R421RESOLUTION NO. 421
A RESOLUTION OF THE CITY OF KENNEDALE, TEXAS APPROVINGTHE
TERMS AND CONDITIONS OF A PROGRAM TO PROMOTE ECONOMIC
DEVELOPMENT AND STIMULATE BUSINESS AND COMMERCIAL
ACTIVITY IN THE CITY; AUTHORIZING THE CITY MANAGER TO
EXECUTE AN AGREEMENT WITH RE WATSON & ASSOCIATES d /b /a
WATSON GLASS COMPANY FOR SUCH PURPOSES; AND PROVIDING AN
EFFECTIVE DATE
WHEREAS, Chapter 380 of the Texas Local Government Code authorizes municipalities to
establish and provide for the administration of programs that promote economic development and
stimulate business and commercial activity in the city; and
WHEREAS, the City Council has been presented with a proposed agreement by and between the
City of Kennedale and RE Watson & Associates d/b /a Watson Glass, a copy of which is attached hereto
as Exhibit "A" and incorporated herein by reference (hereinafter called the "Agreement "); and
WHEREAS, upon full review and consideration of the Agreement and all matters attendant and
related thereto, the City Council is of the opinion that the Agreement will assist in implementing a
program whereby economic development will be promoted and business and commercial activity will be
stimulated in the City.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
KENNEDALE,TEXAS:
SECTION 1.
The City Council finds that the terms of the Agreement will promote economic development and
stimulate business and commercial activity in the City and otherwise meet the criteria of Section 380.001
of the Texas Local Government Code.
SECTION 2.
The City Council hereby adopts and economic development program whereby the City of Kennedale will
make economic development program payments for the benefit of RE Watson & Associates d/b /a Watson
Glass, and take other specified actions in order to induce economic development within the City, in
accordance with the terms outlined in the Agreement.
SECTION 3.
The terms and conditions of the Agreement, having been reviewed by the City Council of the City of
Kennedale and found to be acceptable and in the best interest of the City and its citizens are hereby
approved.
SECTION 4.
The City Manager is hereby authorized to execute the Agreement and all other documents in connection
therewith on behalf of the City substantially according to the terms and conditions set forth in the
Agreement.
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SECTION 5.
This Resolution shall become effective from and after its passage.
PASSED, APPROVED, and EFFECTIVE this 13` day of February, 2014.
� ayor, John Clark
ATTEST:
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Amethyst G. , City Secretary
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380 ECONOMIC DEVELOPMENT AGREEMENT
BETWEEN THE CITY OF KENNEDALE AND WATSON GLASS
Thi s Economic Development Agreement (the "Agreement") is entered into as of
_________________, 2014 (the “Effective Date”) by and between the City of
Kennedale , Texas, a h ome rule municipal corporation (the “City”) and RE Watson &
Associates, Inc., a Texas Domestic For Profit corporation (“Watson ”).
WITNESSETH :
WHEREAS , the City is authorized by Article 52 -a of the Texas Constitution and
Section 380.001 of the Texas Loca l Government Code (Section 380.001) to provide
economic development grants to promote local economic development and to stimulate
business and commercial activity in the City; and
WHEREAS , Watson desires to expand its business operations located within t he
City at 620 Tower Drive , thus enhancing the property value and increasing the tax
revenues to the City ; and
WHEREAS , as an inducement to Watson to so expand its business the City has
agreed to contribute certain incentive payments to Watson upon those certain terms
and conditions described below ; and
WHEREAS , Chapter 380 of the Texas Local Government Code (the “Act”)
provides that Texas municipalities may create programs to promote economic
development as is contemplated herein; and
WHEREAS , the Ci ty has approved incentives to encourage expansion of
businesses in the City; and
WHEREAS , the City Council hereby finds and determines that this Agreement
will effectuate the p urposes of Chapter 380 , and that Watson ’s performance of its
obligations herein will promote local economic development and stimulate business and
commercial activity in the City ; and
NOW, THEREFORE , in consideration of the mutual benefits and promises
contained he rein and for other good and valuable consideration, the receipt a nd
sufficiency of which is hereby acknowledged, the parties agree as follows:
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ARTICLE 1 .
AUTHORIZATION
The City Council finds and determines that this Agreement is authorized and
governed by Se ction 380.001 of the Act .
ARTICLE 2 .
DEFINITIONS
2.01 The ter ms “Agreement ,” “Effective Date ,” “City ,” and “Watson ,” shall have the
meanings provided above.
2.02 “Affiliate ” means (1) any entity 50% or more owned or controlled by Watson , or
any of its principal shareholders or any trust created for their benefit, (2) any
entity taking over Watson ’s interest in this Agreement as a result of merger or
consolidation, (3) any entity acquiring all or substantially all of the assets of
Watson , or (4) any entity which has acquired a majority of the outstanding stock
of Watson .
2.03 “Eligible Ad Valorem Tax Revenue ” means, with resp ect to any particular year,
that additional revenue the City receives fro m ad valorem property taxes for such
year , excluding any ad valorem taxes derived from the mineral interests , o n the
Property resultin g from the improvements added by Watson as part of its
business expansion done pursuant to this agreement . The base ad valorem
value is $245,500.
2.04 “Event of Bankruptcy or Insolvency ” mean s the dissolution or termination (other
than a dissolution or termina tion by reason of a merger with an A ffiliate) of a
party’s existence as a going business, insolvency, appointment of receiver for
any part of a party’s property and such appointment is not terminated within
ninety (90) days after such appointment is initia lly made, any general assignment
for the benefit of creditors, or the commencement of any proceeding under any
bankruptcy or insolvency laws by or against a party and in the event such
proceeding is not voluntarily commenced by the party, such proceeding i s not
dismissed within ninety (90) days after the filing thereof.
2.05 “Grant Payment (s)” means the periodic payment by the City to Watson of a n
am ount equal to the Eligible Ad Valorem T ax Revenue as provided herein.
2.06 “Property ” means that t ract of land located 620 Tower Drive, more particularly
described as Block 2, Lot 8R, Tower Business Park Addition , Kennedale,
Tarrant County, Texas, as more particularly described in Exhibit “A .”
ARTICLE 3 .
TERM
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3.01.1 T he term of this Agreement shall commence on the Effective Da te and will
terminate five (5 ) years there after on ___________________. Notwithstanding
the above, this Agreement shall automatically terminate o n December 31, 2014 if
Watson fails to accomplish the expansion of its business operations
contemplated herein .
ARTICLE 4 .
COVENANTS OF WATSON
4.01 Dedication By Watson . In consideration of the City agreeing to pay Watson the
Grant Payments in accordance with the terms , provisions and conditions of this
Agreement, Watson agrees to the following, which are not o bligations of Watson ,
but are duties that must be fulfilled in order to receive Grant Payments :
(A) Watson shall expand its business operations located at 620 Tower Drive
by expanding the existing building by 6,300 sq. feet .
(B) Watson shall purchase equipment ass ociated with its operations
expansions as follows: _____________________________________.
(C) Watson remains in Kennedale during the terms of this Agreement.
(D) Watson shall r emain current and paid on all ad valorem taxes on the
Property , subject to appeal right s in accordance with law and subject to a
right to cure any delinquency .
4.02. Condition Precedent . Notwithstanding any other provisions hereof, the City shall
not be obligated to make any Grant Payment or other payment or grant pursuant
to this Agreement unless : (1) Watson is in compliance with the provisions of this
Agreement in all material respects and (2) the Eligible Ad Valorem Tax Revenue
for the Property for the year prior to the year in which the Grant P ayment is due
has been received by the City.
ARTICLE 5 .
CITY AGREEMENTS
5.01 I n accordance with the provisions of this Agreement, the City agrees that, subject
to the terms and conditions contained herein, Watson shall be entitled to receive
an annual Grant Payment equal to the amount of the Eligible A d Valorem Tax
Revenue received by the City for the prior calendar year .
5.02 Subject to the continued compliance with the terms of this Agreement by Watson ,
t he initial G rant P aymen t shall be made on or before May 1, 2015 and
subsequent Grant Payments shall be made on or before May 1 of each
subsequent year throughout the term of this Agreement .
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5.03 The Grant Payments shall cease upon the earlier of:
(A) May 1, 2019 ; or
(B) The date u pon which Watson defaults on the terms of this Agreement as
defined u nder Article 7 below .
ARTICLE 6 .
AUTHORITY; COMPLIANCE WITH LAW
6.01 Watson hereby represents and warrants to the City that it has full lawful right,
power and authority to execute and deliver and perform the terms and obligations
of this Agreement and that the execution and delivery of this Agreement has
been duly authorized by all necessary action by Watson and this Agreement
constitutes the legal, valid and binding obligation of Watson , and is enforceable
in accordance with its terms and provisions.
6.02 Notwithstanding any other provision of this Agreement, Watson shall comply with
all federal , state , and local laws.
6.03 During the term of this Agreement, Watson agrees not to knowingly employ any
undocumented workers at the Property , and if convicted of a violation under 8
U.S .C. Section 1324a(f ), Watson shall repay the amount of the Grant Payments
received by Watson as of the date of such violation within 120 business days
after the date Watson is notified by the City of such violation, plus interest at the
rate the City is pa ying on its most recent issuance of bonded indebtedness prior
to Watson’s violation of this section.
ARTICLE 7 .
DEFAULT AND REMEDIES
7.01 Default by Watson . In the event: (i) Watson fails to fulfill its obligations under
Section 4.01 of this Agreement; (i i) Watson has delinquent ad valorem taxes
owed to the City (provided that Watson retains the right to timely and properly
protest and/or contest any such taxes ); (ii i ) upon the occurrence of any Event of
Bankruptcy or Insolvency by Watson ; or (i v ) Watson m aterially breaches any of
the material terms or conditions of this Agreement, then Watson after the
expiration of the notice and cure periods described herein, shall be in default of
this Agreement. In the event of such a default, the City shall give Wats on written
notice of such breach and/or default, and if Watson has not cured such breach or
default within thirty (30) days after receipt of such notice, the City may terminate
this Agreement by written notice to Watson , and the City shall have no further
obligation to Watson . Watson shall not be liable to the City for any alleged
consequential damages and the City hereby waives any rights or remedies
available that a re related to consequential damages at law or in equity.
Notwithstanding the above, if suc h Act of Default is such a matter that cannot be
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cured by reasonably diligent efforts within thirty (3 0) days, then Watson shall
have an additional thirty (3 0) days to cure the breach so long as Watson promptly
initiates and diligently and continuously att empts to cure the same.
7.02 Default by the City . Should the City fail to timely or substantially comply with any
one or more of the requirements, obligations, duties, terms, conditions or
warranties of this Agreement, such failures shall be an Act of Default by the City
and the City and shall have thirty (3 0) days to cure and remove the Default upon
receipt of written notice to do so from Watson . Watson specifically agrees that
the City shall only be liable to Watson for the amount of the Grant Payments it is
required to pay to Watson under this Agreement and shall not be liable to
Watson for any alleged consequential damages. Other than Watson’s right to
seek payment of the Grant Payments hereunder, Watson hereby waives any
rights or remedies available to it at law or in equity . Notwithstanding the above, if
such Act of Default is such a matter that cannot be cured by reasonably diligent
efforts within thirty (3 0) days, then the City shall have an additional thirty (3 0)
days to cure the breach so long as City promptly initiates and diligently and
continuously attempts to cure the same.
7.03 Waiver . No waiver or any breach of any term or condition of this Agreement shall
be construed to waive any subsequent breach of the same or any other term or
condition of thi s Agreement. Any waiver of any term or condition of this
Agreement must be in writing and approved by the City Council.
7.04 Remedies . S hould Watson fail to comply with its obligations under Section 4.01
of this Agreement, subject to Force Majeure, the City may, following the
applicable notice and cure periods , exercise the following remedies as the sole
remedies for such default : (i) cease payment of any remaining Grant Payments ;
(ii) terminate this Agreement ; and (iii) demand repayment of the cumulative
amo unt of Grant Payments previously paid to Watson under this Agreement .
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ARTICLE 8 .
RIGHT OF OFFSET
Watson agrees that, subject to the provision of n otice by the City and 3 0 -day
period following receipt of n otice in which Watson may respond or act , the City may
offset the amount of any Grant Payment installment due to Watson for any calendar
year under this Agreement against an y amount which is: (i) lawfully due to the City from
Watson pursuant to this Agreement , and (ii) not subject to challenge by Wats on in a
court of competent jurisdiction by Watson .
ARTICLE 9 .
VENUE AND GOVERNING LAW
This Agreement is performable in Tarrant County, Texas and venue of any action
arising out of this Agreement shall be exclusively in Tarrant County, Texas. This
Agr eement shall be governed and construed in accordance with the Charter,
ordinances, and resolutions of the City, applicable federal and state laws, violation of
which shall constitute a default of this Agreement. To the extent permitted by law, the
laws of the State of Texas shall apply without regard to applicable principles of conflicts
of law, and the parties submit to the jurisdiction of the state and federal courts in
Kennedale , Tarrant County, Texas.
ARTICLE 1 0 .
FORCE MAJEURE
Performance of the par ties’ obligations under this Agreement shall be subject to
extension due to delay by reason of events of force majeure, and the obligations shall
be abated during any period of force majeure. Force majeure shall include, without
limitation, damage or dest ruction by fire or other casualty, condemnation, strike, lockout,
civil disorder, war, issuance of any permit and/or legal authorization (including
engineering approvals by any governmental entity), governmental approvals and
permits, shortage or delay in shipment of materials or fuel occasioned by any event
referenced herein, acts of God, unusually adverse weather or wet soil conditions or
other causes beyond the parties’ reasonable control, including but not limited to, any
court or judgment resulting fro m any litigation affecting the Property or this Agreement.
ARTICLE 1 1 .
GIFT TO PUBLIC SERVANT OR TO WATSON REPRESENTATIVE
11.01 No Benefit. Each party hereto represents to the other that it has not offered,
conferred, or agreed to confer and that it will not offer, confer or agree to confer
in the future any benefit upon an employee or official of the other party. For
purposes of this section, “benefit” means anything reasonably regarded as
economic advantage, including benefit to any other person in whose w elfare the
beneficiary is interested, but does not include a contribution or expenditure made
and reported in accordance with law.
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11.02 Right of Reimbursement. Notwithstanding any other legal remedies, the City
may obtain reimbursement for any expenditure mad e to Watson as a result of the
improper offer, agreement to confer, or conferring of a benefit to a City employee
or official.
ARTICLE 1 2 .
ASSIGNMENT
Watson may assign all or any part of this Agreement without the City’s consent or
approval; provided, h owever, that the assignment is to a person or entity which is an
Affiliate. Any assignment to a person or entity which is not an Affiliate will require
approval by action of the City Council.
ARTICLE 1 3 .
INDEMNIFICATION
13.01 WATSON ’S INDEMNIFICATION . WATSON EXPRESSLY AGREES TO FULLY
AND COMPLETELY DEFEN D, INDEMNIFY, AND HO LD HARMLESS THE
CITY, AND ITS OFFICE RS, AND EMPLOYEES, A GAINST ANY AND ALL
CLAIMS, LAWSUITS, LI ABILITIES, JUDGMENTS , COSTS, AND EXPENSE S
FOR PERSONAL INJURY (INCLUDING DEATH), P ROPERTY DAMAG E OR
OTHER HARM, DAMAGES OR LIABILITY FOR WHI CH RECOVERY OF
DAMAGES IS SOUGHT, S UFFERED BY ANY PERSO N OR PERSONS, THAT
MAY ARISE OUT OF OR BE OCCASIONED BY ANY NEGLIGENT, GROSSLY
NEGLIGENT, WRONGFUL, OR STRICTLY LIABLE A CT OR OMISSION OF
WATSON OR ITS AGEN TS, EMPLOYEES, OR CO NTRACTORS, ARISING
OUT IN THE PERFORMAN CE OF THIS CONTRACT . Nothing in this paragraph
may be construed as waiving any governmental immunity available to the City
under state law. This provision is solely for the benefit of Watson and the City
and is not intended to create or grant any rights, contractual or otherwise, in or to
any other person.
13.02 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. The City, its past, present and future officers,
elected officials, directors, employees and agents of the City does not assume
any responsibility to any third party in connection with Watson ’s obligations u nder
this Agreement.
ARTICLE 1 4 .
MISCELLANEOUS MATTERS
14.01 Time is of Essence. Time is of the essence in this Agreement. The parties
hereto will make every reasonable effort to expedite the subject matters hereof
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and acknowledge that the successful performa nce of this Agreement requires
their continued cooperation.
14.02 Agreement Subject to Law. This Agreement is made subject to and in
accordance with the Kennedale Home Rule Charter and ordinances of the City,
as amended, and all applicable State and federal l aws.
14.03 Interpretation. Each of the p arties have been represented by counsel of their
choosing in the negotiation and preparation of this Agreement. In the event of
any dispute regarding the interpretation of this Agreement, this Agreement will be
interpre ted fairly and reasonably and neither more strongly for nor against any
p arty based on draftsmanship.
14.04 Counterparts Deemed Original. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original and constitute o ne
and the same instrument.
14.05 Attorney’s Fees . If any legal action or proceeding is commenced between the
City and Watson to enforce the provisions of this Agreement or to recover
damages for its breach, the prevailing party in the legal action will be ent itled to
recover its reasonable attorney’s fees and expenses incurred by reason of such
action, to the extent allowed by law.
14.06 Captions. The captions to the various clauses of this Agreement are for
informational purposes only and shall not alter the su bstance of the terms and
conditions of this Agreement.
14.07 Complete Agreement. This Agreement embodies the complete agreement of the
parties hereto, superseding all oral or written previous and contemporary
agreements between the parties and relating to matt ers in the Agreement, and
except as otherwise provided herein cannot be modified without written
agreement of the parties to be attached and made a part of this Agreement.
14.08 Notice. Any notice to be given or served hereunder or under any document or
instru ment executed pursuant hereto shall be in writing and shall be (i) delivered
personally, with a receipt requested therefore; or (ii) sent by a nationally
recognized overnight courier service; or (iii) delivered by United States certified
mail, return recei pt requested, postage prepaid. All notices shall be addressed to
the respective party at its address set forth below, and shall be effective (a) upon
receipt or refusal if delivered personally; (b) one business day after depositing,
with such an overnight courier service or (c) two business days after deposit in
the United States mails, if mailed. Any party hereto may change its address for
receipt of notices by service of a notice of such change in accordance with this
subsection.
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Watson : Mark A. Wa tson
President
RE Watson & Associates, Inc.
PO Box 691
Kennedale, TX 76060 -0691
817 -478 -3736
City : City Manager
City of Kennedale
405 Municipal Drive
Kennedale, Texas 76060
Telephone: (817) 985 -2100
Fa x: (817) 4 78 -7169
With a copy to: Wayne K. Olson
Taylor, Olson, Adkins, Sralla & Elam, L.L.P.
6000 Western Place
Suite 200
Fort Worth, Texas 76107
14.09 Amendment. This Agreement may only be amended by the mutual written
agreement of the parties.
14.10 Severability. In the event any section, subsection, paragraph, subparagraph,
sentence, phrase, or word herein is held invalid, illegal, or unenforceable, the
balance of this Agreement shall stand, shall be enforceable, and shall be read as
if the partie s intended at all times to delete said invalid section, subsection,
paragraph, subparagraph, sentence, phrase, or word. In the event there shall be
substituted for such deleted provision a provision as similar in terms and in effect
to such deleted provisi on as may be valid, legal and enforceable.
14.11 Right to Offset. The City may, at its option, offset any amounts due and payable
to Watson under this Agreement against any debt (including taxes) lawfully due
to the City from Watson and which are delinquent un der applicable law or by
agreement , regardless of whether the amount due arises pursuant to the term s of
this Agreement or otherwise and regardless of whether or not the debt due to the
City has been reduced to judgment by a court ; provided that if Watson is in good
faith challenging the validity of any debt, in accordance with applicable laws, the
City may not offset unless and until such challenge is finally resolved.
[Signature pages to follow]
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EXECUTED on the respective dates of acknowledgement, to b e effective as of the
Effective D ate first set forth above.
THE CITY OF KENNEDALE ,
a Texas municipal corporation
By: _____________________________
Bob Hart, City Manager
Date : ____________________________
STATE OF TEXAS
COUNTY OF TARRANT
This instrument was acknowledged before me on _________, 201 4 by Bob Hart ,
known personally by me to be the City Manager of the City of Kennedale , on behalf of
said City.
[Notary Seal]
____________________________________________
Notary Public, State of Texas
Watson Glass
A Texas Domestic For Profit Corporation
By: _______________________
Name : Mark A. Watson __________
Title: President _______________
Date: _______________________
STATE OF TEXAS
COUNTY OF DALLAS
This instrument was acknowledged before me on _________, 201 4 by
__________________, known personally by me to be the ____________________for
Watson Glass , on behalf of said company .
[Notary Seal] ____________________________________________
Notary Public, State of Texas
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W:\Kennedale \Agreements \Watson Glass \380 Agreement.doc
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EXHIBIT A
Legal Description of Land
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EXHIBIT B
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EXHIBIT C
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EXHIBIT D