2007R20 - Enterprise Park Development AgreementRESOLUTION NO. 07 —R -20
A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF SCHERTZ,
TEXAS AUTHORIZING AN ENTERPRISE PARK DEVELOPMENT
AGREEMENT WITH CERTAIN OTHER PARTIES; AND OTHER MATTERS
IN CONNECTION THEREWITH
WHEREAS, the City Council (the "City Council") of the City of Schertz, Texas (the "City ") has
determined that it is in the best interest of the City to enter into an Enterprise Park Development
Agreement with the Schertz Economic Development Corporation and three developers, Mid Cities 35
Partners Ltd., Schertz PT Industrial Associates Land LP, and TC III Land LP, relating to the development
of an expansion of the Tri- County Business Park in the City; now, therefore,
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS THAT:
Section 1. The City Council hereby authorizes the City Manager to execute and deliver an
Enterprise Park Development Agreement with the parties described therein in substantially the form
attached hereto as Exhibit A.
Section 2. The recitals contained in the preamble hereof are hereby found to be true, and
such recitals are hereby made a part of this Resolution for all purposes and are adopted as a part of the
judgment and findings of the Council.
Section 3. All resolutions, or parts thereof, which are in conflict or inconsistent with any
provision of this Resolution are hereby repealed to the extent of such conflict, and the provisions of this
Resolution shall be and remain controlling as to the matters resolved herein.
Section 4. This Resolution shall be construed and enforced in accordance with the laws of
the State of Texas and the United States of America.
Section S. If any provision of this Resolution or the application thereof to any person or
circumstance shall be held to be invalid, the remainder of this Resolution and the application of such
provision to other persons and circumstances shall nevertheless be valid, and the Council hereby declares
that this Resolution would have been enacted without such invalid provision.
Section 6. It is officially found, determined, and declared that the meeting at which this
Resolution is adopted was open to the public and public notice of the time, place, and subject matter of
the public business to be considered at such meeting, including this Resolution, was given, all as required
by Chapter 551, as amended, Texas Government Code.
Section 7. This Resolution shall be in force and effect from and after its final passage, and it
is so resolved.
PASSED AND ADOPTED, this 22nd day of May, 2007.
A EST:
y To r, City Secretary
20189907.2
CITY OF SCHERTZ, TEXAS
( 21, � � r_�
P, Fowler, Mayor Pro Tern
EXHIBIT A
ENTERPRISE PARK DEVELOPMENT AGREEMENT
See attached
20189907.2 A -1
ENTERPRISE PARK
DEVELOPMENT AGREEMENT
This DEVELOPMENT AGREEMENT (this "Agreement") dated the Effective Date (as
defined in Section 18 below) is among Mid Cities 35 Partners Ltd. ( "Mid- Cities "), Schertz PT
Industrial Associates Land Limited Partnership ("Schertz PT "), and TC III Land, LP
( "TC III ") (Mid- Cities, Schertz PT, and TC III, together, the "Developers "), Schertz Economic
Development Corporation (the "4B Corporation "), and the City of Schertz, Texas (the "City")
(the Developers, the 4B Corporation, and the City, together, the 'Parties').
WITNESSETH:
WHEREAS, by Ordinance No. 06 -T -44, the City has established a program (the "City
Program ") under Chapter 380, Texas Local Government Code, as amended, to promote
economic development and to stimulate business and commercial activity in the City; and
WHEREAS, the 4B Corporation has been established by the City to promote economic
development in the City by sponsoring and funding economic development projects; and
WHEREAS, the Parties propose to cooperate in a regional drainage and related roads
project established by the City under the City Program and described on Exhibit A (the
"Project") serving and directly benefiting approximately 392 acres owned by the Developers
generally adjacent to and south of the Tri- County Business Park (the "Schertz Industrial Park"),
as more particularly described on Exhibit B (the "Project Area'); and
WHEREAS, the Parties are entering into this Agreement for the purpose of setting forth
their respective obligations with respect to the Project.
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS AND
AGREEMENTS CONTAINED HEREIN, THE PARTIES AGREE AS FOLLOWS:
Section 1. Anticipated Project Costs and Project Contributions.
(a) The anticipated cost of the design and construction of the project, as of the
Effective Date, is agreed to be approximately $2,800,000, as described in detail on
Exhibit C.
(b) The three Developers and the 4B Corporation will each share in the cost of
the design and construction of the Project. The Developers will contribute an aggregate
maximum of $1,900,000, calculated as approximately $4,847 per acre for the full 392 -
acre Project area. The Developers will bear their pro rata share of such amount based on
their acreage benefiting from the Project, which is agreed by all Parties to be as follows:
(i) Mid - Cities, 209 acres (a maximum contribution of $1,013,011); (ii) Schertz PT, 126
acres (a maximum. contribution of $610,714); and (iii) TC III, 57 acres (a maximum
contribution of $276,275). The 4B Corporation in all events will contribute $900,000.
Should the remaining balance of the Budgeted Costs (as defined in Section 3(c) below)
for the Project exceed $2,800,000, the Budgeted Costs in excess of $2,800,000 will be
borne by the individual Developers with respect to their individual improvements as they
20179207.6
pertain to the Project, including, but not limited to, any previous separate development
agreements between or among the Developers. In addition, to the extent that on -site
drainage improvements on a Developer's property are not included in the Project but are,
as reasonably determined by Ford Engineering, Inc. (the "City's Engineer "), necessary
for the completion and proper operation of the Project, such Developer shall be
responsible for the design (subject to the approval of the City's Engineer), funding, and
construction of such improvements. The amount to be provided by each of the
Developers and the 4B Corporation is its "Funding Obligation ".
Section 2. Project Design and Fundin g Obli ation Credits. The City will design, at
its expense through the City's Engineer, in consultation with the Developers' engineers, the
major drainage channel of the Project and the modification of a portion of Lookout Road (to be
renamed Enterprise Drive or a variation thereof approved by the City and 911). The Developers
will design, at their expense, the remaining drainage and roadway elements of the Project, based
on engineering parameters approved by the City's Engineer. The Developers' engineers will
provide detailed engineering/construction drawings to the City's Engineer, who will review the
proposed plans. The Developers' engineers will modify their plans as required by the City's
Engineer (the "Final Construction Plans'). All of the Parties agree that the Project will be
designed so that, under current applicable federal, state, and local laws and regulations, no
detention of storm water run off will be required. The City's Engineer's fees will be a cost borne
by the City, and the Developers' engineers' fees will be a cost borne by the respective
Developer. The City's costs for the services of the City's Engineer will be a credit on the
$900,000 to be contributed by the 4B Corporation. Each Developer's engineer's costs will be a
credit on the amount to be contributed by such Developer.
Section 3. Funding Procedure and Project Control.
(a) When the Final Construction Plans have been approved by the City's
Engineer and the Developers' engineers, the City's Engineer will provide all Parties with
a written estimate of the anticipated lowest and best bid for the cost of construction of the
Project, which shall include a contingency amount equal to five percent (5 %) of the
estimated street and drainage construction costs (the "Preliminary Bid Amount "). If the
Interlocal Agreement described in Section 3(g) has been fully executed and delivered, the
Developers and the 4B Corporation will within fifteen (15) days after receiving notice of
the Preliminary Bid Amount contribute their respective Funding Obligation share of the
Preliminary Bid Amount (showing engineers' fees as a credit as permitted under
Section 2 above). Amounts contributed by the Developers and the 4B Corporation will
be held in a segregated, interest - bearing account (the "Escrow Account ") of the City in
the name of the City at the City's depository bank, JPMorgan Chase Bank, Schertz,
Texas (the `Bank "), for disbursement on the order of the City and the Construction
Manager (defined in Section 3(d) below), for approved Budgeted Costs as defined ill
Section 3(c). Such deposited amount shall be invested as directed by the City in
permissible City investments. The City will direct the Bank to provide monthly Escrow
Account statements to all Parties.
(b) The City wilt request bids for construction of the Project based upon the
Final Construction Plans and utilizing its standard public bidding procedures. The City
may request alternate bids for portions of the Project. The City will solicit bids promptly
20179287.6 2
(but not more than ten (10) days) after all the deposits to the Escrow Account described
in Section 3(a) above have been received by the Bank.
(c) At bid opening, the City will consult with the Developers and the 4B
Corporation, but the City will select the lowest and best bid (or may reject all bids) in its
sole discretion. If the City rejects all bids, all amounts in the Escrow Account will be
promptly refunded to the Developers and the 4B Corporation. Interest earned on
deposited amounts will be disbursed in proportion to each Party's deposit to the Escrow
Account. If the accepted bid is less than the total amount deposited to the Escrow
Account, the excess will be refunded to the Developers and the 4B Corporation in
proportion to each Party's deposit to the Escrow Account. If the accepted bid is more
than the total amount deposited to the Escrow Account but not in excess of $2,800,000,
the Developers will, within five (5) business days after written notice from the City,
deposit the difference to the Escrow Account, under the parameters set forth in Section 1
above. If the proposed bid to be accepted exceeds $2,800,000, the City, with the written
agreement of the Developers, will modify the bid Project description or specifications
(which modification shall be permitted by the terms of the bid request) so that the scope
of the Project subject to the bid, including an agreed contingency amount, does not
exceed a total cost of $2,800,000. The additional costs to complete the Project as
described prior to such modification shall be paid by the Developers as set forth in
Section 1(b) above. The accepted bid amount for the Project is the Project's "Budgeted
Cost ".
(d) Nord Engineering, Inc. will serve as Construction Manager for the Project.
(e) Schertz PT agrees that, assuming the Project is to be funded and
constructed as described herein, it is responsible for the design (subject to the approval of
the City's Engineer), funding, and construction of the extension of Associates Drive (to
be renamed Lookout Road) to connect with Enterprise Drive. Schertz PT hereby
commits to complete such construction no later than 120 days after completion of
Enterprise Drive.
(f) If no construction of any part of the Project has commenced by sixty (60)
days after the Effective Date of this Agreement, any Developer may begin construction
(or cause construction to begin) of any portion of the Project within the scope of the
approved Project design as it directly impacts that Developer's property. A Developer
that. undertakes or causes any such construction of a portion of the Project shall be
reimbursed an amount equal to the lesser of (i) such Developer's actual cost, or (ii) the
unit cost for such portion of the Project as reasonably determined by the Construction
Manager. Such Developer shall be entitled to such reimbursement from the Escrow
Account if (A) the Escrow has been fully funded, (B) the Developer's portion of the
Project as so constructed is complete, and (C) the Construction Manager has issued a
written certificate of completion and acceptance.
(g) The Parties agree that a portion of a related and essential downstream
drainage project is within the boundaries of the City of Selma ( "Selma "). The City and
Selma expect to enter into an Interlocal Agreement in substantially the form attached
hereto as Exhibit D to provide for completion of such project. The costs of such project
20174207.6
shalt be allocated as set forth in the Interlocal Agreement, to which the Developers
hereby agree. The City's costs, as described in such Interlocal Agreement, will be a
credit on the Funding Obligation of the 4B Corporation.
Section 4. Project Schedule. A preliminary time schedule for construction of the
Project, with a goal of completing construction of the Project as quickly as is reasonably
possible, has been prepared by the Construction Manager and is attached as Exhibit E. The
Construction Manager will provide periodic (a) appropriate modifications to the construction
time schedule and (b) updates on the status of Project construction and will promptly notify all of
the Parties of any changes in the Project construction schedule and copies of any proposed
change orders. The Construction Manager will also provide periodic on -site reviews of
construction progress for all Parties.
Section 5. Grants. The City will investigate grants that may be available to pay or
reimburse portions of the costs of the Project. To the extent that any such grants are received,
such grant funds will be used to pay construction costs or, if permitted by the terms of such
grant, to reimburse the Developers and the 4B Corporation for expenditures previously made in
proportion to such Parties' respective financial contributions to the cost of the Project, except as
may otherwise be required by the terms of a particular grant.
Section 6. Proiect Reimbursement Pro ram. The City will investigate its ability to
impose a Project reimbursement program upon property owners (other than the Developers)
benefited by the Project to require their financial participation in the cost of the Project when and
as they develop their properties benefiting from the Project. If such reimbursement program is
permissible, until all of the 4B Corporation and the Developers are repaid in full, fifty percent
(50 1/o) of each reimbursement payment will go to the 4B Corporation and the balance of each
such payment shall be paid to the Developers on a pro rata basis.
Section 7. City Pro am Determination. The City has determined, and hereby agrees
with all of the other Parties, that the intent and terms of this Agreement, and the obligations of
the City hereunder, are in accordance with and in furtherance of the City Program.
Section 8. Representations and Covenants.
(a) Each of the Developers hereby represents and covenants as follows:
(i) It is a duly authorized and existing limited partnership, properly
operating under the law of the state of its organization, authorized to transact
business in the State of Texas and in good standing under the laws of the State of
Texas.
(ii) It has taken all necessary partnership action to authorize its
execution and delivery of this Agreement and its performance of its obligations
hereunder.
(iii) It has available to it, without restriction, all funds required to be
expended by it under this Agreement.
20179207.6 4
(iv) It will use its best efforts to complete all of its obligations under
this Agreement when and as required.
(v) It has not entered into, and will not enter into, any agreement
(written or otherwise) with any person or entity that would prohibit or limit it
from performing all of its obligations under this Agreement.
(vi) There is no litigation, claim, or proceeding pending of which it has
received notice, nor to its knowledge is there any litigation, claim, or proceeding
threatened that would prohibit or limit it from performing all of its obligations
under this Agreement.
(vii) It will not dissolve or take any action in furtherance thereof so long
as it has not performed all of its obligations under this Agreement.
(viii) It will not dispose of or transfer any of its assets to a person or
entity not a party to this Agreement if such disposition or transfer would
materially and adversely affect its ability to perform all of its obligations under
this Agreement.
(ix) It covenants and agrees that any portion of the Project designed by
and built by or for it will at all times comply with all applicable City building
codes and ordinances, including, but not limited to, flood, subdivision, building,
electrical, plumbing, fire and life safety codes and ordinances in effect from time
to time.
(x) It agrees to pay all ad valorem taxes on its real and personal
property within the City in a timely manner, whether assessed by the City or any
other tax jurisdiction, subject to its general right as a taxpayer to properly contest
any such tax.
(b) The 4B Corporation hereby represents and covenants as follows:
(i) The 4B Corporation is a duly authorized and existing special
purpose non -profit corporation, created and operating and in good standing under
the laws of the State of Texas.
(ii) The 413 Corporation has taken all necessary corporate action to
authorize its execution and delivery of this Agreement and its performance of its
obligations hereunder.
(iii) The 4B Corporation has available to it, without restriction, all
funds required to be expended by it under this Agreement.
(iv) The 4B Corporation will use its best efforts to complete all of its
obligations under this Agreement when and as required.
(v) The 413 Corporation has not entered into, and will not enter into,
any agreement (written or otherwise) with any person or entity that would prohibit
20179207.6
or limit 4B Corporation from performing all of its obligations under this
Agreement.
(vi) There is no litigation, claim, or proceeding pending of which the
4B Corporation has received notice, nor to the knowledge of the 4B Corporation
is there any litigation, claim, or proceeding threatened that would prohibit or limit
the 4B Corporation from performing all of its obligations under this Agreement.
(vii) The 4B Corporation will not dissolve or take any action in
furtherance thereof so long as it has not performed all of its obligations under this
Agreement.
(viii) The 4B Corporation will not dispose of or transfer any of its assets
to a person or entity not a party to this Agreement if such disposition or transfer
would adversely affect its ability to perform all of its obligations under this
Agreement.
(c) The City hereby represents and covenants as follows:
(i) The City is a duly authorized and existing Texas municipal
corporation and home rule city, created and existing under the laws of the State of
Texas.
(ii) The City has taken all necessary action to create the City Program
and to authorize its execution and delivery of this Agreement and its performance
of its obligations hereunder.
(iii) The City will use its best efforts to complete all of its obligations
under this Agreement when and as required.
(iv) The City has not entered into, and will not enter into, any
agreement (written or otherwise) with any person or entity that would prohibit or
limit the City from performing all of its obligations under this Agreement.
(v) There is no litigation, claim, or proceeding pending of which the
City has received notice, nor to the knowledge of the City is there any litigation,
claim, or proceeding threatened that would prohibit or limit the City from
performing all of its obligations under this Agreement.
(vi) The City will not dissolve or take any action in furtherance thereof
so long as it has not performed all of its obligations under this Agreement.
(vii) The City will not dispose of or transfer any of its assets to a person
or entity not a party to this Agreement if such disposition or transfer would
adversely affect its ability to perform all of its obligations under this Agreement.
20179207.4 6
Section 9. , Termination.
(a) If any Developer refuses or neglects to comply with any of the terms of
this Agreement or, if any representation made by any Developer in this Agreement is
false or misleading in any material respect and such refusal or default is not cured within
sixty (60) days after written notice, this Agreement may be terminated by the City.
(b) In the event any Developer allows ad valorem taxes on its property in the
City to become delinquent and fails to timely and properly follow the legal procedures for
their protest and/or contest, this Agreement may be terminated by the City.
(c) In the event the City determines that any Developer is in default under this
Agreement, the City will notify all Developers in writing at the address stated in
Section 11 of this Agreement, and, if the defaults specified with reasonable particularity
in such notice are not cured within sixty (60) days from the date of such notice, then this
Agreement may be terminated by the City.
(d) If the Interlocal Agreement between the City and Selma is not signed
within sixty (60) days after the Effective Date of this Agreement, the 4B Corporation or
any Developer may, by written notice to all other Parties, declare this Agreement to be
terminated.
Section 10. Representatives. Each Party will designate a representative and will notify
all other Parties in writing of such designation and any changes in such designations. Each
Party's representative will be the contact person for such Party to facilitate completion of its
obligations under this Agreement. The initial designated representatives are identified in
Section 11.
Section 11. Notices. All notices and requests for information or action under this
Agreement shall be given in writing and delivered by personal delivery, electronic delivery,
registered mail, or overnight delivery service to the following addresses:
If to Mid - Cities: Trinity Asset Development Company
1020 NE Loop 410, Suite 700
San Antonio, TX 78209
Attention: Robert Hunt (designated representative)
Fax number: 2101824 -7656
e -mail address: robert@embreydc.com
with a copy to: Winstead PC
700 N. Saint Mary's, Suite 1900
San Antonio, TX 8205
Attention: Paul Martin
Fax number: 2101277 -6810
e -mail address: pmartin @winstead.com
20179207.5 7
If to Schertz PT: Trammell Crow Company
601 N.W. Loop 410, Suite 350
San Antonio, TX 78216
Attention: Steven Donnelly
(designated representative)
Fax number: (210) 223 -9647
e -mail address: steven.donnelly @cbre.com
with a copy to: Stumpf Craddock Massey & Farrimond, a
Professional Corporation
The Weston Centre
112 East Pecan, Suite 700
San Antonio, TX 78205
Attention: Scott Farrimond
Fax number: (210) 231 -0004
email address: sfarrimond @scmfpc.com
If to TC III: Cross & Company
100 Sandau, Suite 300
San Antonio, TX 78216
Attention. David Adelman
(designated representative)
Fax number: 210/568 -4734
e -mail address: dadelman @cross - co.com
If to the 4B Corporation: Schertz Economic Development Corporation
1400 Schertz Parkway
Schertz, Texas 78154
Attention: Director of Economic Development
(designated representative)
Fax number: (210) 659 -3204
e -mail address: swhite @ci.schertz.tx.us
with a copy to: Michael Spain
Fulbright & Jaworski L.L.P.
300 Convent Street, Suite 2200
San Antonio, Texas 78205
Fax number: (210) 270 -7205
e -mail address: mspain @fuibright.com
If to the City: City of Schertz, Texas
1400 Schertz Parkway
Schertz, Texas 78154
Attention: Don Taylor, City Manager
(designated representative)
Fax number: (210) 659 -3204
e -mail address: detaylor @ci.schertz.tx.us
20179207.6 8
with a copy to: Michael Spain
Fulbright & Jaworski L.L.P.
300 Convent Street, Suite 2200
San Antonio, Texas 75205
Fax number: (210) 270 -7205
e -mail address: mspain @fulbright.com
Section 12. No Partnership or Joint Venture. Nothing contained in this Agreement
shall be construed to create or imply a partnership or joint venture between or among the Parties.
Section 13. Other Agreements. This Agreement supercedes all other agreements
between or among the Parties as to the subject matter hereof
Section 14. Amendments. This Agreement may not be amended except in writing and
signed or acknowledged by all Parties.
Section 15. Severability. If any provision of this Agreement is determined by a court
of competent jurisdiction to be unconstitutional, illegal, or otherwise unenforceable, and the
Parties agree that such determination does not cause the remainder if this Agreement to fail to
accomplish the goals of the Parties, the remainder of this Agreement shall continue in effect.
Section 16. Counterparts. This Agreement may be executed in multiple counterparts
but will be considered as a single instrument when it has been finally executed by all of the
Parties.
Section 17. Governing Law and Venue. This Agreement is governed by the laws of
the State of Texas, and the Parties agree that venue shall be in the courts of Guadalupe County,
Texas.
Section 18. Effective Date and Term. This Agreement shall be effective on the date
on which this Agreement has been signed below by all Parties (the "Effective Date "), until (a) all
actions required of all of the Parties have been completed or (b) this Agreement has been
terminated pursuant to Section 9; however, if the City is successful in establishing a
reimbursement program as described in Section 6, this Agreement shall remain in effect for so
long as reimbursements could be received by the 4B Corporation and the Developers.
[Remainder of page intentionally left blank.]
20174207.6 9
IN WITNESS WHEREOF, this Agreement is hereby approved by the Parties, as of the
Effective Date.
CITY OF SCHERTZ, TEXAS
Un
City Manager
Date: 2007
SCHERTZ ECONOMIC DEVELOPMENT
CORPORATION
By:
President
Date: '2007
MID CITIES 35 PARTNERS LTD., a
Texas limited partnership
By MID CITIES 35 O.P., L.L.G., a
Delaware limited liability company, its
general partner
By:
Manager
Date: 2007
SCHERTZ PT INDUSTRIAL ASSOCIATES
LAND LIMITED PARTNERSHIP, a
Delaware Limited Partnership
By: Schertz PT Industrial Associates Land OP,
LLC, a Delaware limited liability company,
General Partner
Title:
Date: 1%2007
201 MO.? S.1
TC III LAND, LP,
a Texas limited partnership
By: ACK Management, L.L.C.
enera e
By:
avid M. Adelman, President
Date: ,�51 -�, l '� 2007
20IM07.7 S -2
Exhibit A
The Project
See Attached
20179207.5 A -1
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PROJECT DESIGN AND FUNDING OBLIGATION
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Exhibit B
Map
See Attached
20179207.6 B -1
EXHIBIT "B"
OVERALL SITE FOR
ENTERPISE PARK PROJECT
PROJECT DESIGN AND FUNDING OBLIGATION
CITY OF SCHERTZ
CITY OF SELMA
DEVELOPERS
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Exhibit C
Anticipated Cost of the Project
See Attached
203 79207.6 C -1
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INTERLOCAL AGREEMENT
This Interlocal Agreement made and entered into effective as of this 14,h day of June,
2007 (this "Agreement ") is between the City of Schertz, a political subdivision of the State of
Texas ( "Schertz ") and the City of Selma, a political subdivision of the State of Texas ( "Selma ").
RECITALS
WHEREAS, Lookout Road is currently located within the city limits of Selma and
borders the southern boundary of the proposed expanded Enterprise Park industrial park; and
WHEREAS, due to anticipated increased vehicular traffic in connection with the
development of Enterprise Park, a portion of Lookout Road needs to be widened, partially
realigned, and otherwise improved; and
WHEREAS, Selma and Schertz agree that the proposed Lookout Road improvements can
be best completed by Schertz; and
WHEREAS, Schertz currently has a storm water drainage project in process in
connection with the development of Enterprise Park; and
WHEREAS, such project is directly upstream from Selma; and
WHEREAS, Selma intends to implement a similar storm water drainage project in
Selma; and
WHEREAS, Selma and Schertz want the two storm water drainage projects to
complement one another as a regional drainage project and to be mutually beneficial to both
Selma and Schertz.
For and in consideration of the mutual promises, covenants, benefits, and obligations
hereafter set forth, Schertz and Selma hereby agree and contract as follows:
ARTICLE 1
LOOKOUT ROAD PROJECT
Section 1. Location. Selma shall disannex all of Lookout Road from IH -35 to the
planned extension of Associates Drive (which shall be renamed Lookout Road connecting to the
remainder of Lookout Road in Selma) within its city limits, as further described in Article 1,
Section 2 below, and shall release such property to Schertz's extraterritorial jurisdiction ( "ETJ" ).
Selma shall promptly request the preclearance of such disannexation by the U.S. Department of
Justice, Civil Rights Division, and shall complete such disannexation promptly upon its receipt
of such preclearance. Schertz may thereafter annex such property into the corporate boundaries
of Schertz.
Section 2. Road Improvement Project. Schertz will undertake a project to widen,
partially realign, and improve that portion of Lookout Road between I -35 and the extension of
20200654.1 -1-
Associates Drive (which shall be renamed Lookout Road connecting to the remainder of
Lookout Road in Selma), as described in Exhibit A attached hereto and made a part hereof for all
purposes (the "Lookout Road Project ").
Section 3. Costs. Selma and Schertz shall bear their own costs in connection with the
disannexation by Selma of the portion of Lookout Road described herein and Schertz's receipt of
such property into its ETJ and possible subsequent annexation thereof. Schertz shall bear all
costs (or arrange for the payment of a portion thereof by other parties) and responsibility for the
Lookout Road Project.
Section 4. Completion Date. Selma agrees that it estimates completion of the
disannexation of the agreed portion of Lookout Road no later than July 1, 2007. The Lookout
Road Project is currently expected to be completed by Schertz no later than March 1, 2008.
Section 5. Renaming. Upon completion of the Lookout Road Project, such portion
of the current Lookout Road outside of the city limits of Selma will be renamed "Enterprise
Drive" or a variation thereof approved by Schertz and 911.
Section 6. Maintenance. Following completion of the Lookout Road Project, Schertz
shall be responsible for the maintenance of Enterprise Drive.
ARTICLE 2
SELMA DRAINAGE PROJECT
Section 1. Stormwater Drainage Improvement Projects. Selma will undertake a
project to improve stormwater drainage in Selma in the area and as described in Exhibit B
attached hereto and made a part hereof for all purposes (the "Selma Drainage Project "), which
will complement an adjoining drainage project underway in Schertz.
Section 2. Design. Selma will coordinate the design of the Selma Drainage Project
with the related Schertz drainage project to ensure that the two projects result in a mutually
beneficial system for stormwater drainage in both Selma and Schertz. The Selma Drainage
Project will be designed by Ford Engineering, Schertz's city engineer, with the plans to be
reviewed by Selma's city engineer.
Section 3. Construction Costs. Selma shall pay the costs of design and construction
of the Selma Drainage Project in an amount not to exceed $250,000. All such costs in excess of
$250,000 shall be paid on a pro rata basis by the Developers under the Enterprise Park
Development Agreement among the City, Schertz Economic Development Corporation, Mid
Cities 35 Partners Ltd., Schertz PT Industrial Associates Land LP, and TC III Land, LP, with
each Developer's pro rata portion determined in accordance with Section 1(b) of such
Agreement.
Section 4. Completion Date. The Selma Drainage Project is currently estimated to be
completed by Selma no later than January 1, 2008.
20200654.1 -2-
ARTICLE 3
GENERAL AND MISCELLANEOUS PROVISIONS
Section 1. Term. This Agreement shall terminate upon completion of both the
Lookout Road Project and the Selma Drainage Project.
Section 2. Source of Funds. Schertz and Selma each confirms that it has or will have
legally available revenues to complete its obligations hereunder. Any payments by Selma or
Schertz hereunder for the performance of governmental functions or services shall be made from
current revenues available to the paying party.
Section 3. Regulatory Requirements. This Agreement and the obligations of the
parties hereunder are subject to all rules, regulations, and Iaws which may be applicable by the
United States, the State of Texas or any regulatory agency having jurisdiction.
Section 4. Implied Waiver. The failure of either party hereto to insist, in any one or
more instances, upon performance of any the terms, covenants, or conditions of this Agreement
shall not be construed as a waiver or relinquishment of the future performance of any such term,
covenant or condition by the other party hereto, but the obligation of such other party with
respect to such future performance shall continue in full force and effect.
Section 5. Approvals or Consents. Execution, delivery, and performance of this
Agreement have been approved by the City Councils of Schertz and Selma. Whenever this
Agreement requires or permits approvals or consents to be hereafter given by any party hereto,
such parties agree that such approval or consent shall not be unreasonably withheld. Such
approval or consent shall be given in writing and shall be effective without regard to whether
given before the time required herein.
Section 6. Addresses and Notices. Unless otherwise provided in this Agreement, any
notice, communication, request, replay or advice (herein severally and collectively for
convenience called "notice ") herein provided or permitted to be given, made or accepted by
either party to the other must be in writing and may be given or be served by depositing the same
in the United States Mail, postpaid and registered or certified and addressed to the party to be
notified, with return receipt requested, or by delivering the same to an officer of such part, or by
prepaid telegram or facsimile, when appropriate, addressed to the part), to be notified. Notice
deposited in the mail in the manner herein above described shall conclusively deemed to be
effective, unless otherwise stated in this Agreement, from and after the expiration of three (3)
days after it is so deposited. Notice given in any other manner shall be effective only if and
when received by the party to be notified. For the purposes of notice, the addresses of the parties
shall, until change as hereinafter provided, be as shown below. The parties shall have their right
to specify as its address any other address in the State of Texas by at least fifteen (15) days
written notice to the other party.
20200654.1 -3-
If to Schertz to: City of Schertz, Texas
1400 Schertz Parkway
Schertz, Texas 78154
Attention: City Manager
If to Selma to: City of Selma
9375 Corporate Drive
Selma, Texas 78154
Attention: City Administrator
Section 7. Severability. The provisions of this Agreement are severable, and if any
word, phrase, clause, sentence, paragraph, section or other part of this Agreement or the
application thereof to any person or circumstance shall ever be held by any court of competent
jurisdiction to be invalid or unconstitutional for any reason, the remainder of this Agreement and
the application of such word, phrase, clause, sentence, paragraph, section or other part of this
Agreement to the other persons or circumstances shall not be affected thereby.
Section 8. M. erger. This Agreement, together with such descriptions, terms and
conditions as may be included in the Exhibits attached hereto, constitute the entire agreement
between the parties relative to the subject matter hereof. There have been and are no agreements,
covenants, representations, or warranties between the parties as to the subject matter hereof other
than those expressly stated or provided for herein.
Section 9, Cooperation. Each party hereby agrees that it will take all actions and
execute all documents necessary to fully carry out the purposes and intent of this Agreement.
[The remainder of this page intentionally left blank.]
20200654.1 -4-
IN WITNESS WHEREOF, the parties have executed the Agreement in multiple copies,
each of which shall be deemed an original as of the date and year first written above.
CITY OF SCHERTZ
By:
Don Taylor
City Manager
CITY OF SELMA
By: _ (7-�, Q
3i a
Mayor
20200654.1 S-1
Exhibit A
Lookout Road Project
See Attached
20200654.1 A -1
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LOOKOUT RD
EXHIBIT "D-A F1
SELMA CITY LIMITS
DEANNEXATION OF LOOKOUT RD
PROJECT DESIGN AND FUNDING OBLIGATION
CITY OF SELMA DEANNEXATION
OF LOOKOUT ROAD FROM
IH-35 TO ASSOCIATES DRIVE
CITY OF SELMA
INTERSTATE HIGHWAY 35
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Exhibit B
Selma Drainage Project
See Attached
20200654.1 B-1
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LOOKOUT RD
EXHIBIT "D -B"
DRAINAGE
IMPROVEMENT PROJECT
PROJECT DESIGN AND FUNDING OBLIGATION
CITY OF SCHERTZ
CITY OF SELMA
CITY OF SELMA
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Preliminary Time Schedule
See Attached
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FRESOLUTION 07 01
A RESOLUTION BY THE BOARD OF DIRECTORS OF THE SCHERTZ
ECONOMIC DEVELOPMENT CORPORATION AUTHORIZING AN
ENTERPRISE PARK DEVELOPMENT AGREEMENT WITH CERTAIN
OTHER PARTIES; AND OTHER MATTERS IN CONNECTION THEREWITH
WHEREAS, the Board of Directors (the `Board ") of the Schertz Economic Development
Corporation, a Texas non - profit industrial development corporation (the "413 Corporation "), has
determined that it is in the best interest of 4B Corporation to enter into an Enterprise Park Development
Agreement with the City of Schertz and three developers, Mid Cities 35 Partners Ltd., Schertz PT
Industrial Associates Land LP, and TC III Land LP, relating to the development of an expansion of the
Tri -County Business Park in the City; now, therefore,
BE IT RESOLVED BY THE BOARD OF DIRECTORS OF SCHERTZ ECONOMIC
DEVELOPMENT CORPORATION THAT:
Section 1. The Board hereby authorizes the President to execute and deliver an Enterprise
Park Development Agreement with the parties described therein in substantially the form attached hereto
as Exhibit A.
Section 2. The recitals contained in the preamble hereof are hereby found to be true, and
such recitals are hereby made a part of this Resolution for all purposes and are adopted as a part of the
judgment and findings of the Board.
Section 3. All resolutions, or parts thereof, which are in conflict or inconsistent with any
provision of this Resolution are hereby repealed to the extent of such conflict, and the provisions of this
Resolution shall be and remain controlling as to the matters resolved herein.
Section 4. This Resolution shall be construed and enforced in accordance with the laws of
the State of Texas and the United States of America.
Section 5. If any provision of this Resolution or the application thereof to any person or
circumstance shall be held to be invalid, the remainder of this Resolution and the application of such
provision to other persons and circumstances shall nevertheless be valid, and the Board hereby declares
that this Resolution would have been enacted without such invalid provision.
Section 6. It is officially found, determined, and declared that the meeting at which this
Resolution is adopted was open to the public and public notice of the time, place, and subject matter of
the public business to be considered at such meeting, including this Resolution, was given, all as required
by Chapter 551, as amended, Texas Government Code.
Section 7. This Resolution shall be in force and effect from and after its final passage, and it
is so resolved.
PASSED AND ADOPTED, this ayday of May, 2007.
SCHERT ECONO DEVELOPMENT
CORD TION
Presi ent
20189943.2
RESOLUTION NO. 06 -R -19
A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF
SCHERTA TEXAS AUTHORIZING A AAIEMORANDUIII OF
UNDERSTANDING FOR AN ECONOMIC DEVELOPMENT PROJECT
CONCERNING ENTERPRISE PARK, AND OTHER MATTERS IN
CONNEC'T'ION THEREWITH
WHEREAS, the City Council (the "City Council') of the City of Schertz, Texas (the
"City") has determined that it is in the best interest of the City to enter into a Memorandum of
Understanding relating to a drainage and road project to stimulate economic development in an
expanded business park adjoining Schertz Industrial Park; now, therefore,
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS
THAT:
Section 1. The City Council hereby authorizes the City Manager to execute and
deliver a Memorandum of Understanding containing the terms set forth on Exhibit A hereto,
with any additions and modifications which are not inconsistent with such terms.
Section 2. The recitals contained in die preamble hereof are hereby found to be true,
and sueb recitals are hereby made a part of this Resolution for all purposes and are adopted as a
part of the judgment and findings of the Council.
Section 3. All resolutions, or parts thereof, which are in conflict or inconsistent with
any provision of this Resolution are hereby repealed to the extent of such conflict, and the
provisions of this Resolution shall be and remain controlling as to the matters resolved herein.
Section 4. This Resolution shall be construed and enforced in accordance with the
laws of the State of Texas and the United States of America.
Section 5. If any provision of this Resolution or the application thereof to any person
or circumstance shall be held to be invalid, the remainder of this Resolution and the application
Of such provision to other persons and circumstances shall nevertheless be valid, and the Council
hereby declares that this Resolution would have been enacted without such invalid provision.
Section 6. It is officially found, detennined, and declared that the meeting at which
this Resolution is adopted was open to the public and public notice of the time, place, and subject
matter of the public business to be considered at such meeting, including this Resolution, was
given, all as required by Chapter 551, as amended, Texas Government Code.
Section 7. This Resolution shall he in force and effect from and after its final
passage, and it is so resolved.
En[erp,ise Pack Resoldac
PASSED AND ADOPTED, this V day of August, 2006.
CITY OF H TZ, TEXAS
Mayor
ATrFST:
C ty Sec�r 'Mary
(CITY SEAL)
FnIeMriae Pack Rmol dN
EXHIBIT A
ENTERPRISE PARK
MEMORANDUl1 OF UNDERSTANDING
Smminary of Elements
Parties: Alid Cities 35 Partners Ltd., Schertz PT Industrial Associates Land LP, and TC III
Land, LP (together, the "Developers"), Schertz Economic Development Corporation
(the "413 Corporation's, and the City of ScherO, Texas (the "City").
Project: Regional drainage and related roads project serving and benefiting an approximately
814.25 -acre watershed adjoining Scheriz Industrial Park.
Engineering and Design: The Developers will design, at their expense, the drainage and roadway
elements of the Project, based on engineering parameters approved by the City and Ford
Engineering, Inc. (the "City's Engineer "). The Developers' engineers will provide
detailed engineering/construction drawings to the City's Engineer who will review the
proposed plans. The Developers' engineers will modify their plans as required by the
City's Engineer (the "Final Constriction Plans "), The City's Engineer's fees will be a
cost home by the City, and the Developers' engineers' fees will be a cost bonne by the
Developers.
Funding Obligation: The three Developers and the 4B Corporation will each share equally in the cost of
the design and construction of the Project to the extent the total Project cost does not
exceed $3,600,000. If the Project costs exceed $3,600,000, the 4B Corporation will
contribute $900,000, and each of the duce Developers will contribute one - third of the
balance. The City's costs for the City's Engineer will be a credit on the amount to be
contributed by the 4B Corporation. The Developers' engineers' costs will be a credit to
the amount to be contributed by the Developers.
Funding Timing: When the Final Construction Plans have been approved by the City's Engineer, the
City's Engineer will notify all Parties and will provide an estimate of the anticipated
lowest and best bid (the "Preliminary Bid Amount'). The Developers and the 4B
Corporation will thereupon contribute their respective Funding Obligation shale of the
Preliminary Bid Amount (showing engineer fees as a credit as pemnitted under Funding
Obligation above). Amounts contributed by the Developers and the 413 Corporation will
be held in an interest- bearing account (the "Escrow Account ") (invested in permissible
City investments) at the City's depository bank, Schenz Bank R. Trust, for disbursement
on the order of the Construction Manager (see below), for approved Project costs.
Bidding and Construction: The City will request bids for construction of the Project based upon the
Final Construction Plans. Bids will be solicited only when all the deposits to the Escrow
Account described under Funding Timing above have been received.
Bid Acceptance; Funding Adjustment,• At bid opening, the City will consult with the Developers and
the 4B Corporation, but the City will select the lowest and best bid (or may reject all
bids) in its sole discretion. If it rejects all bids, all amounts in the Escrow Account will
be refunded to the Developers and the 4B Corporation. If the accepted bid is less than the
total amount deposited to the Escrow Account, the excess will be ref nded to the
Enterprise Pail- RmLdce A -1
Developers and the 4B Corporation. If the accepted bid is less than the total amount
deposited to the Escrow Account, [lie Developers and the 4B Corporation will deposit the
difference to the Escrow Account, under the parameters set forth in Funding Obligation
above.
Construction Manager: Ford Engineering, Inc. will serve as Consinrction Manager
Coordination with Selma: A portion of the Project is within the boundaries of the City of Selma
( "Selma'). The City will use its best efforts to coordinate Selma's participation in the
Project (eithertbrough Selma's contribution ofiequired land or Selma's participation in
the cost of construction, which cost participation will reduce the Funding Obligation of
the Developers and the 4B Corporation on a pro rata basis. If Selina chooses not to
contribute necessary land or funding, the City may exercise its right of eminent domain to
acquire land in Selma which is required for the Project. The City's costs, including land
acquisition costs and related legal and appraisal costs, will be a credit on the Funding
Obligation of the 413 Corporation.
Grants: Tire Cily will investigate grants that may be available to pay or reimburse portions of the
costs of the Project. To the extent that any such grants are received, such grant funds will
be used to pay construction costs or, if permitted by the terms of such grant, to reh» butse
the Developers and the 413 Corporation for expenditures previously made_
Reimbursement by other property owners: The City will investigate its ability to impose a Project
reimbursement program upon property owners in the Project area other than the
Developers to require their financial participation in the Project when and as they develop
their properties within the Project area. If such reimbursement program is permissible,
rehnbursements will go 10 the City and the 413 Corporation first and, when the City and
the 4B Corporation have been fully reimbursed, then to the Developers on a pro rata
basis.
Agreements between and among the Developers: The 4B Corporation and the City recognize that the
Developers may have entered into agreements between and among themselves for certain
cost sharing related to the Project. The Developers will provide the 4B Corporation and
the City with a summary of all of such agreements, which will be incorporated into the
final Memorandum of Understanding among all of the Parties.
Memorandum of Understanding not legally binding: The Memorandum of Understanding to be
prepared is intended not to be legally binding but is intended to express the current goals
Of the Parties in developing the Project. The Memorandum of Understanding is expected
to be expanded into one of more enforceable agreements among the Parties, which will
require further approvals by all Parties.
EnSerpr Pale Resol -doe A -2