20-R-115 - EDC performance agreement between the city of Schertz EDC and Phelan Bennett LLcRESOLUTION NO. 20-R-115
A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF SCHERTZ,
TEXAS AUTHORIZING AN ECONOMIC DEVELOPMENT
PERFORMANCE AGREEMENT BETWEEN THE CITY OF SCHERTZ
ECONOMIC DEVELOPMENT CORPORATION AND PHELAN-
BENNETT LLC; AND OTHER MATTERS IN CONNECTION
THEREWITH
WHEREAS, the City of Schertz Economic Development Corporation ( "SEDC ") is a non-
profit industrial development corporation duly established under 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");
WHEREAS, all of the powers of the corporation are vested in the SEDC Board of
Directors (the "Board ") appointed by the governing body of the corporation's authorizing unit;
and
WHEREAS, the Act authorizes a development corporation to fund certain projects as
defined by the Act and request 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 501.103 authorizes expenditures for certain infrastructure
improvement projects that are found by the Board of Directors to be required or suitable for
infrastructure necessary to promote or develop new or expanded business enterprises; 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, Phelan - Bennett, LLC. (the "Company ") desires to construct a warehousing
and distribution facility creating new ad valorem value of $5,000,000 in Schertz, Texas; and
WHEREAS, the SEDC desires to offer an incentive to enable the Company to relocate
and expand its investment pursuant to the Agreement in substantial conformity with the Schertz
Incentive Policy and the Act; 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 and the public
hearing was held on September 24, 2020; and
A -1
WHEREAS, following the public hearing, the Board approved the Economic
Development Performance Agreement for the Company as set forth in Exhibit A attached hereto
and incorporated herein (the "Agreement ") between the SEDC and the Company, pursuant to the
Act; and,
WHEREAS, Said Agreement shall be effective upon approval by the Schertz City Council
as required by Section 501.073 of the Act requiring approval of all programs and expenditures by
the authorizing unit.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF SCHERTZ, TEXAS THAT:
Section 1. The Schertz City Council hereby approves the program and expenditure of
the Schertz Economic Development Corporation set forth in the Economic Development
Performance Agreement attached hereto as Exhibit A and authorizes the President to execute and
deliver in the substantial form as attached.
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 Schertz 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 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, 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.
-2-
Exhibit A
ECONOMIC DEVELOPMENT PERFORMANCE AGREEMENT
PHELAN - BENNETT LLC
[SEE ATTACHED]
-4-
PASSED AND ADOPTED, this 10t1 day of November, 2020.
ATTEST:
nda,Dennis, City Secretary
CITY OF SCHERT TEXAS
0-4er
Ralph Ntlerrez, Mayor
-3-
ECONOMIC DEVELOPMENT PERFORMANCE AGREEMENT
Phelan - Bennett, LLC
This Performance 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 "SEDC "), 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 Phelan- Bennett LLC, a Texas Limited Liability Company (hereinafter called
" Company "), collectively 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 SEDC 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 construct a Facility as defined below, to locate Class A
warehousing and distribution facility 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 SEDC desires to offer an incentive to Company to enable Company to locate and
expand its operations pursuant to this Agreement in substantial conformity with 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 matter
herein; 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
1. 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. Authoritv. The SEDC's execution of this Agreement is authorized by the Act and
constitutes a valid and binding obligation of the SEDC. The SEDC acknowledges that Company
is acting in reliance upon the SEDC'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, or in the manner provided for
herein.
3. Purpose. The purpose of this Agreement is to formalize the agreements between
the Company and the SEDC for the granting of property and funds to cover certain costs associated
with the Project, as well as to 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 SEDC 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 SEDC
unless an alternative penalty or remedy is provided for herein.
4. Administration of Agreement. Upon the Effective Date, the SEDC delegates the
administration and oversight of this Agreement to the Executive Director of the SEDC, or his
designee. Any proposed amendments to the Agreement shall require the approval of the Board of
Directors of the SEDC.
2
ARTICLE III
DEFINITIONS
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 common and
ordinary usage.
"Appraisal Sunset Date" shall mean August 1, 2023.
"Bankruptcy" shall mean the dissolution or termination of a Party's existence as an ongoing
business, insolvency, appointment of receiver for any part 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.
"Capital improvements" shall mean the "facility" and items eligible for "project reimbursements"
as defined herein, but shall not include, taxable personal property or inventory of Company or any
tenant of Company.
"Certificate of Occupancy" shall mean the signed certificate issued by the City of Schertz Planning
& Development Department granting the Company the right to occupy the Facility and confirming
that the entire work covered by the permit and plans are in place.
"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.
"Effective Date" shall be the date of the last signing by a party to the agreement.
"Expiration Date" shall mean the earlier of:
1. July 31, 2024; or
2. The date of termination provided for under Article VII of this Agreement.
"Facility" shall mean the approximate 170,000 square foot Class A warehouse and distribution
facility to be constructed on the Real Property
"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, pandemics, 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.
3
"Project" shall mean the Company's commitment to construct the Facility and the corresponding
infrastructure improvements by May 1, 2022 resulting in not less than FIVE MILLION DOLLARS
AND NO CENTS $5,000,000 in capital improvements to the site as assessed by the Guadalupe
County Appraisal District, no later than the Appraisal Sunset Date.
"Project Reimbursement" shall mean up to the engineering and construction costs associated with
the relocation of public sanitary sewer relocation; sanitary sewer extension along Four Oaks; and
the sidewalk extension along Four Oaks; and estimated to be FIFTY THOUSAND DOLLARS
AND NO CENTS ($50,000.00).
"Real Property" shall mean 17670 Four Oaks Lane, Schertz, Texas 78602, [Four Oaks Commercial
Plat] a 9.598 acre tract of land.
ARTICLE IV
SEDC OBLIGATION
Infrastructure Reimbursement Grant. Subject to the satisfaction of all the terms and
conditions of this Agreement and the obligation of Company to repay the Infrastructure
Reimbursement Grant pursuant to Article V hereof, the SEDC agrees to provide Company
with an Infrastructure Reimbursement Grant up to and not exceeding the amount of FIFTY
THOUSAND DOLLARS AND NO CENTS ($50,000.00) payable upon:
(a) Submission of reporting for each year of the proposed incentive period, beginning as
follows:
Reporting Date
April 1, 2021
Mae, 1, 2022
Appraisal Sunset Date
Report
Certification that project
has started construction
Buildin- Completion
Real Property Value
Supporting
Documentation
City of Schertz Building
Permit and copy of plans
submitted to the Cit .%
Certificate of Occupanc'°
Real Property Assessment
per Guadalupe Appraisal
District
(b) Submission of documentation reflecting total actual costs of improvements to the site
that are eligible as Project Reimbursements. Acceptable documentation includes bill of
sale, executed contracts, or estimated values submitted as required by permitting process
and proof of payment for such improvements. The Infrastructure Reimbursement Grant
shall be in the amount qualifying as Project Reimbursements, up to and not exceeding
the maximum set forth above, and shall be payable no sooner than the 606, day after
receipt of the supporting documentation stated herein; and
4
(c) Receipt of a Certificate of Occupancy issued by the City of Schertz
(d) Confirmation by SEDC staff of new capital improvements to the site resulting in
improvement value of FIVE MILLION DOLLARS AND NO CENTS ($5,000,000.00)
as assessed by the Guadalupe County Appraisal District, no later than the Appraisal
Sunset Date.
(e) However, if Company's new capital improvements result in less than FIVE MILLION
DOLLARS AND NO CENTS ($5,000,000.00) as assessed by the Guadalupe County
Appraisal District by the Appraisal - Sunset Date, SEDCs Obligations under the
Infrastructure Reimbursement Grant shall be reduced on a pro -rata basis. For example, if
the assessment is for FOUR MILLION FIVE HUNDRED THOUSAND DOLLARS
AND NO CENTS $4,500,000.00 rather than FIVE MILLION DOLLARS AND NO
CENTS ($5,000,000.00) (90% of projected), the total amount of the grant would be
FORTY FIVE THOUSAND DOLLARS AND NO CENTS $45,000.00 (90% of the
expected grant).
2. Current Revenue. The funds distributed hereunder shall be paid solely from lawfully
available funds of the SEDC. Under no circumstances shall the 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.
3. Confidentiality. The SEDC agrees to the extent allowed by law, to keep information and
documentation received, pursuant to this Agreement hereof, confidential. In the event a
request is made for such information, SEDC will not disclose the information unless
required to do so by the Attorney General of Texas pursuant to the requirements of the
Texas Public Information Act.
ARTICLE V
PERFORMANCE OBLIGATIONS OF COMPANY
The obligation of the SEDC to pay funds in the form of a Reimbursable Infrastructure
Grant shall be conditioned upon Company's continued compliance with and satisfaction of each
of the performance obligations set forth in this Agreement.
1. CaPital Investment.
(a) Company shall begin construction of the Project before April 1, 2021. For purposes of
compliance under the terms of this Agreement, obtaining a permit from the City of
Schertz to begin construction related activity on the Real Property associated with the
Project shall constitute the beginning of construction.
(b) Complete construction of the Project on the Real Property such that the improvements
contemplated by the Project add no less than FIVE MILLION DOLLARS AND NO
5
CENTS ($5,000,000.00) in improvements as assessed by the Guadalupe County
Appraisal District reported to the SEDC no later than the Appraisal Sunset Date.
(c) Submission of documentation reflecting total actual costs of improvements to the site that
are eligible as Project Reimbursements. Acceptable documentation includes bill of sale,
executed contracts, or estimated values submitted as required by permitting process and
proof of payment for such improvements. The Infrastructure Reimbursement Grant shall
be in the amount qualifying as Project Reimbursements, up to and not exceeding the
maximum set forth above, and shall be payable by SEDC no sooner than the 60th day after
receipt of the supporting documentation stated herein.
(d) Company understands and acknowledges that if the new capital improvements result in
less than FIVE MILLION DOLLARS AND NO CENTS ($5,000,000.00) as assessed by
the Guadalupe County Appraisal District by the Appraisal Sunset Date, SEDCs
Obligations under the Infrastructure Reimbursement Grant shall be reduced on a pro -rata
basis. For example, if the assessment is for FOUR MILLION FIVE HUNDRED
THOUSAND DOLLARS AND NO CENTS $4,500,000.00 rather than FIVE MILLION
DOLLARS AND NO CENTS ($5,000,000.00) (90% of projected), the total amount of
the grant would be FORTY FIVE THOUSAND DOLLARS AND NO CENTS
$45,000.00 (90% of the expected grant).
2. Job Creation. No jobs are scheduled to be created or associated with this Agreement.
3. Annual Re; ,ort. The Company shall submit an Annual Certification Report (an "Annual
Report") for the preceding Year to the Executive Director of the SEDC each year not later than
February 15th beginning with the first report not later than February 15, 2022 and concluding
with the last report not later than February 15, 2024. The Annual Report should substantially
conform to the Annual Report Form attached as Exhibit "B" to this Agreement.
4. 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 SEDC's right to the Recapture Amount shall survive the Expiration Date of this
Agreement.
ARTICLE VI
COVENANTS AND DUTIES
1. Comt)an\ 's Covenants and Duties. Company makes the following covenants and warranties to
the SEDC and agrees to timely and fully perform the obligations and duties contained in
Articles 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 the Company.
Con
Rm-
(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, with the Texas Comptroller of Public
Accounts, 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
governing body, 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 (f) 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.
(f) Company agrees to obtain, or cause to be obtained, all necessary permits and approvals
from the 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 the 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 SEDC in providing all necessary information to assist
them in complying with this Agreement.
(j) 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(1), 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,
7
YAM
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 funds provided herein will be used.
(k) Company shall not be in arrears and shall be current in the payment of all City and State
taxes and fees.
(1) SEDC 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 forty -eight
(48) months, the total expenses attributable to training and employing those employees,
and the cumulative payroll for Company's Schertz operation.
(m) Under Texas Law, the SEDC may not enter into a contract with a company for goods and
services unless the contract contains a written verification from the company that it; (i)
does not boycott Israel; and (ii) will not boycott Israel during the term of the contract.
(Texas Government Code, Chapter 2270.002) by accepting this rider, the Company
hereby verifies that it does not boycott Israel, and agrees that, during the term of this
agreement, will not boycott Israel as that term is defined in the Texas Government Code,
Section 808.001, as amended. Further, the Company hereby certifies that it is not a
company identified under Texas Government Code, Section 2252.152 as a company
engaged in business with Iran, Sudan, or Foreign Terrorist Organization.
2. SEDCs' Covenants and Duties. SEDC agrees to timely and fully perform the obligations and
duties contained in Article IV 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 the SEDC.
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 SEDC
the right to terminate this Agreement.
ARTICLE VII
TERNUNATION
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 SEDC).
8
ARTICLE VIII
DEFAULT & REMEDIES
1. Coml, an, Events of Default.
(a) Failure of Company to perform any term, covenant or agreement contained in Articles V
and VI.
(b) Any representation or warranty contained herein or in any financial statement, certificate,
report or opinion submitted to SEDC in connection with or pursuant to the requirements
of this Agreement was incorrect or misleading in any material respect when made; or
(c) Any judgment is assessed against Company or any attachment or other levy against the
property of Company with respect to a claim remains unpaid, unstayed on appeal,
undischarged, not bonded or not dismissed for a period of sixty (60) days; or
(d) Company makes an assigmnent for the benefit of creditors; admits in writing its inability
to pay its debts generally as they become due; files a petition in bankruptcy; is adjudicated
insolvent or bankrupt; petitions or applies to any tribunal for any receiver or any trustee
of Company or any substantial part of its property, commences any action relating to
Company under any reorganization, arrangement, readjustment of debt, dissolution or
liquidation law or statute of any jurisdiction whether now or hereafter in effect; or if there
is commenced against Company any such action and such action remains undismissed or
unanswered for a period of sixty (60) days from such filing, or Company by any act
indicates its consent to or approval of any trustee of Company or any substantial part of
its property; or suffers any such receivership or trustee to and such appointment remains
unvacated for a period of sixty (60) days; or
(e) Company substantially changes its present ownership without written notification to
SEDC within thirty (30) days of such change, provided however, Company may cure
such failure by providing the requisite written notification prior to SEDC exercising its
right to terminate this Agreement
(f) Company materially changes the general character of business as conducted at the date
hereof or engages in any type of business not reasonably related to its business as
presently and normally conducted.
2. SEDC Events of Default.
(a) SEDC materially fails to fulfill an obligation set forth within Article W.
3. Remedies for Default.
(a) For any Company defaults under Article V Section 1(a) -(c) SEDC shall have the right to
recapture one hundred percent (100 %) of the Infrastructure Reimbursement Grant that
was paid (the "Recapture Amount ") if the Default occurs on or prior to the Termination
Date. The Recaptured Amount shall be paid by the Company within one hundred twenty
0
=a
(120) days after the date Company is notified by the SEDC 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 Effective Date until paid in full.
(b) Company's sole remedy under this Agreement is specific performance for SEDC's
default of its obligation under Section IV of this Agreement.
ARTICLE IX
MISCELLANEOUS
1. Bindin. A.-,reement. 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 SEDC shall be responsible for the administration of this Agreement and shall have the
authority to execute any instruments, duly approved by the SEDC, on behalf of the Parties
related thereto.
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.
Representations and Warranties. The SEDC 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 SEDC that it has the requisite authority to enter into this
Agreement.
4. Assignment. 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 SEDC,
which approval shall not be unreasonably withheld, conditioned or delayed. 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 SEDC, 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 SEDC may demand and receive adequate assurance of
performance including the deposit or provision of reasonable 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 SEDC and that all
consultants or contractors engaged by Company respectively will be independent
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
10
the SEDC 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 SEDC.
(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 SEDC 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 SEDC, or any board member, or agent of the SEDC, 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 same 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:
Parties.
I_f intended for SEDC: Schertz Economic Development Corporation
Attention: Executive Director
1400 Schertz Parkway, Building 2
Schertz TX 78154
With a com to: Denton, Navarro, Rocha, Bernal, & Zech PC
Attention: T. Daniel Santee
2517 North Main Avenue
San Antonio, TX 78212
If to the Comr anv: Phelan- Bennett Development
Attention: Justin E. Bennett
1403 Maryland Street
Unit A
Houston, Texas 77005
With a co! •y to: John R. Jones, PC
Attention: John R. Jones
123 North Post Oak Lane
Suite 400
Houston, Texas 77024
Any Party may designate a different address at any time upon written notice to the other
11
4944
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.
(a) Governinm 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
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.
(b) Amendment. This Agreement may be amended by mutual written agreement of the
Parties, as approved by the Board of Directors of the SEDC and paid for by the Company
if requested by Company.
8. Lei al 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.
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.
9. 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 SEDC.
10. ParaLxa;,h Heading s. 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.
11. 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.
12. Exhibits. Any Exhibits attached hereto are incorporated by reference for all purposes.
13. 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.
12
= W 10
14. Indemnification.
COMPANY AGREES TO DEFEND, INDEMNIFY AND HOLD THE SEDC 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, JUDGMENTS, 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 SEDC HAS BEEN ERRONEOUSLY OR OVER -PAID SALES AND USE TAX
FOR ANY PERIOD DURING THE TERM OF THIS AGREEMENT AS A RESULT OF
BY COMPANY UNDER THIS AGREEMENTSEDC. 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 SHALL BE RESPONSIBLE FOR THE
REPAYMENT OF ANY FUNDS PAID AND PROPERTY GRANTED TO COMPANY
HEREIN THAT INCLUDES CITY SALES TAX RECEIPTS THAT THE STATE OF
TEXAS HAS DETERMINED WAS ERRONEOUSLY PAID, DISTRIBUTED OR
ALLOCATED TO THE SEDC.
15. 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.
16. Force Ma; eure. Whenever a period of time 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.
[SIGNATURE PAGE FOLLOWS]
13
Executed on this day of 5rp k. w% b..., _, 20_&!nt.
COMPANY
Phelan- Bennett, LLC,
a Texas limited liability company
By: JEB TX Investments, LLC,
a Texas limited liability company,
Its Manager
By:
ustin E. Bennett, Manager
STATE OF TEXAS
COUNTY OF HARRIS
This information was acknowledged before me on this day of September, 2020, by Justin E.
Bennett for Phelan - Bennett, LLC, a Texas limited liability company, on behalf of said entity.
°•,,�LAUREN V BENNETT
•". NotW Public
STAI E OF TEXAS
10#132198
_My comm. Fx;;. Oct, 4, 2023
14
Notary Public, State of Texas
Notary's typed or printed name
My commission expires
Executed on this day of , 20
SCHERTZ ECONOMIC
DEVELOPMENT CORPORATION
By:
Name: Paul Macaluso
Title: Board President
STATE OF TEXAS
COUNTY OF SCHERTZ
This information was acknowledged before me on this day of , ,
by Paul Macaluso, President of the Schertz Economic Development Corporation, a Texas non-
profit industrial development Corporation, on behalf of said agency.
APPROVED AS TO FORM:
C
T. Daniel Santee, SEDC Counsel
DNRB&Z P.C.
15
Notary Public, State of Texas
Notary's typed or printed name
My commission expires
Exhibit A
Project Site Plan
[SEE ATTACHED]
16
slu
Performance Agreement
Exhibit B
SAMPLE ANNUAL CERTIFICATION REPORT FORM
[SEE ATTACHED]
17
.
y
Annual Certification Report
Reporting Period: to _ 20�
The Annual Certification Report for the Economic Development Performance Agreement between the Schertz
Economic Development Corporation and ., is due on 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:
Investment Information:
What taxable ad valorem value for Real Property (excluding land) for the reporting period?
Narrative:
Please attach a brief narrative explaining the current year's activities and /or comments relating to any potential defaults.
MT
18
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 remakes those representations and warranties as of the date hereof.
1 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
Name of Certifying Officer
Phone Number
Signature of Certifying Officer
STATE OF TEXAS X
COUNTY OF X
Certifying Officer's Title
E -Mail Address
Date
This information was acknowledged before me on this day of by
for , a Texas SEDC, 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 13, 20_. Please
send an original to the following address:
Attention: Executive Director
City of Schertz Economic Development Corporation
1400 Schertz Parkway, Building 2
Schertz TX 78154
19
4� %