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22-R-114 SEDC/City Funding agreement for design of Lookout Rd (EDC)RESOLUTION NO. 22-R-114 A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS AUTHORIZING A FUNDING AGREEMENT BETWEEN THE CITY OF SCHERTZ ECONOMIC DEVELOPMENT CORPORATION AND THE CITY OF SCHERTZ TEXAS FOR REDEVELOPMENT OF LOOKOUT ROAD; 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 501.103 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 501.159 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 WHEREAS, the SEDC and City have entered into a Memorandum of Understanding for Infrastructure Funding when such infrastructure meets the statutory eligibility requirements for funding by the SEDC; and WHEREAS, the contemplated infrastructure improvements are hereby found to meet any statutory eligibility requirements for funding by the SEDC; and WHEREAS, the SEDC Board of Directors approved SEDC Resolution 2022-7 which, subject to the authorization of funds by the City of Schertz City Council, approved the Funding Agreement attached hereto as Exhibit A between the SEDC, and the City at the SEDC's Board of Directors meeting on September 29, 2022; 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 Funding Agreement between the SEDC and City as set forth in Exhibit A. Section 2. The recitals contained in the preamble hereof are hereby found to be true, and such recitals are hereby made a part of this Resolution for all purposes and are adopted as a part of the judgment and findings of the City Council. Section 3. All resolutions, or parts thereof, which are in conflict or inconsistent with any provision of this Resolution are hereby repealed to the extent of such conflict, and the provisions of this Resolution shall be and remain controlling as to the matters resolved herein. Section 4. This Resolution shall be construed and enforced in accordance with the laws of the State of Texas and the United States of America. Section 5. If any provision of this Resolution or the application thereof to any person or circumstance shall be held to be invalid, the remainder of this Resolution and the application of such provision to other persons and circumstances shall nevertheless be valid, and the City Council hereby declares that this Resolution would have been enacted without such invalid provision. Section 6. It is officially found, determined, and declared that the meeting at which this Resolution is adopted was open to the public and public notice of the time, place, and subject matter of the public business to be considered at such meeting, including this Resolution, was given, all as required by Chapter 551, Texas Government Code, as amended. Section 7. This Resolution shall be in force and effect from and after its final passage, and it is so resolved. PASSED AND ADOPTED, this _ day of 06, 2022. CITY OF SCHERTZ, TEXAS — 'Xe Ralp] err ayor ATTEST: Sheila Edmondso , Interim City Secretary EXHIBIT A SEDC RESOLUTION NO.2022-7 A RESOLUTION BY THE CITY OF SCHERTZ ECONOMIC DEVELOPMENT CORPORATION, TEXAS AUTHORIZING A FUNDING AGREEMENT BETWEEN THE CITY OF SCHERTZ ECONOMIC DEVELOPMENT CORPORATION AND THE CITY OF SCHERTZ TEXAS FOR REDEVELOPMENT OF LOOKOUT ROAD; 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 501.101 authorizes expenditures for land, buildings, equipment, facilities, expenditures, targeted infrastructure and improvements that are for the creation or retention of primary jobs and found by the board of directors to be required or suitable for the development, retention, or expansion of manufacturing and industrial facilities; and WHEREAS, the SEDC and City have entered into a Memorandum of Understanding for Infrastructure Funding when such infrastructure meets the statutory eligibility requirements for funding by the SEDC; and WHEREAS, the contemplated infrastructure improvements are hereby found to meet any statutory eligibility requirements for funding by the SEDC; 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 NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE CITY OF SCHERTZ ECONOMIC DEVELOMENT CORPORATION THAT: Section 1. The Board hereby recommends the approval of the Funding Agreement between the SEDC and City and requests authorization by the City of Schertz City Council for the expenditures associated with the Funding Agreement attached hereto as Exhibit A. Section 2. Subject to the authorization of funds by the City of Schertz City Council, the Board hereby authorizes the President to execute the Memorandum of Understanding. A-1 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 S. This Resolution shall be in force and effect from and after its final passage, and it is so resolved. PASSED AND ADOPTED, this 29th day of September, 2022. ATTEST: Sammi Morrill, SEDC Board Secretary CITY OF SCHERTZ ECONOMIC DE=SEDC N Pau,i t -2- This FUNDING AGREEMENT by and between the SCHERTZ ECONOMIC DEVELOPMENT CORPORATION, a Texas non-profit corporation (hereinafter referred to as the "SEDC"), and the CITY OF SCHERTZ, TEXAS, a Texas home -rule municipality (hereinafter referred to as the "City"), is made and executed on the following recitals, terms and conditions. WHEREAS, the SEDC is a Type B economic development corporation, created pursuant to Chapter 505 of the Texas Local Government Code, as amended; and WHEREAS, Section 501.103 authorizes expenditures 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, such as streets and roads, rail spurs, water and sewer utilities, electric utilities, or gas utilities, drainage, site improvements, and related improvements; and WHEREAS, the SEDC and City of Schertz are partnering to fund the redevelopment of Lookout Road and upsizing of wastewater facilities from Tri County Parkway to Schertz Parkway (hereinafter referred to as the "Project"); and WHEREAS, the SEDC's Board of Directors have determined the financial assistance provided to City is consistent and meets the definition of "project" as that term is defined in Section 501.103 of the Texas Local Government Code; and the definition of "cost" as that term is defined by Section 501.152 of the Texas Local Government Code; and WHEREAS, City agrees and understands that Section 501.073(a) of the Texas Local Government Code requires the City Council of the City of Schertz, Texas, to approve all programs and expenditures of the SEDC, and accordingly this Agreement is not effective until City Council has approved this project at a City Council meeting called and held for that purpose. NOW, THEREFORE, for and in consideration of the agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the SEDC and City agree as follows: SECTION 1. FINDINGS INCORPORATED. The foregoing recitals are hereby incorporated into the body of this Agreement and shall be considered part of the mutual covenants, consideration and promises that bind the parties. SECTION 2. TERM. This Agreement shall be effective as of the Effective Date, as defined herein, and shall continue thereafter until September 30, 2022 unless terminated sooner under the provisions hereof. SECTION 3. DEFINITIONS. The following words shall have the following meanings when used in this Agreement. (a) Act. The word "Act" means Chapters 501 to 505 of the Texas Local Government Code, as amended. (b) Agreement. The word "Agreement" means this Performance Agreement, together with all exhibits and schedules attached to this Agreement from time to time, if any. (c) City. The words "City" means the City of Schertz, Texas, a Texas home -rule municipality, whose address for the purposes of this Agreement is 1400 Schertz Parkway Schertz, Texas 78154. (d) Effective Date. The words "Effective Date" mean the date of the latter to execute this Agreement by and between the City and the SEDC. (e) Event of Default. The words "Event of Default" mean and include any of the Events of Default set forth below in the section entitled "Events of Default." (f) SEDC. The term "SEDC" means the Schertz Economic Development Corporation, a Texas non-profit corporation, its successors and assigns, whose corporate address for the purposes of this Agreement is 1400 Schertz Parkway Schertz, Texas 78154. (g) Project. The word "Project" means the design and construction of the redevelopment of Lookout Road and upsizing of wastewater facilities from Tri County Parkway to Schertz Parkway. (h) Qualified Expenditures. The words "Qualified Expenditures" mean those costs associated with the design and engineering of the Project, and which meet the definition of "project" as that term is defined in Section 505.152 of the Act, and meet the definition of "cost" as that term is defined in Section 501.152 of the Act. (i) Term. The word "Term" means the term of this Agreement as specified in Section 2 of this Agreement. SECTION 4. AFFIRMATIVE COVENANTS OF THE CITY. City covenants and agrees with SEDC that, while this Agreement is in effect, it shall comply with the following terms and conditions: (a) Funding. The City shall be entitled to funding from SEDC in the amount not to exceed SEVEN HUNDRED AND SEVENTY THOUSAND DOLLARS AND NO CENTS ($770,000) for Qualified Expenditures. City covenants and agrees to submit to the SEDC invoices, receipts, or other documentation of the Qualified Expenditures in a form acceptable to the SEDC. (b) Public Purpose. City agrees that the Project contemplated herein represents a public purpose for which the proposed funds are authorized to be used. (c) Performance Conditions. City agrees to provide, make, execute and deliver to SEDC such other documents and other agreements as SEDC or its attorneys may reasonably request to evidence the use of the funds for the Project. (d) Performance. City agrees to perform and comply with all terms, conditions, and provisions set forth in this Agreement and in all other instruments and agreements between City and SEDC. SECTION 5. AFFIRMATIVE COVENANTS OF SEDC. SEDC covenants and agrees with City that, while this Agreement is in effect, it shall comply with the following terms and conditions: (a) Financial Assistance for Qualified Expenditures. SEDC covenants and agrees to provide funding in advance or by reimbursement for Qualified Expenditures made by the City pursuant to Section 4(a) of this Agreement, in an amount not to exceed the lesser of SEVEN HUNDRED AND SEVENTY THOUSAND DOLLARS AND NO CENTS ($770,000) or the aggregate amount of said invoices, receipts, or other documentation submitted by the City to SEDC within thirty (30) days of receipt of said documentation. (b) Performance. SEDC agrees to perform and comply with all terms, conditions, and provisions set forth in this Agreement and in all other instruments and agreements by and between the City and SEDC. SECTION 6. EVENTS OF DEFAULT. Each of the following shall constitute an Event of Default under this Agreement: (a) General Event of Default. Failure of City or SEDC to comply with or to perform any other term, obligation, covenant or condition contained in this Agreement, or failure of City or SEDC to comply with or to perform any other term, obligation, covenant or condition contained in any other agreement by and between City and SEDC is an Event of Default. (b) False Statements. Any warranty, representation, or statement made or furnished to SEDC by or on behalf of City under this Agreement that is false or misleading in any material respect, either now or at the time made or furnished is an Event of Default. SECTION 7. EFFECT OF AN EVENT OF DEFAULT. In the event of default under Section 6 of this Agreement, the non -defaulting party shall give written notice to the other party of any default, and the defaulting party shall have thirty (30) days to cure said default. Should said default remain uncured as of the last day of the applicable cure period, and the non -defaulting party is not otherwise in default, the non- defaulting party shall have the right to immediately terminate this Agreement. In the event, City defaults and is unable or unwilling to cure said default within the prescribed time period, the amounts provided by the SEDC to City pursuant to Section 5(a) of this Agreement shall become immediately due and payable by City to the SEDC. SECTION 8. MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of this Agreement: (a) Amendments. This Agreement constitutes the entire understanding and agreement of the parties as to the matters set forth in this Agreement. No alteration of or amendment to this Agreement shall be effective unless given in writing and signed by the party or parties sought to be charged or bound by the alteration or amendment. (b) Applicable Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas, and all obligations of the parties created hereunder are performable in Guadalupe County, Texas. Venue for any action arising under this Agreement shall he in the state district courts of Guadalupe County, Texas. (c) Assignment. This Agreement may not be assigned without the express written consent of the other party. (d) Binding Obligation. This Agreement shall become a binding obligation on the signatories upon execution by all signatories hereto. City warrants and represents that the individual or individuals executing this Agreement on behalf of City has full authority to execute this Agreement and bind City to the same. SEDC warrants and represents that the individual executing this Agreement on its behalf has full authority to execute this Agreement and bind it to the same. (e) Caption Headings. Caption headings in this Agreement are for convenience purposes only and are not to be used to interpret or define the provisions of the Agreement. (f) Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall constitute one and the same document. (g) Notices. All notices required to be given under this Agreement shall be given in writing and shall be effective when actually delivered or when deposited in the United States mail, first class, postage prepaid, addressed to the party to whom the notice is to be given at the address shown in Section 3 of this Agreement. Any party may change its address for notices under this Agreement by giving formal written notice to the other parties, specifying that the purpose of the notice is to change the party's address. For notice purposes, City agrees to keep SEDC informed at all times of City's current address. (h) Severability. If a court of competent jurisdiction finds any provision of this Agreement to be invalid or unenforceable as to any person or circumstance, such finding shall not render that provision invalid or unenforceable as to any other persons or circumstances. If feasible, any such offending provision shall be deemed to be modified to be within the limits of enforceability or validity; however, if the offending provision cannot be so modified, it shall be stricken and all other provisions ofthis Agreement in all other respects shall remain valid and enforceable. (i) Time is of the Essence. Time is of the essence in the performance of this Agreement. [The Remainder of this Page Intentionally Left Blank] i THE PARTIES ACKNOWLEDGE HAVING READ ALL THE PROVISIONS OF THIS PERFORMANCE AGREEMENT, AND THE PARTIES AGREE TO ITS TERMS. THIS AGREEMENT IS EFFECTIVE AS OF THE EFFECTIVE DATE AS IS PROVIDED HEREIN. CITY: CITY OF SCHERTZ, TEXAS, a Texas home -rule municipality, N, By: City Manager Date Signed: ATTEST: City Secretary SEDC• SCHERTZ ECONOMIC DEVELOPMENT CORPORATION, a Te:zard non-profitorporation By: re 'dent Date Signed: zs 2Z ATTEST: 14A-Ul SEDC Board Secretary id