §
323.105 and Texas Local Government Code § 363.005, as may be amended, and (b) 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 the sales tax imposed by the Fort Worth Transportation Authority pursuant
to Texas Tax Code Chapter 322. If the City's sales tax rate is ever decreased to the
extent that the City receives available sales tax revenues based on less than a one percent
(1%) sales tax, then the meaning of Development Site Sales Tax Revenues shall
automatically be adjusted to equal that lesser percentage. If the City's sales tax rate is
ever decreased to the extent that the City receives available sales tax revenues based on
less than a one percent (I%) sales tax and is then increased to a higher percentage whose
use is not otherwise controlled, regulated, restricted or otherwise dedicated to a specific
use by the City, then Development Site Sales Tax Revenues shall be computed to reflect
that increased percentage up to a maximum aggregate of one percent (1%).
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Director means the director of the City's Economic Development Department or
his or her authorized designee.
Effective Date has the meaning ascribed to it in Section 3.
First Oaerating Year means the first full calendar year following the year in
which the Completion Date occurred.
Fort Worth Certified M/WBE Company means a minority- or woman-owned
business that(i)has received certification as either a minority business enterprise (MBE),
a woman business enterprise (WBE) or a disadvantaged business enterprise (DBE) by the
North Central Texas Regional Certification Agency (NCTRCA); (ii) has a principal
business office located within the corporate limits of the City that performs a
commercially useful function; and (iii)has provided from such office the services or sales
that Company is seeking to have counted under this Agreement.
Fort Worth Employment Commitment has the meaning ascribed to it in
Section 4.5.
Fort Worth Employment Percentage has the meaning ascribed to it in Section
6.3.
Fort Worth Resident means an individual whose principal place of residence is
at a location within the corporate limits of the City.
Full-time Job means a job provided to one (1) individual by Company or an
Affiliate for at least forty(40)hours per week.
Hard Construction Costs means actual site development and construction costs
expended by Company or an Affiliate for the Required Improvements, including directly-
related contractor fees, costs of construction labor, supplies and materials for site
preparation, construction and landscaping, and materials testing.
M/WBE Construction Percentage has the meaning ascribed to it in Section 6.2.
M/WBE Construction Spending Commitment has the meaning ascribed to it in
Section 4.4.
New Taxable Tangible Personal Property means any personal property that (i)
is subject to ad valorem taxation by the City; (ii) is located on the Development Site; (iii)
is owned or leased by Company or an Affiliate; and (iv) was not located in the City prior
to the Effective Date of this Agreement.
Personal Property Commitment has the meaning ascribed to it in Section 4.3.
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Program Can means Six Hundred Sixty Thousand Dollars ($660,000.00), gross,
which is the aggregate amount of Program Grants that the City is obligated to pay under
this Agreement
Program Grants means the annual economic development grants paid by the
City to Company in accordance with this Agreement and as part of the 380 Program.
Proaram Source Funds means an amount of City funds available for inclusion in
a given Program Grant, which will equal a percentage (calculated in accordance with this
Agreement) of the (i) Development Site Real Property Tax Revenues and Development
Site Personal Property Tax Revenues received by the City during the Twelve-Month
Period ending in the same year in which the Program Grant is payable and (ii)
Development Site Sales Tax Revenues received by the City in the calendar year
preceding the year in which the Program Grant is payable.
Real Property Commitment has the meaning ascribed to it in Section 4.2.
Records has the meaning ascribed to it in Section 4.8.
Required Improvements has the meaning ascribed to it in Recital A.
Sales means all sales of merchandise (including gift and merchandise
certificates), services and other receipts whatsoever of all business conducted in, on or
from the Development Site, whether cash or credit, including mail, telephone, telefax,
telegraph, internet or catalogue orders received or filled at or from the Development Site,
deposits not refunded to purchasers, orders taken (although such orders may be filled
elsewhere), sales to employees, sales through vending machines or other devices. Sales
will not include (i) any sums collected and paid for any sales or excise tax imposed by
any duly constituted governmental authority; (ii)the exchange of merchandise purchased
on and returned to the Development Site; (iii) the amount of returns to shippers and
manufacturers; or(iv)the sale of any fixtures.
Second Operating Year means the second full calendar year following the year
in which the Completion Date occurred.
Term has the meaning ascribed to it in Section 3.
Twelve-Month Period means the period between February 1 of a given year and
January 31 of the following year.
3. TERM.
This Agreement will be effective as of the date of execution by both parties (the
"Effective Date") and, unless terminated earlier pursuant to and in accordance with this
Agreement, will expire on the earlier of (i) the date as of which the City has paid all
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Program Grants required hereunder or (ii) the date as of which the amount of aggregate
Program Grants paid by the City equals the applicable Program Cap(the "Term").
4. COMPANY OBLIGATIONS AND COMMITMENTS.
4.1. Use of Development Site for Business Purposes.
From the Completion Date until expiration of the Term of this Agreement,
the Development Site must be used for, at a minimum, a window manufacturing
facility or other bona fide business operations of Company and as Company's
corporate headquarters.
4.2. Real Property Improvements.
Company must expend or cause to be expended, either by Company or by
an Affiliate, at least Five Million Six Hundred Thousand Dollars ($5,600,000.00)
in Construction Costs for the Required Improvements by the Completion Date, of
which at least Four Million Eighty Thousand Dollars ($4,080,000.00) must be
Hard Construction Costs, and the Completion Date must occur on or before the
Completion Deadline (collectively,the"Real Property Commitment").
4.3. Personal Property Improvements.
Company covenants and agrees that New Taxable Tangible Personal
Property having a value of at least Three Million Eight Hundred Thousand
Dollars ($3,800,000.00) must be in place on the Development Site by January 1,
2020, as determined solely by the appraisal district having jurisdiction over the
Development Site at that time(the"Personal Property Commitment").
4.4. Construction Spending with Fort Worth Certified M/WBE
Companies.
By the Completion Date, Company must expend or cause to be expended ,
either by Company or by an Affiliate, at least fifteen percent (15%) of all Hard
Construction Costs for the Required Improvements, regardless of the total amount
of such Hard Construction Costs, with Fort Worth Certified M/WBE Companies
(the "M/WBE Construction Spending Commitment").
4.5. Fort Worth Employment Commitment.
In the First Operating Year and in each year thereafter for the remainder of
the Term, at least the greater of(i) 32 Full-time Jobs on the Development Site or
(ii) twenty-five percent (25%) of all Full-time Jobs on the Development Site,
regardless of the total number of Full-time Jobs provided and filled thereon, must
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be provided to and filled by Fort Worth Residents (collectively, the "Fort Worth
Employment Commitment").
4.6. Reports and Filings.
4.6.1. Construction Spending Reports.
4.6.1.1. Quarterly Reports.
From the Effective Date until the Completion Date,
Company must provide the Director with a calendar quarterly
report in a form reasonably acceptable to the Director that
specifically outlines (i) the then-current aggregate Construction
Costs expended for the Required Improvements; (ii) the then-
current aggregate Hard Construction Costs expended for the
Required Improvements; and (iii) the then-current aggregate Hard
Construction Costs expended with Fort Worth Certified M/WBE
Companies for the Required Improvements.
4.6.1.2. Final Construction Reports.
Within sixty (60) calendar days following the
Completion Date, in order for the City to assess whether Company
expended or caused to be expended at least Five Million Six
Hundred Thousand Dollars ($5,600,000.00) in Construction Costs
for the Required Improvements by the Completion Date, and that,
of these, at least Four Million Eighty Thousand Dollars
($4,080,000.00) were Hard Construction Costs, as well as the
extent to which the M/WBE Construction Spending Commitment
was met, Company must provide the Director with a report in a
form reasonably acceptable to the Director that specifically
outlines (i) the total Construction Costs expended for the Required
Improvements as of the Completion Date; (ii) the total Hard
Construction Costs expended for the Required Improvements as of
the Completion Date; and (iii) the total Hard Construction Costs
expended with Fort Worth Certified M/WBE Companies for the
Required Improvements as of the Completion Date, together with
supporting invoices and other documents necessary to demonstrate
that such amounts were actually paid, including, without
limitation, final lien waivers signed by the general contractor for
the Required Improvements.
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4.6.2. Personal Property Report.
In order for the City to track its obligations under this Agreement,
Company will notify the Director in writing once it believes that the
Personal Property Commitment has been attained.
4.6.3. Annual Sales Tax Report.
On or before April 1 of the Second Operating Year and of each
year thereafter, Developer must provide the City with an annual report that
sets forth the aggregate amount of tax paid to the Comptroller in the
previous calendar year on Sales transacted on the Development Site by
Company or any Affiliate, together with copies of the corresponding sales
tax reports filed with the Comptroller for the months covered by the
report. Company will also provide the City with any additional supporting
documentation reasonably required by the City to verify Development Site
Sales Tax Revenues for purposes of calculating the amount of Program
Grants payable pursuant to this Agreement, including the following:
4.6.3.1. 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 or
an Affiliate 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 or an Affiliate on Sales transacted on the
Development Site during a month covered by the report; and
4.6.3.2. Information concerning any refund or credit
received by Company of sales and use tax paid or collected by
Company or an Affiliate (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 or an Affiliate as
sales and use tax paid or collected for Sales transacted on the
Development Site during a month covered by the report.
4.6.4. Annual Employment Report.
On or before February I of the Second Operating Year and
February 1 of each year thereafter, in order for the City to assess the
degree to which the Fort Worth Employment Commitment was met in the
previous calendar year, Company must provide the Director with a report
in a form reasonably acceptable to the Director that sets forth the total
number of individuals as well as the total number of Fort Worth Residents
who held Full-time Jobs on the Development Site as of December I (or
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such other date requested by Company and reasonably acceptable to the
City) of the previous year, together with reasonable supporting
documentation.
4.6.5. Performance by Affiliates.
The City will accept performance of any obligations set forth in
this Section 4 by an Affiliate of Company, with the understanding that
Company will be responsible for preparing and providing all reports
required hereunder, including the assembly of and access by the City to
any data or information of an Affiliate that is reflected in any such report.
4.7. Inspections of Development Site.
At any time during Company's normal business hours throughout the
Term and following reasonable notice to Company, the City will have the right to
inspect and evaluate the Development Site and any improvements thereon,
including the Required Improvements, and Company will provide or cause to be
provided full access to the same, in order for the City to monitor compliance with
the terms and conditions of this Agreement. Company and its Affiliates will
cooperate fully with the City during any such inspection and evaluation.
Notwithstanding the foregoing, Company and its Affiliates will have the right to
require that any representative of the City be escorted by a representative or
security personnel of Company or its Affiliates during any such inspection and
evaluation.
4.8. Audits.
The City will have the right throughout the Term to audit the financial and
business records of Company or any Affiliate that relate to the Required
Improvements and the Development Site as well as any other documents
necessary to evaluate Company's compliance with this Agreement or with the
commitments set forth in this Agreement (collectively "Records"). Company
must make all Records available to the City on the Development Site or at another
location in the City acceptable to both parties following reasonable advance
notice by the City and will otherwise cooperate fully with the City during any
audit.
5. CERTIFICATE OF COMPLETION.
Within ninety (90) calendar days following receipt by the City of the final
construction spending report for the Required Improvements submitted in accordance
with Section 4.6.1.2, and assessment by the City of the information contained therein
pursuant to Sections 4.7 and 4.8, if the City is able to verify attainment of the Real
Property Commitment set forth in Section 4.2 (that is, that Company or its Affiliates
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expended or caused to be expended at least Five Million Six Hundred Thousand Dollars
($5,600,000.00)in Construction Costs for the Required Improvements by the Completion
Date, of which at least Four Million Eighty Thousand Dollars ($4,080,000.00) were Hard
Construction Costs, and that the Completion Date occurred on or before the Completion
Deadline), the Director will issue Company a certificate stating the amount of
Construction Costs expended for the Required Improvements, the amount of Hard
Construction Costs expended for the Required Improvements, as well as the amounts of
Hard Construction Costs expended specifically with Fort Worth Certified M/WBE
Companies (the "Certificate of Completion"). The Certificate of Completion will serve
as the basis for determining the extent to which the M/WBE Construction Spending
Commitment was met.
6. PROGRAM GRANTS.
As more specifically set forth herein, if both the Real Property Commitment set
forth in Section 4.2 and the Personal Property Commitment set forth in Section 4.3 were
met, Company will be entitled to receive six (6) annual Program Grants, payment of
which will begin in the Second Operating Year. The amount of each Program Grant will
equal a percentage of the Program Source Funds available for that Program Grant, which
percentage will be based on the extent to which the various commitments set forth in
Section 4 were met and, specifically, will equal the sum of the Base Grant Percentage, the
M/WBE Construction Percentage, and the Fort Worth Employment Percentage, as
defined in Sections 6.1, 6.2, and 6.3, respectively. In no event will any Program Grant
exceed sixty percent (60%) of the Program Source Funds available for that year's
Program Grant. In addition, notwithstanding anything to the contrary herein, aggregate
Program Grants payable under this Agreement shall be subject to and shall not exceed the
applicable Program Cap.
6.1. Attainment of Real Property Commitment and Personal Property
Commitment(45%).
Provided that the City is able to verify that both the Real Property
Commitment set forth in Section 4.2 and the Personal Property Commitment set
forth in Section 4.3 were met, each annual Program Grant will include forty-five
percent (45%) of the Program Source Funds available for that year's Program
Grant(the"Base Grant Percentage").
6.2. M/WBE Construction Spending Commitment(Up to 5%).
A percentage of each Program Grant will be based on the extent to which
the M/WBE Construction Spending Commitment, as outlined in Section 4.4, was
met (the "M/WBE Construction Percentage"). The M/WBE Construction
Percentage will equal the product of five percent (5%) multiplied by the
percentage by which the M/WBE Construction Spending Commitment was met,
which will be calculated by dividing the actual Hard Construction Costs expended
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for the Required Improvements by the Completion Date with Fort Worth Certified
M/WBE Companies by the number of dollars comprising the M/WBE
Construction Spending Commitment, as determined in accordance with Section
4.4. For example, if Company expended or caused to be expended $4,500,000.00
in Hard Construction Costs for the Required Improvements, the M/WBE
Construction Spending Commitment would be $675,000.00 (15% of
$4,500,000.00). If only $607,500.00 in Hard Construction Costs for the Required
Improvements were expended with Fort Worth Certified M/WBE Companies by
the Completion Date, the M/WBE Construction Percentage for each Program
Grant would be 4.5% instead of 5% (or .05 x [$607,500/$675,000], or .05 x .90,
or .045). If the M/WBE Construction Spending Commitment was met or
exceeded, the M/WBE Construction Percentage for each Program Grant will be
five percent(5%).
6.3. Fort Worth Employment Commitment(Un to 10%).
Each annual Program Grant will include a percentage of the Program
Source Funds available for that year's Program Grant that is based on Company's
compliance with the Fort Worth Employment Commitment in the previous
calendar year, as outlined in Section 4.5 (the "Fort Worth Employment
Percentage"). The Fort Worth Employment Percentage for each Program Grant
will equal the product of ten percent(10%)multiplied by the percentage by which
the Fort Worth Employment Commitment was met in the previous calendar year,
which will be calculated by dividing the actual number of Full-time Jobs provided
on the Development Site that were filled by Fort Worth Residents in the previous
calendar year by the applicable number of Full-time Jobs constituting the Fort
Worth Employment Commitment for the previous calendar year, as outlined in
Section 4.5. For example, if 140 Full-time Jobs were provided and filled on the
Development Site in a given year, the Fort Worth Employment Commitment for
that year would be 35 Full-time Jobs (25% of 140 Full-time Jobs). However, if
only 28 Full-time Jobs provided on the Development Site in that year were filled
with Fort Worth Residents, the Fort Worth Employment Percentage for the
Program Grant payable in the following year would be 8% instead of 10%(or .10
x [28/35]), or .10 x .80, or .08). If the Fort Worth Employment Commitment is
met or exceeded in any given year, the Fort Worth Employment Percentage
applicable the Program Grant payable in the following year will equal ten percent
(10%).
6.4. Program Cap.
The City's obligation to pay Company Program Grants under this
Agreement is limited by the Program Cap. If in any Program Year the amount of
the Program Grant calculated in accordance with this Agreement would cause
aggregate Program Grants paid by the City to exceed the Program Cap, the
amount of the Program Grant payable in that Program Year shall be limited to
equal only the difference between the aggregate amount of all Program Grants
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previously paid and the Program Cap amount, in which case, upon payment of
such Program Grant, this Agreement shall expire automatically.
6.5. Deadline for Payments and Source of Funds.
The first Program Grant payable hereunder will be paid by the City on or
before June 1 of the Second Operating Year. Each subsequent annual Program
Grant payment will be made by the City to Company on or before June 1 of the
year in which such payment is due. It is understood and agreed that all Program
Grants paid pursuant to this Agreement will come from currently available
general revenues of the City and not directly from ad valorem taxes on the
Development Site or improvements thereon or on New Taxable Tangible Personal
Property that are received by the City or directly from taxes on Sales transacted
on the Development Site. Company understands and agrees that any revenues of
the City other than those dedicated for payment of a given annual Program Grant
pursuant to and in accordance with this Agreement may be used by the City for
any lawful purpose that the City deems necessary in the carrying out of its
business as a home rule municipality and will not serve as the basis for calculating
the amount of any future Program Grant or other obligation to Company.
7. DEFAULT,TERMINATION AND FAILURE BY COMPANY TO MEET
VARIOUS DEADLINES AND COMMITMENTS.
7.1. Failure to Meet Real Property Commitment or Personal Property
Commitment.
Notwithstanding anything to the contrary herein, the City will have the
right to terminate this Agreement immediately upon provision of written notice to
Company, without further obligation to Company hereunder, if the Real Property
Commitment, as outlined in Section 4.2, is not met or the Personal Property
Commitment, as outlined in Section 4.3, is not met.
7.2. Failure to Use Development Site for Business Operations.
If Company (i) fails to use the Development Site as, at a minimum, a
window manufacturing facility or for other bona fide business operations of
Company, as well as for Company's corporate headquarters, for more than thirty
(30) consecutive calendar days at any time during the Term of this Agreement for
any reason (other than on account of Company's temporary displacement caused
by a casualty to such location and resulting ongoing repairs or restoration to that
location necessitated by such casualty), Company will be in default under this
Agreement and the City will have the right to terminate this Agreement following
provision of notice and opportunity to cure in accordance with Section 7.5.
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7.3. No Default for Failure to Meet M/WBE Construction Spending
Commitment or Fort Worth Employment Commitment.
If the M/WBE Construction Spending Commitment is not met, or the Fort
Worth Employment Commitment is not met in any given year, such failure will
not constitute a default hereunder or provide the City with the right to terminate
this Agreement, but, rather, will only cause the amount of the Program Grant that
the City is required to pay in the following year to be reduced in accordance with
this Agreement.
7.4. Failure to Submit Reports.
If Company fails to submit any report required by and in accordance with
Section 4.6, the City's obligation to pay any Program Grants at the time, if any,
will be suspended until Company has provided all required reports; provided,
however, that if any report required hereunder is delinquent by more than one (1)
year, the City will have the right to terminate this Agreement following provision
of notice and opportunity to cure in accordance with Section 7.5.
7.5. General Breach.
Unless stated elsewhere in this Agreement, Company will 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 from the City referencing this
Agreement (or, if Company has diligently and continuously attempted to 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 will have the right to terminate this Agreement immediately by
providing written notice to Company.
7.6. Knowing Employment of Undocumented Workers.
Company acknowledges that the City is required to comply with Chapter
2264 of the Texas Government Code, enacted by House Bill 1196 (80th Texas
Legislature), which relates to restrictions on the use of certain public subsidies.
Company hereby certifies that Company, and any branches, divisions, or
departments of Company, does not and will not knowingly employ an
undocumented worker, as that term is defined by Section 2264.001(4) of the
Texas Government Code. In the event that Company, or any branch, division, or
department of Company, is convicted of a violation under 8 U.S.C. Section
1324a(l) (relating to federal criminal penalties and injunctions for a pattern or
practice of employing unauthorized aliens):
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• if such conviction occurs during the Term of this Agreement, this
Agreement will terminate contemporaneously upon such conviction
(subject to any appellate rights that may lawfully be available to and
exercised by Company), and Company must repay, within one hundred
twenty (120) calendar days following receipt of written demand from the
City, the aggregate amount of the Program Grants received by Company
hereunder, if any,plus Simple Interest at a rate of four percent (4%)per
annum; or
• if such conviction occurs after expiration or termination of this
Agreement, subject to any appellate rights that may lawfully be available
to and exercised by Company, Company must repay, within one hundred
twenty (120) calendar days following receipt of written demand from the
City, the aggregate amount of the Program Grants received by Company
hereunder, if any,plus Simple Interest at a rate of four percent (4%)per
annum.
For the purposes of this Section 7.6, "Simple Interest" is defined as a rate of
interest applied only to an original value, in this case the aggregate amount of
Program Grants paid hereunder. This rate of interest can be applied each year, but
will only apply to the aggregate amount of Program Grants paid hereunder and is
not applied to interest calculated. For example, if the aggregate amount of the
Program Grants paid hereunder is $10,000 and such amount is required to be paid
back with four percent (4%) interest five years later, the total amount would be
$10,000 + [5 x ($10,000 x 0.04)], which is $12,000. This Section 7.6 does not
apply to convictions of any subsidiary or affiliate entity of Company, by any
franchisees of Company, or by a person or entity with whom Company contracts.
Notwithstanding anything to the contrary herein, this Section 7.6 will survive the
expiration or termination of this Agreement.
8. INDEPENDENT CONTRACTOR.
It is expressly understood and agreed that Company will operate as an
independent contractor in each and every respect hereunder and not as an agent,
representative or employee of the City. Company will have the exclusive right to control
all details and day-to-day operations relative to the Required Improvements and the
Development Site and any improvements thereon and will be solely responsible for the
acts and omissions of its officers, agents, servants, employees, contractors,
subcontractors, licensees and invitees. Company acknowledges that the doctrine of
respondeat superior will not apply as between the City and Company, its 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 the City and Company.
Economic Development Program Agreement 14 of 24
between City of Fort Worth and NT Window,Inc.
9. INDEMNIFICATION.
COMPANY, AT NO COST TO THE CITY, AGREES TO DEFEND,
INDEMNIFY AND HOLD THE CITY, ITS OFFICERS, AGENTS SER VANTS AND
EMPLOYEES, HARMLESS AGAINST ANY AND ALL CLAIMS, LAWSUITS,
ACTIONS, COSTS AND EXPENSES OF ANY KIND, INCLUDING, BUT NOT
LIMITED TO, THOSE FOR PROPERTY DAMAGE OR LOSS (INCLUDING
ALLEGED DAMAGE OR LOSS TO COMPANY'S BUSINESS AND ANY
RESULTING LOST PROFITS) AND/OR PERSONAL INJURY, INCLUDING
DEATH, THAT MAY RELATE TO, ARISE OUT OF OR BE OCCASIONED BY(i)
COMPANY'S BREACH OF ANY OF THE TERMS OR PROVISIONS OF THIS
AGREEMENT OR (ii)ANY NEGLIGENT ACT OR OMISSION OR INTENTIONAL
MISCONDUCT OF COMPANY, ITS OFFICERS, AGENTS, ASSOCIATES,
EMPLOYEES, CONTRACTORS (OTHER THAN THE CITY) OR
SUBCONTRACTORS, RELATED TO THE DEVELOPMENT SITE, OR ANY
IMPROVEMENTS THEREON, INCLUDING THE REQUIRED IMPROVEMENTS,
OR OTHERWISE TO THE PERFORMANCE OF THIS AGREEMENT.
10. NOTICES.
All written notices called for or required by this Agreement must 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:
City: Company:
City of Fort Worth NT Window, Inc.
Attn: City Manager Attn: AmA Qa
200 Texas St. /"e
Fort Worth, TX 76102 rdil Wollsfo TX' -
with copies to: with a copy to:
the City Attorney and N�— � me-'
Economic Development TKA: t'c r Yig'na
Director at the same address t/d it�—
rilt GskA.TX' -74&0
11. ASSIGNMENT AND SUCCESSORS.
Company may at any time assign,transfer or otherwise convey any of its rights or
obligations under this Agreement to an Affiliate without the approval of the City so long
as Company, the Affiliate and the City first execute an agreement under which the
Affiliate agrees to assume and be bound by all covenants and obligations of Company
under this Agreement. Otherwise, Company may not assign,transfer or otherwise convey
Economic Development Program Agreement 15 of 24
between City of Fort Worth and NT Window,Inc.
any of its rights or obligations under this Agreement to any other person or entity without
the prior consent of the City Council, which consent will not be unreasonably withheld,
conditioned on(i) the prior approval of the assignee or successor and a finding by the City
Council that the proposed assignee or successor is financially capable of meeting the terms
and conditions of this Agreement and (ii) prior execution by the proposed assignee or
successor of a written agreement with the City under which the proposed assignee or
successor agrees to assume and be bound by all covenants and obligations of Company
under this Agreement. Any attempted assignment without the City Council's prior consent
will constitute grounds for termination of this Agreement following ten (10) calendar days
of receipt of written notice from the City to Company. Any lawful assignee or successor in
interest of Company of all rights under this Agreement will be deemed "Company" for all
purposes under this Agreement.
12. 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.
13. 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.
14. 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 will not constitute a waiver
of that party's right to insist upon appropriate performance or to assert any such right on
any future occasion.
15. 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 will 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 will be construed in accordance with the
laws of the State of Texas.
Economic Development Program Agreement 16 of 24
between City of Fort Worth and NT Window,Inc.
16. 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.
17. INTERPRETATION.
In the event of any dispute over the meaning or application of any provision of
this Agreement, this Agreement must 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
will not be deemed a part of this Agreement.
19. SEVERABILITY.
If any provision of this Agreement is held to be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions will not in any way be
affected or impaired.
20. 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 may not be
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.
21. COUNTERPARTS.
This Agreement may be executed in multiple counterparts, each of which will be
Economic Development Program Agreement 17 of 24
between City of Fort Worth and NT Window,Inc.
considered an original, but all of which will constitute one instrument.
EXECUTED as of the last date indicated below:
CITY OF FORT WORTH: NT WINDOW,INC.,
a Texascorporation: --
By By:
Susa Alanis Name: y
tant City Manager Title:
Date: FART Date: ` ..
CONTRACT COMPLIANCE MANAGER: by?
!
By signing below, I hereby acknowledge that I
am the person responsible for the monitoring i9
and administration of this contract, including nald P. Gonzales,As t City SemvUlry
ensuring all performance and reporting
requirements:
By:
_C�� '4X'-U'
Name of C' Empl ee:
APPROVED AS TO FORM AND LEGALITY:
By:
A I" ��'r
Peter-V.a1y Ae,i,undl as, .
Deputy City Attorneys hssE C�iry
M&C: C-25685 1/30/18
Form 1295: 2018-297712
OFFICIAL %pp
Economic Development Program Agreement ��.�S►��RI oosQ��
between City of Fort Worth and NT Window,Inc.
FT WORTH, TX
EXHIBIT "A"—Reauired Improvements
ELEVATIONS
Economic Development Program Agreement 19 of 24
between City of Fort Worth and NT Window,Inc.
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M&C Review Page 1 of 2
Official site of the City of Fort Worth,Texas
CITY COUNCIL AGENDA Fotz�;TH
COUNCIL ACTION: Approved on 1/30/2018
DATE: 1/30/2018 REFERENCE NO.:C-28565 LOG NAME: 17ED_NTWINDOW
CODE: C TYPE: NON- PUBLIC CONSENT HEARING: NO
SUBJECT: Authorize Execution of an Economic Development Program Agreement with NT Window,
Inc. or an Affiliate for the Renovation and Use of an Existing Building at 2900 West
Seminary Drive as a Window Manufacturing Facility (COUNCIL DISTRICT 9)
RECOMMENDATION:
It is recommended that the City Council authorize the City Manager to execute an Economic
Development Program Agreement with NT Window, Inc., or an affiliate thereof, for the renovation and
use of an existing building at 2900 West Seminary Drive as a window manufacturing facility.
DISCUSSION:
NT Window, Inc. (Company), a 27-year old window manufacturer with $11 million in taxable sales, has
outgrown its current facility located in unincorporated Tarrant County and is proposing to renovate
2900 West Seminary Drive, a vacant manufacturing facility constructed in 1958 that has been vacant
for 6 years. The financial gap for the project is created by the requirement for the building to meet
current energy code, fire lane and stormwater standards and the need to update the dock height. The
site provides the ability to expand this growing manufacturing business. More than thirty new central
city jobs anticipated, with the potential for 175 additional jobs in three years.
The Company plans to invest at least $5.6 million in total construction costs (exclusive of land
acquisition costs) and at least $3.8 million in new-to-Fort-Worth business personal property by
December 31, 2019. Hard construction costs for the project are estimated at $4.08 million. Failure to
meet the minimum total construction cost and business personal property investment is an event of
default, which will give the City the right to terminate the Agreement. The Company must spend or
cause to be expended at least 15 percent or$612,000.00 of all hard construction costs with contractors
that are Fort Worth Certified Minority/Women Owned Business Enterprises.
The Company currently employs 130 full-time employees with an average wage of $18.33 per
hour. The Company has committed to continuing to fill the greater of 25 percent or 32 of the full-time
employee positions with Fort Worth residents.
In return for these commitments, the City will pay Company annual grants in amounts equal to a
maximum of a 60 percent of the City's incremental real and personal property taxes and 60 percent of
the City's 1 percent sales tax on sales conducted from the site (which is all new to the City of Fort
Worth) for a period of six years, capped at $660,000.00, gross. The Company must meet all
construction spending and annual employment commitments in order to achieve the maximum amount
of potential incentive for each grant year. The weighted value for each of the commitments is as
follows:
http://apps.cfwnet.org/council_packet/mc_review.asp?ID=25511&councildate=1/30/2018 2/2/2018
M&C Review Page 2 of 2
Company Commitment Potential
Grant
Total Construction Cost Investment 45 percent
15 percent Hard Construction Spending with FW Certified M/WBE 5 percent
Contractors
25 percent Full Time Employees are Fort Worth Residen-:s 10 percent
TOTAL 60 percent
Staff recommends entering into an Economic Development Program Agreement with the Company
for this project.
This project is located in COUNCIL DISTRICT 9.
FISCAL INFORMATION/CERTIFICATION:
The Director of Finance certifies that approval of this Agreement will have no material effect on the
Fiscal Year 2018 Budget. While no current year impact is anticipated from this action, any effect on
expenditures and revenues will be budgeted in future Fiscal Years and will be included in the long-
term financial forecast.
TO
Fund Department Account Project Program Activity Budget Reference# Amount
ID ID Year (Chartfield 2)
FROM _
Fund Department I Account Project Program Activity Budget Reference# Amount
ID ID Year (Chartfield 2)
Submitted for City Manager's Office by: Jay Chapa (5E04)
Originating Department Head: Robert Sturns (212-2663)
Additional Information Contact: Carol Griffith (871-6027)
ATTACHMENTS
Form 1295 NT Window 2018.pdf
NT Window Location Map.pdf
http://apps.cfwnet.org/council_packet/mc_review.asp?ID=25511&councildate=1/30/2018 2/2/2018