HomeMy WebLinkAbout02.22.2017 - Economic Development Incentive Agreement - Holt Texas, Ltd.STATE OF TEXAS §
§ ECONOMIC DEVELOPMENT INCENTIVE AGREEMENT
COUNTY OF WILLIAMSON §
This Economic Development Agreement ("Agreement") is made by and between City of
Georgetown, Texas ("City"), and Holt Texas, Ltd., a Texas limited partnership ("Company")
(City and Company each a "Party" and collectively the "Parties"), acting by and through their
respective authorized representatives.
WITNESSETH:
WHEREAS, Company is an authorized Caterpillar® heavy equipment and engine dealer
for 118 counties in South, Central, North and East Texas and sells, services and rents
Caterpillar® heavy equipment, trucks and trailers, engines and generators for construction,
earthmoving, mining, industrial, petroleum and agriculture; and
WHEREAS, Company owns or is under contract to purchase approximately 75 acres of
land located at 2101 Airport Road, Georgetown, Texas, described in Exhibit "A" (the "Land"),
and intends to construct a minimum of 60,000 square feet of commercial development on the
Land for the retail sale of heavy equipment (the "Improvements") (collectively the "Land" and
"Improvements" referred to as the "Premises"); and
WHEREAS, Company intends to invest approximately Twenty Million Dollars
($20,000,000.00) in land, infrastructure, real property improvements, and business personal
property at the Premises; and
WHEREAS, Company has advised City that a contributing factor that would induce
Company to purchase the Land and construct the Improvements would be an agreement by City
to provide an economic development grant to Company to offset the costs for the investment in
the Premises; and
WHEREAS, promoting the location of new business enterprises within City will
promote economic development, stimulate commercial activity, generate additional sales tax and
will enhance the property tax base and economic vitality of City; and
WHEREAS, City has adopted programs for promoting economic development, and this
Agreement and the economic development incentives set forth herein are given and provided by
City pursuant to and in accordance with those programs; and
WHEREAS, City is authorized by Article III, Section 52-a of the Texas Constitution and
Texas Local Government Code Chapter 380 to provide economic development grants to promote
local economic development and to stimulate business and commercial activity in City; and
WHEREAS, City has determined that making an economic development grant to
Company in accordance with City's economic development program will (i) further the
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City of Georgetown and Holt Texas, Ltd. (TM 81039)
economic development objectives of City; (ii) benefit City and City's inhabitants; and
(iii) promote local economic development and stimulate business and commercial activity in
City; and
WHEREAS, City Council does hereby approve this Agreement as a program for making
an economic development grant to Company for the purpose of stimulating and maintaining its
commercial activity within City, and to promote the generation of sales tax, the enhancement of
the property tax base, and to maintain and increase the economic vitality of City;
NOW THEREFORE, in consideration of the foregoing, and on the terms and conditions
hereinafter set forth, and other valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Parties agree as follows:
Article I
Definitions
For purposes of this Agreement, each of the following terms shall have the meaning set
forth herein unless the context clearly indicates otherwise:
"Airport Road Expansion" shall mean the expansion of Airport Road adjacent to
the Premises in accordance with plans approved by the City.
"Bankruptcy or Insolvency" shall mean the dissolution or termination of
Company's existence, insolvency, employment of receiver for any part of Company's
property and such appointment is not terminated within ninety (90) days after such
appointment is initially made, any general assignment for the benefit of creditors or the
commencement of any proceedings under any bankruptcy or insolvency laws by or
against Company and such proceedings are not dismissed within ninety (90) days after
the filing thereof.
"Capital Investment" shall mean the total capitalized cost incurred and paid
(including hard and soft costs) by Company for the acquisition of the Land, the
construction of the Improvements and tangible personal property added to the Premises.
"City" shall mean City of Georgetown, Texas.
"Commencement Date" shall mean the date a certificate of occupancy is issued
for the occupancy of the Improvements by the Company.
"Commencement of Construction" shall mean that: (i) the plans have been
prepared and all approvals thereof required by applicable governmental authorities have
been obtained for construction of the Improvements; (ii) all necessary permits for the
construction of the Improvements pursuant to the respective plans therefore have been
issued by all the applicable governmental authorities; and (iii) clearing and/or grading of
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City of Georgetown and Holt Texas, Ltd. (TM 81039)
the Land and the construction of the vertical elements of the Improvements has
commenced.
"Company" shall mean Holt Texas, Ltd., a Texas limited partnership.
"Company Affiliates" means any entities related to the Company by direct or
indirect common or overlapping majority ownership, where collectively the Company
and all Company Affiliates are a group of entities in which a single parent entity owns
directly or indirectly a majority interest in each other entity that is part of the group.
"Completion of Construction" shall mean that: (i) substantial completion of the
Improvements has occurred; and (ii) the City has issued a certificate of occupancy for
occupancy of the Improvements by Company.
"Consummated" shall have the same meaning assigned by Texas Tax Code,
Section 321.203, or its successor.
"Effective Date" shall mean the last date of execution hereof.
"Expiration Date" shall mean the date of payment of the fifth (5th) Sales Tax
Grant.
"Force Majeure" shall mean any contingency or cause beyond the reasonable
control of a Party including, without limitation, acts of God or the public enemy, war
terrorist act, or threat thereof, riot, civil commotion, insurrection, government action or
inaction (unless caused by the intentionally wrongful acts or omissions of the Party),
fires, earthquake, volcanic eruption, impact of meteor or extraterrestrial body, tidal or
wave event such as a tsunami, meteorological event including but not limited to tornado,
hurricane, explosions, floods, strikes, slowdowns or work stoppages, plague or other
epidemiological event.
"Impositions" shall mean all taxes, assessments, use and occupancy taxes,
charges, excises, license and permit fees, and other charges by public or governmental
authority, general and special, ordinary and extraordinary, foreseen and unforeseen,
which are or may be assessed, charged, levied, or imposed by any public or governmental
authority on Company with respect to any property or any business owned by Company
and/or Company Affiliate within City.
"Improvements" shall mean a minimum of 60,000 square feet of buildings to be
constructed on the Land, together with other ancillary facilities such as required parking
and landscaping more fully described in the submittals filed with City, from time to time,
in order to obtain a building permit(s).
"Land" shall mean the real property described in Exhibit "A".
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City of Georgetown and Holt Texas, Ltd. (TM 81039)
"Maximum Sales Tax Grant Amount" shall mean the cumulative payment of
Sales Tax Grants in the aggregate to Company during the term of this Agreement in the
amount of One Million Five Hundred Thousand Dollars ($1,500,000.00).
"Minimum Sales of Taxable Items" shall mean minimum sales of Taxable Items
Consummated at the Premises in the amount not less than Twenty -Seven Million Five
Hundred Thousand Dollars ($27,500,000.00) for each Sales Tax Reporting Grant Period.
"Payment Request" shall mean a written request from Company to the City for
payment of a Sales Tax Grant accompanied by the Sales Tax Certificate for the
applicable Sales Tax Reporting Period.
"Premises" shall collectively mean the Land and Improvements.
"Related Agreement" shall mean any agreement (other than this Agreement) by
and between the City and/or Georgetown Economic Development Corporation, and the
Company.
"Required Use" shall mean the continuous use and operation of the Premises for
the retail sale of Caterpillar® heavy equipment, trucks and trailers, engines and
generators for construction, earthmoving, mining, industrial, petroleum and agriculture
"Sales and Use Tax" shall mean the one percent (1%) Sales and Use Tax imposed
by City pursuant to Chapter 321 of the Texas Tax Code, on the sale of Taxable Items by
Company Consummated at the Improvements during the applicable Sales Tax Reporting
Period.
"Sales Tax Certificate" shall mean a report provided by the State of Texas to City
in accordance with Texas Tax Code, Section 321.3022 (or other applicable provision of
the Texas Tax Code), which lists the amount of Sales and Use Tax (including any
refunds, credits or adjustments) paid to the State of Texas for the sale of Taxable Items
by Company Consummated at the Improvements, or if such report is not available, a
certificate or other statement, containing such information in a form provided by
Company reasonably acceptable to City setting forth the total sale of Taxable Items
Consummated at the Improvements and Company's collection of Sales and Use Tax
(including any refunds, credits or adjustments) paid to the State of Texas, for the sale of
Taxable Items by Company Consummated at the Improvements during the applicable
Sales Tax Reporting Period, and such other information as City may reasonably request.
"Sales Tax Grants" shall mean five (5) annual economic development grants to be
paid by City to the Company, each in the amount equal to fifty percent (50%) of the Sales
Tax Receipts received by City for the applicable Sales Tax Reporting Period to be paid as
set forth herein. The amount of each Sales Tax Grant shall be computed by multiplying
the Sales Tax Receipts received by the City for a given Sales Tax Reporting Period by the
fifty percent (50%) less any administrative fee charged to City by the State of Texas for
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City of Georgetown and Holt Texas, Ltd. (TM 81039)
collection of the Sales and Use Taxes pursuant to Tax Code Section 321.503 or other
applicable law. The aggregate of all Sales Tax Grants hereunder shall not exceed the
Maximum Sales tax grant Amount.
"Sales Tax Receipts" shall mean City's receipts of Sales and Use Tax from the
State of Texas from Company collection of Sales and Use Tax (it being expressly
understood that City's one percent (1%) sales and use tax receipts are being used only as
a measurement for its use of general funds to make a grant for economic development
purposes) as a result of sale of Taxable Items by Company for the applicable Sales Tax
Reporting Period Consummated at the Improvements.
"Sales Tax Reporting Period" shall mean each twelve (12) month period during
the term of this Agreement commencing on the Commencement Date.
"Sewer Extension" shall mean the extension of the existing sewer line facilities
along Interstate Highway from the existing Pecan Branch interceptor north to Premises in
accordance with plans approved by the City.
"State of Texas" shall mean the Office of the Texas Comptroller, or its successor.
"Taxable Items" shall mean both "taxable items" and "taxable services" as those
terms are defined by Chapter 151, Texas Tax Code, as amended.
Article II
Term
The term of this Agreement shall begin on the last date of execution hereof (the
"Effective Date") and continue until the Expiration Date, unless sooner terminated as provided
herein.
Article III
Economic Development Grants; Infrastructure Improvements
3.1 Sales Tax Grants. (a) Subject to the continued satisfaction of all the terms and
conditions of this Agreement by Company, and the obligation of Company to repay the Sales
Tax Grants in accordance with Article V hereof, City agrees, provided the Company has
achieved the Minimum Sales of Taxable Items for the applicable Sales Tax Reporting Period, to
provide Company with five (5) Sales Tax Grants, not to exceed the Maximum Sales Tax Grant
Amount. The Sales Tax Grants shall be paid within ninety (90) days after receipt of a Payment
Request following the end of the applicable Sales Tax Reporting Period. Each Payment Request
shall be submitted to City not later than sixty (60) days after the end of each Sales Tax Reporting
Period. The failure to timely submit a Payment Request shall forfeit the entitlement of Company
to the Sales Tax Grant for the applicable Sales Tax Reporting Period. If the required Minimum
Sale of Taxable Items is not achieved for a given Sales Tax Sales Tax Reporting Period the
Company shall forfeit its right to the Sales Tax Grant for such Sales Tax Sales Tax Reporting
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City of Georgetown and Holt Texas, Ltd. (TM 81039)
Period, but such failure shall not be considered as an event of default subject to termination and
repayment as provided in Article V hereof.
(b) Adjustment Notification. Company shall promptly notify City in writing of any
adjustments found, determined or made by Company, the State of Texas, or by an audit that
results, or will result, in either a refund or reallocation of Sales Tax Receipts or the payment of
Sales and Use Tax or involving amounts reported by Company as subject to this Agreement.
Such notification shall also include the amount of any such adjustment in Sales and Use Tax or
Sales Tax Receipts. Company shall notify City in writing within thirty (30) days after receipt of
notice of the intent of the State of Texas, to audit Company. Such notification shall also include
the period of such audit or investigation.
(c) Amended Returns. In the event Company files an amended sales and use tax
return, or report with the State of Texas, or if additional Sales and Use Tax is due and owing by
Company to the State of Texas, as determined or approved by the State of Texas, affecting Sales
Tax Receipts for a previous Sales Tax Reporting Period, then the Sales Tax Grant payment for
the Sales Tax Reporting Period immediately following such State of Texas approved amendment
shall be adjusted accordingly (i.e., up or down, depending on the facts), provided City has
received Sales Tax Receipts attributed to such adjustment. As a condition precedent to payment
of such adjustment, Company shall provide City with a copy of any such amended sales and use
tax report or return, and the approval thereof by the State of Texas. Copies of any amended sales
and use tax return or report or notification from the State of Texas that additional Sales and Use
Tax is due and owing by Company to the State of Texas, as determined by the State of Texas,
affecting Sales Tax Receipts for a previous Sales Tax Reporting Period shall be provided to City
with the Payment Request for the next Sales Tax Reporting Period.
(d) Refunds and Underpayments of Sales Tax Grants. In the event the State of Texas
determines that City erroneously received Sales Tax Receipts, or that the amount of Sales and
Use Tax paid to Company exceeds (or is less than) the correct amount of Sales and Use Tax for a
previous Sales Tax Reporting Period, for which Company has received a Sales Tax Grant,
Company shall, within sixty (60) days after receipt of notification thereof from City specifying
the amount by which such Sales Tax Grant exceeded the amount to which Company was entitled
pursuant to such State of Texas determination, adjust (up or down, depending on the facts) the
amount claimed due for the Sales Tax Grant payment for the Sales Tax Reporting Period
immediately following such State of Texas determination. If Company does not adjust the
amount claimed due for the Sales Tax Grant payment for the Sales Tax Reporting Period
immediately following such State of Texas determination City may, at its option, adjust the Sales
Tax Grant payment for the Sales Tax Reporting Period immediately following such State of
Texas determination. If the adjustment results in funds to be paid back to City, Company shall
repay such amount to City within sixty (60) days after receipt of such State of Texas
determination. As a condition precedent to payment of such refund, City shall provide Company
with a copy of such determination by the State of Texas. The provisions of this Section shall
survive termination of this Agreement.
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City of Georgetown and Holt Texas, Ltd. (TM 81039)
(e) Sales Tax Grant Payment Termination; Suspension. The payment of Sales Tax
Grants shall terminate on the effective date of determination by the State of Texas or other
appropriate agency or court of competent jurisdiction that the Improvements is not a place of
business resulting in Sales and Use Taxes being due the City from the sale of Taxable Items by
Company at the Improvements. In the event the State of Texas seeks to invalidate the
Improvements as a place of business where Sales and Use Tax was properly remitted to the State
of Texas (the "Comptroller Challenge") the payment of Sales Tax Grants by City hereunder shall
be suspended until such Comptroller Challenge is resolved in whole favorably to City. In such
event, Company shall not be required to return or refund Sales Tax Grants previously received
from City provided Company is actively defending against and/or contesting the Comptroller
Challenge and Company promptly informs City in writing of such Company actions and with
copies of all documents and information related thereto. In the event the Comptroller Challenge
is not resolved favorably to City and/or in the event the State of Texas determines that the
Improvements is not a place of business where the Sales and Use Tax was properly remitted to
the State of Texas, and Sales and Use Tax Receipts previously paid or remitted to City relating
to the Improvements are reversed and required to be repaid to the State of Texas, then the
obligation to pay the Sales Tax Grants shall terminate and Company shall refund all Sales Tax
Grants received by Company from City that relate to the Comptroller Challenge, which refund
shall be paid to City within sixty (60) days of the date that the Comptroller Challenge required
City to repay Sales and Use Tax Receipts.
3.2 Grant Limitations. Under no circumstances shall City obligations hereunder be
deemed to create any debt within the meaning of any constitutional or statutory provision and
this Agreement shall in no way be construed as being secured by ad valorem taxes or financed by
debt. Further, City shall not be obligated to pay any commercial bank, lender or similar
institution for any loan or credit agreement made by Company. None of City's obligations under
this Agreement shall be pledged or otherwise encumbered in favor of any commercial lender
and/or similar financial institution.
3.3 Current Revenue. The Sales Tax Grants made hereunder shall be paid solely from
lawfully available funds. Consequently, notwithstanding any other provision of this Agreement,
City shall have no obligation or liability to pay any Sales Tax Grants except as allowed by law.
City shall not be required to pay any Sales Tax Grants if prohibited under federal or state
legislation or a decision of a court of competent jurisdiction.
3.4 Audit. Company shall grant reasonable access to all paper and electronic records,
books, documents, accounting procedures, practices or any other items relevant to the
performance of this Agreement to City or such other persons or entities designated by City for
the purposes of inspecting, auditing, or copying such books and records, provided that City has
provided ten (10) business days prior notice, and City or its representatives shall not unduly
disrupt Company's operations. All records, books, documents, accounting procedures, practices
or any other items relevant to the performance of this Agreement shall be subject to examination
or audit by City, or such other persons or entities designated by City in accordance with all
applicable state and federal laws, regulations or directives. City shall to the extent allowed by
law maintain the confidentiality of the Companies records, documents and correspondence and
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City of Georgetown and Holt Texas, Ltd. (TM 81039)
not make a copy of any such records and shall return within thirty (30) days any records upon
written request. City may in its discretion request a Sales Tax Report from the State of Texas.
Any such audit shall be conducted via electronic mail, U.S. mail or courier wherever possible,
but where this creates an unreasonable burden the audit may be conducted in Georgetown, Texas
or other mutually agreed location, during normal business hours and at City expense.
3.5 Indemnification THE COMPANY AGREES TO DEFEND, INDEMNIFY AND
HOLD THE CITY, ITS OFFICERS, AGENTS AND EMPLOYEES (COLLECTIVELY FOR
PURPOSE OF THIS SECTION, THE "CITY") HARMLESS FROM AND AGAINST ANY
AND ALL REASONABLE LIABILITIES, DAMAGES, CLAIMS, LAWSUITS,
JUDGMENTS, ATTORNEY FEES, COSTS, EXPENSES, AND DEMANDS BY THE STATE
OF TEXAS THAT THE CITY HAS BEEN PAID ERRONEOUSLY, OVER -PAID OR
INCORRECTLY ALLOCATED SALES AND USE TAX ATTRIBUTED TO THE SALE OF
TAXABLE ITEMS BY THE COMPANY CONSUMMATED AT THE IMPROVEMENTS
FOR ANY SALES TAX REPORTING PERIOD DURING THE TERM OF THIS
AGREEMENT ("CLAIM"). IT BEING THE INTENTION OF THE PARTIES THAT THE
COMPANY SHALL BE RESPONSIBLE FOR THE REPAYMENT OF SALES TAX
GRANTS PAID TO COMPANY HEREIN BY CITY THAT INCLUDES SALES AND USE
TAX RECEIPTS THAT THE STATE OF TEXAS HAS DETERMINED WERE
ERRONEOUSLY, PAID, COLLECTED, DISTRIBUTED, OR ALLOCATED TO THE CITY.
THE INDEMNIFICATION PROVIDED ABOVE SHALL NOT APPLY TO ANY
LIABILITY RESULTING SOLELY FROM THE ACTIONS OR OMISSIONS OF THE CITY.
THE COMPANY SHALL BE OBLIGATED TO PAY REASONABLE ATTORNEY FEES
AND OTHER THIRD -PARTY COSTS INCURRED BY THE CITY TO DEFEND OR
CONTEST A CLAIM (COLLECTIVELY, THE "OTHER COSTS").
THE PROVISIONS OF THIS SECTION SHALL SURVIVE TERMINATION OF THIS
AGREEMENT. THE PROVISIONS OF THIS SECTION ARE SOLELY FOR THE BENEFIT
OF THE PARTIES HERETO AND DO NOT CREATE ANY OBLIGATIONS FROM OR
GRANT ANY CONTRACTUAL OR OTHER RIGHTS TO ANY OTHER PERSON OR
ENTITY, OTHER THAN OBLIGATIONS, IF ANY, THAT ARISE FROM COMPANY TO
CITY TO PERFORM OBLIGATIONS CREATED BY THIS SECTION.
3.6 Infrastructure Improvements.
(a) Airport Road Expansion. City agrees, subject to events of Force Majeure, to
expedite the completion of the Airport Road Expansion to occur on or before twenty-four (24)
months after the date of Commencement of Construction of the Improvements.
(b) Sewer Extension. City intends, subject to the availability of funding and events of
Force Majeure, to expedite the completion of the Sewer Extension.
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City of Georgetown and Holt Texas, Ltd. (TM 81039)
Article IV
Conditions to the Economic Development Grant
The obligation of City to provide the Sales Tax Grants shall be conditioned upon the
continued compliance with and satisfaction of each of the terms and conditions of this
Agreement by Company, and each of the conditions set forth in this Article.
4.1 Good Standing. As a condition of the payment of any Grant, Company shall not
have an uncured breach or default of this Agreement or a Related Agreement.
4.2 Payment Request. Company shall, as a condition precedent to the payment of the
applicable Grant, timely provide City with the applicable Payment Request.
4.3 Planned Unit Development. Company shall have obtained the necessary approval
of zoning for the Premises for a Planned Unit Development (PUD) to ensure the design and
development standards of the City and the needs of Company are achieved for the Premises.
4.4 Project Construction. Company shall, subject to events of Force Majeure, cause
Completion of Construction of the Improvements to occur on or before December 31, 2018.
4.5 Minimum Sales of Taxable Items. As a condition precedent to the payment of
each Sales Tax Grant hereunder, the Company shall have achieved the Minimum Sales of
Taxable Items for the applicable Sales Tax Sales Tax Reporting Period. If the required Minimum
Sale of Taxable Items is not achieved for a given Sales Tax Sales Tax Reporting Period the
Company shall forfeit its right to the Sales Tax Grant for such Sales Tax Sales Tax Reporting
Period, but such failure shall not be considered as an event of default subject to termination and
repayment as provided in Article V hereof.
4.6 Sales Tax Certificate. As a condition to the payment of each Sales Tax Grant
hereunder, City shall have timely received a Sales Tax Certificate for the applicable Sales Tax
Reporting Period for which payment of a Sales Tax Grant is requested. City shall have no duty to
calculate the Sales Tax Receipts or determine the entitlement of Company to any Sales Tax
Grant, or pay any Sales Tax Grant during the term of this Agreement until such time as Company
has provided City a Sales Tax Certificate for the applicable Sales Tax Reporting Period. City
may, but is not required to, provide Company with a form for the Sales Tax Certificate required
herein. At the request of City, Company shall provide such additional documentation as may be
reasonably requested by City to evidence, support and establish the Sales and Use Tax paid and
collected (including Sales and Use Tax paid directly to the State of Texas pursuant to a direct
payment permit) by Company for the sale of Taxable Items by the Company Consummated at
the Improvements and received by City from the State of Texas. The Sales Tax Certificate shall,
at a minimum, contain, include or be accompanied by the following:
(a) A schedule detailing the amount of the Sales and Use Tax collected and paid to
the State of Texas as a result of the sale of Taxable Items by Company
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City of Georgetown and Holt Texas, Ltd. JNI 81039)
Consummated at the Company's place of business at the Improvements for the
applicable Sales Tax Reporting Period;
(b) A copy of all Sales and Use Tax returns and reports, Sales and Use Tax
prepayment returns, direct payment permits and reports, including amended Sales
and Use Tax returns or reports, filed by Company for the applicable Sales Tax
Reporting Period showing the Sales and Use Tax collected (including Sales and
Use Tax paid directly to the State of Texas pursuant to a direct payment
certificate) by Company for the sale of Taxable Items Consummated at the
Improvements;
(c) A copy of all direct payment and self-assessment returns, including amended
returns, filed by Company for the applicable Sales Tax Reporting Period showing
the Sales and Use Tax paid for the sale of Taxable Items by Company
Consummated at the Improvements;
(d) Information concerning any refund or credit received by Company of the Sales
and Use Taxes paid or collected by Company (including any Sales and Use Tax
paid directly to the State of Texas pursuant to a direct payment permit) which has
previously been reported by Company as Sales and Use Tax paid or collected; and
(e) A schedule detailing the total sales of Taxable Items by Company Consummated
at the Improvements for the applicable Sales Tax Reporting Period.
The City agrees, to the extent allowed by law, to maintain the confidentiality of the Sales Tax
Certificate.
4.7 Required Use. During the term of this Agreement, following the Commencement
Date and continuing thereafter until the Expiration Date, the Improvements shall not be used for
any purpose other than the Required Use, and the operation and occupancy of the Improvements
in conformance with the Required Use shall not cease for more than thirty (30) days, except in
connection with and to the extent of an event of Force Majeure.
4.8 Continuous Occupancy. During the term of this Agreement, following the
Commencement Date and continuing thereafter until the Expiration Date, the Company shall
continuously own and occupy the Premises.
4.9 Capital Investment. The Capital Investment shall be at least Twenty Million
Dollars ($20,000,000.00) as of the Commencement Date. Company shall within thirty (30) days
after the Commencement Date provide City with copies of receipts and other records evidencing
the required Capital Investment and such other records as the City may reasonably request.
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City of Georgetown and Holt Texas, Ltd. (TM 81039)
Article V
Termination; Repayment
5.1 Termination. This Agreement terminates on the Expiration Date, and may, prior
to the Expiration Date, be terminated upon any one or more of the following:
(a) by mutual written agreement of the Parties;
(b) upon written notice by City, if Company defaults or breaches any of the terms or
conditions of this Agreement or a Related Agreement, and such default or breach
is not cured within sixty (60) days after written notice thereof;
(c) upon written notice by Company, if City defaults or breaches any of the terms or
conditions of this Agreement and such default or breach is not cured within sixty
(60) days after written notice thereof;
(d) upon written notice by City, if Company suffers an Event of Bankruptcy or
Insolvency;
(e) upon written notice by City, if any Impositions owed to City or the State of Texas
by Company shall become delinquent after sixty (60) days written notice is
delivered pursuant to this Agreement (provided, however, Company retains the
right to timely and properly protest and contest any such Impositions); and
(f) upon written notice by either Party, if any subsequent Federal or State legislation
or any decision of a court of competent jurisdiction declares or renders this
Agreement invalid, illegal or unenforceable.
5.2 Repayment. In the event the Agreement is terminated by City pursuant to Section
5.1(b),(d), (e), and (f), Company shall immediately repay to City an amount equal to amount of
the Sales Tax Grants previously paid by City to Company as of the date of termination, plus
interest at the rate periodically announced by the Wall Street Journal as the prime or base
commercial lending rate, or if the Wall Street Journal shall ever cease to exist or cease to
announce a prime or base lending rate, then at the annual rate of interest from time to time
announced by Citibank, N.A. (or by any other New York money center bank reasonably selected
by City) as its prime or base commercial lending rate, which shall accrue from the date of the
Grant Payment until re -paid.
5.3 Offsets. City may, at its option, offset any amounts due and payable under this
Agreement against any debt (including taxes) lawfully due to City from Company, regardless of
whether the amount due arises pursuant to the terms of this Agreement, a Related Agreement or
otherwise, and regardless of whether or not the debt due City has been reduced to judgment by a
court.
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City of Georgetown and Holt Texas, Ltd. (TM 81039)
Article VI
Miscellaneous
6.1 Binding Agreement. The terms and conditions of this Agreement are binding
upon the successors and permitted assigns of the Parties hereto.
6.2 Limitation on Liability. It is understood and agreed between the Parties that
Company and City, in satisfying the conditions of this Agreement, have acted independently, and
City assumes no responsibilities or liabilities to third parties in connection with these actions.
6.3 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.
6.4 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.
The undersigned officers and/or agents of the Parties hereto are the properly authorized officials
and have the necessary authority to execute this Agreement on behalf of the Parties hereto. City
Manager is authorized to execute any instruments related to this Agreement, including any
amendments to this Agreement.
6.5 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, 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 City, to:
Attn: David Morgan
City Manager
City of Georgetown
113 E. Eighth Street
Georgetown, Texas 78626
If intended for Company, to:
Attn: Tony Shedrock
Vice President General Services
Holt Caterpillar
1956 So. W. W. White Road
San Antonio, Texas 78222
With a copy to:
City Attorney
City of Georgetown
113 E. Eighth Street
Georgetown, Texas 78626
With a copy to:
Michael Puryear
General Counsel
Holt Companies
5665 SE Loop 410
San Antonio, Texas 78222
6.6 Entire Agreement. This Agreement is the entire Agreement between the Parties
with respect to the subject matter covered in this Agreement. There is no other collateral oral or
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City of Georgetown and Holt Texas, Ltd. (TM 81039)
written Agreement between the Parties that in any manner relates to the subject matter of this
Agreement, except as provided in any Exhibits attached hereto.
6.7 Governing Law. The Agreement shall be governed by 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; and exclusive venue for any action concerning
this Agreement shall be in the State District Court of Williamson County, Texas. The Parties
agree to submit to the personal and subject matter jurisdiction of said court.
6.8 Amendment. This Agreement may only be amended by the mutual written
agreement of the Parties.
6.9 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.
6.10 Exhibits. All exhibits to this Agreement are incorporated herein by reference for
all purposes wherever reference is made to the same.
6.11 Successors and Assigns. Except as otherwise permitted herein, this Agreement
may not be assigned without the prior written consent of City, which consent shall not be
unreasonably withheld.
6.12 Recitals. The recitals to this Agreement are incorporated herein.
6.13 Counterparts. This Agreement may be executed in counterparts. Each of the
counterparts shall be deemed an original instrument, but all of the counterparts shall constitute
one and the same instrument.
6.14 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 survive termination.
6.15 Employment of Undocumented Workers. During the term of this Agreement,
Company agrees not to knowingly employ any undocumented workers, and if convicted of a
violation under 8 U.S.C. Section 1324a (f), Company shall repay the Sales Tax Grants provided
herein and any other funds received by Company from City as of the date of such violation
within one hundred twenty (120) days after the date Company, as applicable, is notified by City
of such violation, plus interest at the rate of four percent (4%) compounded annually from the
date of violation until paid. Company is not liable for a violation of this section by a subsidiary,
Page 13 Economic Development Incentive Agreement
City of Georgetown and holt Texas, Ltd. (TM 81039)
affiliate, or franchisees of Company or by a person with whom Company contracts, or any
subsequent owner of the Land or any portion thereof.
6.16 Conditions Precedent. This Agreement is expressly subject to and the obligations
of the Parties are conditioned on the Company closing its purchase of the Land on or before
June 30, 2017.
[Signature Page to Follow]
Page 14 Economic Development Incentive Agreement
City of Georgetown and Holt Texas, Ltd. (TM 81039)
EXECUTED on this � day of l.c,1.1,1 , 2016.
CITY OF GEORGETOWN, TEXAS
BY : /
Dale Ross, Mayor
APPROVED AS TO FORM:
Charlie McNabb, City Attorney
EXECUTED on this L1Y0 day of Feb *, u, 4t r 4 , 2011. qt
HOLT TEXAS, LTD.
By:
e-4A-0��-
toffy Shedrock
Vice President General Services
Page 15 Economic Development Incentive Agreement
City of Georgetown and Holt Texas, Ltd. (TM 81039)
EXHIBIT "A"
STATE OF TEXAS KENNETH GARRETT, ET UX
COUNTY OF WILLIAMSON 75.330 ACRES
All that certain tract or parcel of land containing 75.330 acres
situated in the David Wright League, A-13, in Williamson County,
Texas, also being within the Corporate Limits of the City of
Georgetown, and being that same tract described in a deed from
Nan Evans, Independent Administratrix of the Estate of Albert
Evans, Jr., to Nan Evans dated June 25, 2002 and recorded in
Document No. 2002050652 of the Williamson County Official Public
Records, said tract having been originally described as 84.34
acres in a Contract of Sale and Purchase from the Veterans Land
Hoard of Texas to Albert Evans, Jr. dated February 2, 1962 and
recorded in Volume 449, Page 140 of the Deed Records of
Williamson County, LESS 7.12 acres described in a deed from
Carolyn Garrett, et vir, to Patrick Elliott Properties, Ltd.
dated December 17, 2014 and recorded in Document No. 2014100666
of the Williamson County official Public Records, and LESS 3.926
acres described in a deed from Albert Evans, Jr. to the State of
Texas dated September 1, 1962 and recorded in Volume 454, Pg.
610 of the Dead Records of Williamson County, said 75.330 acre
tract being more particularly described by metes and bounds as
follows:
Beginning at a 1/2" iron rod found at the intersection of the
South line of said (original) 84.34 acre Evans tract with the
curving West right-of-way line of Interstate Highway 35
(variable width right-of-way) for the Southwest corner of said
3.926 acre State of Texas tract (Vol. 454, Pg. 610 W.C.D.R.),
the Northeast corner of the (called -original) 31.88 acre
Georgetown Griffin Family LP tract (Document No. 2007093828 and
Document No. 2005073627 W.C.O.P.R.), the Southeast corner of the
tract herein described and the PUWM OF BEGINNING, said point
having a coordinate value of, North = 10,220,739.19 feet and East
= 3,136,187.93 feet according to the Texas State Plane
Coordinate System - Central Zone - NAD 83(2011), from which a
TXDOT concrete monument found at the P.C.C. of said curve bears
South 25 degrees 01 minutes 58 seconds West, 691.29 feet
(Chord);
Page 16 Exhibit "A" to Economic Development Incentive Agreement
City of Georgetown and Holt Texas, Ltd. (TM 81039)
EXHIBIT "A"
KENNETH GARRETT, ET UX
75.330 ACRES
PAGE 2 OF 4
Thence South 68 degrees 11 minutes 54 seconds West, departing
said Interstate Highway 35 right-of-way, along the common line
between said Evans tract and said Georgetown Griffin Family
tract, at 1,509.31 feet passing a 1/2" iron rod found for the
Southeast corner of a (called) 2.615 acre L.C.R.A. easement
tract (Document No. 9801580 W.C.O.P.R.), at 1,618.69 feet
passing a 1/2" iron rod found for the Southwest corner of said
L.C.R.A. easement tract, and continuing or a total distance of
1,641.47 feet to a 1/2" iron rod sot for the Northwest corner of
said Georgetown Griffin Family tract and the Northeast corner of
the (called -original) 37.21 acre George Goethe tract (Document
No. 2004018911 W.C.O.P.R.), from which a 1/2" iron rod found
(not an original monument) bears South 18 degrees 13 minutes 41
seconds West, 2.67 feet;
Thence South 67 degrees 57 minutes 12 seconds West, 994.24 feet
to a 1/2" iron rod found in the fenced East margin of "Airport
Road" (City maintained public roadway - no record right-of-way
width) for the Northwest corner of said Goethe tract, the
Southwest corner of said (original) 84.34 acre Evans tract and
the Southwest corner of the tract herein described;
Thence North 23 degrees 15 minutes 51 seconds 'Nest, 563.97 feet
along said fenced East margin of "Airport Road" and the west
line of said Evans tract to a 1/2" iron rod found for an angle
point;
Thence North 26 degrees 40 minutes 09 seconds West, 504.49 feet
along said East road margin to a 1/2" iron rod found for the
Southwest corner of said (called) 7.12 acre Patrick Elliott
Properties tract and the Northwest corner of the tract herein
described;
Thence North 68 degrees 45 minutes 24 seconds East, departing
said "Airport Road", 699.98 feet to a 1/2" iron rod found for an
inside corner of said (ariginal) 84.34 acre Evans tract, the
Southeast corner of said 7.12 acre Elliott Properties tract and
the Southwest corner of the (called) 10.56 acre Marbert Moore
tract (Vol. 1675, Pg. 49 W.C.O.P.R.);
Thence North 69 degrees 00 minutes 20 seconds Bast, 436.47 feet
along the North line of said (original) 84.34 acre Evans tract
to a 1/2" iron rod found for the Southeast corner of said 10.56
acre Moore tract and the Southwest corner of the residual of an
original 55.88 acre Marbert Moore LP tract {Document No.
2003016058 W.C.O.P.R.);
Thence North 68 degrees 38 minutes 57 seconds Bast, along the
North line of said (original) 84.34 acre Evans tract, at 908.35
feet passing a 1/2" iron rod found for the Northwest corner of
said (called) 2.615 acre L.C.R.A. easement tract, at 1,017.01
feet passing a 1/2" iron rod found for the Northeast corner of
said L.C.R.A. easement tract, at 1,684.33 feet passing a 1/2"
iron rod found for the Southeast corner of said 55.88 acre Moore
Page 17 Exhibit "A" to Economic Development Incentive Agreement
City of Georgetown and Holt Texas, Ltd. (TM 81039)
EXHIBIT "A"
KENNETH GARRETT, ET UX
75.330 ACRES
PAGE 3 OF 4
LP tract and the Southwest corner, of the (called) 4.82 acre
Marbert Moore LP tract (Document No. 2003016058 W.C.O.P.R.), and
continuing for a total distance of 2,474.85 feet to a point in
the West right-of-way line of Interstate Highway 35 for the
Southeast corner of said (called) 4.82 acre Moore LP tract, the
Northwest corner of said 3.926 acre State of Texas tract and the
Northeast corner of the tract herein described, from which a
TXDOT concrete monument found at an angle point in said West
right-of-way line bears North 17 degrees 29 minutes 20 seconds
East, 550.67 feet and a 1/2" iron pipe found bears North 68
degrees 38 minutes 57 seconds East, 0.21 feet;
Thence South 17 degrees 29 minutes 20 seconds iffiest, 223.93 feet
along said West right-of-way line of Interstate Highway 35 to a
1/2" iron rod set for the P.C. of a curve to the right, from
which a 112" iron rod found bears South 09 degrees 06 minutes 50
seconds West, 2.53 feet;
Thence Southerly, along said Nest right-of-way line of
Interstate Highway 35 with a curve to the right (curve Data:
Radius = 11,409.16 feet; Delta = 05 degrees 48 minutes 28
seconds Rt.; Chord = South 20 degrees 23 minutes 35 seconds
West, 1,156.02 feet) for an arc distance Of 1,156.51 feet to the
PLACE OF BEGXMMG and containing 75.330 acres.
Bearings, distances and coordinates used herein are "GRID" based
on the Texas State Plane Coordinate System - Central Zone - NAD
83(2011). Convergence = +01 degree 22 minutes 23 seconds.
Combined factor = 0.9998662.
STATE OF TEXAS
COUNTY OF WILLIAMSON
1, Kevin Von Minden, a Registered Professional Land Surveyor, do
hereby certify the foregoing field notes to be true and correct
to the 'best of my knowledge and belief.
BEFCO ENGINEERING, INC.
Surveying F_rm No. 10001700
Consulting Engineering 6 Land Surveying
of TSLll1h
Kevin Von Minden, R. P. L. S.
Registration No. 4438
S?,,...NMINDEN
October 18, 2016
�K�pyVO-„"'t"_i
••••':: A458
BEFCO Job No. 16-6729
q z.;'Q•i
1+�
Revised October 20, 2016
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Page 18 Exhibit "A" to Economic Development Incentive Agreement
City of Georgetown and Holt Texas, Ltd. (TM 81039)
EXHIBIT 44A99
Page 19 Exhibit "A" to Economic Development Incentive Agreement
I City of Georgetown and Holt Texas, Ltd. (TM 81039)