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HomeMy WebLinkAboutRes 08-20 Approving an Economic Development Agreement with Deloitte TOWN OF WESTLAKE RESOLUTION NO. 08-20 APPROVING AN ECONOMIC DEVELOPMENT AGREEMENT WITH DELOITTE LLP AND ITS PROCUREMENT COMPANY FOR ESTABLISHMENT OF A PROCUREMENT COMPANY ("PROCO") IN THE TOWN OF WESTLAKE PURSUANT TO THE TOWN OF WESTLAKE ECONOMIC DEVELOPMENT POLICY AND TAX ABATEMENT POLICY; AND DECLARING AN EFFECTIVE DATE. WHEREAS, The Board of Aldermen adopted an Economic Development Incentive Policy by Resolution 06-19 on May 8, 2006, and a commercial/industrial tax abatement reinvestment zone by Ordinance 589 on March 24, 2008; and WHEREAS, pursuant to Chapter 380 of the Texas Local Government Code the Board of Aldermen of the Town of Westlake, Texas (the "Board") has adopted a program for granting public funds in the form of sales tax rebates to promote local economic development, and stimulate business and commercial activity in the Town of Westlake, Texas (the "Town"); and WHEREAS, pursuant to said policy and Chapter 380 of the Texas Local Governmcnt Code the Board finds the economic development incentive offered in the attached Agreement will promote the economic development and stimulate business and commercial activity in the Town. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF ALDERMEN OF THE TOWN OF WESTLAKE, TEXAS: SECTION 1: That the Economic Development Agreement by and between the Town of Westlake, Texas, and Deloitte LLP and its Procurement Company attached hereto as Exhibit "A" and incorporated herein for all purposes is hereby approved; and further authorizes the Town Manager to execute the contract on behalf of the Town of Westlake, Texas. SECTION 2: That this Resolution shall take effect from and after its final date of passage, and it is accordingly so ordered. PASSED AND APPROVED BY THE BOARD OF ALDERMEN OF THE TOWN OF WESTLAKE, TEXAS, ON THIS 24th DAY OF MARCH 2008. i Scott Bradfey, Mayor ATTEST: im Sutter,'TRMC, Town Secretary 3 e C. Hennig, er own M er APPR QVEDD AS TO RM: tanton l6oAttorney Exhibit A STATE OF TEXAS § § ECONOI\IIC DEVELOPMENT INCENTIVE § AGREEMENT COUNTY OF TARRANT § This Economic Development Incentive Agreement (this "Agreement') is made between the Town of Westlake, Teras (the "Town") and Deloitte LLP, a Delaware limited liability partnership ("Deloitte LLP"), each acting by and through their respective authorized officers and representatives. WITNESSETH: WHEREAS, Deloitte LLP (or one of its Affiliates), as the owner of land located within the Town, intends to develop and construct one (1) or more buildings on land located within the Town, and the development and construction on such land is expected significantly to enhance the economic and employment base of the Town; and WHEREAS, in order to maintain and enhance the conulzercial and industrial economic and employment base of the Town and Tarrant County, the Board found that it was in the best interest of the citizens of the Town to enter into that certain Economic Development Agreement with Deloitte LLP dated March 24, 2008 (the "Economic Development Agreement"), pursuant to which the Town agreed to provide Deloitte LLP certain economic incentives in accordance with the Economic Development Policy, the Tax Abatement Policy, the Ta-x Code and the LGC (as such terms are defined in the Economic Incentive Agreement); and WHEREAS, , a Texas and wholly owned subsidiary of Deloitte LLP (the "Procurement Company") is enaaned in the business of purchasing and reselling taxable items; and y WHEREAS, Deloitte LLP advised the Town that a contributing factor that would induce Deloitte LLP to locate its innovation and learning center within the Town would be an agreement by the Town to provide an economic development avant to Deloitte LLP; and WHEREAS, the Town desires to attract new retail business to the Town that will generate additional sales tax revenue for the Town; and WHEREAS, the attraction of new retail business to the Town will promote economic development, stimulate commercial activity, generate additional sales tax and enhance the tax base and economic vitality of the Town.; and WHEREAS, the Town has adopted pro-rams for promoting economic development; and WHEREAS, the ToN n is authorized by Article 111, Section 52-a of the Texas Constitution, TEX. LOC. GOVT CODE §380.001 and the Development Corporation Act of 1979, Article 5190.6 of the TEX. REV. CIV. STAT. to provide economic development Grants to promote local economic development and to stimulate business and commercial activity in the Town; and 13 7648 vJ D L355.'16000 WHEREAS, the Town has determined that making an economic development grant to Deloitte LLP or one of its Affiliates in accordance with the terms and conditions set forth in this Agreement will further the objectives of the Town, benefit the Town and the Town's inhabitants and promote local economic development and stimulate business and commercial activity in the Town, NOW THEREFORE, in consideration of the foregoing and the premises, mutual covenants and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties, intending to be legally, bound, hereby covenant and agree as follows: d ARTICLE I DEFINITIONS Section 1.01. For purposes of this Agreement, each of the following terms shall have the meaning set forth herein unless the context clearly indicates otherwise: "Affiliate" shall mean any entity that owns or controls, is owned or controlled by, or is under common ownership or control with, Deloitte LLP, or any entity the ownership of which is substantially the same as Deloitte LLP. "Deloitte LLP" shall mean Deloitte LLP or one of its Affiliates. "Effective Date" shall mean the last date on which all of the parties hereto have executed this Agreement, which shall be no later than December 31, 2010, provided, however that such date may be extended by mutual agreement of the parties hereto. "First Renewal Date" shall mean a date that is ten (10) years from the Effective Date. '`Grant" shall mean periodic payments to the Procurement Company from lawfully available funds, in the amount set forth in Section 3.01. "Retail Center" shall mean the Procurement Company's local office in the Tow-n at which the Procurement Company operates a business of purchasing and reselling Taxable Items in the Town. "Sales-Tax Receipts" shall mean the Town's receipts from the State attributable to the collection of Total Town Sales and Use Tax by the Procurement Company. The parties expressly acknowledge and agree that the sales and use tax receipts described herein are being used only as a measurement .of the Town's payment of grants through the use of general funds. "State" shall mean the State of Texas and all taxing authorities thereof, including. without limitation, the Comptroller of Public Accounts of the State of Teras. 1376481..E DEL255!16000 "Taxable Items" shall have the same meaning assigned by Chapter 151, TEX. TAX CODE, as amended. "Total Town Sales and Use Taxes" shall mean the Town's Sales and Use Taxes plus the half percent (.5%) 413 economic development sales tax authorized by art. 5190.6, Vernon's Texas Civil Statutes, Section 4B. and the half percent (.5%) additional municipal sales and use tax (commonly known as the "sales tax for property tax relief') authorized by Section 321.507 of the Tax Code imposed by the Town (it being expressly understood that sales and use taxes are being used only as a measurement of the Town's grant of lawfully available funds to Deloitte LLP pursuant to Chapter 380 of the LGC). "Town's Sales and Use Taxes" shall mean the local sales and use tax imposed by the Toren other than the half percent (.5%) 4B economic development sales tax authorized by art. 5194.6, Vernon's Texas Civil Statutes, Section 4B. and the half percent (.5%) additional municipal sales and use tax (commonly knoNvn as the "sales tax for property tax relief'') authorized by Section 321.507 of the Tax Code imposed by the Town (it being expressly understood that sales and use tares are being used only as a measurement of the Town's grant of lawfully available funds to Deloitte LLP pursuant to Chapter 380 of the LGC). Capitalized terms not otherwise defined above shall have the meaning given such capitalized terms in this Agreement. y ARTICLE II TERM Section 2.01. Term. The initial term of this Agreement shall begin on the Effective Date and continue through the First ReneNval Date, when it shall renew without any action by either party, and on each ten (10) year anniversary thereafter (each such date a "Renewal Date"), for successive ten (10) year teens; provided, however, that on any Renewal Date, either Deloitte LLP or the Town may elect to terminate this Agreement by providing the other party not less than thirty (30) days' written notice of termination, as further described in Article VI of this Agreement. Any reference to the '`Tenn" of this Agreement shall include the initial term and any renewal terms, but shall mean the actual term during which this Agreement is in effect. ARTICLE III ECONOMIC DEVELOPMENT GRANT Section 3.01. Grant. During the Term, subject to Deloitte LLP's continued satisfaction of all of its obligations under the terms and conditions of this Agreement. the Town agrees to provide Deloitte LLP with an economic development grant from lawfully available funds, payable as provided herein; in an amount equal to seventy-live percent (75%) of the Sales Tax Receipts for each calendar quarter during the Term (each, a "Grant" and, collectively, the "Grants"), 1375-187~•.1 DE'L255/36000 Section 3.02. Grant Funds. The Town shall not be required to pay any Grant until such time as the Town has received Sales Tax Receipts from the State relating to the calendar quarter for which such Grant payment is due. The TO,.in will file all documentation required to be filed by it and make such requests to the State as necessary to obtain all Sales Tax Receipts in a timely manner and will not take any action that causes the State to delay remittance of Sales Tax. Receipts for any calendar quarter during the Term. Section 3.03. Grant Pay=ment. All Grants referenced herein shall be paid quarterly to Deloitte LLP %within sixty (60) days following the end of the calendar quarter in which the relevant Sales Tax Receipts were received by the Tov`n. The amount to be granted shall be determined based on the relevant Sales Tax Receipts received by the Town. Section 3.04. Amended Returns. In the event the Procurement Company files an amended sales and use tax return or report, or if additional sales and use tax is due and owing by the Procurement Company to the State, and, as a result, Sales Tax Receipts for a previous calendar quarter are increased, then the Grant payment due from the ToNvn shall be increased accordingly for the calendar quarter immediately following the Town receiving Sales Tax Receipts from the State attributable to such increase. This Section 3.04 shall survive the termination of this Agreement. Section 3.03. Refunds. In the event the State determines that the To,�Nm erroneously received Sales Tax Receipts, or that the amount of sales and use tax paid to the Town exceeds the correct amount of sales and use tax owed to the Town, and, as a result, a previous Grant paid to Deloitte LLP exceeded the amount actually due to Deloitte LLP (calculated based on the State's determination) (any such excess amount being referred to herein as an "Excess Grant"), then Deloitte LLP shall, within thirty (30) days after receipt of a written notice from the Town specifying the amount of the Excess Grant, repay the amount of the Excess Grant to the ToNvn. In lieu of repaying the amount of the Excess Grant to the Town, Deloitte LLP may instruct the Town in writing to reduce the amount of the Grant payment for the calendar quarter immediately following Deloitte LLP's receipt of the Town's ,,written notice of the Excess Grant by the amount of the Excess Grant. In such case, the Town shall deliver a written notice to Deloitte LLP acknowledging the amount of the Excess Grant that has been deducted from any Grant payment. As a condition precedent to Deloitte LLP's obligation to refund the amount of an Excess Grant to the Toy%n or authorize the Town to reduce the Grant payment, Deloitte LLP shall have received a copy of the State's written determination, if any, or such ether evidence to substantiate the amount of the Excess Grant as is acceptable to Deloitte LLP in its reasonable discretion. Should Deloitte LLP cause a refund to occur through its own action, Deloitte LLP will notify the ToNvn promptly upon receiving the determination of the refund request from the State. ARTICLE IV PROCEDURES RELATING TO GRANTS Section 4.01. Town Request for Information from State. Within 10 days after each due date for payment of sales and use tax from the Procurement Company to the State (each a "Due Date-), the Tomn wilf request from the State all documentation relating to the Total Town Sales and Use Tax paid by the Procurement Company on such Due Date. Deloitte LLP shall provide - 4 - 1376487vA DEL255A6000 the To-vvn with a Waiver of Sales Tax Confidentiality, which authorizes the State to release to the Town sales and use tax information pertaining to the Procurement Company during the Term. Such documentation may include the following, if it has been filed by the Procurement Company -,Nrith the State, and nothing in this Section 4.01 shall obligate Deloitte LLP or the Procurement Company to prepare or provide to the Town any documentation not required to be filed with the State; (a) Information regarding the amount of sales and use tax collected and paid to the State by the Procurement Company as a result of the sale of Taxable Items by the Procurement Company at the Retail Center; (b) A copy of all sales and use tax returns and reports, sales and use tax prepayment returns, direct payment pen-nits and reports, including amended sales and use tax returns or reports, filed by the Procurement Company for the previous calendar quarter showing sales and use tax collected (including sales and use tax paid directly to the State pursuant to a direct payment certificate) by the Procurement Company for the sale of Taxable Items consummated at the Retail Center, (c) A copy of all direct payment and self-assessment returns, including amended returns, filed by the Procurement Company for the previous calendar quarter showing sales and use tax paid for the sale of Taxable Items by the Procurement Company consummated at the Retail Center, (d) A summary of the sales of Taxable Items by the Procurement Company consummated at the Retail Center which resulted in sales and use tax paid, and copies of receipts for those purchases, in the event that the Procurement Company is ineligible or unable to file direct payment or self-assessment returns for the previous calendar quarter; and (e) Information concerning any refund or credit received by the Procurement Company of sales or use tax paid or collected by the Procurement Company (including any sales and use tax paid directly to the State pursuant to a direct payment permit) which has previously been reported by the Procurement Company as sales and use tax paid or collected. Section 4.02. Confidentiality-. Except as disclosure is required by law, the Towyn agrees to keep all information and documentation received from the State pursuant to this Section 4.02 (collectively, "Confidential Tax Information") confidential. The Town ,rill only provide access to the Confidential Tax Information to its employees on a "need-to-knows" basis. The Towyn will use the Confidential Tax Information solely for the purposes of determining the amount of each calendar quarter's Grant and the amount of other Grants related to the Retail Center that are dependent on the Confidential Tax Information and for no other purpose, and the Town will not. without Deloitte LLP's prior written authorization: (a) disclose to any other person, use or exploit the Confidential Tax. Information (other than as expressly permitted above) or (b) discuss Deloitte LLP or its affairs Nvith any person other than Deloitte LLP's representatives. Deloitte LLP's Waiver of Sales Tax Confidentiality is solely for the limited purpose of allowing an appropriate set of Town officials to verify the amount of the Town's obligations under this _ 5 _ 13764870 DEI255i16000 Agreement. The Town's obligations under this Section 4.02 shall survive the termination of this Agreement. Notwithstanding the above, the Town and Deloitte LLP expressly_understand and agree that should any third party request the Confidential Tax Information pursuant to the Texas Public Information Act, the Town's sole responsibility shall be to seek a written determination from the Texas Attorney General as to whether any or all of the Confidential Tax Information must be released as a public record. ARTICLE V REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PARTIES Section 5.01. No Violation.. The Town hereby represents and warrants to Deloitte LLP that neither its execution and performance of this Agreement, nor its consummation of the transactions contemplated hereby (including, without limitation, the payment of Grants under the terms and conditions hereof), will (a) conflict with, or result in a breach of, the terns, conditions or provisions of, or constitute a default under, any agreement, indenture or other instr-ament under which the Town is bound, or (b) violate or conflict with any judgment, decree, order, statute, rule or regulation of any court or any public, governmental or regulatory agency or body having jurisdiction over the Towm or its properties, assets or conduct. Ftu-thermore, the Town hereby agrees that any claim made by a third party against the Town with respect to Town Sales Tax received by, or payable to, the Town from the State (including, without limitation, Grants payable to Deloitte LLP hereunder) (other than claims from the State, which shall be handled under Section 3.05) shall be paid or resolved by the Town from funds other than, those committed to be paid to Deloitte LLP as Grants hereunder. Section 5.02. Publicity and Disclosures. The parties covenant and agree that neither party shall make any press release or public disclosure, either written or oral, regarding the transactions contemplated by this Agreement without the prior knowledge and consent of the other party; provided, that the foregoing shall not prohibit any disclosure to attorneys, accountants, investment bankers or other agents of the parties assisting the parties in connection with the transactions contemplated by this Agreement. ARTICLE VI TERMINATION Section 5.01. Termination of this Agreement. This Agreement shall terminate upon any one of the following: (a) On any Renewal Date on or after the First Renewal Date, by either party, upon thirty (30)days' written notice to the other party: (b) By Deloitte LLP, immediate]-,• upon written notice to the Town, if the Town fails to pay any Grant within the applicable time period provided under this Ac reement: and _ 5 _ 1376487 .1 DEL255A6000 (c) Immediately upon written notice from Deloitte LLP to the Town, upon any breach by the Town of its obligations under Section 4.02 hereof with respect to Confidential Tax Information, Section 6.02. Effect of Termination. Upon a termination of this Agreement, the Town shall remit all Grants relating to Sales Tax Receipts for the sale of Taxable Items by the Procurement Company at the Retail Center sold prior to the effective date of such termination. The rights, responsibilities and liabilities of the Parties under this Agreement shall be extinguished upon the applicable effective date of termination of this Agreement, except for any obligations that accrue prior to such termination or as othen%'ise expressly provided herein. ARTICLE VII MISCELLANEOUS Section 7.01. Binding Aareement; Assianment. The terns and conditions of this Agreement are binding upon the successors and pennitted assigns of the parties hereto. This Agreement may not be assigned without the express written consent of icon-assigning party, except that Deloitte LLP may assign this Agreement to one of its Affiliates without obtaining the Town's consent. Section 7.02. 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 a partnership or joint venture among the parties. Neither party shall have any authority to act on behalf of the other party under any circumstances by virtue of this Agreement.. Section 7.03. Authorization. Each party represents that it has full capacity and authority to grant all rights and assume all obligations that are granted and assumed under this Agreement. Section 7.04. Notice. Any notice required or permitted to be delivered hereunder shall be deemed received three (3) days thereafter sent by United States Mail, postage prepaid, certified mail, return receipt requested, addressed to the party at the address set forth below (or such other address as such party may subsequently designate in writing) or on the day actually received if sent by courier or otherwise hand delivered. If intended for Town, to: Town Manager Town of Westlake 3 Village Circle, Suite 202 Westlake, Texas 76252 With a copy (which shall not constitute notice) to: Stan Lowrv. Town Attorney Town of Westlake c/o - 7 - 1376487v.1 DEL2i5/16100 Boyle & Lowry LLP 4201 Wingren, Suite 108 Irving, Texas 75062 If intended for Deloitte LLP; With a copy to: Section 7.05. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter covered in this Agreement. There is no other collateral agreement, oral or written, between the parties that in any manner relates to the subject matter of this Agreement. Section 7.06. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of Texas, without giving effect to any conflicts of law rule or principle that might result in the application of the laws of another jurisdiction. Subject to Section 7.11 hereof, venue for any disputes regarding this Agreement, the transactions contemplated hereby or the liabilities or obligations imposed hereunder shall be in any State District Court located in Tarrant County, Texas. Section 7.07. Amendment. This Agreement may be amended or modified only by a written instrument signed by all the parties hereto. Section 7.08. Legal Construction. In the event any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect other provisions, and it is the intention of the parties to this Agreement that in lieu of each provision that is found to be illegal, invalid, or unenforceable, a provision shall 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, Section 7.09. Recitals. The recitals to this Agreement are incorporated herein. Section 7.10. Counterparts. This Agreement may be executed in counterparts. Each of the counterparts shall be deemed an original instniment, but all of the counterparts shall constitute one and the same instrument. Section 7.11. Survival of Covenants. Any of the representations, warranties, covenants, and obligations of the parties; as well as any rights and benefits of the parties, pertaining to a period of time following the termination of this Agreement shall sunvive termination. [The next following pages are signature pages.] - 8 - 1376487v,J DEL253!1t0OO EXECUTED on this day of 2008. TOWN OF WESTLAK.E, TEXAS By: Thomas E. Brymer, ToNNn Manager i ATTEST: By. Kim Sutter, TRMC, Tov n Secretary APPROVED AS TO FORM: By: L. Stanton Lowry, Town Attomey EXECUTED on this day of March, 22008. DELOITTE LLP, a Delaware limited liability- partnership By: By: Name: Title: 1376487v.1 DDL255iE6000 Waiver of Sales Tax Confidentiality Date. I authorize the Comptroller of Public Accounts to release sales tax information pertaining to the taxpayer indicated below to the Town of Westlake, Texas. I understand that this waiver applies only to our place of business located in Westlake, Texas. Name of Taxpayer as Sho-vN-n on Texas Sales Tax Permit Name Under Which Taxpayer is Doing Business (dba or Outlet Nance) Taxpayer Mailing Address Physical Location of Business Pennitted for Sales Tax in Westlake. Texas Texas Taxpayer ID Number Tax Outlet Number Authorized Signature [TITLE], Procurement Company-, Telephone Number The authorized signature must be an owner, officer. director, partner. or agent authorized to sicyn a Texas Sales Tax Retum. If you ha�-e any questions concerning this waiver of confidentiality, please contact the Texas Comptroller of Public Accounts at 800.532£.5141. By: MARY LOUISE NICHOLSON COUNTY CLERK TOWN OF WESTLAKE 1500 SOLANA BLVD BLDG 7 STE 7200 WESTLAKE, TX 76262 Submitter: TOWN OF WESTLAKE Q5 U75 `eu 100 West Weatherford Fort Worth, TX 76196-0401 PHONE (817) 884-1195 DO NOT DESTROY WARNING - THIS IS PART OF THE OFFICIAL RECORD. Filed For Registration: 2/12/2019 11:58 AM Instrument#: D219027373 OPR 13 PGS $60.00 D219027373 ANY PROVISION WHICH RESTRICTS THE SALE, RENTAL OR USE OF THE DESCRIBED REAL PROPERTY BECAUSE OF COLOR OR RACE IS INVALID AND UNENFORCEABLE UNDER FEDERAL LAW.