19-R-80 - Economic Development Performance Agreement with SEDC and Nexus Enterprises LLCRESOLUTION NO. 19 -R -80
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 (THE "SEDC ") AND
NEXUS ENTERPRISES, LLC (THE "COMPANY "); AND OTHER
MATTERS IN CONNECTION THEREWITH
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 corporation 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 501.101 of the Act authorizes the use of Corporation funds for land,
buildings, equipment, facilities, expenditures, targeted infrastructure and improvements for the
creation or retention of primary jobs when found by the board of directors to be required or suitable
for the development, retention, or expansion of manufacturing and industrial facilities; 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 501.159 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 June 20, 2019; and
WHEREAS, the SEDC Board of Directors approved SEDC Resolution 2019 -13 which,
subject to the authorization of funds by the City of Schertz City Council, approved the Economic
Development Performance Agreement attached hereto as Exhibit A between the Corporation, and
the Company, pursuant to the Act, and the SEDC's Board of Directors meeting on June 20, 2019;
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 THAT?
Section 1. The City Council hereby authorizes the program and expenditures as
provided for in the Economic Development Performance Agreement as set forth on 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 25a' day of June 2019.
CITY OF SCHERTZ, TEXAS
ATTEST:
1 s
renda Dennis, City Secretary
EXHIBIT A
ECONONIIC DEVELOPMENT PERFORMANCE AGREEMENT
NEXUS ENTERPRISES, LLC.
[SEE ATTACHED]
ECONOMIC DEVELOPMENT PERFORMANCE AGREEMENT
NEXUS ENTERPRISES, LLC.
THIS ECONOMIC DEVELOPMENT PERFORMANCE AGREEMENT — NEXUS
ENTERPRISES, LLC., ( "Agreement ") is entered into 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, 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 (hereinafter called "Corporation ") created by and
for the benefit of the City of Schertz, Texas (hereinafter the called the "City "), and Nexus
Enterprises, LLC., a Texas limited liability company, its successors or assigns (hereinafter called
"Company "), the Corporation and the 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 501.101 of the Act authorizes the use of SEDC funds for land,
buildings, equipment, facilities, expenditures, targeted infrastructure and improvements for the
creation or retention of primary j obs when found by the board of directors to be required or suitable
for the development, retention, or expansion of manufacturing and industrial facilities; 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 a 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, the Company desires to relocate and expand its headquarters, management,
scientific, and technical consulting services operations to the Facility located in Schertz, Texas;
and
WHEREAS, prior to the execution of this Agreement, with the Corporation's consent, the
Company or its affiliates has entered into a ten year lease at the Facility that will be constructed
on the Property for the specific use of the Company; and
WHEREAS, the Corporation adopted the Schertz Incentive Policy in May 2017 to guide
and ensure consistency when providing incentives within the City to promote economic
development; and
WHEREAS, the Corporation authorizes a variance from the Schertz Incentive Policy by
acknowledging that the Company has executed its lease prior to the approval of this Agreement;
and
WHEREAS, the location of the Company, as proposed, will contribute to the economic
development of the City by creating new jobs and increased employment, promoting and
developing expanded business enterprises, increased development, increased real and personal
property value and tax revenue for the City, and will have both a direct and indirect positive overall
improvement/stimulus in the local and state economy; 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 herein; 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
The recitals set forth above are declared true and correct by the Parties and are hereby
incorporated as part of this Agreement.
ARTICLE II
AUTHORITY AND TERM
1. Authorir, . 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 the Company is acting in reliance upon the Corporation's performance of its obligations under
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this Agreement in making the decision to commit substantial resources and money to the
construction and establishment of the Project (as defined below), hereinafter constructed and
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 written mutual agreement of the Parties in the manner provided
for herein.
3. Pu pose. 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 the 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 Parties may constitute
a Default and shall terminate any further commitments (if any) by the non - defaulting Party unless
an alternative penalty or remedy is provided for herein.
4. Administration of Agreement. 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.
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.
"Annual Payroll" shall mean the total wages paid during the calendar year, exclusive of
employee benefits, to all Full -Time Employees working at or based out of 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 1 through December 31.
"Certificate of Occupancy" shall mean the signed certificate issued by the City of Schertz
Inspection Division confirming that the entire work covered by the building permit and plans are
in place for the Facility or Facilities.
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"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 set forth in this Agreement.
"Effective Date" shall be the date upon which the last party hereto executes this Agreement.
"Expiration Date" shall mean the earlier of:
1. December 31, 2023;
2. The date of termination provided for under Article VII of this Agreement.
"Facility" shall mean the approximate thirty -six thousand (36,000) square foot office
building located on the 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, 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" or "Full Time Employees" shall mean: (1) an employee with a
regular work schedule of at least 36 hours per week as reported to the Texas Employers Quarterly
Wage Report from the Texas Workforce Commission, and (2) are entitled to at least the customary
employer- sponsored employee benefits package afforded by the Company to its similarly situated
employees at other locations.
"Primary Jobs" shall mean the definition established by Sec. 501.002 (12) of the Act.
"Project" shall mean the creation and retention of Primary Jobs at the Facility as
demonstrated through the annual compliance to the Minimum Performance Criteria.
"Property" shall mean the approximate 4.167 acre tract of land located within the City of
Schertz, Texas at the Verde Enterprise Business Park Unit #10A, Block 12, Lot 1 whereon the
Facility will be constructed.
"State of Texas" shall mean the Office of the Texas Comptroller, or its successor.
"Personal Property" shall mean the total taxable personal property ad valorem tax value
reported by the Guadalupe County Appraisal District.
ARTICLE IV
CORPORATION OBLIGATION
1. Operation Grant. Subject to the satisfaction of all the terms and conditions of this
Agreement and the obligation of the Company to repay the Operation Grant pursuant to Article
VIII hereof, the Corporation shall pay the Company an Operations Grant in an amount not to
exceed TWO HUNDRED THOUSAND and NO /100 ($200,000.00), (the "Operation Grant ").
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2. Current Revenue. The Operation Grant shall be paid solely from lawfully available
funds of the Corporation. Under no circumstances shall the obligations hereunder be deemed to
create any debt within the meaning of any constitutional or statutory provision. The Corporation
represents and warrants that it has funds available for distribution sufficient to fully and timely
pay the full the Operation Grant, will reserve such funds solely for such purpose, and will not
make any special or general allocations of the Corporation's current and future funds that would
render the Corporation unable to timely make the full Operation Grant along with its other
obligations. 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 Corporation agrees to keep all information and documentation
received pursuant to this Agreement confidential to the extent allowed under the Texas Public
Information Act (TPIA). In the event a request is made for such information, Corporation will
notify the Company and follow the process stated in the TPIA for determining what information
must be released and what information should be withheld until seeking a ruling from the
Attorney General of Texas.
ARTICLE V
PERFORMANCE OBLIGATIONS OF COMPANY
The obligation of the Corporation to pay funds from the Operations Grant shall be
conditioned upon the Company's continued compliance with and satisfaction of each of the
performance obligations set forth in this Agreement.
1. Execution of Lease. Prior to the execution of this Agreement, the Company must
have executed a Ten (10) year lease for the Facility. The Company shall provide access to the
lease agreement to the Executive Director of the Corporation as proof of the satisfaction of this
condition.
2. Promotion. Company must actively promote their operations at the Facility
identifying the City of Schertz as a preferred location for office development, during the term of
this Agreement.
3. Certificate of Occupancy. The Company must obtain a Certificate of Occupancy,
for the Facility on or before December 31, 2020 and maintain operations at said Facility throughout
the Term of this agreement.
4. Minimum Performance Criteria. Throughout the Term of the Agreement, the
Company must create and maintain the following minimum Full Time Employees, Annual Payroll,
and Personal Property.
Minimum Performance_ Criteria
Time Period
_
Full -Time
Annual Payroll
Personal
Employees
Pro[?erty
Year 0 —
2020
68
Not Required
Not Required
Year 1 —
2021
87
$4,616,770
$475,000
$381,250
Year 2 — 2022
87
$4,616,770
Year 3 —
2023
87
$4,616,770
$310,250
5. Annual Certification Retlort. The Company shall submit an Annual Certification
Report (an "Annual Report ") for the preceding Calendar Year to the Executive Director of the
Corporation each year no later than February 15th. 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 15th, 2021.
6. Pavment of Leual Fees. Each Party shall bear its own legal fees in connection with
the negotiation of this Agreement. The Company commits to reimburse the Corporation for the
necessary legal fees in the preparation of any amendments to this Agreement, if and when such
amendment is required by the Company. Timely payment shall be made within sixty (60) days of
submittal of invoice to the Company by the Corporation or its assigns.
ARTICLE VI
COVENANTS AND DUTIES
1. The Company's Covenants and Duties. The Company makes the following
covenants and warranties to the Corporation, and agrees to timely and fullyperform 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 the Company.
(a) The 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 during any
Term of this Agreement.
(b) The execution of this Agreement has been duly authorized by the
Company's authorized agent, and the individual signing this Agreement is
empowered to execute such Agreement and bind the Company. Said authorization,
signing, and binding effect is not in contravention of any law, rule, regulation, or
of the provisions of the Company's operating agreement, or of any agreement or
instrument to which the Company is a party to or by which it may be bound.
(c) The Company is not a party to any Bankruptcy proceedings currently
pending or contemplated, and the Company has not been informed of any potential
involuntary Bankruptcy proceedings.
(d) To its current, actual knowledge, the Company has acquired and maintained
all necessary rights, licenses, permits, and authority to carry on its business in the
City and will continue to use its best efforts to maintain all necessary rights,
licenses, permits, and authority.
(e) The Company agrees to obtain or cause to be obtained, all necessary permits
and approvals from City and/or all other governmental agencies or private
authorities having jurisdiction over the construction of the Facility.
(f) The Company shall be responsible for paying, or causing to be paid, to the
City and all other governmental agencies or private authorities the cost of all
applicable permit fees and licenses required for construction of the Facility. The
Company agrees to construct the Facility in accordance with the ordinances, rules,
and regulations of the City in effect on the date the Road Plan Set is approved by
the City. The Company, in its sole discretion, may choose to comply with any or
all City rules promulgated after the Effective Date of this Agreement.
(g) The Company agrees to commence and complete the Project in strict
accordance with this Agreement.
(h) The Company shall cooperate with the Corporation in providing all
necessary information to assist them in complying with this Agreement.
(i) 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, 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 the Operation Grant provided herein will be used.
0) Company shall not be in arrears and shall be current in the payment of all
taxes and fees.
2. Coi oration's Covenants and Duties.
(a) The Corporation is obligated to pay the Company an Operations Grant in
the amount not to exceed TWO HUNDRED THOUSAND and NO /100
($200,000.00). The Operations Grant shall be paid in accordance with Article IV,
Section 1 within forty-five (45) days after receiving written notice from the
Company that they have received a Certificate of Occupancy for the Facility.
(b) The Corporation represents and warrants to the 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.
3. Comoliance and Default. Failure by the 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
defined below), if applicable.
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ARTICLE VII
TERARNATION
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, or their affiliates, successors or
assigns;
(b) The Agreement's Expiration Date; or
(c) Default by the Company of the terms and conditions set forth herein.
ARTICLE VIII
DEFAULT
1. The Company 's Events of Default. The following shall be considered an Event of
Default by the Company:
(a) Failure of the Company to perform any term, covenant or agreement
contained in this Agreement;
(b) The Corporation determines that any representation or warranty contained
herein or in any financial statement, certificate, report or opinion prepared and
submitted to Corporation in connection with or pursuant to the requirements of this
Agreement was incorrect or misleading in any material respect when made;
(c) Any judgment is assessed against the Company or any attachment or other
levy against the property of the Company with respect to a claim remains unpaid,
unstayed on appeal, not discharged, not bonded or not dismissed for a period of
ninety (90) days;
(d) The Company makes an assignment for the benefit of creditors; files a
petition in bankruptcy; is adjudicated insolvent or bankrupt; petitions or applies to
any tribunal for any receiver or any trustee of the Company; commences any action
relating to the 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 the Company any such action
and such action remains undismissed or unanswered for a period of ninety (90) days
from such filing; or
(e) The Company changes its present ownership more than fifty -one (51 %)
without written notification to the Corporation within thirty (30) days of such
change.
2. Comoration Events of Default. The Corporation fails to fulfill an obligation set
forth within the terms and conditions of this Agreement.
3. Remedies for Default
(a) The Company's sole remedy under this Agreement is specific performance
for Corporation's Default of its obligations under Section IV of this Agreement.
(b) 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 eighty -seven and one -half percent (87.5 %) of the
Operation Grant plus two percent (2.00 %) annual interest (the "Recapture
Amount "). The Recaptured Amount shall be paid by the Company within one
hundred twenty (120) days after the date the 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 five percent (5.00 %) per annum from the Effective
Date until paid in full.
(c) In the event of Default is related to a failure to comply with Article V, (2),
Promotion, the recapture amount stated in (b) above shall be 100% of the
Operations Grant plus two percent (2.00 %) annual interest. The Recaptured
Amount shall be paid by the Company within one hundred twenty (120) days after
the date the 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 five
percent (5.00 %) per annum from the Effective Date until paid in full.
4. Limitation on Use of Funds in the Event of Default. 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 or the
Corporation.
ARTICLE IX
NUSCELLANEOUS
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.
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. Assignment, The Company shall have the right to assign all or part of its rights,
duties, and obligations under this Agreement to a duly qualified third party with prior written
approval of the Corporation, 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 the Company of any liability to the
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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.
4. 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 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.
5. 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:
If intended for SEDC: City of Schertz Economic Development Corporation
Attention: Exec. Dir. of Economic Development
1400 Schertz Parkway
Schertz, TX 78154
With a cop] to:
Denton, Navarro, Rocha, Bernal, & Zech, PC
Attention: Charles E. Zech
2517 North Main Avenue
San Antonio, TX 78212
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If to Compam : Nexus Enterprises, LLC.
Attention: Ed Bolton, President and Chief Executive Officer
1650 Independence Dr.
New Braunfels, TX 78132
Any Party may designate a'different address at any time upon written notice to the other
Parties.
6. 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.
7. Governing Law. The Agreement shall be governed by the laws of the State of
Texas, and the venue for any action concerning this Agreement shall be in the Courts of Guadalupe
County. The Parties agree to submit to the personal and subject matter jurisdiction of said court.
8. Amendment. This Agreement may be amended by mutual written agreement of the
Parties, as approved by the Board of Directors of the Corporation.
9. 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.
10. 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.
11. 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.
12. 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.
13. Counterparts. This Agreement may be executed in counterparts. Each of the
counterparts shall be deemed an original instrument, but all of the counterparts shall constitute one
and the same instrument.
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14. Exhibits. Any exhibits attached hereto are incorporated by reference for all
purposes.
15. 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.
16. Indemnification. COMPANY AGREES TO DEFEND, INDEMNIFY AND
HOLD THE CORPORATION AND THE CITY, AND THEIR RESPECTIVE OFFICERS,
AGENTS AND EMPLOYEES HARMLESS FROM AND AGAINST ANY AND ALL
REASONABLE LIABILITIES, DAMAGES, CLAIMS, LAWSUITS, JUDGEMENTS,
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 FOR 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 IMDEMNITY
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 SHALL BE
RESPONSIBLE FOR THE REPAYMENT OF ANY FUNDS 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.
17. 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.
18. Force Mai eure. Whenever a period of time is herein prescribed for action to be
taken by Company, 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.
19. Time Periods. Unless otherwise expressly provided herein, all periods for delivery
or review and the like will be determined on a "calendar" day basis. If any date for performance,
approval, delivery or Closing falls on a Saturday, Sunday or legal holiday (state or federal) in the
State of Texas, the time therefor will be extended to the next day which is not a Saturday, Sunday
or legal holiday.
[SIGNATURE PAGE IMMEDIATELY FOLLOWING]
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Executed on this day of _ , 2019.
COMPANY:
Nexus Enterprises, LLC.
a Texas limited liability company
STATE OF TEXAS
COUNTY OF COMAL
Larry Edward Bolton
President and Chief Executive
Officer
This information was acknowledged before me on this day of _ ,
2019 by Larry Edward Bolton, as President and Chief Executive Officer Nexus Enterprises, LLC.,
a Texas limited liability company, on behalf of said company.
Notary Public, State of Texas
Notary's typed or printed name
My commission expires
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Executed on this day of , 2019.
CITY OF SCHERTZ ECONOMIC
DEVELOPMENT CORPORATION
By:
Name: Paul Macaluso
Title: President
STATE OF TEXAS
COUNTY OF GUADALUPE
This information was acknowledged before me on this day of ,
2019 by Paul Macaluso, as President of the City of Schertz Economic Development Corporation,
a Texas non -profit industrial development corporation, on behalf of said agency.
APPROVED AS TO FORM:
By:
SEDC Attorney
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Notary Public, State of Texas
Notary's typed or printed name
My commission expires
EXHIBIT A
ANNUAL CERTIFICATION REPORT
(See Attached)
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Annual Certification Report
Reporting Period: January 1 to December 31, 20_
The Annual Certification Report for the Economic Development Performance Agreement between the City of Schertz
Economic Development Corporation and Nexus Enterprises, LLC., is due on February 15, 20_. Please sign and
return the Annual Certification Report form with accompanying narrative.
Project Information:
The Company's legal name:
Project address subject to incentive:
The Company's primary contact:
Phone number:
E -mail address:
Employment and Wage Information:
Has the Company employed undocumented workers? ❑ Yes ❑ No
Title:
What is the total number of Full -Time Employees located at the Facility during the calendar year?
What is the total Annual Payroll for the Schertz Facility during the calendar year?
Investment Information:
What is the Company's Personal Property value 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: [Number of direct hires:
Total Annual Payroll:
Number of Full -Time Employees added in past year:
Number of employees that live in Schertz, Texas:
Interested in being contacted about workforce training opportunities?
Number of contract employees: j
0 Yes 0 No
Interested in being contacted for assistance with City permits? 0 Yes ❑ 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 Nexus Enterprises, LLC., 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 Nexus Enterprises, LLC.
Name of Certifying Officer
Phone Number
Certifying Officer's Title
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 Nexus Enterprises, LLC., a Texas limited partnership, 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
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