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HomeMy WebLinkAboutContract 52104 d CITY SECRETARY CONTRACT NO. 5a I O ECONOMIELOPMENT 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 municipality organized under the laws of the State of Texas, and MCLANE COMPANY,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 one of the country's largest providers of grocery and foodservice supply chain solutions for convenience stores, mass merchants, drug stores and chain restaurants. In return for the economic development incentives offered by the City pursuant to this Agreement, Company will locate and operate a regional distribution center of at least 650,000 square feet (the "Development") on property in the City located at 7550 Oak Grove Road (the "Development Property"), as more specifically depicted and described in Exhibit "A", attached hereto and hereby made a part of this Agreement for all purposes. B. As recommended by the 2018 Comprehensive Plan, adopted by the City Council pursuant to Ordinance No. 23133-03-2018, 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 11380 Program"). C. The City Council has determined that by entering into this 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. In addition, the City Council has determined that the 380 Program is an appropriate means to achieve the Development, which the City Council has determined is necessary and desirable, and that the potential economic benefits that will accrue to the City pursuant to the terms and conditions of this Agreement are consistent with the City's economic development objectives as outlined in the 2018 Comprehensive Plan. This Agreement is authorized by Chapter 380 of the Texas Local Government Code. Page I OFFICIAL.RECORD Economic Development Program Agreement CITY SECRETARY between City of Fort Worth and McLane Company,Inc. FT. WORTH,TX D. The City has determined that the feasibility of the Development is contingent upon Company's receipt of the Program Grants, as provided in this Agreement. The City's analysis is specifically based on financial information provided by Company. 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 terms defined in the body of this Agreement, the following terms shall have the definitions ascribed to them as follows: 380 Program has the meaning ascribed to it in Recital B. 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. Central City means the area of the corporate limits of the City within Loop 820 (i) consisting of all Community Development Block Grant ("CDBG")-eligible census block groups; (ii) all enterprise zones, designated as such pursuant to the Texas Enterprise Zone Act, Chapter 2303, Subchapter F of the Texas Government Code; (iii) all census block groups that are contiguous by seventy-five percent (75%) or more of their perimeters to CDBG-eligible block groups or enterprise zones, as well as any CDBG- eligible block in the corporate limits of the City outside Loop 820, as more specifically depicted in the map attached hereto as Exhibit "B", which is hereby made a part of this Agreement for all purposes. Central City Employment Commitment has the meaning ascribed to it in Section 4.4. Page 2 Economic Development Program Agreement between City of Fort Worth and McLane Company,Inc. Central City Employment Percentage has the meaning ascribed to it in Section 5.2.4. Central City Resident means an individual whose principal place of residence is at a location within the Central City. Development has the meaning ascribed to it in Recital A. Development Property has the meaning ascribed to it in Recital A. 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. 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 for which Company is seeking credit under this Agreement. Fort Worth Company means a business that has a principal business office located within the corporate limits of the City that performs a commercially useful function and has provided from such office the services or sales for which Company is seeking credit under this Agreement. Fort Worth Employment Commitment has the meaning ascribed to it in Section 4.3. Fort Worth Employment Percentage has the meaning ascribed to it in Section 5.2.3. Fort Worth Resident means an individual whose principal place of residence is at a location within the corporate limits of the City. Fort Worth Supply and Service Spending Commitment has the meaning ascribed to it in Section 4.5. Fort Worth Supply and Service Percentage has the meaning ascribed to it in Section 5.2.5. Full-time Job means a job provided to an individual by Company on the Development Property for at least forty(40)hours per week. Page 3 Economic Development Program Agreement between City of Fort Worth and McLane Company,Inc. M/WBE Supply and Service Percentage has the meaning ascribed to it in Section 5.2.6. M/WBE Supply and Service Spending Commitment has the meaning ascribed to it in Section 4.6. 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 Property; (iii) is owned or leased by Company; and (iv) was not located in the City prior to the Effective Date of this Agreement. Overall Employment Commitment has the meaning ascribed to it in Section 4.2. Overall Employment Percentage has the meaning ascribed to it in Section 5.2.2. Personal Property Commitment has the meaning ascribed to it in Section 4.1. Personal Property Percentage has the meaning ascribed to it in Section 5.2.1. 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. Program Source Funds means an amount equal to ad valorem taxes on New Taxable Tangible Personal Property that are received by the City during the Twelve- Month Period ending in each Program Year. The taxable appraised value of such New Taxable Tangible Personal Property for any given tax year will be established solely by the appraisal district that has jurisdiction over the Development Property at the time. Program Year means a calendar year in which the City is obligated pursuant to this Agreement to pay Company a Program Grant, beginning with the 2021 calendar year (Program Year 1). Records has the meaning ascribed to it in Section 4.9. Supply and Service Expenditures means all expenditures by Company expended directly for the operation and maintenance of the Development, excluding amounts paid for electric, gas, water and any other utility services. 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. Page 4 Economic Development Program Agreement between City of Fort Worth and McLane Company,Inc. This Agreement shall be effective as of the date of execution by both parties (the "Effective Date") and, unless terminated earlier in accordance with its terms and conditions, shall expire on the date as of which the City has paid all Program Grants required hereunder (the "Term"). 4. COMPANY OBLIGATIONS,GOALS AND COMMITMENTS. 4.1. Personal Property Improvements. Company covenants and agrees that New Taxable Tangible Personal Property having a value of at least Eighteen Million Dollars ($18,000,000.00) shall be in place on the Development Property by January 1, 2020, as determined solely by the appraisal district having jurisdiction over the Development Property at that time and reflected in the certified appraisal roll received by the City from such appraisal district for the 2020 tax year (the "Personal Property Commitment"). 4.2. Overall Employment Commitment. From and at all times after December 1, 2020, Company must provide and have filled at least 550 Full-time Jobs on the Development Property (the "Overall Employment Commitment"). 4.3. Fort Worth Employment Commitment. From and at all times after December 1, 2020, Company must provide and have filled at least the greater of (i) 165 Full-time Jobs on the Development Property with Fort Worth Residents or (ii) thirty percent (30%) of all Full-time Jobs on the Development Property, regardless of the total number of such Full- time Jobs, with Fort Worth Residents (the "Fort Worth Employment Commitment"). 4.4. Central City Employment Commitment. From and at all times after December 1, 2020, Company must provide and have filled at least the greater of (i) 55 Full-time Jobs on the Development Property with Central City Residents or (ii) ten percent (10%) of all Full-time Jobs on the Development Property, regardless of the total number of such Full- time Jobs, with Central City Residents (the "Central City Employment Commitment"). A Full-time Job held by a Central City Resident shall also count as a Full-time Job held by a Fort Worth Resident for purposes of assessing attainment of the Fort Worth Employment Commitment. Page 5 Economic Development Program Agreement between City of Fort Worth and McLane Company,Inc. 4.5. Supply and Service Spending Commitment for Fort Worth Companies. Beginning January 1, 2020, Company annually must make at least Sixty Thousand Dollars ($60,000.00) in Supply and Service Expenditures with Fort Worth Companies (the "Fort Worth Supply and Service Spending Commitment"). 4.6. Supply and Service Spending Commitment for Fort Worth Certified M/WBE Companies. Beginning January 1, 2020, Company annually must make at least Thirty Thousand Dollars ($30,000.00) in Supply and Service Expenditures with Fort Worth Certified M/WBE Companies (the "M/WBE Supply and Service Spending Commitment"). Dollars expended with Fort Worth Certified M/WBE Companies shall also count as dollars expended with Fort Worth Companies for purposes of measuring attainment of the Fort Worth Supply and Service Spending Commitment. 4.7. Reports and Filings. 4.7.1. Plan for Attainment of M/WBE Supply and Service Spending Commitment. On or before February 1, 2019, Company must submit a plan to the Director that sufficiently outlines Company's plan to utilize Fort Worth Certified M/WBE Companies for attainment of the M/WBE Supply and Service Spending Commitment. 4.7.2. Annual Employment Report. On or before February 1, 2021 and February 1 of each year thereafter, in order for the City to assess the degree to which Company met the Overall Employment Commitment, the Fort Worth Employment Commitment, and the Central City Employment Commitment in the previous calendar year, Company must provide the Director with a report in a form reasonably acceptable to the City that sets forth the total number of individuals, Fort Worth Residents, and Central City Residents who held Full-time Jobs on the Development Property, all as of December 1 (or such other date requested by Company and reasonably acceptable to the City) of the previous year, together with reasonable supporting documentation. Page 6 Economic Development Program Agreement between City of Fort Worth and McLane Company,Inc. 4.7.3. Annual Supply and Service Spending Report. On or before February 1, 2021 and February 1 of each year thereafter, in order for the City to assess the degree to which the Fort Worth Supply and Service Spending Commitment and the M/WBE Supply and Service Spending Commitment were met in the previous calendar year, Company must provide the Director with a report in a form reasonably acceptable to the City that sets forth the total amount of Supply and Service Expenditures made during such calendar year with Fort Worth Companies and with Fort Worth Certified M/WBE Companies, together with reasonable supporting documentation. 4.8. Inspections. At any time during Company's normal business hours throughout Term and following reasonable notice to Company, the City shall have the right to inspect and evaluate the Development Property, and any improvements thereon, and Company will provide full access to the same, in order for the City to monitor compliance with the terms and conditions of this Agreement. Company will cooperate fully with the City during any such inspection and evaluation. Notwithstanding the foregoing, Company shall have the right to require that any representative of the City be escorted by a Company representative or security personnel during any such inspection and evaluation. 4.9. Audits. The City will have the right throughout the Term to audit the financial and business records of Company that relate to the Development and any other documents necessary to evaluate Company's compliance with this Agreement or with the commitments set forth in this Agreement (collectively "Records"). Company shall make all Records available to the City on the Development Property or at another location in the City acceptable to both parties following reasonable advance notice by the City and shall otherwise cooperate fully with the City during any audit. 4.10. Use of Land. The Development Property must actively be used as a distribution center in connection with Company's business operations at all times from and after January 1, 2020. Page 7 Economic Development Program Agreement between City of Fort Worth and McLane Company,Inc. 5. CITY OBLIGATIONS. 5.1. Program Grants. Provided that Company meets the Personal Property Commitment, Company will be entitled to receive from the City five (5) annual Program Grants. The amount of each Program Grant shall equal a percentage (not to exceed fifty percent (50%)) of the Program Source Funds available for that Program Grant, calculated in the manner set forth in Section 5.2.1. 5.2. Calculation of Each Program Grant Amount. Subject to the terms and conditions of this Agreement, the amount of a given Program Grant shall equal the sum of the Personal Property Percentage, as defined in Section 5.2.1, plus the Overall Employment Percentage, the Fort Worth Employment Percentage, the Central City Employment Percentage, the Fort Worth Supply and Service Percentage, and the M/WBE Supply and Service Percentage, as defined in Sections 5.2.2, 5.2.3, 5.2.4, 5.2.5, and 5.2.6, respectively, multiplied by the Program Source Funds available for that Program Grant. 5.2.1. Personal Property Commitment(25%). Each annual Program Grant shall include an amount that is based on Company's compliance with the Personal Property Commitment, as outlined in Section 4.1 (the "Personal Property Percentage"). If Company meets the Personal Property Commitment, the Personal Property Percentage applicable to each annual Program Grant payable by the City hereunder will equal twenty-five percent (25%). In no event will the Personal Property Percentage exceed twenty-five percent (25%). Notwithstanding anything to the contrary herein, if Company fails to meet the Personal Property Commitment, an Event of Default, as more specifically set forth in Section 6.1, will occur, and the City shall have the right to terminate this Agreement without the obligation to pay Company any Program Grants hereunder. 5.2.2. Overall Employment Commitment (Up to 13%). Each annual Program Grant shall include an amount that is based on Company's compliance with the Overall Employment Commitment, as outlined in Section 4.2 (the "Overall Employment Percentage"). Determination of compliance with the Overall Employment Commitment shall be based on Company's employment data on December 1 (or such other date as may mutually be acceptable to both the City and Company) of 2020 and of each year thereafter during the Term of this Agreement. If Company meets the Overall Employment Commitment in the previous Page 8 Economic Development Program Agreement between City of Fort Worth and McLane Company,Inc. calendar year, the Overall Employment Percentage applicable to the Program Grant payable by the City in the following Program Year will equal thirteen percent (13%). If Company fails to meet the Overall Employment Commitment in a given calendar year, the Overall Employment Percentage applicable to the Program Grant payable in the following year will be reduced to an amount equal to the product of thirteen percent (13%) multiplied by the percentage by which the Overall Employment Commitment was met, which will be calculated by dividing the number of Full-time Jobs provided and filled on the Development Property in the previous year by 550, which is the number of Full-time Jobs comprising the Overall Employment Commitment. For example, if in a given year Company provided and filled only 495 Full-time Jobs on the Development Property, the Overall Employment Percentage applicable to the Program Grant payable in the following year would be 11.7% instead of 13% (or .13 x [495/550], or .13 x .90, or .117). 5.2.3. Fort Worth Employment Commitment(Up to 3%). Each annual Program Grant shall include an amount that is based on Company's compliance with the Fort Worth Employment Commitment, as outlined in Section 4.3 (the "Fort Worth Employment Percentage"). Determination of compliance with the Fort Worth Employment Commitment shall be based on Company's employment data on December 1 (or such other date as may mutually be acceptable to both the City and Company) of 2020 and of each year thereafter during the Term of this Agreement. If Company meets the Fort Worth Employment Commitment in the previous calendar year, the Fort Worth Employment Percentage applicable to the Program Grant payable by the City in the following Program Year will equal three percent (3%). If Company fails to meet the Fort Worth Employment Commitment in a given calendar year, the Fort Worth Employment Percentage applicable to the Program Grant payable in the following year will be reduced to an amount equal to the product of three percent (3%) multiplied by the percentage by which the Fort Worth Employment Commitment was met, which will be calculated by dividing the number of Full-time Jobs provided and filled on the Development Property in the previous year with Fort Worth Residents by the number of Full-time Jobs comprising the Fort Worth Employment Commitment. For example, if in a given year Company provided and filled 600 Full-time Jobs on the Development Property, the Fort Worth Employment Commitment for that year would be 180 Full-time Jobs (30% of 600). If in that year Company only provided and filled only 153 Full- time Jobs on the Development Property with Fort Worth Residents, the Fort Worth Employment Percentage applicable to the Program Grant payable in the following year would be 2.55% instead of 3% (or .03 x [153/180], or .03 x .85, or .0255). Page 9 Economic Development Program Agreement between City of Fort Worth and McLane Company,Inc. 5.2.4. Central City Employment Commitment (Up to. Each annual Program Grant shall include an amount that is based on Company's compliance with the Central City Employment Commitment, as outlined in Section 4.4 (the "Central City Employment Percentage"). Determination of compliance with the Central City Employment Commitment shall be based on Company's employment data on December 1 (or such other date as may mutually be acceptable to both the City and Company) of 2020 and of each year thereafter during the Term of this Agreement. If Company meets the Central City Employment Commitment in the previous calendar year, the Central City Employment Percentage applicable to the Program Grant payable by the City in the following Program Year will equal three percent (3%). If Company fails to meet the Central City Employment Commitment in a given calendar year, the Central City Employment Percentage applicable to the Program Grant payable in the following year will be reduced to an amount equal to the product of three percent (3%) multiplied by the percentage by which the Central City Employment Commitment was met, which will be calculated by dividing the number of Full-time Jobs provided and filled on the Development Property in the previous year with Central City Residents by the number of Full-time Jobs comprising the Central City Employment Commitment. 5.2.5. Fort Worth Supply and Service Spending(Up to 3%). Each annual Program Grant shall include an amount that is based on Company's compliance with the Fort Worth Supply and Service Spending Commitment, as outlined in Section 4.5 (the "Fort Worth Supply and Service Percentage"). If Company meets the Fort Worth Supply and Service Spending Commitment in the previous calendar year, the Fort Worth Supply and Service Percentage applicable to the Program Grant payable by the City in the following Program Year will equal three percent (3%). If Company fails to meet the Fort Worth Supply and Service Spending Commitment in a given calendar year, the Fort Worth Supply and Service Percentage applicable to the Program Grant payable in the following year will be reduced to an amount equal to the product of three percent (3%) multiplied by the percentage by which the Fort Worth Supply and Service Spending Commitment was met, which will be calculated by dividing the actual amount of Supply and Service Expenditures made with Fort Worth Companies in the previous calendar year by $60,000.00, which is the Fort Worth Supply and Service Spending Commitment. For example, if Company's Supply and Service Expenditures in a given year were only $48,000.00, the Fort Worth Supply and Service Percentage applicable to the Program Grant payable in the following year would be 2.4% instead of 3% (or .03 x [$48,000.00/$60,000.00], or .03 x .80, or .024). Page 10 Economic Development Program Agreement between City of Fort Worth and McLane Company,Inc. 5.2.6. Fort Worth M/WBE Supply and Service Spending(Up to 3%). Each annual Program Grant shall include an amount that is based on Company's compliance with the M/WBE Supply and Service Spending Commitment, as outlined in Section 4.6 (the "M/WBE Supply and Service Percentage"). If Company meets the M/WBE Supply and Service Spending Commitment in the previous calendar year, the M/WBE Supply and Service Spending Percentage applicable to the Program Grant payable by the City in the following Program Year will equal three percent (3%). If Company fails to meet the M/WBE Supply and Service Spending Commitment in a given calendar year, the M/WBE Supply and Service Percentage applicable to the Program Grant payable in the following year will be reduced to an amount equal to the product of three percent (3%) multiplied by the percentage by which the M/WBE Supply and Service Spending Commitment was met, which will be calculated by dividing the actual amount of Supply and Service Expenditures made with Fort Worth Certified M/WBE Companies in the previous calendar year by $30,000.00, which is the M/WBE Supply and Service Spending Commitment. 5.2.7. No Offsets. A deficiency in attainment of one commitment may not be offset by exceeding attainment in another commitment. For example, if in a given year Company failed to meet the Central City Employment Commitment by six (6) Full-time Jobs, but exceeded the Fort Worth Employment Commitment by six (6) Full-time Jobs, the Central City Employment Percentage applicable to the Program Grant payable in the following year would still be reduced in accordance with Section 5.2.4 on account of Company's failure to meet the Central City Employment Commitment. 5.3. Deadline for Payments and Source of Funds. The first Program Grant payable hereunder (in other words, the Program Grant payable for Program Year 1) shall be paid by the City on or before June 1, 2021. Each subsequent annual Program Grant payment will be made by the City to Company on or before June 1 of the Program Year in which such payment is due. 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 not directly from ad valorem taxes on New Taxable Tangible Personal Property that are received by the City. Company understands and agrees that any revenues of the City other than those dedicated for payment of a given annual Program Grant pursuant to 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 Page 11 Economic Development Program Agreement between City of Fort Worth and McLane Company,Inc. municipality and will not serve as the basis for calculating the amount of any future Program Grant or other obligation to Company. 6. DEFAULT, TERMINATION AND FAILURE BY COMPANY TO MEET VARIOUS DEADLINES AND COMMITMENTS. 6.1. Failure to Meet Personal Property Commitment. If Company fails to meet the Personal Property Commitment, as outlined in Section 4.1, such failure shall constitute an event of default by Company, and the City will have the right to terminate this Agreement by providing written notice to Company without further obligation to Company hereunder. 6.2. Failure to Pay City Taxes. An event of default shall occur under this Agreement if any City taxes owed on the Development Property by Company or an Affiliate or arising on account of Company's or an Affiliate's operations on the Development Property become delinquent and Company or the Affiliate does not either pay such taxes or properly follow the legal procedures for protest and/or contest of any such taxes. In this event, the City shall notify Company in writing and Company shall have thirty (30) calendar days to cure such default. If the default has not been fully cured by such time, 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 the law or in equity. 6.3. Violations of City Code,State or Federal Law. An event of default shall occur under this Agreement if any written citation is issued to Company or an Affiliate due to the occurrence of a violation of a material provision of the City Code on the Development Property or on or within any improvements thereon (including, without limitation, any 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 the Development Property; or to matters concerning the public health, safety or welfare) and such citation is not paid or the recipient of such citation does not properly follow the legal procedures for protest and/or contest of any such citation. An event of default shall occur under this Agreement if the City is notified by a governmental agency or unit with appropriate jurisdiction that Company or an Affiliate, or any successor in interest thereto; any third party with access to the Development Property pursuant to the express or implied permission of Company or an Affiliate, or any successor in interest thereto; or the City (on account of the Development or the act or omission of any party other than the City on or after the Effective Date of this Agreement) is in violation of any Page 12 Economic Development Program Agreement between City of Fort Worth and McLane Company,Inc. 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 violations related to the environmental condition of the Development Property; the enviromnental 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). Upon the occurrence of such default,the City shall notify Company in writing and Company shall have (i) thirty (30) calendar days to cure such default or (ii) if Company has diligently pursued cure of the default but such default is not reasonably curable within thirty (30) calendar days, then such amount of time that the City reasonably agrees is necessary to cure such default. If the default has not been fully cured by such time, 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 under the law or in equity. 6.4. Failure to Meet Employment or Supply and Service Spending Commitments. If Company fails to meet the Overall Employment Commitment, the Fort Worth Employment Commitment, the Central City Employment Commitment, the Fort Worth Supply and Service Spending Commitment, or the M/WBE Supply and Service Spending Commitment in any given year, such event shall not constitute a default hereunder or provide the City with the right to terminate this Agreement, but, rather, shall only cause the amount of the Program Grant that the City is required to pay in the following Program Year to be reduced in accordance with this Agreement. 6.5. Failure to Submit Reports. If Company fails to submit any report required by and in accordance with Section 4.7, the City's obligation to pay any Program Grants at the time, if any, shall 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, Section 6.6 shall apply. 6.6. General Breach. 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 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 Page 13 Economic Development Program Agreement between City of Fort Worth and McLane Company,Inc. faith), the City shall have the right to terminate this Agreement immediately by providing written notice to 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 any improvements thereon and shall 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. S. INDEMNIFICATION. COMPANY, AT NO COST TO THE CITY, AGREES TO DEFEND, INDEMNIFY AND HOLD THE CITY, ITS OFFICERS,AGENTS SERVANTS 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 AND ANY OPERATIONS AND ACTIVITIES ON THE DEVELOPMENT PROPERTY OR OTHERWISE TO THE PERFORMANCE OF THIS AGREEMENT. 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 14 Economic Development Program Agreement between City of Fort Worth and McLane Company,Inc. City: Company: City of Fort Worth McLane Company, Inc. Attn: City Manager Attn: —J-o-h A n J e i--s o:i 200 Texas St. 1/74/7 M c L v n e Rkul v. Fort Worth, TX 76102 /eM a It T, _, C.S o� with copies to: with a copy to: the City Attorney and Economic Development Director at the same address 10. 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 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 shall 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 shall 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 shall be deemed "Company" for all purposes under this Agreement. 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. Page 15 Economic Development Program Agreement between City of Fort Worth and McLane Company,Inc. 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. 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. 14. SEVERABILITY. If any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired. 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 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. 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 shall be interpreted fairly and reasonably, and neither more strongly for or against any party, regardless of the actual drafter of this Agreement. Page 16 Economic Development Program Agreement between City of Fort Worth and McLane Company,Inc. 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 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. EXECUTED as of the last date indicated below: CITY OF FORT WORTH: MCLANE COMPANY, INC., a Texas corporation: By By:_ Alanis Name: Assistant City Manager Title: Date: 3 ja's- C 9 Date: �Z�3z'z 0/ tJ. y. �� R .Kayser, City Se6ppjM _ OFFICIAL RECORD Page 17 CITY SECRETARY Economic Development Program Agreement between City of Fort Worth and McLane Company,Inc. FT. WORTH, TX 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: Na e of Employee: �N,���l f6~. r Title: k.,,,IJP f�prl��I «7`- Coy. .:.J`'r/' APPROVED AS TO FORM AND LEGALITY: By: Peter Vaky Deputy City Attorney M&C: C-28914 10-30-2018 Form 1295: 2018-406043 OFFICIAL RECORD Page 18 CITY SECRETARY Economic Development Program Agreement FT WORTH,TX between City of Fort Worth and McLane Company,Inc. EXHIBITS "A"—Description and Map Depicting the Development Property "B"—Map of Central City Economic Development Program Agreement between City of Fort Worth and McLane Company,Inc. EXHIBIT"A" 4 +. L �I r F� 4J 7 m m m 6 o 7i Al it iM WMA Vill miMv top + ■■ �E. p •M[ t 6tii I� n. t m „ +' w m ® M r m bk p X: a $ m F m wmc o fN '"a tm'rp 3 '• a �� o ML"dHuHc fit '�1 j. 2 EE . . . . . . . . . . . w 8 o o UJI o , o 8 CY 0 o Y o 0 o 0 o o 0 ® o 0 o WH F 0 0 0 0 © mo �a m o Q o o o o 8 o Q o 0 0 0 o LL 0 r o o s o 0 0 ® o 0 0 0 ® o 0 0 0 0 EXHIBIT"B" r CDBG Eligible Areas & Central City I 7 2 X52 - 76092 n 761 _ 248 ?W20 760 76131 g �► _._. 76 4 1 76148 'r 76180 6054 76021 76135 76022 4 1 7611 761 � 76 0 w 76127 4 611 761 7�120 7 76 _ 76012 76,1e; p 76104 a 761 5 6013 1 ti ,q 7 �.. 6 —_j I 7611 1 76016 76015 2- � ' 132 76017 33-11 76134 J 76060 7 76126 76001 7614 1 �1 I 6063 76036 76028 w 0 1 2 4 6 8 Planning Department F`O`TWORTH Miles 10/21/04-BK Q Official CITY COUNCIL AGENDA FOR H COUNCIL ACTION: Approved on 10/30/2018 -Resolution No.499940-2018 DATE: 10/30/2018 REFERENCE NO.: C-28914 LOG NAME: 17EDMCLANE CODE: C TYPE: NON-CONSENT PUBLIC HEARING: NO SUBJECT. Authorize Execution of an Economic Development Program Agreement with McLane Company, Inc., or an Affiliate for the Development and Operation of a Wholesale Grocery Distribution Center on Property Located at 7550 Oak Grove Road and Adopt Resolution Nominating this Project as an Enterprise Project Pursuant to Chapter 2303, Texas Government Code (COUNCIL DISTRICT 8) RECOMMENDATION: It is recommended that the City Council: 1. Authorize the City Manager to execute an Economic Development Program Agreement with McLane Company, Inc., or an affiliate for the development and operation of a wholesale grocery distribution center on property located at 7550 Oak Grove Road; 2. Find that the terms and conditions of the Agreement, as outlined below, constitute a custom- designed Economic Development Program, as recommended by the 2018 Comprehensive Plan and authorized by Chapter 380 of the Texas Local Government Code; and 3. Adopt the attached Resolution nominating this project as an Enterprise Project, pursuant to the Texas Enterprise Zone Act, Chapter 2303 of the Texas Government Code. DISCUSSION: McLane Company, Inc., or an affiliate (Developer) intends to locate a 650,000 square foot regional distribution center at 7550 Oak Grove Road for the wholesale distribution of grocery goods which will result in the hiring of at least 550 full-time equivalent employees. Total investment will consist of the acquisition and installation of at least$18 million in business personal property by January 1, 2020. Economic Development Program Agreement In order to facilitate this development, the City of Fort Worth (City) proposes to provide 5 annual Economic Development Program grants to the Developer, as authorized by Chapter 380, Texas Local Government Code. The grants will be tied to the amount of investment made by the Developer and satisfaction of other project and spending requirements, as follows: Investment: - Minimum investment of$18 million in new business personal property must be made by January 1, 2020 as a result of the move to a 650,000 square foot leased commercial facility. The value of business personal property will be as appraised by the Tarrant Appraisal District. Failure to meet the following criteria is an event of default, which subject to commercially reasonable notice and cure rights, will result in immediate termination of the Agreement. Employment Commitments: The Developer must employ a minimum of 550 full-time employees on the property by December 1, 2020. The Developer must fill the greater of 165 full time positions or 30 percent of all full time positions with Fort Worth residents and the greater of 55 full time positions or 10 percent of all full time positions with Fort Worth Central City residents (with the understanding that employment of Fort Worth Central City residents will also count as employment of Fort Worth residents). Utilization of Fort Worth Companies and Fort Worth Certified M/W13E Companies (Supply& Services . The Developer must spend a minimum of$60,000.00 of annual discretionary service and supply expenditures with Fort Worth companies, and a minimum of$30,000.00 of annual discretionary service and supply expenditures with Fort Worth certified M/WBE companies (with the understanding that dollars spent with Fort Worth certified M/WBE companies will also count as dollars spent with Fort Worth companies.) Supply and Service Expenditures means all expenditures by the company expended directly for the operation and maintenance of the development, excluding amounts paid for electric, gas, water and any other utility services (but not excluding cable, internet or television services). City Commitments: The City will make 5 annual Economic Development Program grants to the Developer, subject to the following conditions. The maximum annual program grant will equal up to 50 percent of business personal property taxes collected by the City of Fort Worth in the previous year. Except for cases of default, failure to meet any of the commitments above will result in a reduction of the corresponding component of the grant for that year proportional to the amount the commitment was not met, or for the duration of the Agreement in the case of construction commitments. TABLE IV-1 Maximum Potential Grant with Corresponding Components: Property Owner or Company Commitment Potential Grant Total Business Personal Property Investment of$18 million or greater 25% Total of 550 Full Time Employees housed annually at Fort Worth facility 13% 30%of the Annual Full Time Employees are Fort Worth Residents 3% 10%of the Annual Full Time Employees are Central City Fort Worth Residents 3% 30%of Annual Service&Supplies Spending with Fort Worth Companies 3% 15%of Annual Service&Supplies Spending with FW Certified M/WBE's Contractors 3% TOTAL 50% Resolution Nominating this Project as an Enterprise Project The City Council previously adopted Ordinance No. 15733 electing to participate in the Texas Enterprise Zone Program. On May 12, 2015, the City Council adopted Ordinance No. 21743-05-2015, amending Ordinance No. 15733 by adding additional potential local incentives that could be made available to qualified businesses under the Texas Enterprise Zone Program. The Office of the Governor Economic Development and Tourism through the Economic Development Bank will consider Developer as an enterprise project pursuant to a nomination and an application made by the City. The Texas Enterprise Zone Program is an economic development tool for local communities to partner with the State of Texas to promote job creation and capital investment in economically distressed areas of the State. An enterprise project is defined as a business that is nominated by a municipality or county and then approved for state benefits. Designated projects are eligible to apply for state sales and use tax refunds on qualified expenditures. The level and amount of refund is related to the capital investment and jobs created at the qualified business site. Developer qualifies for a single Enterprise Project Designation. The single project designation allows for a state sales and use tax refund on qualified expenditures of$2,500 per job, for up to 500 jobs, with a maximum benefit of$1.25 million over a five year period. Under the Texas Enterprise Zone Act at least twenty-five percent of the business' new or retained employees will be residents of an enterprise zone, economically disadvantaged individuals, or veterans. In addition, the jobs will be provided through the end of the designation period or at least three years after the date on which a state benefit is received, whichever is later. This project is located in COUNCIL DISTRICT 8. FISCAL INFORMATION/CERTIFICATION: The Director of Finance certifies that upon approval, the grants providec under this agreement will be built into the City's long-term financial forecast for Business Personal Property Tax with a maximum estimated grant award of$363,250.00. TO Fund Department Account Project Program Activity Budget Reference# Amount ID ID Year Chartfield 2 FROM Fund Department Account Project Program Activity Budget Reference# Amount ID I I ID I I Year Chartfield 2 Submitted for City Manager's Office by: Robert Sturns (2663) Originating Department Head: Robert Sturns (2663) Additional Information Contact: Scott Connell (2608) ATTACHMENTS 181016 LocationMap.pdf Form 1295.pdf McLane Company Inc. EZ Res.doc