Contract - Odyssey Technical Solutions, LLC - 11/24/2015 ECONOMIC DEVELOPMENT PROGRAM AGREEMENT
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This Economic Development Program Agreement ("Agreement") is entered into thisZt day of
2015, by and between the City of Round Rock, Texas, a Texas home
rule municipal corporation ("City"), and Odyssey Technical Solutions, LLC., a Texas limited
liability company("Odyssey").
WHEREAS, the City has adopted Resolution No. R--
attached as Exhibit A ("City Resolution"), establishing an economic development program and
authorizing the Mayor to enter into this Agreement with Odyssey in recognition of the positive
economic benefits to the City through Odyssey's construction of a new building which will
contain a minimum of thirty-two thousand (32,000) square feet, located at 2000 Steam Way,
Round Rock, Texas (the "Facility"), and the relocation of its existing RF, DC and Microwave
power equipment repair and refurbished sales business to the Facility; and
WHEREAS, Odyssey will locate its existing business to the Facility and will transfer 48
employees to the Facility initially and will add at least 7 additional employees by December 31,
2016; and
WHEREAS, the purpose of this Agreement is to promote economic development as
contemplated by Chapter 380 of the Texas Local Government Code whereby Odyssey will
expend significant sums to construct and install improvements to the Facility and purchase,
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
Odyssey to defray a portion of the Facility's costs;
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 Odyssey 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 Odyssey proceeds with the purchase and
occupation of the Facility. The City acknowledges that Odyssey 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 purchase, improve and occupy the Facility.
2. Definitions.
2.1 "Economic Incentive Payment(s)" ("EIPs") means the amount paid by the City
to Odyssey under the Program.
2.2 "Effective Date" is the date this Agreement is executed to be effective by the
City and Odyssey.
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2.3 "Facility" means the Improvements to be constructed on the Property and all
equipment and other personal property located thereon.
2.4 "Improvements" means the construction of the Facility, and personal property
and equipment with a minimum cost of Four Million Dollars ($4,000,000).
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 located at, on which the Facility will be
constructed, which is described as follows:
Lot 5, Block "A" of the Altman Business Park, a replat of Lot 3,
Block A, Replat of Amanda Subdivision Lot 2 & 3, Block A,
according to the plat filed of record as Doc. No. 2015088746,
Plat Records of Williamson County, Texas.
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 Odyssey in the
event of an Odyssey default.
3. Term. This Agreement shall become enforceable upon its Effective Date and shall
terminate on December 31, 2018. In the event the City is unable to appropriate funds for
a particular year pursuant to Section 5.1.3 of this Agreement, this Agreement shall be
extended for another year(s).
4. Rights and Obligations of Odyssey.
4.1 Purchase of Property. Odyssey will purchase the Property on or before December
15, 2015. Odyssey agrees to provide City with documentation showing that this
obligation has been satisfied.
4.2 Improvements. Odyssey agrees to construct and/or install the Improvements on
or before June 1, 2016. Odyssey agrees to provide City with documentation
showing that this obligation has been satisfied. City shall have the right to audit
Odyssey's records to verify that this obligation has been satisfied.
4.3 Jobs.
4.3.1 Initial Jobs. Odyssey agrees to transfer to the Facility at least 48 full-
time employees and/or contract workers no later than thirty (30) days after the
City issues a Certificate of Occupancy for the Facility.
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4.3.2 Additional Jobs. As additional consideration, Odyssey agrees and
covenants to transfer, retain, and add at least the number of jobs within the
Facility as set forth the following schedule:
Date Transferred Retained New Total
On June 1, 2016 48 0 0 48
On December 31, 2016 0 48 7 55
On December 31, 2017 0 55 0 55
On December 31, 2018 0 55 0 55
Odyssey agrees to provide to the City annual employee reports on the form attached
hereto as Exhibit B within sixty (60) days following the end of each calendar year during
the term of this Agreement. City shall have the right to audit Odyssey's records to verify
that this obligation has been satisfied.
4.4 Compliance with regulations. Odyssey agrees that it shall comply with the City's
development approval processes and shall purchase the Facility and construct and
install the improvements and occupy and operate the Facility consistent with City
ordinances, development regulations and requirements.
4.5 Continuous operation. Odyssey agrees that it will continuously operate the
Facility during the term of this Agreement, including any extensions.
5. Rights and Obligations of the City.
In consideration of Odyssey's compliance with this Agreement, the City agrees as
follows:
5.1 Economic Incentive Payments ("BIP's").
5.1.1 Initial EIP Pay . City shall, subject to Odyssey's satisfaction of its
obligations set forth in Sections 4.1 and 4.2 above and the other conditions set out
herein, make an initial EIP to Odyssey in the amount of fifty-five thousand
($55,000) dollars. This initial EIP shall be made within thirty (30) days after the
City has issued a Certificate of Occupancy for the Facility.
5.1.2 Subsequent Annual EIP Payments. Thereafter, subject to Odyssey's
satisfaction of its retention and/or creation of new jobs as set forth in Section 4.3
above and the other conditions set out herein, and subject to Odyssey not being in
default of this Agreement, City shall pay a total of$1,000.00 EIP per job retained
or created by December 31,2016. The aforesaid EIP's shall be paid by the City no
later than 45 days after receipt of the annual employee report filed by Odyssey
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pursuant to paragraph 4.3.2 above. The total amount of EIP's for job retention or
creation shall not exceed $55,000.00.
5.1.3 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 Odyssey. 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 Odyssey, 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 Odyssey for such EIP's, however, the City shall
extend this Agreement for another year(s). In addition, Odyssey 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 Odyssey is in default of this Agreement, the City may
recapture and collect from Odyssey the Recapture Liability after providing Odyssey 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 Odyssey does not so cure, Odyssey 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 Odyssey 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 Odyssey 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 Odyssey
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.
Odyssey 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 Odyssey 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
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for default. If the City remains in default after notice and opportunity to cure,
Odyssey shall have the right to pursue any remedy at law or in equity for the
City's breach. If Odyssey remains in default after notice and opportunity to cure,
City shall have the right to pursue any remedy at law or in equity for Odyssey'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 Odyssey 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. Other than that certain Property Tax Abatement Agreement of
even date herewith, 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 Odyssey.
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 Assigning . Odyssey 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 Odyssey elects not to purchase the Facility as
contemplated by this Agreement, Odyssey 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) 218-5400
citymanager@roundrocktexas.gov
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With a required copy to:
Stephan L. Sheets
Sheets & Crossfield
309 E. Main Street
Round Rock, TX 78664
Attn: Stephan L. Sheets
Phone: (512) 255-8877
steve@scrrlaw.com
If to Odyssey: Odyssey Technical Solutions, LLC
3916 Gattis School Road, Suite 108
Round Rock, Texas 78664
Attn: Lisa Strong
Phone: (512) 989-7007
Email: lisa.strong(2odysse, r
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.
7.14 Para rgraph 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,
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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 Parry;
national emergencies or insurrections; riots; acts of terrorism; or supplier failures,
shortages or breach or delay. 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.
7.17 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 parry 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 thud y of 0UW199x' , 2015 (the"Effective Date").
CITY OF ROUND ROCK, TEXAS,
By: OMA--,�
Alan McGraw, Mayor
AP R VED s to fo
Steph t
L. Sheets, City Attorney
ODYSSEY TECHNICAL SOLUTIONS,LLC
By: (�
Its: vlo� c e- — P�-e U,e I*
Date:
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E"
HIBIT
„A»
RESOLUTION NO. R-2015-3081
WHEREAS, Odyssey Technical Solutions, LLC ("Odyssey") is a leading RF and DC
power equipment repair and refurbished sales company, and
WHEREAS, Odyssey has expressed to the City of Round Rock ("City") its desire to
relocate its existing facility to the City 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 Odyssey a §380.001 Program in exchange for Odyssey relocating
its existing DC power equipment repair and refurbished sales business facility to the City,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
0112.1504;00346572
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 24th day of November, 2015.
a a�
ALAN MCGRAW, Mayor
City of Round Rock, Texas
ATTEST:
�4w, - (A &66
SARA L. WHITE, City Clerk
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EXHIBIT A
ECONOMIC DEVELOPMENT PROGRAM
The terms of the §380.001 Economic Development Program to be offered to Odyssey in
exchange for Odyssey 's relocating its existing DC power equipment repair and refurbished sales
business facility to the City of Round Rock are as generally outlined below:
1. Odyssey's obligations:
1.1. Odyssey agrees to purchase the property containing 2.702 acres Lot 5, Block "A"
of the Altman Business Park, a replat of Lot 3, Block A, replat of Amanda
Subdivision Lot 2 & 3, Block"A" on or before December 15, 2015.
1.2 Odyssey agrees to invest at least$ 4,000,000 dollars in Facility improvements and
personal property.
1.3 Odyssey agrees to transfer 48 or more full-time equivalent employees, including
contract workers, to the Facility no later than 30 days following the issuance of a
Certificate of Occupancy for the Facility.
1.4 Odyssey agrees to retain said 48 full-time equivalent employees and hire an
additional 7 full-time equivalent employees, including contract workers, no later
than December 31, 2016.
2. City's obligations:
2.1 City agrees to make an initial program payment to Odyssey of $55,000 upon
Odyssey's obtaining the Certificate of Occupancy for the Facility.
2.4 City agrees to make additional program payments of$1,000 per job to Odyssey
for a maximum of$55,000.
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.
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EXHIBIT "B"
Employment Report
CALENDAR YEAR ENDING DECEMBER 31, 201
EMPLOYEE ID NO. JOB POSITION OR TITLE ANNUAL SALARY
$
$
$
$
$
$
TOTAL JOBS