17-R-31 - EDC Performance Agreement with Evestra IncRESOLUTION NO. 17 -R -31
A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF SCHERTZ,
TEXAS AUTHORIZING A PROGRAM AND EXPENDITURES AS
PROVIDED FOR IN THE ECONOMIC DEVELOPMENT
PERFORMANCE AGREEMENT BETWEEN THE CITY OF SCHERTZ
ECONOMIC DEVELOPMENT CORPORATION AND EVESTRA,
INCORPORATED; AND OTHER MATTERS IN CONNECTION
THEREWITH
WHEREAS, the Development Corporation Act of 1979, as amended (Section 501.001
Texas Local Government Code, formerly the Development Corporation Act of 1979) (the "Act ")
authorizes a development corporation to fund certain projects as defined by the Act and requires
development corporations to enter into performance agreements to establish and provide for the
direct incentive or make an expenditures on behalf of a business enterprise under a project; and
WHEREAS, Section 501.158 of the Act requires an incentive agreement to provide at a
minimum for a schedule of additional payroll or jobs to be created or retained and capital
investment to be made as consideration for any direct incentives provided or expenditures made
by the corporation under the agreement and to specify the terms under which repayment must be
made if the business enterprise does not meet the performance requirements specified in the
agreement; and
WHEREAS, Section 505.159 of the Act requires that a corporation hold at least one public
hearing on the proposed project before spending money to undertake the project, the public hearing
was held on May 2, 2017; and
WHEREAS, the City of Schertz Economic Development Corporation ( "SEDC ") Board
approved the Economic Development Incentive Agreement Evestra, Inc.. set forth on Exhibit A
attached hereto and incorporated herein (the "Agreement ") between the SEDC, and Evestra, Inc.
(the "Company "), pursuant to the Act, at the SEDC's Board meeting on May 2, 2017; and
WHEREAS, Section 501.073 of the Act requires that the corporation's authorizing unit to
approve all programs and expenditures of a corporation; and
WHEREAS, the SEDC has recommended that the City authorize the program and
expenditures associated therewith; and
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
SCHERTZ, TEXAS:
Section 1. The City Council hereby authorizes the program and expenditures as
provided for in the Economic Development Incentive Agreement with Evestra, Inc. as set forth in
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 City 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 City 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, Texas Government Code, as amended.
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 2ND day of May, 2017.
• • %�:l:
R. Carpenter, Mayor
ATTEST:
r nda Dennis, City Secretary
(CITY SEAL)
..
EVESTRA. INC.
ECONOMIC DEVELOPMENT PERFORMANCE AGREEMENT
EVE STRA,, INC.
This Perfonnance Agreement ("Agreement") is entered into to be effective as of the
Effective Date (as defined in Article III below), by and between the City of Schertz Economic
Development Corporation, located in Guadalupe County, Texas (hereinafter called
"Corporation"), a Texas non-profit industrial development corporation under the Development
Corporation Act and governed by TEx. Loc. Gov. CODE chapters 501, 502 and 505 and the Texas
Non-Profit Corporation Act and Evestra, Inc., a Delaware corporation (hereinafter called
"Company"), otherwise known as the "Parties" to this Agreement.
RECITALS
WHEREAS, the Development Corporation Act of 1979, as amended (Section 501.001 et seq,
Texas Local Government Code, formerly the Development Corporation Act of 1979) (the "Act")
authorizes a development corporation to fund certain projects as defined by the Act and requires
development corporations to enter into performance agreements to establish and provide for the
direct incentive or make an expenditure on behalf of a business enterprise under a project; and
WHEREAS, Section 501.158 of the Act requires a performance agreement to provide at a
minimum for a schedule of additional payroll or jobs to be created or retained and capital
investment to be made as consideration for any direct incentives provided or expenditures made
by the corporation under the agreement and to specify the terms under which repayment must be
made if the business enterprise does not meet the performance requirements specified in the
agreement; and
WHEREAS, Company desires to relocate and expand its Corporate Headquarters, Scientific
Research and Development Services and manufacturing operations to the Facility located in
Schertz, Texas; and
WHEREAS, the location of the Company, as proposed, will contribute to the economic
development of the City of Schertz by creating new jobs and increased employment, promoting
and developing expanded business enterprises, increased development, increased real property
value and tax revenue for the City of Schertz, and will have both 'a direct and indirect positive
overall improvement/stimulus in the local and state economy; and
WHEREAS, the Corporation desires to offer an incentive to Company to enable Company to
relocate and expand its operations pursuant to this Agreement in substantial conformity with the
Schertz Incentive Policy and the Act; and
WHEREAS, the Parties are executing and entering into this Agreement to set forth certain terms
and obligations of the Parties with respect to such matters; and
WHEREAS, the Parties recognize that all agreements of the Parties hereto and all terms and
provisions hereof are subject to the laws of the State of Texas and all rules, regulations and
interpretations of any agency or subdivision thereof at any time governing the subject matters
hereof, and
WHEREAS, the Parties agree that all conditions precedent for this Agreement to become a
binding agreement have occurred and been complied with, including all requirements pursuant to
the Texas Open Meetings Act and all public notices and hearings; if any, have been conducted in
accordance with Texas law; and
WHEREAS, on the Effective Date, the commitments contained in this Agreement shall become
legally binding obligations of the Parties.
NOW, THEREFORE, in consideration of the mutual covenants, benefits and agreements
described and contained in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged and further described herein, the Parties
agree as follows:
ARTICLE I
RECITALS
I , Recitals. The recitals set forth above are declared true and correct by the Parties
and are hereby incorporated as part of this Agreement.
ARTICLE 11
AUTHORITY AND TERM
1. Authority. The Corporation's execution of this Agreement is authorized by the Act
and constitutes a valid and binding obligation of the Corporation. The Corporation acknowledges
that Company is acting in reliance upon the Corporation's performance of its obligations under
this Agreement in making the decision to commit substantial resources and money to the
establishment of the Project, hereinafter established.
2. Term. This Agreement shall become enforceable upon the Effective Date,
hereinafter established, and shall continue until the Expiration Date, hereinafter established, unless
terminated sooner or extended by mutual agreement of the Parties in the manner provided for
herein.
3. Purpose. The purpose of this Agreement is to formalize the agreements between
the Company and the Corporation for the granting of funds to cover certain costs associated with
the Project and specifically state the covenants, representations of the Parties, and the incentives
associated with Company's commitment to abide by the provisions of the Act and to abide by the
terms of this Agreement which has been approved by the Corporation and the Company as
complying with the specific requirements of the Act. It is expressly agreed that this Agreement
constitutes a single transaction. A failure to perform any obligation by the Company may
constitute a breach of the entire Agreement and terminate any further commitments (if any) by the
Corporation unless an alternative penalty or remedy is provided for herein.
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4. Administration of Agreenient Upon the Effective Date, the Corporation delegates
the administration and oversight of this Agreement to the Executive Director of the Corporation.
Any proposed amendments to the Agreement shall require the approval of the Board of Directors
of the Corporation.
W��* ►.
As used in this Agreement, the following terms shall have the meanings ascribed below.
All undefined terms shall retain their usual and customary meaning as ascribed by coinnion and
ordinary usage.
"Annual Payroll" shall mean the total wages paid, exclusive of employee benefits, to Full-
time Employees at the Facility.
"Bankruptcy" shall mean the dissolution or termination of a Party's existence as a going
business, insolvency, appointment of receiver for any party of such Party'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 proceeding under any
bankruptcy or insolvency laws by or against such party and such proceeding is not dismissed
within ninety (90) days after the filing thereof.
"Calendar Year" shall mean January I through December 31.
"Certificate of Occupancy" shall mean the signed certificate issued by the City of Schertz
Inspections Division granting the Company the right to occupy the Facility and confirming that
the entire work covered by the permit and plans are in place.
"Corporate Headquarters" means buildings proposed for construction or occupancy as the
principal office, for a business enterprises administrative and management services.
`Default" unless otherwise specifically defined or limited by this Agreement shall mean
failure by any Party to timely and substantially comply with any performance requirement, duty,
or covenant.
"EfTective Date" shall be the date of the last signing by a party to the agreement.
"Expiration Date" shall mean the earlier of:
1. December 31, 2022; or
2. The date of termination, provided for under Article VII of this Agreement.
"Facility" shall mean the approxii-sate 12,900 square foot facility located at 6410 Tri
County Parkway, Schertz, Texas 78154 where Company's Corporate Headquarters, Scientific
Research and Development Services and manufacturing operations shall occur.
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"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 riot, civil commotion,
insurrection, government or de facto governmental action (unless caused by the intentionally
wrongful acts or omissions of a party), fires, explosions or floods, strikes, slowdowns or work
stoppages,
"Full-time Employee shall mean. (1) an employee with a regular work schedule of at least
36 hours per week as reported on the Texas Employers Quarterly Wage Report from the Texas
Work-force Commission and (2) are entitled to at least the customary employer-sponsored
employee benefits pack-age afforded by the Company to its similarly situated employees at other
locations.
"Project" shall mean the relocation and expansion of Company's Corporate Headquarters,
Scientific Research and Development Services and manufacturing operations to the Facility.
"Real Property" shall mean the land, building and all improvements thereto and added to
the Project subsequent to the execution of this Agreement and is accounted on the tax rolls by the
Guadalupe County Appraisal District.
"Scientific Research and Development Services" shall mean an establishment engaged in
conducting original investigation, undertaken on a systematic basis to gain new knowledge
(research), and in the application of research findings or other scientific knowledge for the creation
of new or significantly improved products or processes.
"Small Business Grant" shall mean cash payment from Corporation to Company in the
amount of TWO HUNDRED THOUSAND DOLLARS and NO/I 00 ($200,000.00).
"State of Texas" shall mean the Office of the Texas Comptroller, or its successor.
"Tangible Personal Property" shall mean tangible personal property, equipment,
machinery, fixtures and inventory owned or leased by Company that is added to the Project
subsequent to the execution of this Agreement and is accounted on the tax rolls by the County
Appraisal District.
ARTICLE IV
CORPORATION OBLIGATION
1. Small Business Grant.
(a) Subject to the satisfaction of all the terms and conditions of this Agreement
and the obligation of Company to repay the Small Business Grant pursuant to
Article V hereof, the Corporation agrees to provide Company with a Small Business
Grant in the amount of TWO HUNDRED THOUSAND DOLLARS and NO/I 00
($200,000.00).
(b) Current Revenue. The funds distributed hereunder shall be paid solely from
lawfully available funds of the Corporation. Under no circumstances shall the
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obligations hereunder be deemed to create any debt within the meaning of any
constitutional or statutory provision. None of the obligations under this Agreement
shall be pledged or otherwise encumbered in favor of any commercial lender and/or
similar financial institution,
2. Confidentiality. The Corporation agrees to the extent allowed by law, to keep all
tax information and documentation received, pursuant to this Agreement hereof, confidential. In
the event a request is made for such information, Corporation will not disclose the information
unless required to do so by the Attorney General of Texas.
ARTICLE V
fm Jrx
The obligation of the Corporation to pay funds in the form of a Small Business Grant shall
be conditioned upon Company's continued compliance with and satisfaction of each of the
performance obligations set forth in this Agreement.
I . Commencing Operations. Company must obtain a Certificate of Occupancy, for its
Corporate Headquarters and manufacturing operations at the Facility on or before December 31,
2017 and maintain said operations throughout the term of this Agreement.
2. Execution of Lease. Company must execute a lease (the "Lease") for the Facility
with Inversiones Del Sur., LLC (the -Landlord") within thirty (30) days after the EfTective Date.
The Company shall provide to the Corporation a copy of the fully executed Lease (signed by both
Company and the Landlord) as proof of the satisfaction of this condition. In the event that
Company fails to deliver the fully executed Lease within 30 days of the Effective Date such failure
shall not be deemed a Default, but this Agreement shall automatically terminate and be of no
further effect unless the Parties agree in writing to extend the time period for delivery of the fully
executed Lease to the Corporation.
3. Scientific Research and Development Services. Company must commence
Scientific Research and Development Services operations at the Facility on or before January 1,
2019 and maintain said operations throughout the term of this Agreement.
4, Job and Wage Creation. Company must create and maintain the Full-time
Employees and minimum Annual Payroll benchmarks according to the foflowing schedule:
(a) SIX (6) Full-time Employees for that portion of the 2017 Calendar Year beginning
upon its receipt of a Certificate of Occupancy.
(b) TEN (10) Full-time Employees with a minimum Annual Payroll of SEVEN
HUNDRED SEVENTY-FIVE THOUSAND DOLLARS AND NO/100
($775,000.00) on or before the beginning and throughout the entirety of the 2018
Calendar Year.
(c) SIXTEEN (16) Full-time Employees with a minimum Annual Payroll of ONE
MILLION TWO HUNDRED TWENTY-FIVE THOUSAND DOLLARS AND
NO/100 ($1,225,000.00) on or before the beginning and throughout the entirety of
the 2019 Calendar Year.
(d) SIXTEEN (16) Full-time Employees with a minimum Annual Payroll of ONE
MILLION TWO HUNDRED TWENTY-FIVE THOUSAND DOLLARS AND
NO/ 100 ($1,225,000,00) on or before the beginning and throughout the entirety of
the 2020 Calendar Year.
(e) SIXTEEN (16) Full-time Employees with a minimum Annual Payroll of ONE
MILLION TWO HUNDRED TWENTY-FIVE THOUSAND DOLLARS AND
NO/100 ($1,225,000.00) on or before the beginning and throughout the entirety of
the 2021 Calendar Year.
(t) SIXTEEN (16) Full-time Employees with a minimum Annual Payroll of ONE
MILLION TWO HUNDRED TWENTY-FIVE THOUSAND DOLLARS AND
NO/ 100 ($1,225,000.00) on or before the beginning and throughout the entirety of
the 2022 Calendar Year.
5. Real and Tangible Personal Property Creation. Commencing in the 2018 calendar
year and continuing throughout the term of the Agreement, Company must create and maintain a
minimum of TWO MILLION SIX HUNDRED EIGHTY-FOUR THOUSAND FIVE
HUNDRED THIRTEEN DOLLARS and NO/100 ($2,684,513.00) in cumulative Real and
Tangible Personal Property taxable value as identified on the Guadalupe County tax roll,
6. Annual Re Certification Report (an
Report. The Company shall submit an Annual Certif
"Annual Report") for the preceding Calendar Year to the Executive Director of the Corporation
each year not later than February 15t". The Annual Report should substantially conform to the
Annual Report Form attached as Exhibit A to this Agreement. The first Annual Report will be due
February 15'h, 2018.
7. Payment of Legal Fees. Company commits to reimburse the Corporation for the
necessary legal fees in the preparation of any amendment to this Agreement requested by
Company. Timely payment shall be made within 60 days of submittal of invoice to Company by
the Corporation or its assigns. Each Party shall bear its own legal fees in connection with the
negotiation of this Agreement.
C�
& Extension beyond Term. In recognition of the fact that the verification of
Company's compliance hereunder is, by necessity, verified in the calendar year following the
Company's obligations herein, the Expiration Date of this Agreement will be extended until any
and all verification of Performance Obligations and covenants have been satisfied. The Parties
Hereto agree that the Corporation's right to the Recapture Amount shall survive the Expiration
Date of this Agreement.
ARTICLE VI
COVENANTS AND DUTIES
1. Company's Covenants and Duties. Company makes the following covenants and
warranties to the Corporation, and agrees to timely and fully perform the obligations and duties
contained in Article V of this Agreement. Any false or substantially misleading statements
contained herein or failure to timely and fully perform those obligations and duties within this
Agreement shall be an act of Default by tine Company.
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(a) Company is authorized to do business and is in good standing in the State
of Texas and shall remain in good standing in the State of Texas and the United
States of America during any term of this Agreement.
(b) The execution of this Agreement has been duly authorized by Company's
authorized agent, and the individual signing this Agreement is empowered to
execute such Agreement and bind the entity. Said authorization, signing, and
binding effect is not in contravention of any law, rule, regulation, or of the
provisions of Company"s by-laws, or of any agreement or instrument to which
Company is a party to or by which it may be bound.
(c) Company is not a party to any Bankruptcy proceedings currently pending
or contemplated, and Company has not been informed of any potential involuntary
Bankruptcy proceedings.
(d) To its current, actual knowledge, and subject to the Certificate of
Occupancy (or other approvals and permits to be obtained under subpart (t)
immediately below), Company has acquired and maintained all necessary rights,
licenses, permits, and authority to carry on its business in the City of Schertz and
will continue to use its best efforts to maintain all necessary rights, licenses,
permits, and authority.
(e) Company shall timely and fully comply with all of the terms and conditions
of this Agreement.
(t) Company agrees to obtain or cause to be obtained, all necessary permits and
approvals from City of Schertz and/or all other governmental agencies having
jurisdiction over the construction of any improvements to the Facility.
(g) Company shall be responsible for paying, or causing to be paid, to City of
Schertz and all other governmental agencies the cost of all applicable permit fees
and licenses required for construction of the Project, Company agrees to develop
the Project in accordance with the ordinances, rules, and regulations of the City of
Schertz in effect on the date the Project was designated, unless specified otherwise
in this Agreement. Company, in its sole discretion, may choose to comply with any
or all City of Schertz rules promulgated after the Effective Date of this Agreement.
(h) Company agrees to commence and complete the Project in strict accordance
with the Agreement.
(i) Company shall cooperate with the Corporation in providing all necessary
information to assist them in complying with this Agreement.
During the term of this Agreement, Company agrees to not knowingly
employ any undocumented workers as part of the Project, and, if convicted of a
violation under 8 U.S.C. Section 1324a(l), Company shall be in Default (subject to
the remedies in Article V above). Company is not liable for an unknown violation
of this Section by a subsidiary, affiliate, or franchisee of Company or by a person
with whom Company contracts provided however that identical federal law
requirements provided for herein shall be included as part of any agreement or
contract which Company enters into with any subsidiary., assignee, affiliate, or
franchisee for which Small Business Grant provided herein will be used.
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Ii
(k) Company shall be not be in arrears and shall be current in the payment of
all City taxes and fees.
0) Corporation has the right to periodically (and with reasonable advance
notice) verify the terms and conditions of this Agreement including, but not limited
to, the number of persons employed by Company as a result of the assistance
provided hereunder, the addresses of those persons, the number of hours each
employee worked during the previous 12 months, the total expenses attributable to
training and employing those employees, and the cumulative payroll for
Company's Schertz operation.
(in) Company shall, upon written request from Corporation, provide to
Corporation a copy of the Texas Workforce Commission Texas Employers
Quarterly Wage Report for the requested quarter.
2. Corporation's Covenants and Duties.
(a) Small Business Grant Payment. The Corporation is obligated to pay
Company a Small Business Grant in the amount of TWO HUNDRED
THOUSAND DOLLARS AND NO/100 ($200,000.00). The Small Business Grant
shall be paid within thirty (30) days after receiving written notice from the
Company that they have received a Certificate of Occupancy, a copy of said
Certificate of Occupancy to be attached to the written notice, and certification that
Company has located their Corporate Headquarters and begun manufacturing
operations at the Facility.
3. Compliance and Default. Failure by Company to timely comply with any
performance requirement, duty, or covenant shall be considered an act of Default and shall give
the Corporation the right to terminate this Agreement and collect the Recapture Amount, as
determined by the Board of Directors of the Corporation.
ARTICLE VII
TERMINATION
1. Termination. This Agreement shall terminate upon the earliest occurrence of any
one or more of the following:
(A) The written agreement of the Parties;
(b) The Agreement's Expiration Date;
(c) Default by Company (at the option of the Corporation).
ARTICLE VIII
DEFAULT
1. Company's sole remedy under this Agreement is specific performance for
Corporations Default of its obligation under Section IV of this Agreement.
8
ii
2. In the event of Default by the Company the Corporation shall, as its sole and
exclusive remedy for Default hereunder, have the right to terminate this Agreement and to
recapture one hundred percent (100%) of the Small Business Grant (the "Recapture Amount'`) if
the Default occurs on or prior to December 31, 2022. The Recaptured Amount shall be paid by
the Company within one hundred twenty (120) days after the date Company is notified by the
Corporation of such Default (the Payment Date"). In the event the Recaptured Amount is not
repaid by the applicable Payment Date, the unpaid portion thereof shall accrue interest at the rate
of two percent (2.00%) per annum from the Effiective Date until paid in full.
3. Under no circumstances will the funds received under this Agreement be used,
either directly or indirectly, to pay costs or attorney fees incurred in any adversarial proceeding
regarding this Agreement against the City of Schertz.
101mal"WROX01
1. Binding Agreement. The terms and conditions of this Agreement shall be binding
on and inure to the benefit of the Parties, and their respective successors and assigns. The Executive
Director of the Corporation shall be responsible for the administration of this Agreement and shall
have the authority to execute any instruments, duly approved by the Corporation, on behalf of the
Parties related thereto. Notwithstanding any other provision of this Agreement to the contrary,
performance of either Party under this Agreement is specifically contingent on Company obtaining
a Certificate of Occupancy from the City of Schertz at the Facility under the terms of this
Agreement.
2. Mutual Assistance. The Parties will do all things reasonably necessary or
appropriate to carry out the terms and provisions of this Agreement and to aid and assist each other
in carrying out such terms and provisions.
3. Representations and Warranties. The Corporation represents and warrants to
Company that this Agreement is within their authority, and that they are duly authorized and
empowered to enter into this Agreement, unless otherwise ordered by a court of competent
jurisdiction. Company represents and warrants to the Corporation that it has the requisite authority
to enter into this Agreement.
4. Assi rig . Company shall have the right to assign all of its rights, duties, and
obligations under this Agreement to a duly qualified third party with prior written approval of the
Corporation. Any assignment provided for herein shall not serve to enlarge or diminish the
obligations and requirements of this Agreement, nor shall they relieve Company of any liability to
the Corporation including any required indemnity in the event that any Assignee hereof shall at
any time be in Default of the terms of this Agreement. The Corporation may demand and receive
adequate assurance of performance including the deposit or provision of financial. security by any
proposed Assignee prior to its approval of an assignment.
5. Independent Contractors.
(a) It is expressly understood and agreed by all Parties hereto that in performing
their services hereunder, Company at no time will be acting as an agent of the Corporation and
that all consultants or contractors engaged by Company respectively will be independent
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contractors of Company; and nothing contained in this Agreement is intended by the Parties to
create a partnership or joint venture between the Parties and any implication to the contrary is
hereby expressly disavowed the Parties hereto understand and agree that the Corporation will not
be liable for any claims that may be asserted by any third party occurring in connection with
services performed by Company respectively under this Agreement, unless any such claims are
due to the fault of the Corporation.
(b) By entering into this Agreement, except as specifically set forth herein, the
Parties do not waive, and shall not be deemed to have waived, any rights, immunities, or defenses
either may have, including the defense of parties, and nothing contained herein shall ever be
construed as a waiver of sovereign or official immunity by the Corporation with such rights being
expressly reserved to the fullest extent authorized by law and to the same extent which existed
prior to the execution hereof.
(c) No employee of the Corporation, or any board member, or agent of the
Corporation, shall be personally responsible for any liability arising under or growing out of this
Agreement.
6. Notice. Any notice required or permitted to be delivered hereunder shall be deemed
delivered by actual delivery, or on the first business day after depositing the saine in the hands of
a reputable overnight courier (such as United States Postal Service, FedEx or UPS) and addressed
to the Party at the address set forth below:
If intended for SEDC: City of Schertz Economic Development Corporation
Attention: Exec. Dir. of Economic Development
1400 Schertz Parkway
Schertz, TX 78154
With a copy to:
Denton, Navarro, Rocha, & Bernal, PC
Attention: Charles E. tech
2517 North Main Avenue
San Antonio, TX 78212
If to the Company- Evestra, Inc.
Attention: Zeev Shaked, Ph.D.
President, CEO and Director
6410 Tri County Parkway
Schertz, Texas 78154
Any Party may designate a different address at any time upon written notice to the other
Parties.
7. Governmental Records. All invoices, records and other documents required for
submission to the City pursuant to the terms of this Agreement are Governmental Records for the
Purposes of Texas Penal Code Section 37.10
8. Governing Law The Agreement shall be governed by the laws of the State of
Texas, and the venue for any action concerning this Agreement (subject to the dispute resolution
1 0
mechanisms of Article VIII above) shall be in the Courts of Guadalupe County. The Parties agree
to submit to the personal and subject matter jurisdiction of said court.
9. Amendment. This Agreement may be amended by mutual written agreement of the
Parties, as approved by the Board of Directors of the Corporation.
10, Legal Construction. In the event any one or more of the provisions contained in
this Agreement shall, for any reason, be held invalid, illegal, or unenforceable in any respect, such
invalidity, illegality, or unenforceability shall not affect other provisions of this Agreement, 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 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.
IL Interpretation. Each of the Parties has been represented by counsel of their
choosing in the negotiation and preparation of this Agreement. Regardless of which Party prepared
the initial draft of this Agreement, this Agreement shall, in the event of any dispute, whatever its
meaning or application, be interpreted fairly and reasonably and neither more strongly for or
against any Party.
12. Entire Agreement. This Agreement constitutes the entire agreement between the
Parties with respect to the subject matter covered in this Agreement. There is no other collateral
oral or written agreement between the Parties that, in any manner, relates to the subject matter of
this Agreement, except as provided for in any Exhibits attached hereto or duly approved
amendments to this Agreement, as approved by the Board of Directors of the Corporation.
13. Paragraph Headings. The paragraph headings contained in this Agreement are for
convenience only and will in no way enlarge or limit the scope or meaning of the various and
several paragraphs.
14. 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.
15, Exhibits. Any Exhibits attached hereto are incorporated by reference for all
purposes,
16. 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.
17. Indemnification.
COMPANY AGREES TO DEFEND, INDEMNIFY, AND HOLD THE
CORPORATION AND THE CITY OF SCHERTZ ("CITY-), AND THEIR
RESPECTIVE OFFICERS, AGENTS AND EMPLOYEES. HARMLESS FROM
AND AGAINST ANY AND ALL REASONABLE LIABILITIES, DAMAGES,
CLAIMS, LAWSUITS, JUSTMENTS, ATTORNEY FEES, COSTS, EXPENSES
AND ANY CAUSE OF ACTION THAT DIRECTLY RELATES TO ANY OF THE
FOLLOWING: ANY CLAIMS OR DEMANDS BY THE STATE OF TEXAS THAT
THE CORPORATION HAS BEEN ERRONEOUSLY OR OVER-PAID SALES
AND USE TAX FO R ANY PERIOD DURING THE TERM OF THIS AGREEMENT
AS A RESULT OF THE FAILURE OF COMPANY TO MAINTAIN A PLACE OF
BUSINESS AT THE PROPERTY OR IN THE CITY OF SCHERTZ, OR AS A
RESULT OF ANY ACT OR OMISSION OR BREACH OR NON- PERFORMANCE
BY COMPANY UNDER THIS AGREEMENT EXCEPT THAT THE IMDE LAITY
PROVIDED HEREIN SHALL NOT APPLY TO ANY LIABILITY RESULTING
FROM THE ACTION OR OMISSIONS OF THE CORPORATION OR CITY. THE
PROVISIONS OF THIS SECTION ARE SOLELY FOR THE 'BENEFIT OF THE
PARTIES HERETO AND NOT INTENDED TO CREATE OR GRANT ANY
RIGHTS, 'CONTRACTUAL OR OTHERWISE, TO ANY OTHER PERSON OR
ENTITY. IT BEING THE INTENTION OF THE PARTIES THAT COMPANY
SMALL BE RESPONSIBLE FOR THE REPAYMENT OF ANY SMALL
BUSINESS GRANT PAID TO COMPANY HEREIN THAT INCLUDES CITY
SALES TAX RECEIPTS THAT THE STATE OF TEXAS HAS DETERMINED
WAS ERRONEOUSLY PAID, DISTRIBUTED OR ALLOCATED TO THE
CORPORATION.
18. Additional Instruments. The Parties agree and covenant to cooperate, negotiate in
good faith, and to execute such other and further instruments and documents as may be reasonably
required to fulfill the public purposes provided for and included within this Agreement. .
19. Force Majeure. Whenever a period of tinge is herein prescribed for action to be
taken by the Company, the Company shall not be liable or responsible for, and there shall be
excluded from the computation of any such period of time, any delays due to causes of any kind
whatsoever which are caused by Force Majeure.
12
Executed on this t day of , 20 i
Evestra, Inc., a Delaware corporation
By:
Name: Ze'ev Shakti.ed, Ph..D.
Title: President, CEO and Director
STATE OF TEXAS X
COUNTY OF X
This information was acknowledged before me on this day of
by A , for Evestra, Inc, Inc., a Delaware corpor Lion, on behalf of said
agency.
P
Notary Pubg, State of Texas
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Executed on this day of , 20_
= = i •
I M ILI DIXIIIA121119105INKA-2-1 " KJOHIF-111 I Lvj��
Industrial Development Corporation
By:
Name: Tim Brown
Title: President
STATE OF TEXAS X
COUNTY OF GUADALUPE X
This information was acknowledged before me on this day of
by for the City of Schertz Economic Development Corporation, a Texas
non-profit industrial development corporation, on behalf of said agency.
APPROVED As To FORM:
M
SEDC Attorney
14
Notary Public, State of Texas
Notary's typed or printed name
My commission expires
Exhibit A
SAMPLE ANNUAL CERTIFICATION REPORT FORM
[SEE ATTACHED]
15
A
Annual Certlification Report
Reporting Period: January I to December 31, 20_
The Annual Certification Report for the Economic Development Performance Agreement between the City of Schertz
Economic Development Corporation and Evestra, Inc,, is due on February 15, 20—. Please sign and return the
Annual Certification Report form with accompanying narrative,
Project Information:
Company's legal name:
Project address subject to incentive:
Company primary contact: Title:
Phone number: E-mail address:
Employment and
Has the Company
What is the total ni
What is the total A
M
Information:
eyed undocumented workers? Yes U No
of Full-time Employees located at the Schertz facility during the calendar year?
Payroll for the Schertz facility during the calendar year?
Investment Information:
What taxable ad valorem value for Real Property for the reporting period?
What is the taxable ad valorem value for Tangible Personal Property for the reporting period?
Narrative:
Please attach a brief narrative explaining the current year's activities and/or comments relating to any potential defaults,
Employment:
Total full-time employees:
Total annual payroll:
Number of full-time jobs added in past year:
Number of employees that live in Schertz, Texas:
Interested in being contacted about workforce training opportunities? D Yes 7_11 No
Interested in being contacted for assistance with City permits? 0 Yes 0 No
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I certify that, to the best of my knowledge and belief, the information and attachments provided herein are true and accurate
and in compliance with the terms of Economic Development Performance Agreement,
I further certify that the representations and warranties contained within the Agreement remain true and correct as of the
date of this Certification, and Evestra, Inc, remakes those representations and warranties as of the date hereof,
I further certify that the employment and wage information provided is true and accurate to the best of my knowledge and I
can provide documentation from the Texas Workforce Commission to support my claim if so requested.
I understand that this Certificate is being relied upon by the SEDC in connection with the expenditure of public funds
I have the legal and express authority to sign this Certificate on behalf of Evestra, Inc.
Name of Certifying Officer Certifying Officer's Title
Phone Number E-Mail Address
Signature of Certifying Officer Date
STATE OF TEXAS X
COUNTY OF X
This information was acknowledged before me on this day of by
— for Evestra, Inc., a Texas corporation, on behalf of said agency.
Notary Public, State of Texas
Notary's typed or printed name
My commission expires
The Annual Certification Report is to be completed, signed and returned on or before February 15, 20— Please
send an original to the following address:
Attention: Executive Director
City of Schertz Economic Development Corporation
1400 Schertz Parkway, Bldg. No. 2
Schertz, TX 78154
17