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HomeMy WebLinkAboutContract 40744 (2)CITY SECRETARY,1 CONTRACT NO. �7�"I� ECONOMIC DEVELOPMENT PROGRAM AGREEMENT This ECONOMIC DEVELOPMENT PROGRAM AGREEMENT ("Agreement") is entered into by and between the CITY OF FORT WORTH, TEXAS (the "City"), a home rule municipality organized under the laws of the State of Texas, and SNF, INC., a Texas corporation doing business as Brand FX Body Company ("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 intends to lease facilities with a total square footage of approximately 144,000 square feet located on approximately eight (8) acres of land in the vicinity of the intersection of Interstate Highway 35 West and Golden Triangle Boulevard (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. Company is one of the largest producers of advanced composite utility bodies in North America. Company wishes to use the Development Property to expand its current operations in the City and to install a metal fabricating facility and a fiberglass body fabrication and assembly facility thereon (the "Development"). The Development Property currently lacks City sewer and water service. The lack of infrastructure in this area of the City is a hindrance to economic development in the area. As a result, the City is willing to provide an economic development incentive to Company in order for Company to proceed with the Development. C. As recommended by the 2010 Comprehensive Plan, adopted by the City Council pursuant to Ordinance No. 19044-02-2010, and in accordance with Resolution No. 3 716-03 -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"). D. 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 Page 1 Economic Development Program Agreement between City of Fort Worth and Brand FX Body Company 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 the terms and conditions of this Agreement are consistent with the City's economic development objectives as outlined in the 2010 Comprehensive Plan. This Agreement is authorized by Chapter 380 of the Texas Local Government Code. E. The City has determined that the feasibility of the Development is contingent on 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 C. 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 Page 2 Economic Development Program Agreement between City of Fort Worth and Brand FX Body Company depicted in the map attached hereto as Exhibit "B", attached hereto and hereby made a part of this Agreement for all purposes. Central City Employment Commitment has the meaning ascribed to it in Section 4 5 Central City Employment Percentage has the meaning ascribed to it in Section 5.2.1.4. Central City Resident means an individual whose principal place of residence is at a location within the Central City. Completion Date means the date as of which a certificate of occupancy, whether final or temporary, has been issued by the City for all of the improvements comprising the Development that are intended to be occupied. Completion Deadline means December 31, 2012. Development has the meaning ascribed to it in Recital B. Development Property has the meaning ascribed to it in Recital A. Director means the director of the City's Housing and Economic Development Department or his 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 Texas Regional Certification Agency (NTRCA); (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 4 Fort Worth Employment Percentage has the meaning ascribed to it in Section 5.2.1.3. 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 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 Brand FX Body Company M/WBE Supply and Service Percentage has the meaning ascribed to it in Section 5 2 1 5. 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 Overall Employment Percentage has the meaning ascribed to it in Section P ersonal Property Commitment has the meaning ascribed to it in Section 4.2. P ersonal Property Percentage has the meaning ascribed to it in Section 5 2 1 1 Program Cap means Sixty Thousand Dollars ($60,000.00), which is the maximum number of gross dollars comprising all Program Grants that the City is required to pay Company pursuant to this Agreement P rogram 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 second full calendar year following the Completion Date (or the first full calendar year following the Completion Date if selected by the parties in accordance with the procedure outlined in Section 5 2 3) (Program Year 1). 4.3. 5.2.1.2. Records has the meaning ascribed to it in Section 4 8 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. Page 4 Economic Development Program Agreement between City of Fort Worth and Brand FX Body Company 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 shall be effective as of the date of execution by both parties (the "Effective Date") and shall expire on the earlier of (i) the date as of which the City has paid all Program Grants required hereunder or (ii) the date as of which the amount of aggregate Program Grants paid by the City equals Program Cap (the "Term"). 4. COMPANY OBLIGATIONS, GOALS AND COMMITMENTS. 4.1. Real Property Improvements. Company shall cause the Development to occur on the Development Property. A final certificate of occupancy must have been issued by December 31, 2012 for all improvements on the Development Property that are intended to be occupied. The Completion Date must occur on or before the Completion Deadline. 4.2. Personal Property Improvements. Company covenants and agrees that New Taxable Tangible Personal Property having a value of at least One Million Three Hundred Thousand Dollars ($1 300,000.00) shall be in place on the Development Property by January 1 of the year following the yeas in which the Completion Date occurred, as determined solely by the appraisal district having jurisdiction over the Development Property (the "Personal Property Commitment"). 4.3. Overall Employment Commitment. From and after the Completion Date, Company shall provide and have filled at least sixty-five (65) Full-time Jobs on the Development Property (the "Overall Employment Commitment"). 4.4. Fort Worth Employment Commitment. From and after the Completion Date, Company shall provide and have filled at least fifty percent (50%) of all Full-time Jobs on the Development Property, regardless of the total amount of such Full-time Jobs, with Fort Worth Residents (the "Fort Worth Employment Commitment"). Page 5 Economic Development Program Agreement between City of Fort Worth and Brand FX Body Company 4.5. Central City Employment Commitment. From and after the Completion Date, Company shall provide and have filled at least thirty percent (30%) of all Full-time Jobs on the Development Property, regardless of the total amount 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 the Fort Worth Employment Commitment. 4.6. Supply and Service Spending Commitment for Fort Worth Certified M/WBE Companies. From and after the Completion Date, Company shall annually expend the greater of (i) One Hundred Fifty Thousand Dollars ($150,000.00) in Supply and Service Expenditures or (ii) thirty percent (30%) of all Supply and Service Expenditures, regardless of the total amount of such Supply and Service Expenditures, with Fort Worth Certified M/WBE Companies (the "M/WBE Supply and Service Spending Commitment"). 4.7. Reports and Filings. 4.7.1. Annual Employment Report. On or before February 1 of the year following the Completion Date and 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 shall 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. 4.7.2. Quarterly Supply and Service Spending Report. Beginning with the first calendar quarter of the year following the year in which the Completion Date occurred, within thirty (30) calendar days following the end of each calendar quarter, Company will provide the Director with a report in a folin reasonably acceptable to the City that sets forth the then -aggregate Supply and Service Expenditures made during such calendar as well as the then -aggregate Supply and Service Expenditures made during such calendar year with Fort Worth Certified M/WBE Companies. The City will use each year s fourth quarter report Page 6 Economic Development Program Agreement between City of Fort Worth and Brand FX Body Company to assess the degree to which Company met the M/WBE Supply and Service Spending Commitment for that year. 4.8. Audits. The City will have the right throughout the Tenn 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. 5. CITY OBLIGATIONS. 5.1. Program Grants. Provided that the Completion Date occurred on or before the Completion Deadline and that Company met the Personal Property Commitment, Company will be entitled to receive from the City up to five (5) annual Program Grants. The amount of each Program Grant shall equal a percentage of the Program Source Funds available for that Program Grant calculated in the manner set forth in Section 5.2.1. Notwithstanding anything to the contrary herein, aggregate Program Grants payable under this Agreement shall be subject to and shall not exceed the Program Cap. 5.2.1. 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 1 plus the Overall Employment Percentage, the Fort Worth Employment Percentage, the Central City Employment Percentage, and the M/WBE Supply and Service Percentage, as defined in Sections 5.2.1.2, 5.2.1.3, 5.2.1 4, and 5.2.1.5, respectively, multiplied by the Program Source Funds available for that Program Grant. 5.2.1.1. Personal Property Commitment (30%). 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 2 (the `Personal Property Percentage"). If Company met the Personal Property Commitment and the Completion Date occurred on or before the Completion Deadline, the Personal Property Percentage applicable Page 7 Economic Development Program Agreement between City of Fort Worth and Brand FX Body Company to each annual Program Grant payable by the City hereunder shall equal thirty percent (30%). In no event will the Personal Property Percentage exceed thirty percent (30%). Notwithstanding anything to the contrary herein, if Company failed to meet the Personal Property Commitment or the Completion Date did not occur by the Completion Deadline, 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. 5.2.1.2. Overall Employment Commitment (20%). Each annual Program Grant shall include an amount that is based on Company's compliance with the Overall Employment Commitment, as outlined in Section 4.3 (the `Overall Employment Percentage"). If Company met the Overall Employment Commitment in the previous calendar year, the Overall Employment Percentage applicable to the Program Grant payable by the City in the following Program Year shall equal twenty percent (20%). In no event will the Overall Employment Percentage exceed twenty percent (20%). If Company fails to meet the Overall Employment Commitment in any given year, the Overall Employment Percentage apphcable to the Program Grant payable by the City in the following Program Year shall equal zero percent (0%). 5.2.1.3. Fort Worth Employment Commitment (15(1/0). 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 4.4 (the "Fort Worth Employment Percentage"). If Company met 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 shall equal fifteen percent (15%). In no event will the Fort Worth Employment Percentage exceed fifteen percent (15%). If Company fails to meet the Fort Worth Employment Commitment in any given year, the Fort Worth Employment Percentage applicable to the Program Grant payable by the City in the following Program Year shall equal zero percent (0%). 5.2.1.4. Central City Employment Commitment (10%). Each annual Program Grant shall include an amount that is based on Company' s compliance with the Central City Page 8 Economic Development Program Agreement between City of Fort Worth and Brand FX Body Company Employment Commitment, as outlined in Section 4.5 (the `Central City Employment Percentage') If Company met 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 shall equal ten percent (10%) In no event will the Central City Employment Percentage exceed ten percent (10%). If Company fails to meet the Central City Employment Commitment in any given year, the Central City Employment Percentage applicable to the Program Grant payable by the City in the following Program Year shall equal zero percent (0%). 5.2.1.5. Fort Worth M/WBE Supply and Service Spending (15%). 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 met 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 shall equal fifteen percent (15%). In no event will the M/WBE Supply and Service Spending Percentage exceed fifteen percent (15%). If Company fails to meet the M/WBE Supply and Service Spending Commitment in any given year, the M/WBE Supply and Service Spending Percentage applicable to the Program Grant payable by the City in the following Program Year shall equal zero percent (0%). 5.2.1.6. No Offsets. A deficiency in attainment of one commitment may not be offset by the 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 zero percent (0%) on account of Company's failure to meet the Central City Employment Commitment. 5.2.2. Program Cap. Once the City has paid Company aggregate Program Grants equal to the Program Cap, this Agreement shall terminate. If in any Program Page 9 Economic Development Program Agreement between City of Fort Worth and Brand FX Body Company Year the amount of a Program Grant would cause the aggregate Program Grants paid by the City pursuant to this Agreement to exceed the Program Cap, the amount of the Program Grant payable in that Program Year shall equal the difference between the aggregate of all Program Grants paid by the City as of the previous Program Year and the Program Cap, and this Agreement shall terminate upon payment of such Program Grant. 5.2.3. 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 of (i) the second full year following the year in which the Completion Date occurred or (ii) the first full year following the year in which the Completion Date occurred if requested by Company in writing within sixty (60) calendar days following the Completion Date and the City, taking into consideration its current fiscal year budget and following fiscal year budget planning, provides Company with written consent to such request 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 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 Complete Development or Meet Personal Property Commitment. If the Completion Date does not occur by the Completion Deadline, or if Company fails to meet the Personal Property Commitment, as outlined in Section 4.2, the City shall 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 Page 10 Economic Development Program Agreement between City of Fort Worth and Brand FX Body Company 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 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 a 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 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 environmental condition 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. Page 11 Economic Development Program Agreement between City of Fort Worth and Brand FX Body Company 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, 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 teen 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 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 Page 12 Economic Development Program Agreement between City of Fort Worth and Brand FX Body Company Agreement will be construed as the creation of a partnership or joint enterprise between the City and Company. 8. 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 (ir) 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: City: City of Fort Worth Attn City Manager 1000 Throckmorton Fort Worth, TX 76102 with copies to: the City Attorney and Economic/Community Development Director at the same address Page 13 Economic Development Program Agreement between City of Fort Worth and Brand FX Body Company Company: Brand FX Attn• Vci;c)---1/4---2 Body Company with a copy to: 1 c��r) 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. 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 perfoiniance of any Willi or provision of this Agreement or to exercise any right granted hereunder shall not constitute a waiver of that party's right to insist upon appropriate performance or to assert any such right on any future occasion. Page 14 Economic Development Program Agreement between City of Fort Worth and Brand FX Body Company 14. VENUE AND JURISDICTION. If any action, whether real or asserted, at law or in equity, arises on the basis of any provision of this Agreement, venue for such action shall lie in state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas — Fort Worth Division. This Agreement shall be construed in accordance with the laws of the State of Texas. 15. NO THIRD PARTY RIGHTS. The provisions and conditions of this Agreement are solely for the benefit of the City and Company, and any lawful assign or successor of Company, and are not intended to create any rights, contractual or otherwise, to any other person or entity. 16. FORCE MAJEURE. It is expressly understood and agreed by the parties to this Agreement that if the performance of any obligations hereunder is delayed by reason of war, civil commotion, acts of God inclement weather, or other circumstances which are reasonably beyond the control of the party obligated or peu pitted under the terms of this Agreement to do or perform the same, regardless of whether any such circumstance is similar to any of those enumerated or not, the party so obligated or permitted shall be excused from doing or performing the same during such period of delay, so that the time period applicable to such design or construction requirement shall be extended for a period of time equal to the period such party was delayed. Notwithstanding anything to the contrary herein, it is specifically understood and agreed that Company s failure to obtain adequate financing to complete the Development by the Completion Deadline shall not be deemed to be an event of force majeure and that this Section 16 shall not operate to extend the Completion Deadline in such an event 17. INTERPRETATION. In the event of any dispute over the meaning or application of any provision of this Agreement, this Agreement shall be interpreted fairly and reasonably, and neither more strongly for or against any party, regardless of the actual drafter of this Agreement. 18. CAPTIONS. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. Page 15 Economic Development Program Agreement between City of Fort Worth and Brand FX Body Company 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 herebydeclared null and void to the extent in conflict with any provision of this g A reement. 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: • By: Tom Higgins Assistant City Manager Date: g/Zi00 APPROVED AS TO FORM AND LEGALITY: Peter Vaky Assistant City Attorney M&C: C 2g329 SNF, INC., a Texas corporation doing business as Brand FX : ody Company: By: acne: Title: LI Date: to ft/ Ley ogo1/0101 Sq 1,(m.Y-ert, Oat1/4_ a-Q-SL9. A, 'o0oa oo:y = b _ !� J!� • . OO �"� 40, 7/g /?EXP sted b t1tt J LEANN RAE BELL Notary Public, State of Texas My Commission Expires March 10, 2013 OFFICkL h �t Page 16 CI 1 Economic Development Program Agreement "between, City of Fort Worth and Brand FX Body Company 0 Marty Hendrix, ity Seere EXHIBIT "A7' BEING a tr-actof land out°of.th-e MCCowens$ut eY.Abstract:No. ;399;.f_ort Worth,. Tarrant County1 Texas as described in deeds to Davy R`egancy_ Properties, L. -recorded i`n Volume 1824.1t: Page T:56 of the.Qeed Rsc de of?arrant.E�ounty,"Texasand inthedeeda to Don: Davis Investrnents: recorded in Vih me 11$91,. Page 1488 acid Voipine: 1214fi;. Page 1-28.-2 .of the Dead Record.: of Tarrant County,, Texas (Di TC}, srnid tract bemtt ed to the Tames Ccrotdinate System;. North.Cebtral Zane NAD83 using e-grid factor al .B99837f7; bearings are grid and distances arehorizontal ground measurernents,.said tradtbeinggin re pani&ulariy-.describad: as follows:. BEGINNING et :a:faund TxDot monumenf;!n. the, .w,ast right of -wily: of intaritate -Highway :No.: 35W ;(135W} being:ths mast:easterhr-northeest dinner vfthe sa_utfiwest intersection of the ;slid; I$611V .and.. Golden Triangle Bo.uleyard THENCE With the following coursesand `digances along the said.13BW westiright-of=vraj►.; :S 14°23'44''W, .48841 ft,. to a found. `T` cut;in-;concrete;: S. 14°3W 4`W; 47.'is'ft;:to a found: 5/8 brazed iron pin t$JBBtPI;: $ 1:1'47':55."W, 37fl:89 ft°fn a foundTNDot moriunient for tthe beginning:of a curve -from which: the center bears N7605245"W, 590458ft.; Southeriy_ with said;curwe ttirouph a-tentr$,arigie Of 1:0254'3271..- far-adistance of 146'90 it-1ta a ound 112 Iron pier being the southeast corner of the a&d. Don Devis investment tract described ih the 121454 Page 1282 ORTC .and tieing a coirinmerti c rnerlof a tract .described in a deed to 'Howard Vft. Key, .fist: recordeed rr Vold ne 14221, .Page 102 E:;FtTC; THEN:CE•:S89P 5:v:53,W-.viiith the said:south line°of the said:Davis tract,: 1700.77- ft:. to.;a _found 1:12- iron. pin; THENCE N01721 V'39'W, :299.98 ft. to a 518 inch .iron-:pirl;. THENCE NO°29'57"W, :at:. approximately 270 t tire. east,right;ofeway.of Narrricn, ROO, in all 929.ilk ft.-to: a-tec.5181311P in the -south tine a trract:to the Tarrant County Highway Department, being the south right of way of the said. Golden: Triangle Boulevard THENCE N39 °24`21 "E; with -the .south line of the said Golden Triangle _Etbulavard 458.&15 ft. to :a sat5/$0IP; THENCE: N89-P 17' Y:5"E. +continuing with the .said .Golden Triangle Boulevard, .1405, 71 ft, from Which a .found. 6t$91P bears N3.4°39•04"W, 3.34ft., THENCE'S34°3S'4Q'E, .47.82.fit:-to theplace- of beginning and containing 52.434 acres of land; NOTE:. COMPANY DOES NOT REPRESENT THAT THE ABOVE ACREAGE AND/OR SQUARE FOOTAGE CALCULATION: ARE :CORRECT •�- -� T: .. i.. .�r. • .••'Mas_ - i f 4. •14. i... �. •• ref; . • yI�! • ew GOLDEN TRIANGLE A' r GOLDEN TRIANGLE ..•. sill. . Exhibit "B" Map of Central City 0 1 2 4 6 8 Miles (t ntrall aL� Planning Department 10/21/04 - BK FORT WORTH O The location of the facility is culTently underdeveloped As part of its commitments under the Agreement, Brand FX will pay for the extension of water and sewer utilities to the site, which will facilitate redevelopment of the property and this area of the City. The proposed expansion site is located in COUNCIL DISTRICT 2. FISCAL INFORMATION: The Financial Management Services Director certifies that this action will have no material effect on City funds. FUND CENTERS: TO Fund/Account/Centers FROM Fund/Account/Centers CERTIFICATIONS: Submitted for City Manager's Office by: Originating Department Head: Additional Information Contact: ATTACHMENTS No attachments found. Thomas Higgins (6192) Jay Chapa (5804) Guy Brown (7313) City of Fort Worth, Texas Mayor and Council Communication COUNCIL ACTION: Approved on 7/13/2010 DATE: Tuesday, July 13, 2010 REFERENCE NO.: C-24329 LOG NAME: 17BRANDFXRELO ,SUBJECT. Authorize the Execution of Economic Development Program Agreement with Brand FX Body Company Related to a Proposed Expansion Near Golden Triangle and Interstate 35—W (COUNCIL DISTRICT 2) RECOMMENDATION: It is recommended that the City Council authorize the City Manager to execute an Economic Development Program Agreement with Brand FX Body Company related to a proposed business expansion near the intersection of Golden Triangle Boulevard and Interstate 35—W. DISCUSSION: Brand FX is one of the largest producers of advanced composite automotive utility bodies in the world. Brand FX is considering relocating and expanding operations near the intersection of Golden Triangle Boulevard and Interstate 35—W in return for payment by the City of certain economic development grants, as authorized by Chapter 380 of the Texas Local Government Code. The proposed Economic Development Program Agreement between the City and Brand FX will provide for Brand FX to receive annual program grants equal to a maximum of (90 percent) of personal property taxes paid to the City by Brand FX for a maximum of five years or until Brand FX has received $60,000.00 in the aggregate. The specific terms of the Agreement are as follows: • Brand FX will invest at least $1,300,000.00 in business personal property improvements by December 31, 2012 foi a manufacturing and fabrication facility in the City near the intersection of Golden Triangle Boulevard and Interstate 35—W If Brand FX meets this commitment it shall automatically receive grants equal to (30 percent) of the personal property taxes paid to the City each year. Failure to meet the minimum personal property investment is a condition of default and will result in immediate termination of the Agreement. • If Brand FX employs a minimum of 65 full—time employees in any given year, the grant payable to Brand FX in the following year will include an amount equal to an additional (20 percent) of the personal property taxes paid to the City in that year • If the greater of at least 33 full—time employees or (50 percent) of all full—time employees in any given year are Fort Worth residents, the grant payable to Brand FX in the following year will include an amount equal to an additional (15 percent) of the personal property taxes paid to the City in that year. • If the greater of at least 20 full—time employees or (30 percent) of all full—time employees in any given year are Fort Worth Central City residents, the grant payable to Brand FX in the following year will include an amount equal to an additional (10 percent) of the personal property taxes paid to the City in that year. • If Brand FX spends in any given year the greater of (30 percent) or $150,000.00 of annual discretionary service and supply expenditures with Fort Worth certified M/WBE companies, the grant payable to Brand FX in the following year will include an amount equal to an additional (15 percent) of the personal property taxes paid to the City in that year.