Loading...
R-01-09-13-15E2 - 9/13/2001 RESOLUTION NO. R-01-09-13-15E2 WHEREAS, the City of Round Rock has established an Economic Development Program, and WHEREAS, DPT (US) , Inc . , ( "DPT" ) desires to participate in the Economic Development Program by entering into an Economic Development Program Agreement ( "Agreement" ) , and WHEREAS, the City Council desires to enter into said agreement with DPT, 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 DPT, a copy of said agreement 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 13th day of Sept , 2001 . A RO T A. SLUKA, . , Mayor A ST: City of Round Rock, Texas A &X4.11 J E LAND, City Secretary ::ODMA\WORLDOX\O:\WDOX\RESOLUTI\R10913E2.WPD/sls ECONOMIC DEVELOPMENT PROGRAM AGREEMENT This Economic Development Program Agreement ("Agreement") is made and entered into by and between DPT (US)INC. (the "Company"), a Texas Corporation, and the CITY OF ROUND ROCK (the "City") a Texas home-rule city and municipal corporation, for the purposes and considerations stated below: RECITALS: WHEREAS, the City has adopted Resolution No. establishing an Economic Development Program and authorizing this Agreement as part of the Economic Development Program; and WHEREAS, the Company desires to participate in the Economic Development Program by entering into this Agreement; NOW, THEREFORE, in consideration of the mutual benefits and promises contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. Authorization. This Agreement is authorized by Section 380,001 of the Texas Local Government Code and by Resolution No. of the City. 2. Definitions. Affiliate, with respect to the Company, means any corporation, partnership, limited liability company, organization, or entity controlled by or under common control with the Company. After-Acquired Affiliate means any Affiliate acquired by the Company after the Commencement Date that, on the date of such acquisition, has a facility in Round Rock, Texas. Base Number of Employees means either the Initial Base Number of Employees or the greatest number of Employees reported employed by the Company on June 30 of any year during the term of this Agreement, whichever number is greater. Commencement Date means the later of the date on which the Company moves into its Round Rock facility or the date on which the Company has 175 Employees. Employee(s) means a person who has full-time (40 hours per week) non-temporary employment with the Company or any of its Affiliates at its Round Rock facility on June 30 of each year and who has been continuously so employed for at least 90 days prior thereto. For purposes of this definition, the calculation of Employees shall not include any Employee who is employed by an After-Acquired Affiliate on the date of the Company's acquisition of such After-Acquired Affiliate, 00000631.WPD 1 26018:00007:AUSTIN:237092.6 EXHIBIT nAn but the calculation of Employees shall include any Employee who is employed by an After-Acquired Affiliate at any time after the date of the Company's acquisition of such After-Acquired Affiliate. Initial Base Number of Employees means either 200 or the actual number of Employees on the Commencement Date, whichever is greater. Program means the economic development program established by the City pursuant to Local Government Code, Section 380.001 and under the Resolution referenced in Section I above. Program Payment means the amount paid by the City to the Company each year under the Program to be used for training of employees. Termination Date means the date that is five years after the Commencement Date. 3. Term. This Agreement shall be effective as of the Commencement Date. This Agreement shall remain in full force and effect until the Termination Date or the date the last Program Payment is due, whichever is later. Notwithstanding the foregoing the City may terminate this Agreement, upon written notice to the Company, in the following events: (a) The number of Employees is less than 175 at any time and the Company shall have failed to restore the number of Employees to 175 within thirty(30) days after the date on which the Company receives written notice from the City of its default hereunder. For purposes of calculating the number of Employees under this paragraph, Employees shall not be required to have had ninety (90) days of continuous employment with the Company. (b) The Company has intentionally misrepresented the number of Employees. 4. Submission of Data. On or before the first July 31 after the Commencement Date and on the same date of each year thereafter until the Termination Date, the Company shall submit to the City an affidavit substantially in the form of Exhibit A executed by the president of the Company setting forth the existing Base Number of Employees and the number of Employees employed by the Company on June 30 of the then current calendar year. As backup for the affidavit, the Company shall submit the following: (a) Position Control Report for all full-time employee positions, produced by the Company, that indicates (i) each Position Title; (ii) the effective date when each position was filled; and (iii) the current incumbent's name. 00000631.WPD 2 26018:00007:AUSTIN:237092.6 (b) Such other data as the parties determine appropriate to support the number of Employees. 5. Program Payment. In consideration for Company locating a facility in the City and thereby providing additional tax base to the City and employment opportunities for area residents, the City agrees to assist Company by making five annual Program Payments to Company to provide job training for its local employees. Conditioned upon receipt of the affidavit and data described in paragraph 4 above, and on or before December 31 of each year in which a Program Payment is due, the City shall pay the Program Payment to the Company or as directed in writing by the Company. The first Program Payment is due on December 31 of the year in which the first affidavit is submitted by the Company to the City pursuant to paragraph 4 above, and, subject to the satisfaction of the conditions of this Agreement, the City shall make four additional annual Program Payments thereafter on or before December 31 of each applicable year. The Company is expected to utilize the Program Payment to provide job training to its Employees at its Round Rock facility. 6. Computation of Program Payment. The Program Payment for each year shall be the product of$ 600.00 times the number of Employees that exceed the Base Number of Employees. 7. Default. If either party should default (the "Defaulting Party") with respect to any of its obligations hereunder and should fail,within thirty(30)days after delivery of written notice of such default from the other party(the "Complaining Party")to cure such default, the Complaining Party, by action or proceeding at law or in equity, may be awarded its damages and/or specific performance for such default. In addition to the foregoing remedies, if the default is not cured within said thirty(30) day period, the Complaining Party shall have the option of declaring this Agreement terminated. Notwithstanding anything to the contrary contained herein, any Program Payment from the City to the Company required hereunder which is not timely paid by the City shall incur interest at the rate of six percent per annum from the date such Program Payment is due until paid. The Company shall immediately refund to the City any Program Payment or portion thereof that it has received as the result of any misrepresentation regarding the number of Employees. 8. Mutual Assistance. The City and the Company shall do all things necessary or appropriate to carry out the terms and provisions of this Agreement and to aid and assist each other in carrying out such terms and provisions. 00000631.WPD 3 26018:00007:AUSM:237092.6 9. Relocation or Expansion by Company. The City's agreement herein to establish the Program is conditioned upon Company locating a facility in the City to provide tax base and employment opportunities. If within ten years of the date of this Agreement, Company shall relocate or expand its business to another location outside of the City so that the direct or indirect result is that Employees'jobs are eliminated, then Company agrees to refund the City a sum equal to $600.00 for each such job eliminated; provided however,that no such refund shall be due and paid for any such jobs eliminated below the Initial Base Number of Employees. Such payment shall be made by Company to City within sixty(60) days following such relocation or expansion. This provision shall survive the expiration or early termination of this Agreement 10. Representations and Warranties. The City represents and warrants to the Company that the Program and this Agreement are within the scope of its authority and the provisions of its charter and that it is duly authorized and empowered to establish the Program and enter into this Agreement. The Company represents and warrants to the City that it has the requisite authority to enter into this Agreement. 11. Section or Other Headings. Section or other headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. 12. Attorneys Fees. In the event any legal action or proceeding is commenced to enforce or interpret provisions of this Agreement, the prevailing party in any such legal action shall be entitled to recover its reasonable attorneys' fees and expenses incurred by reason of such action. 13. Amendment. This Agreement may only be amended, altered, or revoked by written instrument signed by the Company and the City. 00000631.WPD 4 26018:00007:AUSTRAL:237092.6 17. Applicable Law. This Agreement is made, and shall be construed and interpreted under the laws of the State of Texas and venue shall he in Williamson County, Texas_ 18. Severability. In the event any provision of this Agreement is illegal,invalid, or unenforceable under present or future laws, then, and in that event, it is the intention of the parties hereto that the remainder of this Agreement shall not be affected thereby, and it is also the intention of the parties to this Agreement that in lieu of each clause or provision that is found to be illegal, invalid, or unenforceable, a provision be added to this Agreement which is legal, valid and enforceable and is as similar in terms as possible to the provision found to be illegal, invalid or unenforceable. 19. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be considered an original, but all of which shall constitute one instrument. THE CITY OF ROUND ROCK By: Robert A. Stluka, Jr., Mayor ATTEST: Joanne Land, City Secretary DPT (US) INC. By:-- David Wares, President 00000631.WPD 6 26018:00007:AL'ST1h:237042.6 EXHIBIT A AFFIDAVIT FOR NUMBER OF EMPLOYEES State of Texas County of Williamson I, am the President of DPT (US) INC. ("DPT"). I am personally familiar with the terms of that one certain Economic Development Program Agreement ("Agreement") dated August _, 2001 with the City of Round Rock, Texas. I am also personally familiar with the number of Employees and Base Number of Employees as those terms are defined in the Agreement. I do hereby affirm that on June 30 of 200_, the number of Employees employed by DPT at its Round Rock facility was and that the then existing Base Number of Employees was The number of Employees that exceed the existing Base Number of Employees is Therefore, in accordance with the terms of the Agreement, the Program Payment for 200 is equal to $ which is the aforesaid number of Employees that exceed the existing Base Number of Employees times $600. Dated this day of July, 200_. President DPT (US) INC. SWORN TO AND SUBSCRIBED before me by , this — day of 200_. Notary Public, State of Texas 00000631.WPD 7 26018:00007:AUSTIN:237092.6 DATE: September 7, 2001 SUBJECT: City Council Meeting— September 13, 2001 ITEM: 15.E.2. Consider a resolution authorizing the Mayor to enter into an Economic Development Program Agreement with DPT(US), Inc. The proposed agreement provides that the City grant training funds for new employees over a base number. Resource: Bob Bennett, City Manager David Kautz, Finance Director Nancy Yawn, Public Affairs, Business Development Director History: Staff has been working with Display Products Technology Limited(DPT) since July 2001 regarding the locating of a new facility in Round Rock. DPT, based in Scotland, also has operations in California, Texas, Taiwan and Ireland and is the world's leading service provider in the Flat Panel Display market, in terms of both revenue and volume. This company fits well with the City's business recruitment and in helping diversify the employment base. Funding: N/A Cost: N/A Source of funds: N/A Outside Resources: N/A Impact/Benefit: The location of this company in Round Rock will help to diversify our employment base, property tax base and sales tax base. Initially, this facility will employ approximately 190 employees who are trained with specialized skills. This company and this industry are positioned for growth and will add new basic jobs,property tax, and sales tax to the community as well as non- basic jobs. Public Comment: N/A Sponsor: N/A EXECUTED DOCUMENT FOLLOWS [ORIGINAL ECONOMIC DEVELOPMENT PROGRAM AGREEMENT This Economic Development Program Agreement ("Agreement") is made and entered into by and between DPT (US)INC. (the "Company"), a Texas Corporation, and the CITY OF ROUND ROCK (the "City") a Texas home-rule city and municipal corporation, for the purposes and considerations stated below: RECITALS: WHEREAS, the City has adopted Resolution No.R,0/-09-13-1juestablishing an Economic Development Program and authorizing this Agreement as part of the Economic Development Program, and WHEREAS, the Company desires to participate in the Economic Development Program by entering into this Agreement; NOW, THEREFORE, in consideration of the mutual benefits and promises contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. Authorization. This Agreement is authorized by Section 380.001 of the Texas Local Government Code and by Resolution No.k--01-09/3-/S6a,of the City. 2. Definitions. Affiliate, with respect to the Company, means any corporation, partnership, limited liability company, organization, or entity controlled by or under common control with the Company. After-Acquired Affiliate means any Affiliate acquired by the Company after the Commencement Date that, on the date of such acquisition, has a facility in Round Rock, Texas. Base Number of Employees means either the Initial Base Number of Employees or the greatest number of Employees reported employed by the Company on June 30 of any year during the term of this Agreement, whichever number is greater. Commencement Date means the later of the date on which the Company moves into its Round Rock facility or the date on which the Company has 175 Employees. Employee(s) means a person who has full-time (40 hours per week) non-temporary employment with the Company or any of its Affiliates at its Round Rock facility on June 30 of each year and who has been continuously so employed for at least 90 days prior thereto. For purposes of this definition, the calculation of Employees shall not include any Employee who is employed by an After-Acquired Affiliate on the date of the Company's acquisition of such After-Acquired Affiliate, 00000631.W PD 1 26018:00007:AUSTEN:237092.6 but the calculation of Employees shall include any Employee who is employed by an After-Acquired Affiliate at any time after the date of the Company's acquisition of such After-Acquired Affiliate. Initial Base Number of Employees means either 200 or the actual number of Employees on the Commencement Date, whichever is greater. Program means the economic development program established by the City pursuant to Local Government Code, Section 380.001 and under the Resolution referenced in Section 1 above. Program Payment means the amount paid by the City to the Company each year under the Program to be used for training of employees. Termination Date means the date that is five years after the Commencement Date. 3. Term, This Agreement shall be effective as of the Commencement Date. This Agreement shall remain in full force and effect until the Termination Date or the date the last Program Payment is due, whichever is later. Notwithstanding the foregoing the City may terminate this Agreement, upon written notice to the Company, in the following events: (a) The number of Employees is less than 175 at any time and the Company shall have failed to restore the number of Employees to 175 within thirty(30)days after the date on which the Company receives written notice from the City of its default hereunder. For purposes of calculating the number of Employees under this paragraph, Employees shall not be required to have had ninety (90) days of continuous employment with the Company. (b) The Company has intentionally misrepresented the number of Employees. 4. Submission of Data. On or before the first July 31 after the Commencement Date and on the same date of each year thereafter until the Termination Date, the Company shall submit to the City an affidavit substantially in the form of Exhibit A executed by the president of the Company setting forth the existing Base Number of Employees and the number of Employees employed by the Company on June 30 of the then current calendar year. As backup for the affidavit, the Company shall submit the following: (a) Position Control Report for all full-time employee positions, produced by the Company, that indicates (i) each Position Title; (ii) the effective date when each position was filled; and (iii) the current incumbent's name. 00000631.WPD 26018:00007:AUSTIN:237092.6 (b) Such other data as the parties determine appropriate to support the number of Employees. 5. Program Payment. In consideration for Company locating a facility in the City and thereby providing additional tax base to the City and employment opportunities for area residents, the City agrees to assist Company by making five annual Program Payments to Company to provide job training for its local employees. Conditioned upon receipt of the affidavit and data described in paragraph 4 above, and on or before December 31 of each year in which a Program Payment is due, the City shall pay the Program Payment to the Company or as directed in writing by the Company. The first Program Payment is due on December 31 of the year in which the first affidavit is submitted by the Company to the City pursuant to paragraph 4 above, and, subject to the satisfaction of the conditions of this Agreement, the City shall make four additional annual Program Payments thereafter on or before December 31 of each applicable year. The Company is expected to utilize the Program Payment to provide job training to its Employees at its Round Rock facility. 6. Computation of Prouam Payment. The Program Payment for each year shall be the product of$ 600.00 times the number of Employees that exceed the Base Number of Employees. 7. Default. If either party should default (the "Defaulting Party") with respect to any of its obligations hereunder and should fail, within thirty(30) days after delivery of written notice of such default from the other party (the "Complaining Party")to cure such default, the Complaining Party, by action or proceeding at law or in equity, may be awarded its damages and/or specific performance for such default. In addition to the foregoing remedies, if the default is not cured within said thirty (30) day period, the Complaining Party shall have the option of declaring this Agreement terminated. Notwithstanding anything to the contrary contained herein, any Program Payment from the City to the Company required hereunder which is not timely paid by the City shall incur interest at the rate of six percent per annum from the date such Program Payment is due until paid. The Company shall immediately refund to the City any Program Payment or portion thereof that it has received as the result of any misrepresentation regarding the number of Employees. 8. Mutual Assistance. The City and the Company shall do all things necessary or appropriate to carry out the terms and provisions of this Agreement and to aid and assist each other in carrying out such terms and provisions. 00000631.R7Pn 3 26018:00007:AUSTIN:237092.6 9. Relocation or Expansion by Company. The City's agreement herein to establish the Program is conditioned upon Company locating a facility in the City to provide tax base and employment opportunities. If within ten years of the date of this Agreement, Company shall relocate or expand its business to another location outside of the City so that the direct or indirect result is that Employees'jobs are eliminated, then Company agrees to refund the City a sum equal to $600.00 for each such job eliminated, provided however, that no such refund shall be due and paid for any such jobs eliminated below the Initial Base Number of Employees. Such payment shall be made by Company to City within sixty(60) days following such relocation or expansion. This provision shall survive the expiration or early termination of this Agreement 10. Representations and Warranties. The City represents and warrants to the Company that the Program and this Agreement are within the scope of its authority and the provisions of its charter and that it is duly authorized and empowered to establish the Program and enter into this Agreement. The Company represents and warrants to the City that it has the requisite authority to enter into this Agreement. 11. Section or Other Headings. Section or other headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. 12. Attorneys Fees. In the event any legal action or proceeding is commenced to enforce or interpret provisions of this Agreement, the prevailing party in any such legal action shall be entitled to recover its reasonable attorneys' fees and expenses incurred by reason of such action. 13. Amendment. This Agreement may only be amended, altered, or revoked by written instrument signed by the Company and the City. 0000063 LWPD 4 26018:00007:AUSTIN:237092.6 14. Successors and Assigns. This Agreement shall be binding on and inure to the benefit of the parties, their respective successors and assigns. The Company may not assign all or part of its rights and obligations hereunder to anyone other than its Affiliates without prior written approval of the City, which approval shall not be unreasonably withheld or delayed. The determination of such approval shall be based upon the credit worthiness and financial ability of any proposed assignee to assume such rights and obligations of the Company. 15. Notice. Any notice and/or statement required and permitted to be delivered shall be deemed delivered by depositing same in the United States mail, certified with return receipt requested, postage prepaid, addressed to the appropriate party at the following addresses, or at such other addresses provided by the parties in writing; COMPANY: David Wares, President DPT (US) Inc. Crystal Park, Bldg. D Old Settlers Boulevard Round Rock, Texas 78664 With a Copy to: Cynthia L. Bast, General Counsel Locke Liddell & Sapp LLP 100 Congress Avenue, Suite 300 Austin, Texas 78701 CITY: Robert L. Bennett, Jr., City Manager City of Round Rock 221 E. Main Street Round Rock, Texas 78664 With a Copy to: Stephan L. Sheets City Attorney 309 E. Main Street Round Rock, Texas 78664 16. Interpretation. Regardless of the actual drafter of this Agreement, this Agreement shall, in the event of any dispute over its meaning or application, be interpreted fairly and reasonably, and neither more strongly for or against any party. 00000631.VVPD 5 26018:00007:AL'STEN:23 7092.6 17. Auulicable Law. This Agreement is trade, and shall be construed and interpreted under the laws of the State of Texas and venue shall he in Williamson County, Texas. 18. Severabilitv. In the event any provision of this Agreement is illegal, invalid,or unenforceable under present or future laws, then, and in that event, it is the intention of the parties hereto that the remainder of this Agreement shall not be affected thereby, and it is also the intention of the parties to this Agreement that in lieu of each clause or provision that is found to be illegal,invalid, or unenforceable, a provision be added to this Agreement which is legal,valid and enforceable and is as similar in terms as possible to the provision found to be illegal, invalid or unenforceable. 19. Counte�rparts. This Agreement may be executed in multiple counterparts, each of which shall be considered an original, but all of which shall constitute one instrument. THE C F ROUND ROCK By: R A. Stl Jr.,Wor ATTEST: aA AA Aqt) Joihne Land, City Secretary DPT(US)INC. David Wares, President 00000631_WPD 6 26018:00007:AUSTIN:237092.6 EXHIBIT A AFFIDAVIT FOR NUMBER OF EMPLOYEES State of Texas County of Williamson 1, am the President of DPT (US) INC. ('DPT"). I am personally familiar with the terms of that one certain Economic Development Program Agreement ("Agreement") dated August ___, 2001 with the City of Round Rock, Texas. I am also personally familiar with the number of Employees and Base Number of Employees as those terms are defined in the Agreement. I do hereby affirm that on June 30 of 200_, the number of Employees employed by DPT at its Round Rock facility was and that the then existing Base Number of Employees was The number of Employees that exceed the existing Base Number of Employees is Therefore, in accordance with the terms of the Agreement, the Program Payment for 200 is equal to $ which is the aforesaid number of Employees that exceed the existing Base Number of Employees times $600. Dated this day of July, 200_. President DPT (US) INC. SWORN TO AND SUBSCRIBED before me by , this day of 200 Notary Public, State of Texas 0000063 L ANTD 7 26018:00007:AUSTIN:237092.6