R-2019-0476 - 12/5/2019 RESOLUTION NO. R-2019-0476
WHEREAS, BGE, Inc. has leased a portion of the building ("Facility") located in the City of
Round Rock at 101 West Louis Henna Boulevard, Austin, Texas 78728, known as "Frontera
Crossing"; 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 BGE has leased and
intends to improve the Facility and create new jobs,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 BGE, 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 upon, all as required by the Open Meetings Act,
Chapter 551, Texas Government Code, as amended.
RESOLVED this 5th day of December, 2019.
CRANound
OR AN, Mayor
City Rock, Texas
ATTEST:
SARA L. WHITE, City Clerk
0112.1902;00435828
EXHIBIT
ECONOMIC DEVELOPMENT PROGRAM AGREEMENT
This Economic Development Program Agreement ("Agreement") is entered into this day of
, 2019, by and between the City of Round Rock, Texas, a Texas home rule
municipal corporation("City"), and BGE,Inc., a Texas Corporation("BGE").
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 BGE in recognition of the positive economic benefits to the City through
BGE's decision to lease a facility in the City for the operation of an engineering consulting firm,
and its intention to (i) create at least eighty(80) new jobs with an average salary of$80,000 with
benefits, and(ii) invest at least$1,925,000 in the leased space as provided below; and
WHEREAS, on the 19th day of November, 2018, BGE entered into a lease agreement (the
"Lease") originally for the lease of 18,239 square feet of office space (the"Original Facility")on
the fourth floor of the building located at 101 West Louis Henna Boulevard, Austin, Texas (the
"Building"). The Original Facility together with any additional space leased by BGE within the
Building from time to time (including, without limitation, any expansion space pursuant to any
amendment to the Lease) is referred to herein as the "Facility"; and
WHEREAS, the City issued a Certificate of Occupancy for the Original Facility on August 9,
2019; and
WHEREAS,the purpose of this Agreement is to promote economic development as contemplated
by Chapter 380 of the Texas Local Government Code whereby BGE has leased and occupied the
Facility and intends to accomplish the foregoing investment and job creation; and
WHEREAS, the City agrees to provide performance-based Economic Incentive Payments
("EIP's") (as defined below);
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 BGE 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 BGE proceeds with the lease, improvement,
occupation, and staffing of the Facility. The City acknowledges that BGE is acting in
reliance upon the City's performance of its obligations under this Agreement in making its
decision to commit substantial resources and money to lease, improve, and occupy the
Facility.
2. Definitions.
2.1. "Business Personal Property" means fixtures, equipment, artwork and furniture
purchased for the purpose of supporting BGE's business operation as the Facility.
00435961.DOCX
2.2. "Economic Incentive :Payment(s)" ("EIPs") means the amount paid by the City
to.BGE under the Program.
2.3. "Effective Date" is the date this Agreement is executed to be effective by the City
and BGE.
2.4 "Facility"is defined in the recitals above.
2.5. "Full Time Equivalent Employee" ("FTE") means a combination of employees,
each of whom individually is not a full-time employee because they are not
employed on average at least 35 hours per week, but who, in combination, are
counted as the equivalent of a full-time employee. FTE's shall include original
hires or their replacements over time.
2.6. "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.
2.7. "Real Property Improvements" means costs directly incurred as a result of the
rehabilitation, reconstruction, repair or remodeling of the existing Facility for the
purpose of supporting BCE's business operation. This does not include soft costs
such as financing costs,permit fees, attorneys, and similar costs.
2.8. "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 BGE in the event
of BCE's default.
3. Intention of Parties. The City Council of Round Rock has previously determined that one
of its priority goals is to encourage economic development within the City.To further these
goals, the City is willing to provide EIP's to assist BGE in the leasing and improving of
the Facility.
4. Term. This Agreement shall become enforceable upon its Effective gate and shall
terminate on December 31,2026.
5. Rights and Obligations of BGE.
5.1. Lease. BGE leased the Facility on November 19, 2018.
5.2. Real Property Improvements. BGE agrees to invest at least $9751000 in Real
Property Improvements to the Facility (the "Real Property Investment
Threshold") in accordance with the following schedule (the "Real Property
Investment Schedule"): (i)at least$700,000 in Real Property Improvements to the
Facility prior to December 31, 2019 (including any Real Property Improvements
made prior to the date of this Agreement), and (ii) the remainder of the Real
Property Investment'Threshold must be spent prior to December 31, 2022.
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If BGE achieves the Real Property .Investment Threshold, BGE agrees to provide
the City with documentation that shows proof that this threshold has been.satisfied,
and the City shall have the right to audit BGE' s records to verify same.
5.3. Business Personal Property investment. BGE intends to invest at least$950,000 in
Business Personal Property for the Facility (the "Personal Property Investment
Threshold") in accordance with the following schedule (the "Personal Property
Investment Schedule"): (i)at least$650,000 in Business Personal Property for the
Facility prior to December 31., 201.9 (including any Business Personal Property
investments made prior to the date of this Agreement),and(ii)the remainder of the
Personal Property Investment Threshold must be spent prior to December 31,2022.
In order to provide proof that the Personal Property Investment Threshold is being
satisfied in accordance with the Personal Property Investment Schedule, on or
before April 15 of 2020 and each subsequent calendar year until the Personal
Property Investment Threshold has been satisfied, BGE agrees to provide the City
with a copy of the rendition statement fled with the Williamson Central.Appraisal
District, pursuant to § 22.01 of the Texas Tax Code. The rendition statement shall
indicate that the business personal property has either an estimated market value,
or a historical cost when new of at least the Personal Property Investment Threshold
or portion thereof as .required to be obtained in accordance with the Personal
Property Investment Schedule.
5.4. Jobs. BGE intends to employ at least eighty(80)full-time employees and/or FTE's,
(the "Jobs Threshold") with an annual average salary of at least $80,000 in
accordance with the schedule set forth below (including, without limitation, any
present employees or FTE's of BGE who will be transferred to the Facility) (the
"Jobs Schedule"). As used in the below Jobs Schedule "jobs" shall include full-
time employees and/or FTE's.
Year Retained Jobs New/Transferred Jobs Total Jobs
2019 0 50 50
2020 50 8 58
2021 58 5 63
2022 63 5 68
2023 68 5 73
2024 73 4 77
2025 77 3 80
5.5. ,lob Compliance Affidavit. On or before April 15 of2020, and for each calendar
year thereafter of this Agreement, BGE agrees to provide to the City a Job
Compliance Affidavit, a copy of such Job Compliance Affidavit being attached
hereto as Exhibit B.City shall have the right,following reasonable advance notice
to BGE, to audit BGE's records to verify that this obligation has been satisfied.
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5.6. Compliance with regulations. BGE agrees that it will comply with the City's
development approval processes, and shall construct and install the improvements
and lease and operate the Facility consistent with City ordinances, development
regulations and legal requirements.
5.7. Continuous operation. BGE agrees that following BGE's commencement of
operations at the Facility, it will continuously operate the Facility during the term
of this Agreement for a minimum of seven(7)years from the effective date of this
Agreement, except during periods of construction or reconstruction of the Facility
or in the event of a casualty, condemnation or other force majeure event with.
respect to the Facility or a portion thereof..
5.8. Clawback. .In the event that BGE fails to comply with any of the actions as
described in Section 5.1 through 5.5 above (including, without limitation, any
failure to comply with the Real Property Investment Schedule, the Personal
Property Investment Schedule, and the Jobs Schedule), and such failure continues
for a period of thirty (30) days after BCE's receipt of written notice of such failure
from.the City, BGE will immediately pay to the City an amount equal to,but not to
exceed, the Recapture Liability.
6. Economic.Incentive Payments.
6.1 In consideration, and subject to BGE's compliance with this Agreement(including
BGE being in compliance with the Real Property Investment Schedule,the Personal
Property Investment Schedule,and the Jobs Schedule),the City agrees to pay ETPs
as set forth below.
6.2. Schedule for ElPs. City shall, subject to BGE's satisfaction of its obligations set
forth herein,make EIPs to BGE as set forth herein.The EIP's shall be made in three
annual payments on or before June 1 of each year. The amount of the EIP's shall
be as follows:
Year Amount of EIP
2020 $50,000.00
2021 $25,000.00
2022 $25,000.00
6.3. EIP 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 BGE. The ETPs 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 ETPs to be made to BGE, 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
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limitations or procedural requirements. In. the event that the City does not
appropriate funds in any fiscal year for the EIP due under this Agreement, such
failure shall not be considered a default under Section 7.37 and the City shall not be
liable to BGE for such EIP, however, the City shall extend this Agreement for
another year(s), until BGE has received all of the EIPs provided for herein. In
addition, BGE 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.
6.4. EIP Recapture.In the event the City terminates this Agreement as a result of BGE's
default that is not cured within thirty(30)days after BGE's receipt of written notice
of such failure from the City, the City may recapture and collect from BGE the
Recapture Liability. BGE 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 BGE may be entitled.
Notwithstanding anything herein to the contrary,such Recapture Liability shall not
exceed,in the aggregate,an amount equal to all EI.Ps that were paid pursuant to this
Agreement from the Effective Date to the date of termination(together with interest
thereon to be charged at the statutory rate for delinquent taxes as determined by
Section 33.01 of the Property Tax Code of the State of Texas, but without the
addition of a penalty). 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 BGE 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 BGE 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. BGE represents and warrants to the City
that it has the requisite authority to enter into this Agreement.
7.3.13efault. If either the City or BGE should default in the performance of any obligations
of this Agreement, the other party shall provide such defaulting party with written
notice of such default and thirty (30) days' opportunity to cure, 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, BGE shall. have the right to pursue any remedy at
law or in equity for the City's breach. If BGE remains in default after notice and
opportunity to cure, City shall have the right to pursue any remedy at law or in equity
for BGE' s breach, but only up to an amount equal to the Recapture Liability.
7.4.Attorne ':s Pees. In the event any legal action or proceeding is commenced in a court
of competent jurisdiction between the City and BGE to enforce provisions of this
Agreement and recover damages for breach, the prevailing party in such, legal action
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shall be entitled to recover its reasonable attorney's fees and expenses incurred by
reason of such action, to the extent allowed by law.
7.5.1ntire Agreement. This Agreement contains the entire agreement between the parties.
This Agreement may only be amended,altered or revoked by written instrument signed
by the City and BGE.
7.6.13inding Effect. This Agreement shall be binding on and inure to the benefit of the
parties, their respective successors and assigns.
7.7.Assig_nment.BGE 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 by the mutual written agreement of the
parties.
7.9.Termination. In the event BGE elects not to lease the Facility or install the
improvements as contemplated by this Agreement,BGE 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:
If to City: City of Round Rock
221 E. Main Street
Round Rock, TX 78664
Attn: City Manager
Phone: (512)21.8-5400
Email: lhad.IcY cl�,rOLindroe.ktcxKss.goy
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 BGE: BGE, Inc.
Attn: Catherine Hays, Real Estate Manager
10777 Westheimer, Suite 400
Houston, TX 77042
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Phone: (281) 558-8700
Chexy5f 4b;;c;inca.com
And to:
BGE, Inc.
Attn: Rob Harris,Vice President
101 W Louis Henna Blvd, Suite 400, Austin, Texas 78728
Phone: (512) 879-0423
Email: c:rharri>s !'bgeinc.c om
With a required copy to:
Wick Phillips Gould& Martin, LLP
3131 McKinney Avenue, Suite 100
Dallas, Texas 75204
Attn: Rob Wills
Phone: (214) 740-4020
Email: rob.wills@wickphillips.com
Either party may designate a different address at any time upon written notice to
the other party.
7.1.1. 2Rlicable 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.
7.12. 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.
7.13. Parggraph lleadings. 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.
7.14• No Tliird-Party Beneficiaries. This Agreement isnot intended to confer any rights,
privileges or causes of action upon any third party.
7.15. 1"orce 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 `fbree majeure
event"). A force majeure event for the purposes of this Agreement shall include, but
not be limited to,acts of(sod, 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.
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Except as otherwise expressly provided, herein, there shall be an equitable adjustment
allowed for performance under this Agreement as the result of any event of force
majeure.
7.16. No Joint Venture. It is acknowledged and agreed by the parties that the ten-ns 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 , 2019.
CITY OF ROUND ROCK,TEXAS
By:
Craig Morgan,Mayor ........ma....._�
APPROVED as to form:
Stephan L. Sheets, City Attorney
BGE,INC.
By:
11-19—t
q its8
EXHIBIT "A"
RESOLUTION NO. R-
WHEREAS, the City Council has determined that one of its priority goals is to encourage economic
development within the city of Round Rock; and
WHEREAS,BGE, Inc. (`BGE")has leased a portion of the building located in the City of Round
Rock at 101 West Louis Henna Boulevard, Austin, Texas 78728, known as "Frontera Crossing"
(the"Facility"); and
WHEREAS, the Council wishes to promote economic development as contemplated by Chapter
380 of the Texas Local Government Code whereby BGE has leased and intends to improve the
Facility; and
WHEREAS, BGE intends to add at least 80 employees within seven (7) years of the occupancy
of the Facility;
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 detennined that the Program described in Exhibit "A" will
encourage economic development within the City and will also meet the goals set forth in said
§380.001,
NOW THEREFORE
BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK,
TEXAS,
That the City offers to BGE a §380.001 Program whereby the City will grant certain
Economic Incentive Payments ("EIP"s"), 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.
RESOLVED this day of 2019.
CRAIG MORGAN, Mayor
City of Round Rock,Texas
ATTEST:
SARA L. WHITE, City Clerk
EXHIBIT A TO RESOLUTION
ECONOMIC DEVELOPMENT PROGRAM
The terms of the §380.001 Economic Development Program to be offered to BGE, Inc. in
exchange for BGE's lease of a portion of the building located at 101 West Louis Henna Boulevard,
Austin, Texas 78728 are as generally outlined below:
1. BGE's intentions and obligations:
1.1. Lease. BGE previously leased and occupied a portion of the building located in the
City of Round Rock at 101 West Louis Henna Boulevard, Austin, Texas 78728,
known as "Frontera Crossing".
1.2. Investment. BGE intends to invest at least $1,925,000 in the improvement of the
Facility (including, without limitation, costs directly incurred as a result of the
rehabilitation,reconstruction,repair or remodeling of the existing Facility and costs
incurred for fixtures, equipment, and furniture purchased for the purpose of
supporting BGE's business operation at the Facility).
1.3. Jobs. BGE intends to create at least 80 new jobs within seven (7) years of its
occupancy of the Facility.
1.4. Compliance with regulations. BGE agrees that it will comply with the City's
development approval processes and shall construct and install the improvements
and lease and operate the Facility consistent with City ordinances, development
regulations and requirements.
1.5. Continuous operation. BGE agrees that it will continuously operate the Facility for
a minimum of seven (7) years, except during periods of construction or
reconstruction of the Facility or in the event of a casualty, condemnation or other
force majeure event with respect to the Facility or a portion thereof.
2. City's obligations:
2.1. Economic Incentive Payments. In consideration of BCE's compliance with the
aforesaid intentions,the City agrees to grant Economic Incentive Payments to BGE
in the amount of$100,000.
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.
EXHIBIT B
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 OATH 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. "1 AM THE (TITLE) OF BGE, INC. AND I AM
DULY AUTHORIZED TO MAKE THIS AFFIDAVIT.
3. "AS OF DECEMBER 31,20 1_,BGE,INC.HAD THE FOLLOWING JOB POSITIONS:
EMPLOYEE ID NO. JOB POSITION OR TITI-E ANNUAL SALARY
EMPLOYEE ID NO. JOB POSITION OR TITLE ANNUAL, SALARY
TOTAL JOBS AVERAGE ANNUAL SALARY
DATED'THIS DAY OF -,20-.
By: (Signature)
(Printed Name)
(Title)
SUBSCRIBED AND SWORN TO BEFORE ME ON THIS THE DAY OF
20
. .......... ..
NOTARY PUBLIC, STATE OF TEXAS