R-13-11-14-H5 - 11/14/2013RESOLUTION NO. R -13-11-14-H5
WHEREAS, D.M.A. Enterprises, Inc. ("DMA") would like to purchase approximately 27
acres ("Property") and replat the Property into at least five lots and construct subdivision
improvements suitable as an industrial park, and locate a manufacturing facility in the City
("Facility"); and
WHEREAS, the purpose of this Resolution is to approve an economic development agreement
as contemplated by Chapter 380 of the Texas Local Government Code whereby DMA will expend
significant sums to purchase and replat the Property, construct subdivision improvements suitable for
an industrial park, construct the Facility and purchase and install equipment in the Facility and occupy
and operate the Facility in conformance with the City's development approvals for the Facility, Now
Therefore
BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK, TEXAS,
That the Mayor is hereby authorized and directed to execute on behalf of the City, an Economic
Development Program Agreement with D.M.A. Enterprises, Inc., a copy of same being attached hereto
as Exhibit "A" and incorporated herein for all purposes.
The City Council hereby finds and declares that written notice of the date, hour, place and
subject of the meeting at which this Resolution was adopted was posted and that such meeting was
open to the public as required by law at all times during which this Resolution and the subject matter
hereof were discussed, considered and formally acted
RESOLVED this 14th day of November, 2013.
ALAN MCGRAW, Mayor
City of Round Rock, Texas
ATTEST:
SARA L. WHITE, City Clerk
0112.1304;00285989
EXHIBIT
ECONOMIC DEVELOPMENT PROGRAM AGREEMENT
This Economic Development Program Agreement ("Agreement") is entered into this day of
, 2013 (the "Effective Date"), by and between the City of Round Rock, Texas, a Texas
home rule municipal corporation ("City"), and D.M.A. Enterprises, Inc., a
corporation ("DMA").
WHEREAS, the City has adopted Resolution No. , attached as Exhibit
A ("City Resolution"), establishing an economic development program and authorizing the
Mayor to enter into this Agreement with DMA in recognition of the positive economic benefits
to the City through DMA's purchase and replatting of real property, constructing subdivision
improvements suitable for use as an industrial park, and locating a manufacturing facility in the
City ("Facility");and
WHEREAS, the real property to be purchased and replatted includes approximately 27 acres, as
described in Exhibit B, the ("Property"); and
WHEREAS, DMA will replat the Property into at least five (5) lots and construct subdivision
improvements suitable for an industrial park thereon; and
WHEREAS, the Facility will include new construction of a building and installation of new
equipment with a cost of at least $3,500,000; and
WHEREAS, DMA will employ at least 45 full-time employees over the term of this Agreement;
and
WHEREAS, the purpose of this Agreement is to promote economic development as
contemplated by Chapter 380 of the Texas Local Government Code whereby DMA will expend
significant sums to purchase and replat the Property, construct subdivision improvements
suitable for an industrial park, construct the Facility and purchase and install equipment in the
Facility and occupy and operate the Facility in conformance with the City's development
approvals for the Facility; and
WHEREAS, the City agrees to provide performance based economic development grants to
DMA;
NOW, THEREFORE, in consideration of the mutual benefits and promises and for other good
and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
City and DMA agree as follows:
1. Authority. The City's execution of this Agreement is authorized by Chapter 380 of the
Texas Local Government Code, and the City Resolution, and constitutes a valid and
binding obligation of the City in the event DMA proceeds with the purchase and
replatting of the Property, construction of subdivision improvements suitable for an
industrial park, and construction and operation of the Facility. The City acknowledges
that DMA is acting in reliance upon the City's performance of its obligations under this
00285487.DOC
Agreement in making its decision to commit substantial resources and money to ,lease,
improve and occupy the Facility.
2. Definitions.
2.1 "Economic Incentive Payment(s)" ("EIPs") means the amount paid by the City
to DMA under the Program.
2.2 "Effective Date" is the date this Agreement is executed to be effective by the
City and DMA.
2.3 "Equipment" means the equipment to be purchased and installed in the Facility.
2.4 "Facility" means the manufacturing facility to be constructed on the Property.
2.5 "Program" means the economic development program established by the City
pursuant to Chapter 380 of the Texas Local Government Code and under the City
Resolution to promote local economic development and stimulate business and
commercial activity within the City.
2.6 "Property" means the real property described in Exhibit "B".
2.7 "Recapture Liability" means the total amount of all EIP's that are paid as result
of this Agreement that are subject to recapture by the City from DMA in the event
of a DMA default.
3. Term. This Agreement shall become enforceable upon its Effective Date and shall
terminate on December 31, 2019.
4. Rights and Obligations of DMA.
4.1 Purchase of Property. DMA agrees to purchase the Property on or before
November 30, 2013.
4.2 Replat of Property and Subdivision Improvement Plans. DMA agrees to replat the
Property into at least five (5) lots and to construct subdivision improvements
suitable for an industrial park. DMA agrees to obtain final approval of the replat
of the Property and the subdivision improvement plans on or before November
30, 2014.
4.3 Completion of Subdivision Improvements. DMA agrees to complete the
construction of the subdivision improvements on or before eighteen (18) months
following final plat approval.
4.4 Completion of Building and Installation of Equipment. DMA agrees to complete
the construction of the Facility and the purchase and installation of the Equipment
in the Facility on or before eighteen (18) months after final plat approval and to
2
begin operating the Facility on or before twenty-two (22) months after final plat
approval.
4.5 Cost of Facility, and Equipment. DMA agrees to spend at least $3,500,000 on the
construction of the Facility and the purchase of the Equipment. DMA agrees to
provide City with documentation showing that this obligation has been satisfied.
City shall have the right to audit DMA's records to verify that this obligation has
been satisfied.
4.6 Jobs.
4.6.1 Job Creation. DMA agrees to add new full-time employees in accordance with
the following schedule:
Date Retain New Total
On Facility Opening Day 0 40 40
On December 31, 2016 40 0 40
On December 31, 2017 40 0 40
On December 31, 2018 40 0 40
On December 31, 2019 40 5 45
4.6.2 Salaries and Benefits. DMA agrees that the above full-time employees will have
an average annual salary of at least $40,000 which includes industry standard
benefits.
4.6.3 Job Compliance Affidavit. On or before February 1 of each calendar year
during the term of this Agreement, DMA agrees to provide to the City an affidavit
certifying its compliance with the foregoing job requirements in the form attached
hereto as Exhibit "C". Upon request by the City, DMA agrees to provide the City
with any and all necessary documentation to verify its compliance with the job
retention and creation obligations.
4.7 Compliance with regulations. DMA agrees that it will comply with the City's
development approval processes and shall construct, equip, occupy, and operate
the Facility consistent with City ordinances, development regulations and
requirements.
4.8 Continuous operation. DMA agrees that it will continuously operate the Facility
and employ at the number of full-time employees set out in section 4.6.1 during
the term of this Agreement, including any extensions.
5. Rights and Obligations of the City.
In consideration of DMA's compliance with this Agreement, the City agrees as follows:
5.1 Economic Incentive Payments ("EIP's").
5.1.1 EIP. Once DMA has satisfied its obligation under §4.2 above to obtain
final approval of the replat of the Property and the subdivision improvement
plans, the City shall make an EIP to DMA in the amount of $400,000. This EIP
shall be made within thirty (30) days after DMA has satisfied these obligations.
5.1.2 EIP's Subject to Future Appropriations. This Agreement shall not be
construed as a commitment, issue or obligation of any specific taxes or tax
revenues for payment to DMA. All EIP's by the City under this Agreement are
subject to the City's appropriation of funds for such payments in the budget year
for which they are made. The EIP's to be made to DMA, if paid, shall be made
solely from annual appropriations from the general funds of the City or from such
other funds of the City as may be legally set aside for the implementation of
Article III, Section 52a of the Texas Constitution or Chapter 380 of the Local
Government Code or any other economic development or financing program
authorized by statute or home rule powers of the City under applicable Texas law,
subject to any applicable limitations or procedural requirements. In the event that
the City does not appropriate funds in any fiscal year for EIP's due under this
Agreement, such failure shall not be considered a default under Section 7.3, and
the City shall not be liable to DMA for such EIP's, however, the City shall extend
this Agreement for another year(s). In addition, DMA shall have the right but not
the obligation to rescind this Agreement. To the extent there is a conflict between
this paragraph and any other language or covenant in this Agreement, this
paragraph shall control.
6. EIP Recapture. In the event that DMA is in default of any of its obligations under this
Agreement, the City may recapture and collect from DMA the Recapture Liability after
providing DMA written notice and a minimum period of thirty (30) days to cure such default,
and the default has not been cured within said time. In the event DMA does not so cure, DMA
shall pay to the City the Recapture Liability within thirty (30) days after the City makes demand
for same, subject to any and all lawful offsets, settlements, deduction, or credits to which DMA
may be entitled. The City shall have all remedies for the collection of the Recapture Liability as
provided generally in the Tax Code for the collection of delinquent property taxes.
7. Miscellaneous.
7.1 Mutual Assistance. The City and DMA will do all things reasonably necessary or
appropriate to carry out the terms and provisions of this Agreement.
7.2 Representations and Warranties. The City represents and warrants to DMA that
the Program and this Agreement are within its authority, and that it is duly
authorized and empowered to establish the Program and enter into this
Agreement, unless otherwise ordered by a court of competent jurisdiction. DMA
4
represents and warrants to the City that it has the requisite authority to enter into
this Agreement.
7.3 Default. If either the City or DMA should default in the performance of any
obligations of this Agreement, the other party shall provide such defaulting party
written notice of the default, and a minimum period of thirty (30) days to cure
such default, prior to instituting an action for breach or pursuing any other remedy
for default. If the City remains in default after notice and opportunity to cure,
DMA shall have the right to pursue any remedy at law or in equity for the City's
breach. If DMA remains in default after notice and opportunity to cure, City shall
have the right to pursue any remedy at law or in equity for DMA's breach, in
addition to the right of EIP recapture set forth above.
7.4 Attorney's Fees. In the event any legal action or proceeding is commenced in a
court of competent jurisdiction between the City and DMA to enforce provisions
of this Agreement and recover damages for breach, the prevailing party in such
legal action shall be entitled to recover its reasonable attorney's fees and expenses
incurred by reason of such action, to the extent allowed by law.
7.5 Entire Agreement. This Agreement contains the entire agreement between the
parties.
7.6 Binding Effect. This Agreement shall be binding on and inure to the benefit of
the parties, their respective successors and assigns.
7.7 Assignment. DMA may not assign all or part of its rights and obligations to a
third party without the express written consent of the City provided, however, that
this Agreement may be assigned by either party without the consent of the other
to an affiliate or to any third party who succeeds to substantially all of its business
or assets.
7.8 Amendment. This Agreement may be amended only by the mutual written
agreement of the parties.
7.9 Termination. In the event DMA elects not to purchase the Property as
contemplated by this Agreement, DMA shall notify the City in writing, and this
Agreement and the obligations on the part of both parties shall be deemed
terminated and of no further force or effect.
7.10 Notice. Any notice and or statement required and permitted to be delivered shall
be deemed delivered by actual delivery, facsimile with receipt of confirmation, or
by depositing the same in the United States mail, certified with return receipt
requested, postage prepaid, addressed to the appropriate party at the following
addresses:
5
If to City: City of Round Rock
221 E. Main Street
Round Rock, TX 78664
Attn: City Manager
Phone: (512) 218-5400
Email: snorwood@roundrocktexas.gov
With a required copy to:
Sheets & Crossfield
309 E. Main Street
Round Rock, TX 78664
Attn: Stephan L. Sheets
Phone: (512) 255-8877
Email: steve(dscrrlaw.com
If to DMA: D.M.A. Enterpri es, Inc.
Z.2JS 0IJi0nI 11 AGE
141 Val1El , ca 93OC S"
Attn: t'1 i +c ke tL A I f --Nlct. 11
Phone: (86) . -zo - 2-Y6 S E-. f" I 1
Email: rt + her_t-�1��ry A-SaL, Lortrt
Either party may designate a different address at any time upon written notice to the other party.
7.11 Interpretation. Each of the parties has been represented by counsel of their
choosing in the negotiation and preparation of this Agreement. Regardless of
which party prepared the initial draft of this Agreement, this Agreement shall, in
the event of any dispute, however its meaning or application, be interpreted fairly
and reasonably and neither more strongly for or against any party.
7.12 Applicable Law. This Agreement is made, and shall be construed and interpreted,
under the laws of the State of Texas and venue shall lie in Williamson County,
Texas.
7.13 Severability. In the event any provisions of this Agreement are illegal, invalid or
unenforceable under present or future laws, and in that event, it is the intention of
the parties that the remainder of this Agreement shall not be affected. It is also the
intention of the parties of this Agreement that in lieu of each clause and provision
that is found to be illegal, invalid or unenforceable, a provision be added to this
Agreement which is legal, valid or enforceable and is as similar in terms as
possible to the provision found to be illegal, invalid or unenforceable.
6
7.14 Paragraph Headings. The paragraph headings contained in this Agreement are for
convenience only and will in no way enlarge or limit the scope or meaning of the
various and several paragraphs.
7.15 No Third Party Beneficiaries. This Agreement is not intended to confer any
rights, privileges or causes of action upon any third party.
7.16 Force Majeure. Except as otherwise provided herein, an equitable adjustment
shall be made for delay or failure in performing if such delay or failure is caused,
prevented, or restricted by conditions beyond that Party's reasonable control (a
`force majeure event"). A force majeure event for the purposes of this Agreement
shall include, but not be limited to, acts of God, fire; explosion, vandalism; storm
or similar occurrences; orders or acts of military or civil authority; litigation;
changes in law, rules, or regulations outside the control of the affected Party;
national emergencies or insurrections; riots; acts of terrorism; or supplier failures,
shortages or breach or delay.
7.17 No Joint Venture. It is acknowledged and agreed by the parties that the terms
hereof are not intended to and shall not be deemed to create any partnership or
joint venture among the parties. The City, its past, present and future officers,
elected officials, employees and agents of the City, do not assume any
responsibilities or liabilities to any third party in connection with the development
of the Facility or the design, construction or operation of any portion of the
Facility.
EXECUTED to be effective as of the day of , 2013 (the "Effective Date").
Attest:
THE CITY OF ROUND ROCK, TEXAS,
a Texas Home Rule Municipality
Date:
Sara White, City Clerk
APPROVED AS TO FORM:
Stephan L. Sheets, City Attorney
7
By:
Alan McGraw, Mayor
D.M.A. Enti .rises, Inc.,
a corporation
Bv:
" 4c t.L ( Ma.\ , (printed name)
(f .gyp , (title)
Date:
8
EXHIBIT
RESOLUTION NO. R -13-11-14-H4
WHEREAS, D.M.A. Enterprises, Inc., ("DMA") has expressed to the City of Round Rock
("City") its desire to (i) purchase approximately 27 acres in the City (the "Property"), (ii) replat the
Property, (iii) construct an industrial park with at least five (5) lots, and (iv) locate and construct a
manufacturing facility on the Property which will provide jobs and additional tax base to the City, and
WHEREAS, §380.001 Local Government Code provides that a municipality may establish an
economic development program ("Program") to promote local economic development and to stimulate
business and commercial activity in the municipality, and
WHEREAS, the City Council has determined that the Program described in Exhibit "A" will
meet the goals set forth in said §380.001 and will be of mutual benefit to both parties, Now Therefore
BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK, TEXAS,
That the City offers to DMA a §380.001 Program in exchange for DMA purchasing the
Property, replatting the Property into at least five (5) lots, constructing subdivision improvements
suitable for an industrial park, and locating and constructing a manufacturing facility on the Property,
and
BE IT FURTHER RESOLVED
That the offer of the Program shall be as generally outlined in Exhibit "A" attached hereto and
incorporated herein for all purposes.
The City Council hereby finds and declares that written notice of the date, hour, place and
subject of the meeting at which this Resolution was adopted was posted and that such meeting was
open to the public as required by law at all times during which this Resolution and the subject matter
hereof were discussed, considered and formally acted upon, all as required by the Open Meetings Act,
Chapter 551, Texas Government Code, as amended.
0112.1304; 00286006
RESOLVED this 14th day of November, 2013.
ATTEST: •
cimit, , (AM
SARA L. WHITE, City Clerk
Ohl
ALAN MCGRAW, Mayor
City of Round Rock, Texas
EXHIBIT A
ECONOMIC DEVELOPMENT PROGRAM
The terms of the §380.001 Economic Development Program to be offered to D.M.A.
Enterprises, Inc. ("DMA") in exchange for DMA's purchasing the Property, replatting the Property,
constructing subdivision improvements suitable for an industrial park, and locating and constructing a
manufacturing facility in the City of Round Rock are as generally outlined below:
1. DMA's obligations:
1.1. DMA agrees to purchase a tract of land containing approximately 27 acres (the
"Property") as described in Exhibit "1", attached hereto.
1.2 DMA agrees to replat the Property into at least five (5) lots and construct subdivision
improvements suitable for an industrial park thereon.
1.3 DMA agrees to construct and operate a new manufacturing facility ("Facility") on the
Property.
1.4 DMA agrees to invest at least $3,500,000 in the construction of the Facility and the
purchase and installation of new equipment.
1.5 DMA agrees to hire 45 new full-time employees over the next six years.
2. City's obligations:
2.1 City agrees to make an Economic Incentive Payment of $400,000 to DMA if it meets its
obligations to replat the Property and construct subdivision improvements suitable for
an industrial park thereon.
3. The terms and provisions of this Program will be set out in more detail in the Economic
Development Program Agreement of even date herewith.
3
EXHIBIT "1" TO THE ECONOMIC DEVELOPMENT PROGRAM
Property Description
Lot 3 of the REPLAT OF AMANDA SUBDIVISION LOT 2 & 3
BLOCK "A", as shown in Document Number 9134502 of the Official
Public Records of Williamson County and the plat recorded in Cabinet K,
Slide 29, Plat Records of Williamson County, Texas.
EXHIBIT "B"
TO THE ECONOMIC DEVELOPMENT AGREEMENT
DESCRIPTION OF REAL PROPERTY
Lot 3 of the REPLAT OF AMANDA SUBDIVISION LOT 2
& 3 BLOCK "A", as shown in Document Number 9134502 of
the Official Public Records of Williamson County and the plat
recorded in Cabinet K, Slide 29, Plat Records of Williamson
County, Texas.
EXHIBIT "C" TO THE ECONOMIC DEVELOPMENT AGREEMENT
JOB COMPLIANCE AFFIDAVIT
Before me, the undersigned authority, on this day personally appeared
(name) , known to me to be the person whose name is
subscribed below and after having been duly sworn, on his/her oat stated as follows:
1. "My name is . I am over the age of 21 years and am capable of
making this affidavit. The facts stated in this affidavit are within my personal knowledge and are true
and correct.
2. "I am the
to make this affidavit.
(title) of D.M.A. Enterprises, Inc., and am duly authorized
3. "As of December 31, 201_, D.M.A. Enterprises, Inc. had the following full-time employees
and salaries:
Employee ID No. Job Position or Title Annual Salary
$
TOTAL FULL-TIME EMPLOYEES AVG. SALARY $
4. "In addition to the salary, all full-time employees had industry standard employee benefits.
Dated this day of , 201 .
(Printed name)
(Title)
SUBSCRIBED AND SWORN TO before me on this the day of , 2013.
Notary Public, State of Texas
*CKTDS
P OW°. MAIOK PRa6etnRY
City of Round Rock
Agenda Item Summary
Agenda Number: H.5
Title: Consider a resolution authorizing the Mayor to execute a Chapter 380
Economic Development Agreement with D.M.A. Enterprises.
Type: Resolution
Governing Body: City Council
Agenda Date: 11/14/2013
Dept Director: Steve Norwood, City Mnaager
Cost:
Indexes:
Attachments: Resolution, Exhibit A
Department: City Manager's Office
Text of Legislative File 13-911
Thermasol will relocate its manufacturing facility to Round Rock Texas. Thermasol will
manufacture all its products, and also house its customer service, inside sales, shipping,
purchasing, engineering, product repairs, accounting, and management departments in this
location. Thermasol was established in 1958 and on its 3rd generation of management.
They lead the world in their industry. Thermasol manufactures steam bath and Sauna
equipment for residential, hotel, health clubs, and day spa's sold worldwide. The common
name for a residential product is called a steam shower, in the clubs and hotels it's the
steam room or sauna room.
Deal Points for this incentive agreement are:
City:
1. Agrees to provide the company with a $400,000 economic development grant within 30
days of the company having an approved plat for the site.
Thermasol:
1. Create a minimum of 45 jobs in excess of $40,000/annually average salary, plus
benefits, within 22 months of receiving an approved plat.
2. Invest a minimum of $3,500,000 in real and personal property within six years of
expansion.
3. Close on 27+/- acres property in Round Rock, Texas by November 30
4. Complete subdivision improvements within 18 months of receiving an approved plat
creating additional shovel ready sites for future businesses
City of Round Rock Page 1 Printed on 11/12/2013
EXECUTED
ORIGINAL
DOCUMEN1S
FOLLOW
•
ECONOMIC DEVELOPMENT PROGRAM AGREEMENT
This Economic Development Program Agreement ("Agreement") is entered into this 14 day of
Jd 4' ", 2013 (the "Effective Date"), by and between the City of Round Rock, Texas, a Texas
home rule municipal corporation ("City"), and D.M.A. Enterprises, Inc., a
corporation ("DMA").
WHEREAS, the City has adopted Resolution No. R'l3-1t- 4+ -14f , attached as Exhibit
A ("City Resolution"), establishing an economic development program and authorizing the
Mayor to enter into this Agreement with DMA in recognition of the positive economic benefits
to the City through DMA's purchase and replatting of real property, constructing subdivision
improvements suitable for use as an industrial park, and locating a manufacturing facility in the
City ("Facility");and
WHEREAS, the real property to be purchased and replatted includes approximately 27 acres, as
described in Exhibit B, the ("Property"); and
WHEREAS, DMA will replat the Property into at least five (5) lots and construct subdivision
improvements suitable for an industrial park thereon; and
WHEREAS, the Facility will include new construction of a building and installation of new
equipment with a cost of at least $3,500,000; and
WHEREAS, DMA will employ at least 45 full-time employees over the term of this Agreement;
and
WHEREAS, the purpose of this Agreement is to promote economic development as
contemplated by Chapter 380 of the Texas Local Government Code whereby DMA will expend
significant sums to purchase and replat the Property, construct subdivision improvements
suitable for an industrial park, construct the Facility and purchase and install equipment in the
Facility and occupy and operate the Facility in conformance with the City's development
approvals for the Facility; and
WHEREAS, the City agrees to provide performance based economic development grants to
DMA;
NOW, THEREFORE, in consideration of the mutual benefits and promises and for other good
and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
City and DMA agree as follows:
1. Authority. The City's execution of this Agreement is authorized by Chapter 380 of the
Texas Local Government Code, and the City Resolution, and constitutes a valid and
binding obligation of the City in the event DMA proceeds with the purchase and
replatting of the Property, construction of subdivision improvements suitable for an
industrial park, and construction and operation of the Facility. The City acknowledges
that DMA is acting in reliance upon the City's performance of its obligations under this
00285487.DOC
1? -4,3-11-1 4-- w
Agreement in making its decision to commit substantial resources and money to lease,
improve and occupy the Facility.
2. Definitions.
2.1 "Economic Incentive Payment(s)" ("EIPs") means the amount paid by the City
to DMA under the Program.
2.2 "Effective Date" is the date this Agreement is executed to be effective by the
City and DMA.
2.3 "Equipment" means the equipment to be purchased and installed in the Facility.
2.4 "Facility" means the manufacturing facility to be constructed on the Property.
2.5 "Program" means the economic development program established by the City
pursuant to Chapter 380 of the Texas Local Government Code and under the City
Resolution to promote local economic development and stimulate business and
commercial activity within the City.
2.6 "Property" means the real property described in Exhibit "B".
2.7 "Recapture Liability" means the total amount of all EIP's that are paid as result
of this Agreement that are subject to recapture by the City from DMA in the event
of a DMA default.
3. Term. This Agreement shall become enforceable upon its Effective Date and shall
terminate on December 31, 2019.
4. Rights and Obligations of DMA.
4.1 Purchase of Property. DMA agrees to purchase the Property on or before
November 30, 2013.
4.2 Replat of Property and Subdivision Improvement Plans. DMA agrees to replat the
Property into at least five (5) lots and to construct subdivision improvements
suitable for an industrial park. DMA agrees to obtain final approval of the replat
of the Property and the subdivision improvement plans on or before November
30, 2014.
4.3 Completion of Subdivision Improvements. DMA agrees to complete the
construction of the subdivision improvements on or before eighteen (18) months
following final plat approval.
4.4 Completion of Building and Installation of Equipment. DMA agrees to complete
the construction of the Facility and the purchase and installation of the Equipment
in the Facility on or before eighteen (18) months after final plat approval and to
2
begin operating the Facility on or before twenty-two (22) months after final plat
approval.
4.5 Cost of Facility, and Equipment. DMA agrees to spend at least $3,500,000 on the
construction of the Facility and the purchase of the Equipment. DMA agrees to
provide City with documentation showing that this obligation has been satisfied.
City shall have the right to audit DMA's records to verify that this obligation has
been satisfied.
4.6 Jobs.
4.6.1 Job Creation. DMA agrees to add new full-time employees in accordance with
the following schedule:
Date
Retain New Total
On Facility Opening Day 0 40 40
On December 31, 2016 40 0 40
On December 31, 2017 40 0 40
On December 31, 2018 40 0 40
On December 31, 2019 40 5 45
4.6.2 Salaries and Benefits. DMA agrees that the above full-time employees will have
an average annual salary of at least $40,000 which includes industry standard
benefits.
4.6.3 Job Compliance Affidavit. On or before February 1 of each calendar year
during the term of this Agreement, DMA agrees to provide to the City an affidavit
certifying its compliance with the foregoing job requirements in the form attached
hereto as Exhibit "C". Upon request by the City, DMA agrees to provide the City
with any and all necessary documentation to verify its compliance with the job
retention and creation obligations.
4.7 Compliance with regulations. DMA agrees that it will comply with the City's
development approval processes and shall construct, equip, occupy, and operate
the Facility consistent with City ordinances, development regulations and
requirements.
4.8 Continuous operation. DMA agrees that it will continuously operate the Facility
and employ at the number of full-time employees set out in section 4.6.1 during
the term of this Agreement, including any extensions.
3
5. Rights and Obligations of the City.
In consideration of DMA's compliance with this Agreement, the City agrees as follows:
5.1 Economic Incentive Payments ("EIP's").
5.1.1 EIP. Once DMA has satisfied its obligation under §4.2 above to obtain
final approval of the replat of the Property and the subdivision improvement
plans, the City shall make an EIP to DMA in the amount of $400,000. This EIP
shall be made within thirty (30) days after DMA has satisfied these obligations.
5.1.2 EIP's Subject to Future Appropriations. This Agreement shall not be
construed as a commitment, issue or obligation of any specific taxes or tax
revenues for payment to DMA. All EIP's by the City under this Agreement are
subject to the City's appropriation of funds for such payments in the budget year
for which they are made. The EIP's to be made to DMA, if paid, shall be made
solely from annual appropriations from the general funds of the City or from such
other funds of the City as may be legally set aside for the implementation of
Article III, Section 52a of the Texas Constitution or Chapter 380 of the Local
Government Code or any other economic development or financing program
authorized by statute or home rule powers of the City under applicable Texas law,
subject to any applicable limitations or procedural requirements. In the event that
the City does not appropriate funds in any fiscal year for EIP's due under this
Agreement, such failure shall not be considered a default under Section 7.3, and
the City shall not be liable to DMA for such EIP's, however, the City shall extend
this Agreement for another year(s). In addition, DMA shall have the right but not
the obligation to rescind this Agreement. To the extent there is a conflict between
this paragraph and any other language or covenant in this Agreement, this
paragraph shall control.
6. EIP Recapture. In the event that DMA is in default of any of its obligations under this
Agreement, the City may recapture and collect from DMA the Recapture Liability after
providing DMA written notice and a minimum period of thirty (30) days to cure such default,
and the default has not been cured within said time. In the event DMA does not so cure, DMA
shall pay to the City the Recapture Liability within thirty (30) days after the City makes demand
for same, subject to any and all lawful offsets, settlements, deduction, or credits to which DMA
may be entitled. The City shall have all remedies for the collection of the Recapture Liability as
provided generally in the Tax Code for the collection of delinquent property taxes.
7. Miscellaneous.
7.1 Mutual Assistance. The City and DMA will do all things reasonably necessary or
appropriate to carry out the terms and provisions of this Agreement.
7.2 Representations and Warranties. The City represents and warrants to DMA that
the Program and this Agreement are within its authority, and that it is duly
authorized and empowered to establish the Program and enter into this
Agreement, unless otherwise ordered by a court of competent jurisdiction. DMA
4
represents and warrants to the City that it has the requisite authority to enter into
this Agreement.
7.3 Default. If either the City or DMA should default in the performance of any
obligations of this Agreement, the other party shall provide such defaulting party
written notice of the default, and a minimum period of thirty (30) days to cure
such default, prior to instituting an action for breach or pursuing any other remedy
for default. If the City remains in default after notice and opportunity to cure,
DMA shall have the right to pursue any remedy at law or in equity for the City's
breach. If DMA remains in default after notice and opportunity to cure, City shall
have the right to pursue any remedy at law or in equity for DMA's breach, in
addition to the right of EIP recapture set forth above.
7.4 Attorney's Fees. In the event any legal action or proceeding is commenced in a
court of competent jurisdiction between the City and DMA to enforce provisions
of this Agreement and recover damages for breach, the prevailing party in such
legal action shall be entitled to recover its reasonable attorney's fees and expenses
incurred by reason of such action, to the extent allowed by law.
7.5 Entire Agreement. This Agreement contains the entire agreement between the
parties.
7.6 Binding Effect. This Agreement shall be binding on and inure to the benefit of
the parties, their respective successors and assigns.
7.7 Assignment. DMA may not assign all or part of its rights and obligations to a
third party without the express written consent of the City provided, however, that
this Agreement may be assigned by either party without the consent of the other
to an affiliate or to any third party who succeeds to substantially all of its business
or assets.
7.8 Amendment. This Agreement may be amended only by the mutual written
agreement of the parties.
7.9 Termination. In the event DMA elects not to purchase the Property as
contemplated by this Agreement, DMA shall notify the City in writing, and this
Agreement and the obligations on the part of both parties shall be deemed
terminated and of no further force or effect.
7.10 Notice. Any notice and or statement required and permitted to be delivered shall
be deemed delivered by actual delivery, facsimile with receipt of confirmation, or
by depositing the same in the United States mail, certified with return receipt
requested, postage prepaid, addressed to the appropriate party at the following
addresses:
5
If to City: City of Round Rock
221 E. Main Street
Round Rock, TX 78664
Attn: City Manager
Phone: (512) 218-5400
Email: snorwood(d roundrocktexas.gov
With a required copy to:
Sheets & Crossfield
309 E. Main Street
Round Rock, TX 78664
Attn: Stephan L. Sheets
Phone: (512) 255-8877
Email: steve@scrrlaw.com
If to DMA: D.M.A. Enterpries, Inc.
uss u�rion[ el AGE
S`, ►-�� Qn I IEy , CA 93o6S
Attn: 11 i -c. tne U- A 1 f Net =1
Phone: (6 ) SA) - zY6 B IEti i'
Email: t"(}cheLL (s col ,
Either party may designate a different address at any time upon written notice to the other party.
7.11 Interpretation. Each of the parties has been represented by counsel of their
choosing in the negotiation and preparation of this Agreement. Regardless of
which party prepared the initial draft of this Agreement, this Agreement shall, in
the event of any dispute, however its meaning or application, be interpreted fairly
and reasonably and neither more strongly for or against any party.
7.12 Applicable Law. This Agreement is made, and shall be construed and interpreted,
under the laws of the State of Texas and venue shall lie in Williamson County,
Texas.
7.13 Severability. In the event any provisions of this Agreement are illegal, invalid or
unenforceable under present or future laws, and in that event, it is the intention of
the parties that the remainder of this Agreement shall not be affected. It is also the
intention of the parties of this Agreement that in lieu of each clause and provision
that is found to be illegal, invalid or unenforceable, a provision be added to this
Agreement which is legal, valid or enforceable and is as similar in terms as
possible to the provision found to be illegal, invalid or unenforceable.
6
7.14 Paragraph Headings. The paragraph headings contained in this Agreement are for
convenience only and will in no way enlarge or limit the scope or meaning of the
various and several paragraphs.
7.15 No Third Party Beneficiaries. This Agreement is not intended to confer any
rights, privileges or causes of action upon any third party.
7.16 Force Majeure. Except as otherwise provided herein, an equitable adjustment
shall be made for delay or failure in performing if such delay or failure is caused,
prevented, or restricted by conditions beyond that Party's reasonable control (a
`force majeure event"). Aforce majeure event for the purposes of this Agreement
shall include, but not be limited to, acts of God, fire; explosion, vandalism; storm
or similar occurrences; orders or acts of military or civil authority; litigation;
changes in law, rules, or regulations outside the control of the affected Party;
national emergencies or insurrections; riots; acts of terrorism; or supplier failures,
shortages or breach or delay.
7.17 No Joint Venture. It is acknowledged and agreed by the parties that the terms
hereof are not intended to and shall not be deemed to create any partnership or
joint venture among the parties. The City, its past, present and future officers,
elected officials, employees and agents of the City, do not assume any
responsibilities or liabilities to any third party in connection with the development
of the Facility or the design, construction or operation of any portion of the
Facility.
EXECUTED to be effective as of the (9'�"day of NA,0412013 (the "Effective Date").
Attest:
ft44v1-- OW -
Sara White, City Clerk
APP' 41 ED AS TO F
tfi _
Steph
RM:
Sheets, City Attorney
THE CITY OF ROUND ROCK, TEXAS,
a Texas Home Rule Municipality
Date:
7
Alan McGraw, Mayor
11.1+. (3
D.M.A. Ent .rises, Inc.,
a •' corporation
B
Pflar‘ , (printed name)
, (title)
Date: t 0 L fI3
8
EXHIBIT
A„
RESOLUTION NO. R -13-11-14-H4
WHEREAS, D.M.A. Enterprises, Inc., ("DMA") has expressed to the City of Round Rock
("City") its desire to (i) purchase approximately 27 acres in the City (the "Property"), (ii) replat the
Property, (iii) construct an industrial park with at least five (5) lots, and (iv) locate and construct a
manufacturing facility on the Property which will provide jobs and additional tax base to the City, and
WHEREAS, §380.001 Local Government Code provides that a municipality may establish an
economic development program ("Program") to promote local economic development and to stimulate
business and commercial activity in the municipality, and
WHEREAS, the City Council has determined that the Program described in Exhibit "A" will
meet the goals set forth in said §380.001 and will be of mutual benefit to both parties, Now Therefore
BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK, TEXAS,
That the City offers to DMA a §380.001 Program in exchange for DMA purchasing the
Property, replatting the Property into at least five (5) lots, constructing subdivision improvements
suitable for an industrial park, and locating and constructing a manufacturing facility on the Property,
and
BE IT FURTHER RESOLVED
That the offer of the Program shall be as generally outlined in Exhibit "A" attached hereto and
incorporated herein for all purposes.
The City Council hereby finds and declares that written notice of the date, hour, place and
subject of the meeting at which this Resolution was adopted was posted and that such meeting was
open to the public as required by law at all times during which this Resolution and the subject matter
hereof were discussed, considered and formally acted upon, all as required by the Open Meetings Act,
Chapter 551, Texas Government Code, as amended.
0112.1304; 00286006
RESOLVED this 14th day of November, 2013.
ALAN MCGRAW, Mayor
City of Round Rock, Texas
ATTEST:
,Aio.0
SARA L. WHITE, City Clerk
EXHIBIT A
ECONOMIC DEVELOPMENT PROGRAM
The terms of the §380.001 Economic Development Program to be offered to D.M.A.
Enterprises, Inc. ("DMA") in exchange for DMA's purchasing the Property, replatting the Property,
constructing subdivision improvements suitable for an industrial park, and locating and constructing a
manufacturing facility in the City of Round Rock are as generally outlined below:
1. DMA's obligations:
1.1. DMA agrees to purchase a tract of land containing approximately 27 acres (the
"Property") as described in Exhibit "1", attached hereto.
1.2 DMA agrees to replat the Property into at least five (5) lots and construct subdivision
improvements suitable for an industrial park thereon.
1.3 DMA agrees to construct and operate a new manufacturing facility ("Facility") on the
Property.
1.4 DMA agrees to invest at least $3,500,000 in the construction of the Facility and the
purchase and installation of new equipment.
1.5 DMA agrees to hire 45 new full-time employees over the next six years.
2. City's obligations:
2.1 City agrees to make an Economic Incentive Payment of $400,000 to DMA if it meets its
obligations to replat the Property and construct subdivision improvements suitable for
an industrial park thereon.
3. The terms and provisions of this Program will be set out in more detail in the Economic
Development Program Agreement of even date herewith.
3
EXHIBIT "1" TO THE ECONOMIC DEVELOPMENT PROGRAM
Property Description
Lot 3 of the REPLAT OF AMANDA SUBDIVISION LOT 2 & 3
BLOCK "A", as shown in Document Number 9134502 of the Official
Public Records of Williamson County and the plat recorded in Cabinet K,
Slide 29, Plat Records of Williamson County, Texas.
EXHIBIT "B"
TO THE ECONOMIC DEVELOPMENT AGREEMENT
DESCRIPTION OF REAL PROPERTY
Lot 3 of the REPLAT OF AMANDA SUBDIVISION LOT 2
& 3 BLOCK "A", as shown in Document Number 9134502 of
the Official Public Records of Williamson County and the plat
recorded in Cabinet K, Slide 29, Plat Records of Williamson
County, Texas.
EXHIBIT "C" TO THE ECONOMIC DEVELOPMENT AGREEMENT
JOB COMPLIANCE AFFIDAVIT
Before me, the undersigned authority, on this day personally appeared
(name) , known to me to be the person whose name is
subscribed below and after having been duly sworn, on his/her oat stated as follows:
1. "My name is . I am over the age of 21 years and am capable of
making this affidavit. The facts stated in this affidavit are within my personal knowledge and are true
and correct.
2. "I am the
to make this affidavit.
(title) of D.M.A. Enterprises, Inc., and am duly authorized
3. "As of December 31, 201_, D.M.A. Enterprises, Inc. had the following full-time employees
and salaries:
Employee ID No. Job Position or Title Annual Salary
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
TOTAL FULL-TIME EMPLOYEES AVG. SALARY $
4. "In addition to the salary, all full-time employees had industry standard employee benefits.
Dated this day of , 201_
(Printed name)
(Title)
SUBSCRIBED AND SWORN TO before me on this the day of , 2013.
Notary Public, State of Texas