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R-94-05-26-10D - 5/26/1994KS /RESOLUTION RS05264D r ATTEST: ANNE J RESOLUTION NO. 2. 4- d 5 a(C • ) OD WHEREAS, the City of Round Rock ( "City ") has previously adopted Resolution No. 93- 04 -12 -4A establishing an Economic Development Program to promote local economic development and to stimulate business and commercial activity in City, as authorized by Section 380.001 of the Texas Local Government Code, and WHEREAS, the City entered into an Economic Development Program Agreement with Dell Computer Corporation ( "Dell "), and WHEREAS, the City entered into a contract with the Texas Department of Housing and Community Affairs (TDHCA) for an economic development project within the City limits, and WHEREAS, the City desires to enter into an agreement with Dell to carry out said economic development project pursuant to the contract between the City and TDHCA, 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 Agreement between the City of Round Rock, Texas and Dell Computer Corporation, a copy of said agreement being attached hereto and incorporated herein for all purposes. RESOLVED this 26th day of May, 199 LAND, City Secretary CHARLES CULP PP';', Mayor City of Round Rock, Texas AGREEMENT BETWEEN THE CITY OF ROUND ROCK, TEXAS AND DELL COMPUTER, CORP. CR /DELLK ARTICLE I. PARTIES TO AGREEMENT —aThis AGREEMENT is entered into on this the 07 day of 1994 between the CITY OF ROUND ROCK, a Texas Municipal Home Rule Corporation, hereinafter referred to as CITY, and DELL COMPUTER, CORP., incorporated under the laws of the State of Delaware, hereinafter referred to as COMPANY. ARTICLE II. AGREEMENT PERIOD This AGREEMENT shall commence on December 13, 1993 and shall be completed on or before December 12, 1995. ARTICLE III. PURPOSE OF AGREEMENT 3.01 The purpose of this AGREEMENT is to carry out an economic development project, hereinafter referred to as Project, pursuant to the contract, hereinafter referred to as TDHCA contract, between the Texas Department of Housing and Community Affairs, hereinafter referred to as the Department, and CITY dated December 13, 1993. CITY will be overseeing the completion of Project. The contract between CITY and the Department is incorporated herein for reference as if copied herein verbatim. The project includes: 3.02 Purchase by COMPANY of machinery and equipment and the provision for working capital for salary expenses. 3.03 Construction by CITY of infrastructure improvements in the form of water lines, sewer lines, gas lines, drainage and street construction, more specifically detailed in ARTICLE V. ARTICLE IV. OBLIGATIONS OF COMPANY COMPANY shall perform the following obligations: 4.01 COMPANY shall inject Eight Million Six Hundred Seventy - nine Thousand Four Hundred Fourteen and No /100 Dollars ($8,679,414.00) in cash for this Project as follows: 4.01.01 Four Hundred Eighteen Thousand Nine Hundred Nineteen and No /100 Dollars ($418,919.00) for the purchase of machinery and equipment; and 4.01.02 Eight Million Two Hundred Sixty Thousand Four Hundred Ninety -five and No /100 Dollars ($8,260,495.00) for working capital salary expenses. 4.02 COMPANY shall create a minimum of three hundred thirty (330) full -time equivalent permanent jobs of which one hundred sixty -nine (169) shall be provided to low and moderate income persons on or before the completion date of this AGREEMENT. The types, number, wage scales and minimum skill levels of these position shall be set forth in Exhibit A attached hereto. At least fifty -one (51) percent of all jobs created during the AGREEMENT period shall be filled by low and moderate income persons. "Low - to- moderate income persons" is defined in the TCDP Project Implementation Manual. 4.03 COMPANY shall not reduce the number of full -time employees, in the city of Austin, below the December 13th, 1993, level of 3,796, during the term of this AGREEMENT including extensions. COMPANY shall provide to CITY, COMPANY's payroll, as of December 13, 1993. 4.04 COMPANY shall implement the hiring plan set forth in Exhibit B attached hereto that sets forth methods of identifying and training potential low -to- moderate income job applicants. 4.05 COMPANY shall maintain records and make quarterly reports to CITY during the contract period of AGREEMENT regarding the satisfaction of the job and hiring requirements set forth in provisions 4.02, 4.03 and 4.04. Records and reports should document low -to- moderate income benefit and beneficiaries by race, ethnicity, gender, and handicap status as is made available to COMPANY by their employees, in the same manner and to the same extent as Department requires of CITY. These reports shall be received by CITY no later than the eighteenth (18th) day of the month after the end of each calendar quarter of the contract period specified in Article II. 4.06 COMPANY shall provide CITY with documentation of COMPANY's equity injection of Eight Million Nine Hundred Thirty -six Thousand Three Hundred Forty -four and No /100 Dollars ($8,936,344.00). This injection shall be in the following form: Eight Million Six Hundred Seventy -nine Thousand Four Hundred Fourteen and No /100 Dollars ($8,679,414.00) in cash equity and Two Hundred Fifty -six Thousand Nine Hundred Thirty and no /100 Dollars ($256,930.00) in net equity value in the site. 4.07 COMPANY shall provide documentation to CITY that the final plans and specifications for construction of its telemarketing facility have been approved by the appropriate division director of the Texas Department of Licensing and Regulation. This documentation shall include director's assurance that the improvements or renovations will be in compliance with the 2. requirements concerning the elimination of architectural barriers encountered by persons with disabilities as specified in TEX.REV.CIV.STAT.ANN. art. 9102 and the rules promulgated thereunder. 4.08 COMPANY shall permit CITY to make quarterly on -site inspections to assess /monitor the progress toward job creation, and provide CITY officials or representatives at the time of on -site visits information regarding job creation and any other information deemed necessary by CITY to administer this AGREEMENT. 4.09 COMPANY shall provide CITY with a copy of the hazard insurance policy which covers the land, building(s) and other real estate improvements to be constructed on COMPANY's site. This document shall be delivered twenty -nine (29) days after completion of facility construction. COMPANY shall provide CITY with copy of COMPANY's liability insurance policy within twenty -nine (29) days after completion of facility construction. 4.10 COMPANY hereby certifies that all taxes are current and future taxes will be paid when due. 4.11 COMPANY hereby restricts the major stockholder, Michael S. Dell from reducing his proportionate ownership in COMPANY without prior approval from CITY during the contract period and said approval is hereby granted. 4.12 COMPANY shall provide a copy of a compiled Balance Sheet and Income Statement on an annual basis (due fifty -nine (59) days after the fiscal year end) during the contract period. ARTICLE V. OBLIGATIONS OF CITY CITY shall perform the following obligations: 5.01 CITY shall inject One Million Three Hundred Eighteen Thousand Eight Hundred Twenty -eight and No /100 Dollars ($1,318,828.00) of TDHCA contract funds to provide for the following infrastructure: 5.01.01 Four Hundred Ninety -nine Thousand Four Hundred Thirty -seven and No /100 Dollars ($499,437.00) to construct approximately one thousand nine hundred (1,900) linear feet of sixty (60) foot width asphalt roadway beginning at the end of the existing Williamson Drive and proceeding southeastward to Greenlawn Boulevard; curb and gutter; new light poles, fixtures and wiring; storm drains; one thousand two hundred seventy -five (1,275) linear feet of trench safety; one thousand five hundred seventy -five (1,575) linear feet of drainage reinforced concrete pipe; striping; sedimentation and erosion control costs. Various intersection improvements at Williamson Drive and Greenlawn Boulevard to include: eight 3. hundred twenty (820) linear feet of curb and gutter removal; two hundred and fifty (250) square yards of asphalt; asphalt removal; construction of one thousand three hundred seventy (1,370) linear feet of curb and gutter; temporary traffic control; utility pole location; striping; sedimentation and erosion control costs. 5.01.02 Five Hundred Forty -Five Thousand Four Hundred Twenty - Five and No /100 Dollars ($545,425.00) to construct an off -site drainage channel beginning east of the project site to just south of Gattis School Road. This drainage channel will be both earthen and concrete lined and includes a culvert at Hampton Lane. 5.01.03 One Hundred Seventy -six Thousand Five Hundred Seventy -seven and No /100 Dollars ($176,577.00) to construct /install approximately one thousand nine hundred eighteen (1918) linear feet of sixteen (16) inch water line; eighty -five (85) linear feet of sixteen (16) inch bore and casing; five hundred forty -eight (548) linear feet of twelve (12) inch water line; eighty (80) linear feet of six (6) inch water line; related gate and butterfly valves; three (3) fire hydrants on the north side of Williamson Drive; two thousand five hundred fifty -one (2,551) linear feet of trench safety; related fittings; and sedimentation and erosion control costs. The proposed line begins at the end of the existing end of Williamson Drive and proceeds along the proposed Williamson Drive extension to the intersection with Greenlawn Boulevard. It also includes a fire protection line from the southeast end of the Williamson Drive extension to the southeast corner of the proposed building and a potable water supply line from the northwest end of the Williamson Drive extension to the northwest corner of the proposed building. 5.01.04 Sixty -six Thousand Three Hundred Nine and No /100 Dollars ($66,309.00) to construct /install approximately one thousand five hundred sixty -three (1,563) linear feet of eight (8) inch gravity sewer line; seven (7) manholes; one thousand five hundred sixty -three (1,563) linear feet of trench safety; twenty -five (25) square yards of pavement repair; and sedimentation and erosion control costs. The proposed line begins south of the end of the existing Williamson Drive and proceeds eastward to and then along the proposed Williamson Drive extension to a point three hundred (300) linear feet south of the north property line. Then the line proceeds eastward across the project site to the northwest corner of the proposed building. 4. 5.01.05 Thirty -one Thousand Eighty and No /100 Dollars ($31,080.00) to construct /install approximately one thousand five hundred (1,500) linear feet of four (4) inch gas line; three hundred sixty -five (365) linear feet of two (2) inch gas line; fittings; and sedimentation and erosion control costs. This line begins at the intersection of the northeast corner of the project site and Greenlawn Boulevard and proceeds south along Greenlawn to the Williamson Drive extension; then west on Williamson Drive to a point even with the southeast corner of the proposed building; then proceeding northward onto the project site to the southeast corner of the proposed building. 5.02 CITY shall inject Three Hundred Forty -five Thousand Six Hundred and No /100 Dollars ($345,600.00) of CITY's funds to complete the project. 5.03 CITY shall provide Department, upon request, evidence that project funds, both private and contract, are expended as specified in the TDHCA contract as amended. 5.04 CITY shall inject a total of One Hundred Twenty -one Thousand Three Hundred Ninety -three and No /100 Dollars ($121,393.00) of TDHCA contract funds to pay for eligible project - related engineering services, as follows: Eighty -seven Thousand One Hundred Thirteen and No /100 Dollars ($87,113.00) to pay for eligible basic engineering services and Thirty -four Thousand Two Hundred Eighty and No /100 Dollars ($34,280.00) to pay for eligible special engineering services, including preliminary and final design plans and specifications, interim and final inspections. 5.05 CITY shall inject Fifty Thousand and No /100 Dollars ($50,000.00) of TDHCA contract funds to carry out project administration activities, including the cost associated with the required program fiscal and compliance audit. 5.06 CITY shall execute a written contract with any business that utilizes any of the infrastructure improvements being constructed with TDHCA contract funds, in whole or part, committing said business to provide at least fifty -one percent (51 %) of all of the created /retained jobs to low and moderate income individuals for a three (3) year period beginning upon completion of the proposed infrastructure improvements in compliance with 24 C.F.R. 570.483 (b) (4) (IV) (C) . CITY shall submit to Department no later than the twentieth (20th) day of the month after the end of each calendar quarter of the contract period, specified in Section 2 of the TDHCA contract, a Quarterly Connection Report in a format prescribed by Department. 5.07 CITY certifies that its fiscal control and fund accounting procedures are adequate to assure the proper disbursal' of and accounting for TDHCA contract funds. 5. 5.08 CITY shall submit to Department a completed Depository /Authorized Signators Form. 5.09 CITY shall follow state and federal laws pertaining to the solicitation of bids for construction or rehabilitation of Project. 5.10 CITY shall provide Department documentation of CITY's injection of Three Hundred Forty -six Thousand and No /100 Dollars ($346,000.00) for the project. 5.11 CITY shall provide documentation to Department that the final plans and specifications for its water system improvements have been reviewed, and when applicable approved by the Texas Natural Resource Conservation Commission prior to construction and prior to Department's release of TDHCA contract funds. 5.12 CITY shall provide documentation to Department that the final plans for its sewer system improvements have been approved by the Texas Natural Resources Conservation Commission prior to construction and prior to Department's release of TDHCA contract funds for such activities. 5.13 CITY shall submit to Department copies of the recorded easements and deeds, pertaining to the infrastructure improvements, prior to Department's release of TDHCA contract funds. CITY shall ensure that all acquisition of real property, easements and /or rights -of -way, for this proposed project be in compliance with the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (42 U.S.C. Sec. 4601 et.seq.) and HUD implementing regulations (49 C.F.R. Part 24). CITY will maintain easements and ensure public access to such easement to the same extent the public would be entitled to access in a similar improvement or facility. CITY shall impose all usual governmental requirements on such easement and shall include the easement on all public documents as public land. 5.14 CITY shall provide Department with an assessment which identifies the businesses located or expected to locate in the area to be served by the proposed infrastructure improvement, prior to Department's release of project funds. This assessment shall include, for each identified business, a projection of the number of jobs to be created or retained as a result of the public improvements within a period of three (3) years following the completion of the public improvement. 5.15 CITY shall provide Department with a copy of the flood insurance policy which covers COMPANY's site or an original signed statement which indicated that the site does not require flood insurance. 6. ARTICLE VI. MONITORING CITY shall have the right to make quarterly on -site visits to COMPANY and COMPANY's project site to assess /monitor COMPANY's compliance with the terms of this AGREEMENT, including access to records regarding hiring practices related to jobs created, and access to COMPANY's facilities and operations that are used and carried out pursuant to the terms of this AGREEMENT. After each monitoring visit, CITY shall provide COMPANY with a written report of the monitoring findings. If CITY notes deficiencies in COMPANY's performance under this AGREEMENT, the monitoring report shall include requirements for the timely correction of such deficiencies by COMPANY. ARTICLE VII. WAIVER OF RIGHTS AND REMEDIES 7.01 No waiver by either party hereto of any term or condition of this AGREEMENT shall be deemed or construed to be a waiver of any other term or condition or subsequent waiver of the same term or condition. 7.02 It is expressly understood and agreed by the parties that waiver of any right or remedy provided under this AGREEMENT shall not preclude the exercise of any other right or remedy under this AGREEMENT or any provision of law, nor shall any action taken in the exercise of any right or remedy be deemed a waiver of any other rights or remedies. ARTICLE VIII. ASSIGNMENT This AGREEMENT shall not be assignable by COMPANY without prior written consent of CITY. In the event of an assignment by Company to which CITY has consented, the assignee or its legal representative shall agree in writing with CITY to personally assume, perform and be bound by the covenants, obligations and agreements contained herein. ARTICLE IX. SUCCESSORS AND ASSIGNS Subject to the Article regarding assignment, this AGREEMENT shall be binding on the successors and assigns of the respective parties. 7. ARTICLE X. ENTIRE AGREEMENT 10.01 This AGREEMENT supersedes any and all other agreements, either oral or in writing between the parties hereto with respect to the subject matter hereof, and no other agreement, statement, or promise relating to the subject matter of this AGREEMENT which is not contained herein shall be valid or binding. 10.02 If any conflict exists between this AGREEMENT and the TDHCA contract as amended, the TDHCA contract shall govern. ARTICLE XI. CHANGES AND AMENDMENTS 11.01 Except as specifically provided otherwise in this AGREEMENT, any alteration, additions or deletions to its terms shall be by amendment hereto in writing and executed by both parties to this AGREEMENT. 11.02 Any alterations, additions or deletions to the terms of this AGREEMENT that are required by changes in federal or state law or regulations, including specifically those set forth in the various sections and exhibits to the TDHCA contract, are automatically incorporated into this AGREEMENT without written amendment hereto, and shall become effective on the date designated by such law or regulation. ARTICLE XII. NON - PERFORMANCE BY COMPANY Should COMPANY default in any of its obligations or covenants imposed by this AGREEMENT, it shall be liable to CITY, in addition to any other damages suffered by CITY by virtue of such default, for reimbursement of any and all monies which CITY shall be obligated to reimburse the Department or any other agency as a result of such default by COMPANY. ARTICLE XIII. TERMINATION 13.01 CITY shall have the right to terminate this AGREEMENT, in whole or part, at any time before the date of completion specified in ARTICLE II above whenever CITY determines COMPANY has failed to comply with any of its terms. CITY shall notify COMPANY in writing prior to the twentieth (20th) day preceding the intended effective date of such termination of the reasons thereof and the portion or portions of the AGREEMENT to be terminated in the case of partial termination. 13.02 Either of the parties to this AGREEMENT shall have the right to terminate this AGREEMENT, in whole or in part, provided 8. both parties agree in writing to the conditions of such termination. 13.03 In the event of early termination of this AGREEMENT, COMPANY shall not be relieved of any liability to CITY for damages due CITY by virtue of any breach of this AGREEMENT by COMPANY. ARTICLE XIV. INDEMNIFICATION COMPANY shall comply with the requirements of all applicable laws, rules and regulations, and shall indemnify and hold harmless CITY, its officers, agents and employees from and against any and all claims, losses, damages, causes of action, expenses of litigation, court costs, and attorney's fees, for injury to or death of any person, or for damage to any property, arising out of or in connection with work done by COMPANY under this AGREEMENT. ARTICLE XV. RELEASE COMPANY assumes full responsibility for the work to be_ performed hereunder, and hereby releases, relinquishes and discharges CITY, its officers, agents and employees, from all claims, demands, and causes of action of every kind and character, including the cost of defense thereof, for any injury to, including death, of person (whether they be third persons, contractor, or employees of either of the parties hereto) and any loss of or damage to property (whether the same be that either of the parties hereto or of third parties) caused by or alleged to be caused, arising out of, or in connection with COMPANY's work to be performed hereunder whether or not said claims, demands and causes of action in whole or in part are covered by insurance. ARTICLE XVI. VENUE This AGREEMENT shall be construed under and accord with the laws of the State of Texas, and all obligations of the parties created hereunder and performable in Williamson County, Texas. ARTICLE XVII. ATTORNEY'S FEES If any action at law or in equity is necessary to enforce or interpret the terms of this AGREEMENT, the prevailing party shall be entitled to reasonable attorney's fees, costs and necessary disbursements in addition to any other relief to which such party may be entitled. 9. In any case one or more of the provisions contained in this AGREEMENT shall for any reason be held invalid, illegal or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not be construed as if such invalid, illegal, or unenforceable provision has never been contained herein. Notice shall be mailed to the addresses designated herein or as may be designated in writing by the parties from time to time and shall be deemed received when sent postage prepaid U.S. mail to the following addresses: IN LW ESS WHEREOF, this AGREEMENT is executed on this �6 day of - ` , 1994. CITY • ROUND ROCK Charles Culp -.p-7 Mayor Dell Computer, Corp. its ARTICLE XVIII. SEVERABILITY ARTICLE XIX. NOTICE CITY: ATTN: of q . R9_ck �� ATTN: H l 221 East Main Street Round Rock, Texas 78664 COMPANY: Dell Computers, Inc. ATTN: 10. COUNTY OF WILLIAMSON ) STATE OF TEXAS This instrument was acknowledged on the UU' V day of , 1994 by CHARLES CULPEPPER, as Mayor of the City of Round I ck, a Texas Home Rule Municipality, on behalf of said municipality. /`' COUNTY OF WILLIAMSON ) STATE OF TEXAS NOTARY PUBLIC in and for the State of Texas This instrument was acknowledged in the day of 1994 by as for Dell Computer, Corp., a Delaware Corporation, on behalf of said corporation. 11. NOTARY PUBLIC in and for the State of Texas EXHIBIT A BUSINESS INFORMATION FOR DELL COMPUTER, CORP.. Job Title Skill Level # of Jobs Rate of Pay Sales Rep. Sales 195 $21,887 - $36,130 ann. Customer Clerical 59 $7.32 - $9.72 hour Serv. Rep. Technician Technical 76 $8.36 - $12.16 hour EXHIBIT B Dell Computer, Corp., hereinafter referred to as DELL, is an equal opportunity employer. DELL has a formalized affirmative action program on file in the Office of the Equal Employment Opportunity Coordinator. DELL will ensure that fifty -one percent (51t) of the newly created jobs will be held by low and moderate income persons by creating entry level positions. Referrals from outside agencies will be utilized in filling the newly created job openings including, but not limited to, the local Texas Employment Commission Office and the Private Industry Council. DELL may advertise position openings in local newspapers of general circulation in the City of Round Rock, Williamson County and the region. Such advertisement will carry the statement that DELL is an equal opportunity employer. All applicants will be evaluated without regard to race, sex, age, ethnic background, or religion. Training will be done by authorized DELL representatives either through on- the -job instruction, classroom training at DELL's facility, or hands -on training at another Company - affiliated facility with like equipment. Training capabilities of the Private Industry Council will be utilized to the extent practical and appropriate. r Date: May 24,1994 Subject: City Council Meeting, May 26,1994 Item: 10.D. Consider a resolution authorizing the Mayor to enter into agreement with Dell Computer Corporation to carry out an economic development project between the Texas Department of Housing and Community Affairs and the City of Round Rock. (Business Contract) Staff Resource Person: Joe Vining Recommendation: Approval This is the business contract between the City of Round Rock and Dell Computer Corporation for the infrastructure improvements associated with the grant program. This agreement must be signed by both parties before any money can be drawn against the construction phase. The agreement signed by Michael Dell will be delivered to the City Attorney prior to the start of this council meeting.