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22-R-43 - EDC Performance Agreement with CaterpillarRESOLUTION NO. 22-R43 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 CATERPILLAR INC; 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 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, Caterpillar Inc. ( "Company ") desires to expand its Schertz Texas operations within an existing building that is located at 6800 Doerr Ln, Schertz TX 78154; and WHEREAS, Company's Project is expected to create an additional 24, and maintain 145 full time employees with a minimum annual payroll of $8,426,420 at the end of Calendar Year 2026 and throughout the life of the agreement; and WHEREAS, Corporation intends to provide an Economic Development Grant in the form of a rebate of a percentage of the taxes paid by Company for new tangible personal property on -site at Company's Schertz operation; and WHEREAS, Section 501.155 authorizes expenditures for certain projects that the board of directors in the board's discretion determines promotes or develops new or expanded business enterprises that create or retain primary jobs; 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 April 28, 2022; and WHEREAS, Section 501.073 of the Act requires the Corporation's authorizing unit to approve all programs and expenditures. -1- NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ TEXAS THAT: Section 1. The City of Schertz City Council hereby approves program and expenditure contemplated in the Economic Development Performance Agreement attached hereto as Exhibit A and authorizes the President of the Corporation to execute same, in substantially the same 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 Board. Section 3. All resolutions, or parts thereof, which are in conflict or inconsistent with any provision of this Resolution are hereby repealed to the extent of such conflict, and the provisions of this Resolution shall be and remain controlling as to the matters resolved herein. Section 4. This Resolution shall be construed and enforced in accordance with the laws of the State of Texas and the United States of America. Section 5. If any provision of this Resolution or the application thereof to any person or circumstance shall be held to be invalid, the remainder of this Resolution and the application of such provision to other persons and circumstances shall nevertheless be valid, and the board hereby declares that this Resolution would have been enacted without such invalid provision. Section 6. It is officially found, determined, and declared that the meeting at which this Resolution is adopted was open to the public and public notice of the time, place, and subject matter of the public business to be considered at such meeting, including this Resolution, was given, all as required by Chapter 551, 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 day of , 2022. ATTEST: ennis, City Secretary CITY OF CHF 12 TZ Ralp uti , Mayor -2- Exhibit A ECONOMIC DEVELOPMENT PERFORMANCE AGREEMENT [SEE ATTACHED] -3- ECONOMIC DEVELOPMENT INCENTIVE AGREEMENT Caterpillar Inc. This Economic Development Incentive Agreement ( "Agreement ") is entered into to be effective as of _ , by and between the 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 Caterpillar Inc_, a Delaware Corporation authorized to do business in Texas (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 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, Company desires to expand its Schertz Texas operations within an existing building that is located at 6800 Doerr Ln, Schertz TX 78154; and WHEREAS, over the term of the Agreement, Company intends to create an additional 24 and maintain 145 full time employees with a minimum annual payroll of $8,426,420 at the end of Calendar Year 2026 and throughout the life of the agreement; and WHEREAS, Corporation intends to provide grants as outlined in Performance Table A based upon the personal property taxes on New Tangible Personal Property paid by Company over five (5) years and other terms and conditions set forth in this Agreement; 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 personal 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; WHEREAS, the Corporation desires to offer incentives to Company to enable Company to expand the personal property investment in the existing Facility pursuant to this Agreement in substantial conformity with the City of Schertz Economic Development 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 bearings; 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 II 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 in the form of an incremental personal property tax rebate on New Tangible Personal Property to cover certain costs associated with Company's 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 2 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. 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, 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. "Certificate of Occupancy" shall mean the signed certificate issued by the City of Sclhertz 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. "Default" shall mean failure by any Party to timely and substantially comply with any performance requirement, duty, or covenant if uncured sixty (60) days following receipt of written notice from any other Party. "Effective Date" shall be the date of final signature on this Agreement "Expiration Date" shall mean the earlier of: 1. May 15, 2034 or 2. The date of termination, provided for under Article VII of this Agreement. "Facility" shall mean the property and improvements being located at Schertz facility located at 6800 Doerr Ln, Schertz TX 78154. "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 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. "Grant" shall mean the cash payments from Corporation to Company as set forth in Performance Table A based upon the taxes paid by Company for New Tangible Personal Property on -site at the Facility. "New Tangible Personal Property" shall mean new personal property in the form of new manufacturing equipment put into service at the Facility before December 31, 2023, that is added to the Project subsequent to the execution of this Agreement and accounted for in a separate account on the tax rolls by the Comal County Appraisal District and Comal Count Assessor Collector. "Project" shall mean the investment of New Tangible Personal Property at the Facility, the retention of 145 jobs, the addition of 24 jobs with a minimum payroll of $6,775,000 for retained jobs and $8,426,420 for total jobs as described in Performance Table A. ARTICLE IV ECONOMIC DEVELOPMENT INCENTIVE TERMS AND CONDITIONS 1. Incentive. Subject to the satisfaction of all the terms and conditions of this Agreement, including the creation and retention of the minimum number of full -time jobs set forth herein, and the obligation of Company to repay the Grant pursuant to Article V hereof, the Corporation agrees to provide Company with the following economic development incentives: Corporation shall provide a grant based on taxes paid to the City of Schertz and in accordance with Performance Table A in the form of an annual grant capped at the personal property taxes payable to the City of Schertz as to the New Tangible Personal Property Required & Max Rebate Base Value (Example: 60 days after receiving certification of Year I performance the SEDC shall grant 100% of personal property taxes paid to the City of Schertz on up to $21,750,000 worth of New Tangible Personal Property). 4 The Grant shall be paid within sixty (60) days after receipt of a copy of the Annual Report reflecting that the applicable performance period objectives have been met as shown in the following Performance Table: Performance Table A 5 New Full-Tune Minimum Tangible Grant on Performance Employees Retained Personal Incremental Period Created and Existing Property Certification Tangible Ending Retained/ personal Required & Date personal December 31 Minimum Property Max Rebate property Payroll Investment Base Value Manufacturing equipment is located on -site by December 31, Year 0 – 2023 _ 2023 - — Year 1 – 2024 145/ $6,775,000 $50,000,0000 $21,750,000 15- Feb -25 100% Year 2 - 2025 145/ $6,775,000 $50,000,0000 $19,750,000 15- Feb -26 90% Year 3 - 2026 169/ $8,426,420 $50,000,0000 $17,750,000 15- Feb -27 85% _ Year 4 - 2027 169/ $8,42_6,420 $50,000,0000 $16,000,000 15- Feb -28 a 80% Year 5 - 2028 v v 169/ $8,426,420 $50,000,0000 L$ $14,0001000 15- Feb -29 75% Year 6 - 2029 169/ $8,426,42.0 $50,000,0000 $12,000,000 i 15- Feb -30 0% _ 169/ Year 7 - 2030 $8,426,420 $50,000,0000 ' $10,000,000 15- Feb -31 0% Year 8 - 2031 169/ $8,426,420 $50,000,0000 $8,000,000 15- Feb -32 0% 169/ Year 9 – 2032 $8,426,420 $50,000,0000 $6,500,000 15- Feb -33 0% Year 10 - 2033 169/ $50,000,0000 $8,426,420 $5,000, 000 15- Feb -34 0% State Enterprise Zone Project Nomination: The Corporation will facilitate the City of Schertz consideration a nominating resolution for Company's Project for a State Enterprise Project designation through the Expiration Date of the Project. 5 2. Current Revenue. The funds distributed hereunder 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. 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 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 pursuant to the Texas Public Information Act, Corporation will not disclose the information unless required to do so by the Attorney General of Texas under the provisions of the applicable statutes. 4. Conditions Precedent. The obligation of the Corporation to pay funds in the form of a Grant shall be conditioned upon Company's continued compliance with and satisfaction of each of the conditions set forth in this Agreement as reflected in the Performance Table above. 5. Annual Report. 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 not later than February 15`}'. The Annual Report should substantially conform to the Form of Annual Certification Report attached as Exhibit A to this Agreement. The first Annual Report will be due February 15`h, 2025. ARTICLE V COVENANTS AND DUTIES 1. Comhany's Covenants and Duties. Company makes the covenants and warranties to the Corporation and 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 Company. (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 and shall timely and fully comply with all of the terms and conditions of this Agreement to commence and complete the Project in accordance with the 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. r6i (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 commercially reasonable efforts to maintain all necessary rights, licenses, permits, and authority. (e) 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 and 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. (f) Company shall cooperate with the Corporation in providing all reasonably necessary information to assist them in complying with this Agreement. (g) During the tern 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 l 324a(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 Grant provided herein will be used. (h) Maintain and prepare financial statements in accordance with generally accepted accounting principles in the United States of America as established by the Financial Accounting Standards Board. (i) Grant Corporation 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 the Facility. 2. Corporation's Covenants and Duties. The Corporation is obligated to pay Company a Grant in the form of a rebate on New Tangible Personal Property taxes paid to the City of Schertz as outlined in Article IV. and Performance Table A as the New Tangible Personal Property Required and Max Rebate Base Value. The Grant shall be paid within sixty (60) days after receipt of a copy of the Annual Report reflecting that the applicable performance period objectives have been met as set forth in this Agreement.. 3. Substantial Compliance and Default. Failure by any Party to timely and substantially comply with any performance requirement, duty, or covenant shall be considered an act of Default if uncured sixty (60) days following receipt of written notice from any other Party 7 Failure of Company to timely and substantially cure a Default will give the Corporation the right to terminate this Agreement, in whole or in part, as reasonably determined by the Board of Directors of the Corporation. 4. Recapture. In the event of Default by the Company, the Corporation shall as its sole and exclusive remedy for Default hereunder, after providing Company notice and an opportunity to cure for the stated cure period, have the right to discontinue or reduce, in whole or in part, all future Grant payments and recapture any and all amounts previously paid under this Agreement (as applicable, the "Recaptured Amount "). The Recaptured Amount shall be paid by the Company within one hundred eighty (180) days after the date Company is notified by the Corporation of such Default (the "Payment Date ") provided said Default was not cured during the applicable cure period. 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. ARTICLE VI TERMINATION I . 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 beyond applicable cure period by Company (at the option of the Corporation). ARTICLE VII DISPUTE RESOLUTION 1 Mediation. If a dispute arises out of or relates to this Agreement or the breach thereof, the Parties shall first in good faith seek to resolve the dispute through negotiation between the upper management of each respective Party. If such dispute cannot be settled through negotiation, the Parties agree to try in good faith to settle the dispute by mediation under the Commercial Mediation Rules of the American Arbitration Association, San Antonio, Texas, before resorting to litigation; provided that a Party may not invoke mediation unless it has provided the other Party with written notice of the dispute and has attempted in good faith to resolve such dispute through negotiation. Notwithstanding the foregoing, any Party may seek immediate equitable relief, without attempting to settle a dispute through mediation, in any case where such Party is entitled to equitable relief by law, the terms of the Agreement, or otherwise. All costs of negotiation and mediation collectively known as alternate dispute resolution ( "ADR ") shall be assessed equally between the Parties with each party bearing their own costs for attorneys' fees, experts, and other costs of ADR and any ensuing litigation. 2. During the term of this Agreement, if Company files and/or pursues an adversarial proceeding against the Corporation regarding this Agreement without first engaging in good faith mediation of the dispute, then, at the Corporation's option, all access to the funds provided for hereunder may be deposited with a mutually acceptable escrow agent that will deposit such funds in an interest bearing account until the resolution of such adversarial proceeding. 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 either the Corporation or the City of Schertz. ARTICLE VIII MISCELLANEOUS I. 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 maintaining a Certificate of Occupancy from the City of Schertz and expanding operations 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. 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 Corporation, which Corporation will not unreasonably withhold. Any assignment provided for herein shall not serve to enlarge or diminish the obligations and requirements of this Agreement. 5. Indep rodent 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, E 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 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_: Schertz Economic Development Corporation Attention: Executive Director of Economic Development 1400 Schertz Parkway Schertz, TX 78154 If to the Com ianV7 With a com to: Denton, Navarro, Rocha, & Bernal, PC Attention: T. Daniel Santee 2517 North Main Avenue San Antonio, TX 78212 Attention: Facility Manager Caterpillar Inc. 6800 Doerr Ln, Schertz TX 78154 With a cope to: Corporate Real Estate & Economic Development Mgr. 100 NE Adams St. AB4260 Peoria, IL USA 61629 -4260 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 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. 10 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. Leval 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. 11. Payment of Leal Fees. Each Party shall bear its own attorney's fees in connection with the negotiation of this Agreement. 12. 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. 13. Entire A�?reement. 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. 14. 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. 15. 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. 16. Exhibits. Any Exhibits attached hereto are incorporated by reference for all purposes. 17. 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. 18. Indemnification. COMPANY AGREES TO DEFEND, INDEMNIFY AND HOLD THE CORPORATION AND 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 RESULTING FROM THE FAILURE OF COMPANY TO MAINTAIN A PLACE OF BUSINESS AT THE FACILITY OR IN THE CITY OF SCHERTZ, OR AS A RESULT OF NON - PERFORMANCE BY 11 COMPANY UNDER THIS AGREEMENT EXCEPT THAT THE INDEMNITY 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. 19. 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. 20. 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. 12 Executed on this day of 2022. SCHERTZ EC DEVELOPMENT CORPORATION By: Name: Paul Macaluso Title: SEDC Board President ATTEST: , U)) By: V'V v Y �- Name: Sammi Morrill Title: SEDC Secretary Executed on this day of __ 2022 COMPANY Caterpillar Inc. By: _ Name: Title: 13 Exhibit A SAMPLE ANNUAL CERTIFICATION REPORT FORM [SEE ATTACHED] 14 Annual Certification Report Reporting Period: January 1 to December 31, 20 The Annual Certification Report for the Economic Development Incentive Agreement between the City of Schertz Economic Development Corporation and , is due on February 15, 20_. Please sign and return the Annual Certification Report form with the accompanying narrative, 1. PROJECT INFORMATION Project Information: Company's legal name: Project address subject to incentive: Company primary contact: Phone number: E -mail address: Title: Employment and Wage Information: I Has the Company employed undocumented workers? ❑ Yes ❑ No I What is the total number of Full -time Employees located at the Schertz facility during the calendar year? What is the total Annual Payroll for the Schertz facility during the calendar year? Investment Information: What is the 20_ appraised ad valorem tax value for New Tangible Personal Property? What is the 20_ appraised ad valorem tax value for Tangible Personal Property? Narrative: A brief narrative explaining the current year's activities and/or any potential defaults has been provided? ❑ Yes ❑ No Ill. ADDITIONAL INFORMATION (VOLUNTARY) Employment: 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? L -1 Yes ❑ No Interested in being contacted for assistance with City permits? 15 U Yes ('i No IV. CERTIFICATION 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 Incentive 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 XXX Corporation. 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 Caterpillar Inc. Corporation. Name of Certifying Officer Certifying Officer's Title Phone Number E -Mail Address Signature of Certifying Officer Date STATE OF TEXAS X COUNTY OF XXX X This information was acknowledged before me on this day of 20 by I first and last namel .LtjjkL for XX Corporation, 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 76154 16 SEDC RESOLUTION NO. 2022-3 A RESOLUTION BY THE CITY OF SCHERTZ ECONOMIC DEVELOPMENT CORPORATION, TEXAS AUTHORIZING AN ECONOMIC DEVELOPMENT PERFORMANCE AGREEMENT BETWEEN THE CITY OF SCHERTZ ECONOMIC DEVELOPMENT CORPORATION AND CATERPILLAR INC. 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 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, Caterpillar Inc. ( "Company ") desires to expand its Schertz Texas operations within an existing building that is located at 6800 Doerr Ln, Schertz TX 78154; and WHEREAS, Company's Project is expected to create an additional 24, and maintain 145 full time employees with a minimum annual payroll of $8,426,420 at the end of Calendar Year 2026 and throughout the life of the agreement; and WHEREAS, Corporation intends to provide an Economic Development Grant in the form of a rebate of a percentage of the taxes paid by Company for new tangible personal property on- site at Company's Schertz operation; and WHEREAS, Section 501.155 authorizes expenditures for certain projects that the board of directors in the board's discretion determines promotes or develops new or expanded business enterprises that create or retain primary jobs; 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 -1- WHEREAS, Section 505.159 of the Act requires that a corporation hold at least one public hearing on theproposed project before spending money to undertake the project, the public hearing was held on April 28, 2022; and WHEREAS, Section 501.073 of the Act requires the SEDC's authorizing unit to approve all programs and expenditures. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE CITY OF SCHERTZ ECONOMIC DEVELOMENT CORPORATION THAT: Section 1. Subject to the authorization of funds by the City of Schertz City Council, the Board hereby approve the Economic Development Performance Agreement attached hereto as Exhibit A and authorizes the President to execute and same in substantially the same form as attached. Section 2. The Board hereby recommends the City Council for the City of Schertz consider approving a Resolution authorizing the expenditures contemplated herein for the reasons stated in the foregoing recitals. Section 3. The recitals contained in the preamble hereof are hereby found to be true, and such recitals are hereby made a part of this Resolution for all purposes and are adopted as a part of the judgment and findings of the Board. Section 4. 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 5. This Resolution shall be construed and enforced in accordance with the laws of the State of Texas and the United States of America. Section 6. 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 7. 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 8. This Resolution shall be in force and effect from and after its final passage, and it is so resolved. -2- PASSED AND ADOPTED, this 28th day of April 2022. CITY OF SCHERTZ ECONOMIC DEVELOPMENT . CORPORATION Paul Macaluso, SEDC Board PreSDNt ATTEST: Sammi Morrill, SEDC Board Secretary -3 - Exhibit A ECONOMIC DEVELOPMENT PERFORMANCE AGREEMENT [SEE ATTACHED] -4- CERTIFICATE OF CITY SECRET THE UNDERSIGNED HEREBY CERTIFIES THAT: On the 3rd day of May 2022, the City Council (the "Council ") of the City of Schertz, Texas (the "City ") convened in regular session in the regular meeting place of the City at the Hal Baldwin Municipal Complex City Council Chambers (the "Meeting "), the duly constituted members of the Council being as follows: Ralph Gutierrez David Scagliola Mark Davis Jill Whittaker Michael Dahle Allison Heyward Tim Brown Mayor Mayor Pro -Tem Councilmember Councilmember Councilmember Councilmember Councilmember And all of such persons were present at the Meeting thus constituting a quorum. Among other business considered at the Meeting, the attached Resolution (the "Resolution ") entitled" RESOLUTION NO. 22-R-43 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 CATERPILLAR INC; AND OTHER MATTERS IN CONNECTION THEREWITH Was introduced and submitted to the Council for passage and adoption. After presentation and discussion of the Ordinance, a motion was made by Councilmember Whittaker that the Resolution be finally passed and adopted in accordance with the City's Home Rule Charter. The motion was seconded by Councilmember Mark Davis and carried by the following vote: 6 voted "For" 0 voted "Against" 0 abstained All show in the official Minutes of the Council for the Meeting. 2. The attached Resolution is a true and correct copy of the original on file in the official records of the City; the duly qualified and acting members of the Council on the date of the Meeting are those persons show above, and, according to the records of my office, each member of the Council was given actual notice of the time, place, and purpose of the Meeting and had actual notice that the Resolution would be considered; and the Meeting and deliberation of the aforesaid public business, including the subject of the Ordinance, was posted and given in advance thereof in compliance with the provisions of Chapter 551, as amended, Texas Government Code. IN WITNESS WHEREOF, I have signed my name officially and affixed the seal of the City, this 9th day of May 2022. ;s Brenda Dennis, City Secretary