Res 026-2016 3/1/2016Resolution No. _26-2016_
Resolution approving the programs and expenditures of the Wichita
Falls Economic Development Corporation (WFEDC) and amending
the budget to include up to $463,000 for the GuideIT Project
WHEREAS, Texas Local Gov’t. Code § 501.073(a) provides “The corporation's
authorizing unit will approve all programs and expenditures of a corporation and
annually review any financial statements of the corporation ”; and,
WHEREAS, on February 18, 2016, the WFEDC approved the Project listed
below and as stated in its agenda.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF WICHITA FALLS, TEXAS, THAT:
1. The Wichita Falls Economic Development Corporation ’s approval and funding
of the following programs and expenditures for the GuideIT Project, as described below
and in said corporation’s agenda, are approved:
Cash for jobs in the amount of $463,000 for creating and retaining
91 jobs in Wichita Falls over a three -year period.
Should GuideIT close the Wich ita Falls operation for any reason,
all incentive payments made in the preceding 24 months will
become due and payable to the WFEDC.
2. The current fiscal year budget of the WFEDC is amended to provide for the
aforementioned expenditures and changes ther eto.
PASSED AND APPROVED this the 1st day of March, 2016.
______________________________
M A Y O R
ATTEST:
____________________
City Clerk
Performance Agreement between the Wichita Falls Economic Development Corporation
and GuideIT, LLC, a Texas limited liability company,
for Incentives to Create Primary Jobs at the Energy Center Building
at 710 Lamar Street in Wichita Falls, Wichita County, Texas
This Performance Agreement (“Agreement”) is entered into on ___________________,
2016, by and between the Wichita Falls Economic Development Corporation (“WFEDC”), a
Texas development corporation authorized under the Texas Development Corporation Act of
1979, Section 4A, (“Act”), and GuideIT, LLC, a Texas limited liability company (“Company”).
Whereas, the Act authorizes the WFEDC to contract with companies whose activities are
defined as primary jobs and classified as 541511, 541512, and 541513 by the North American
Industry Classification System (NAICS); and
Whereas, Company seeks to come to the City of Wichita Falls, Texas (the “City”) in order
to open a business to provide IT management and consulting services at the Energy Center
Building at 710 Lamar Street, Wichita Falls, Texas 76301, and represents that the Company’s
Facility will employ approximately 91 new full-time positions with benefits (the “Project”); and
Whereas, Company estimates it will have (i) leased the Facility, (ii) made a significant
capital investment in equipping the Facility, and (iii) begun creating positions for employing its
new full time work force and filling those positions for the Project by April 1, 2016; and,
Whereas, Company and the WFEDC mutually find that a similar project could be located
in alternative facilities outside the Wichita Falls region, and the Project is expected not to occur in
the local area unless it receives the support and investment from the City and the use of Type A
sales tax proceeds; and,
Now, therefore, be it resolved, subject to the approval of the Wichita Falls City Council
and the execution of subsequent agreements to memorialize and obligate funds provided
hereunder in the form to be provided by the WFEDC, the parties agree as follows:
1. Definitions. As used in this Agreement, the following terms have the following meanings:
“Benefits” mean health insurance, including vision and dental, and a 401(K) plan.
“New Position” means a permanent, full-time, Company, benefit-eligible employee
working at least thirty seven and one-half (37.5) hours per week at the Facility (full-time
equivalent” or “FTE”) who receives full-time wages paid by Company for a period of at least six
(6) months at the Facility. To be a New Position, an employee must represent an increase in the
total, permanent level of emplo yment at the Facility. Positions shall not be considered New
Positions if they replaced occupants of New Positions or full-time positions from an earlier
reduction in the number of full-time employees in Wichita County. New Positions must be
Primary Jobs. New Positions that involve employees working directly for Company will be given
Benefits.
“Payroll Statement ” means (i) a written statement setting forth the monthly, quarterly and
annual (as applicable) payroll at the Facility and the amount of wages paid to each full-time
position filled by an employee at the Facility, and (ii) such other documentation as reasonably
determined to be necessary by the WFEDC to verify the number of New Positions created and
continuing financial condition of the Company. Such other documentation that Company may be
required to provide to the WFEDC shall include compiled income and expense statements for
each quarter, balance sheets effective at the end of each quarter, and copies of the Company’s tax
returns, income statements, state unemployment tax submissions, and federal unemployment tax
submissions. The aforementioned documents may be redacted, modified, or summarized by
Company as reasonably necessary to protect the privacy of individuals and prevent the disclosure
of the Company’s confidential and/or proprietary information.
“Primary Job” means a primary job as defined in Texas Local Gov’t Code 501.002.
2. Incentives:
2.1. Cash for Jobs - WFEDC’s Total Maximum Obligation: $463,000
2.1.1. Payment for New Positions - Subject to the WFEDC’s Total Maximum
Obligation, the WFEDC will pay Company cash for each New Position employed by
Company at Facility as illustrated by the table shown below. New Positions eligible to
receive cash for jobs payment must be in existence for a minimum of six (6) months before
payment will be rendered.
Wages to be Paid
Incentive Per
Position
Jobs
Created1 Incentive
$11.50 to $12.49 per hour $3,000 0 $ -
$12.50 to $13.49 per hour $3,500 36 $ 126,000
$13.50 to $14.49 per hour $4,000 0 $ -
$14.50 to $15.49 per hour $5,000 18 $ 90,000
$15.50 to $16.49 per hour $5,500 0 $ -
$16.50 to $$18.00 per hour $6,000 12 $ 72,000
$18.01+ per hour $7,000 25 $ 175,000
91 $ 463,000
2.1.2. Each New Position, FTE, must be filled by one or more employees
continuously during the time period for which funds are requested.
1 The number of positions or full-time employees (“FTE”) in a specific wage category may vary materially
as a result of operational needs and market fluctuations. The corresponding total incentive would vary
accordingly; provided, however, in no event shall the cumulative incentive exceed $463,000.
2.1.3. This incentive will only be available for New Positions, FTE’s, that are
initially filled by Company at the Facility at least six (6) months prior to April 1, 2019.
Should Company not meet the full value of this incentive within the stated time frame,
Company has the option to petition the WFEDC for additional time.
2.1.4. These funds received pursuant to this Section may be used for any business
purpose in the Facility. Payments will be made after a presentation by Company has been
made to the WFEDC evidencing the New Positions, FTE’s, have been in place for at least
6 months. Applications for payment may only be made once every 6 months following
start-up. The WFEDC intends to only pay for each New Position, FTE, one time. In no
event will a position be reimbursable if it merely replaced a position that was earlier
eliminated. Payment obligations will be subject to the obligation of Company to provide
Payroll Statements to the WFEDC as required by the WFEDC.
2.1.5. The Cash for Jobs incentive available pursuant to this agreement shall not
exceed the amount of the WFEDC’s Total Maximum Obligation or $463,000 as stated
above.
3. General Conditions:
3.1. Maintenance of Operations. The WFEDC intends for any incentives to be used
to ensure that Company continues to operate in the City. In addition to other
repayment provisions herein, if Company reduces its employment by more than
50% in Facility or ceases operations in the City prior to twenty-four (24) months
from the date of receipt of any incentives payment, Company shall, within sixty
(60) days, repay the WFEDC the full amount of the applicable incentive paid by
the WFEDC to Company.
3.2. Use of Proceeds. Company agrees to use all of the funds received from WFEDC
pursuant to this Agreement for (or as reimbursement for) the “costs” (as that term
is defined in Tex. Loc. Gov’t Code Ann. § 501.152, as of the date of this
Agreement) of this project related to the creation or retention of primary jobs as
provided by Tex. Loc. Gov’t Code Ann. § 501.101.
3.3. Compliance with Tex. Gov’t Code § 2264.001. In accordance with Tex. Gov’t
Code §§ 2264.001 through 2264.101, Company does not and will not knowingly
employ an undocumented worker during the term of this Agreement in violation of
Texas or federal law. If, during the term of this Agreement, Company or a branch,
division, or department of Company is convicted of a violation under 8 U.S.C.
Section 1324a(f), Company shall repay the entire amount of the public subsidy
with the addition of interest at the rate of 5% simple annual interest as required by
Tex. Gov’t Code § 2264.053, not later than the 120th day after the date the
WFEDC notifies the business of the violation.
3.4. Compliance with Tex. Gov’t Code §§ 501.156 through 501.158. The parties
agree this Agreement complies with Tex. Loc. Gov’t Code §§ 501.156 through
501.158, by: (1) being intended to benefit the WFEDC, (2) providing that default
on this Agreement is enforceable as provided by Tex. Loc. Gov’t Code § 501.157,
in addition to retaining other enforcement remedies provided by Texas law, and (3)
providing a schedule as stated in this Agreement for additional jobs and capital
investment as consideration for direct incentives provided herein and providing for
repayment obligations.
4. No Waiver. No delay or omission by WFEDC in exercising any right that may accrue to it
pursuant to this Agreement will operate as a waiver of any other WFEDC right t hat may
accrue pursuant hereto.
5. Disputes. In the event of a dispute, (1) neither party will be entitled to attorney's fees
incurred or paid in the enforcement of any provision of this Agreement, regardless of any
provision authorizing attorney’s fees in Texas Local Gov’t Code § 271.153(a)(3) or other
statute, and (2) sole venue for any action based on this Agreement or promise ancillary
thereto shall be in Wichita County, Texas.
6. The WFEDC shall not be the guarantor of Company’s success, and shall not be liable for
any failure to provide incentives not specifically set forth in this Agreement. Any
representations by WFEDC, the City, or the Wichita Falls Chamber of Commerce and
Industry (“Chamber”) concerning the availability of incentives hereunder are subject to
the approval of the governing bodies entrusted by law to issue said incentives. Company
certifies the truth of the representations by its representatives to the WFEDC, the City,
and the Chamber. Provided the WFEDC acts in good faith in fulfilling their respective
obligations under this Agreement, Company agrees to release the WFEDC and the from
any and all claims, suits, and actions for damages, costs, and expenses to persons or
property (collectively “Claims”) that may arise out of, or be occasioned by or from any
act, error or omission of the WFEDC in the execution or performance of this Agreement.
The aforementioned release does not encompass Claims attributable to the willful
misconduct of the WFEDC.
7. Term. The Term of this Agreement shall be from its execution until the later of April 1,
2019, or one (1) year after the WFEDC’s payment to the Company of the final incentive
payment described in this Agreement.
8. Default. During the Term of this Agreement, Company shall promptly notify WFEDC if
Company learns of the occurrence of: (i) any event which constitutes an Event of Default;
or (ii) any legal, judicial or regulatory proceedings affecting Company and/or the Facility
in which the amount involved is in excess of $50,000 and is not covered by insurance.
9. Indemnity. Company shall indemnify, save and hold harmless WFEDC, the Chamber and
the City and their respective officers, directors, employees, representatives and agents
(collectively, the "Indemnified Parties") from and against: (i) any and all claims, demands,
actions, or causes of action that are asserted against any Indemnified Party by any person
or entity if the claim, demand, action or cause of action directly or indirectly relates to a
claim, demand, action, or cause of action attr ibutable to the acts or omissions of
Company, any affiliate of Company or any officer, employee or partner of Company; (ii)
any and all claims, demands, actions or causes of action that are asserted against any
Indemnified Party if the claim, demand, actio n or cause of action directly or indirectly
relates to funds received by Company pursuant to this agreement, Company’s use of the
proceeds of funds received pursuant to this agreement or the relationship of Company and
WFEDC pursuant to this agreement; and (iii) any and all liabilities, losses, costs or
expenses (including attorneys' fees and disbursements) that any Indemnified Party suffers
or incurs as a result of any of the foregoing; provided, however, that Company shall have
no obligation pursuant to t his provision to any Indemnified Party with respect to any of
the foregoing arising out of the negligence or willful misconduct of such Indemnified
Party. To the extent necessary to provide the Indemnified Parties full protection in
accordance with the terms of this Section, the indemnity provisions set forth herein shall
survive the termination of this Agreement for a period of two (2) years.
10. Events of Default. Each of the following events shall constitute an Event of Default under
this Agreement:
10.1. The failure of Company to pay any payment due to the WFEDC pursuant to this
Agreement or any other agreement between WFEDC and the Company when due
and the continuation of such failure for a period of 10 days after written notice
thereof from WFEDC; or
10.2. If any representation or warranty by Company set forth herein or in any certificate,
report, request or other document furnished pursuant to this Agreement is
incorrect in any material adverse respect as of the date when made; or
10.3. The failure of Company in its due observance and performance of any term,
covenant or condition set forth in this Agreement or any other agreement between
WFEDC and the Company, and the continuation of such failure for a period of
thirty (30) days after written notice thereof from WFEDC; provided such default
cannot reasonably be cured within such thirty (30) day period and Company shall
have commenced to cure such default within such thirty (30) day period and
thereafter diligently and expeditiously proceeds to cure such the same, such thirty
(30) day period shall be extended for so long as it shall require Company in the
exercise of due diligence to cure such default, being understood that no such
extension shall be for more than one hundred and twenty (120) day (subject to
WFEDC’s furt her extension, in WFEDC’s sole discretion) such period being
hereinafter referred to as the “Notice Period”; or
10.4. If an involuntary case or other proceeding shall be commenced against Company
that seeks liquidation, reorganization or other relief pursuant t o any bankruptcy,
insolvency or other similar law now or hereafter in effect or seeking the
appointment of a trustee, receiver, liquidator, custodian or other similar official of
it or them or any substantial portion of its or their property, and if such involuntary
case or other proceeding shall remain undismissed or unstayed for a period of sixty
(60) days; or if a final non-appealable order for relief against Company shall be
entered in any such case under the Federal Bankruptcy Code; or
10.5. If Company shall commence a voluntary case or other proceeding seeking
liquidation, reorganization or other relief under any bankruptcy, insolvency or
other similar law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian o r other similar official or shall consent to any such
relief or to the appointment of or taking possession by any such official in an
involuntary case or other proceeding commenced against it, or if Company shall
make a general assignment for the benefit o f creditors or shall fail generally or shall
admit in writing its inability to pay its debts as they become due; or
10.6. If Company shall fail within thirty (30) days to pay, bond or otherwise discharge
any judgment or order for the payment of money in excess of $50,000 that is not
otherwise being satisfied in accordance with its terms and is not stayed on appeal
or otherwise being appropriately contested in good faith; or
10.7. If there shall be a dissolution of Company or a cessation of business operations at
the Facility; or
10.8. If the Company is determined by WFEDC to be continually or repeatedly violating
a City ordinance or state law or regulation related to the operation of the Facility,
after thirty (30) days written notice of such violation.
11. Remedies. Following the occurrence of any Event of Default during the Term of this
Agreement, the obligations of WFEDC to the Company shall terminate and the entire
amount of the funds provided by WFEDC to the Company within one year prior to the
default shall become immediately due and payable. Upon the occurrence of any Event of
Default, WFEDC may by written notice to Company provide Company with 30 days to
cure the Event of Default, and if Company fails to cure the Event of Default within the 30
day period: (i) declare the entire amount of any obligation to the WFEDC then
outstanding, together with interest (if any) then accrued thereon, to be immediately due
and payable to the WFEDC, and/or (ii) terminate all obligations of WFEDC to the
Company unless and until WFEDC shall reinstate the same in writing; and/or (iii) reduce
any claim to judgment; and/or (iv) exercise any and all rights and remedies allowed by law
or equity .
12. Further Approvals Required. Any representations by WFEDC, the City or the Chamber
(or any representatives of any of the foregoing) concerning the availability of incentives
hereunder are subject to the approval of the governing bodies entrusted by law to issue
said incentives.
13. This Agreement and said attachments, if any, may only be amended, supplemented,
modified or canceled by a duly executed written instrument agreed to by both parties.
14. Company’s maximum aggregate liability under this Agreement to WFEDC, the City, the
Chamber, any third party, and/or any Indemnified Party identified in Section 9 shall not
exceed the amount of funds provided to Company pursuant to this Agreement.
15. Notices. All notices or other written communications hereunder shall be deemed to have
been properly given (a) upon delivery, if delivered in person or by facsimile t ransmission
with receipt acknowledged by the recipient thereof and confirmed by telephone by sender,
(b) one (1) Business Day after having been deposited for overnight delivery with any
reputable overnight courier service, or (c) three (3) Business Days after having been
deposited in any post office or mail depository regularly maintained by the U.S. Postal
Service and sent by registered or certified mail, postage prepaid, return receipt requested,
addressed as follows:
If to Company: Chuck Lyles, CEO
GuideIT
101 E Park Boulevard, Suite 951
Plano, Texas 75074
With a copy to:
WFEDC: Wichita Falls Economic Development Corporation
City of Wichita Falls, acting on behalf of the Wichita Falls
Economic Development Corporation
P.O. Box 1431
Wichita Falls, TX 76307
Attention: Chief Financial Officer
With a copy to:
or addressed as such party may from time to time designate by written notice to the other parties.
“Business Day” shall mean any day other than a Saturday, Sunday or any other day on
which commercial banks in the State of Texas are not open for business.
Either party by notice to the other may designate additional or different addresses for
subsequent notices or communications.
WICHITA FALLS ECONOMIC DEVELOPMENT CORPORATION
By: _____________________________
Dick Bundy, President
GUIDEIT, LLC
By: ______________________________
Chuck Lyles, CEO