RES 1664 02/27/2024 Amendment 1 380 Agreement HEBy 0 C/A
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RESOLUTION NO. 1664
RESOLUTION BY THE CITY OF CIBOLO, TEXAS APPROVING
AMENDMENT NO. 1 OF A CHAPTER 380 ECONOMIC DEVELOPMENT
AGREEMENT BETWEEN THE CITY OF CIBOLO, TEXAS, THE CIBOLO
ECONOMIC DEVELOPMENT CORPORATION AND H -E -B, LP,
EFFECTIVE MARCH 17, 2022; AUTHORIZING THE CITY MANAGER
TO EXECUTE AMENDMENT NO. 1 APPROVED AS TO FORM BY THE
CITY ATTORNEY'S OFFICE; PROVIDING FOR REPEAL AND
SEVERABILITY; DETERMINING THAT THE MEETING AT WHICH
THIS RESOLUTION WAS PASSED WAS CONDUCTED IN COMPLIANCE
WITH THE TEXAS OPEN MEETINGS ACT; AND PROVIDING AN
EFFECTIVE DATE.
WHEREAS, the City Council finds the City of Cibolo ("City") is a Texas Home Rule
Municipality, as defined by applicable law; and
WHEREAS, the City Council finds H -E -B, LP, owns certain property within the City; and
WHEREAS, the City Council finds H -E -B, LP, developed an H -E -B branded grocery store of
approximately 110,000 square feet, along with an obligation to construct an approximately
55,000 square foot Economic Fulfillment Center, supporting H -E -B's Curbside and Delivery
Business.
WHEREAS, the City Council finds the City and EDC agreed to certain economic incentives in
exchange for certain development and capital improvement within the City of Cibolo, Texas;
WHEREAS, the City Council finds it necessary to make its first amendment to the March 17,
2022, Chapter 380 Economic Development Agreement ("Agreement") due to changes in
circumstances, which is attached hereto as if recited verbatim herein as Attachment 1; and
WHEREAS, the City Council finds H -E -B, LP, also finds it necessary to make its first
amendment to the Agreement due to changes in circumstances; and
WHEREAS, the City Council finds that it anticipates the Cibolo Economic Development
Corporation will also find it necessary to make its first amendment to the Agreement due to
changes in circumstances.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF CIBOLO, TEXAS:
1, , The statements set forth in and by reference in the recitals of this Resolution are
true and correct, and the City Council hereby incorporates such recitals as a part of this Resolution.
2. Amendment No. 1 to the Agreement 'is approved.
3. The City Manager is hereby authorized to execute Amendment No. 1 (attached to
this Resolution as Attachment 1 and incorporated into this Resolution as if restated verbatim
herein).
4. This Resolution shall be and is hereby cumulative of all other resolutions of the
Corporation and this Resolution shall not operate to repeal or affect any such other resolutions
except insofar as the provisions thereof might be inconsistent or in conflict with the provisions of
this Resolution, in which event such conflicting provisions, if any, in such other resolution or
resolutions are hereby repealed.
5. If any section, subsection, sentence, clause, or phrase of this Resolution shall for
any reason be held to be invalid, such decision shall not affect the validity of the remaining portions
of this resolution.
6. The meeting at which this Ordinance passed was conducted in compliance with
the Texas Open Meetings Act.
8. This Resolution shall become effective and be in full force and effect from and after
the date of passage and adoption by the City Council of the City of Cibolo, Texas.
PASSED AND ADOPTED BY THE CITY COUNCIL ON THE 27th DAY OF
FEBRUARY 2024.
ATTEST:
PEGGY CIMICS, TRMC
City Secretary
MARK ALLEN
Mayor
APPROVED AS TO FORM:
Hyde Kelley ItLP
City Attorney
Page 2 of 4
Attachment 1, Amendment No. 1 to H -E -B, LP's
March 17, 2022 Chapter 380 Economic Development Agreement
Page 3 of 4
CITY OF CIBOLO TEXAS,
CIBOLO ECONOMIC DEVELOPMENT CORPORATION,
AND
H -E -B GROCERY COMPANY, LP
CHAPTER 380 ECONOMIC DEVELOPMENT AGREEMENT
AMENDMENT NO. I
This First Amendment to Chapter 380 Economic Development Agreement (the
"Amendment') is made and entered into as of February , 2024 (the "Amendment Effective
Date") by and between the City of Cibolo, Texas, a Texas home -rule municipality (the "City'),
the Cibolo Economic Development Corporation, a Texas development corporation (the
"CEDC'), and H -E -B, LP, a Texas limited partnership ("H -E -B'), (the City, the CEDC, and
H -E -B each referred to herein individually as a "Party" and collectively as the "Parties').
RECITALS
WHEREAS, the City of Cibolo, the CEDC, and H -E -B entered into a Chapter 380
Economic Development Agreement (hereinafter referred to as the "Agreement'), approved by
City Council and the EDC and effective as of March 17, 2022, to provide for economic incentives
should H -E -B develop an H -E -B branded grocery store of approximately 110,000 square
feet on the Property (as such term is defined in the Agreement) (the "Store") along with an
approximately 55,000 square foot Economic Fulfillment Center (the "EFC Facility"), supporting
H -E -B's Curbside and Delivery Business (the "Curbside Facility") (the Store, EFC Facility, and
Curbside Facility are together referred to herein as the "Project'); and
WHEREAS, the City and EDC agreed to provide economic incentives including: a ten
(10) -year ad valorem tax rebate of the Maintenance & Operation's (M&O) portion of the property
tax received by the City for improvements caused by Project for a maximum rebate not to exceed
One Million Dollars ($1,000,000), the provision of Impact Fee: Offsets, and other economic
development incentives as further described in the Agreement; and
WHEREAS, under the terms of the Agreement, if H -E -B fulfilled the conditions as set
forth therein, the CEDC would pay to H -E -B an amount of Four Hundred Fifty Thousand Dollars
($450,000) for the cost of Impact Fees (as such term is defined in the Agreement) that were paid
by H -E -B to the City for the Project; and
WHEREAS, construction of the Project, including the EFC, has been completed but the.
City agreed not to collect Impact Fees from H -E -B directly, the CEDC will pay the $450,000 for
Impact Fees to the City instead of H -E -B, since H -E -B did not pay these fees to the City;
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 City, the CEDC, and H -E -B agree as follows:
SECTION 1. Amendment to Article 4 of the Agreement. Notwithstanding anything in the
Agreement to the contrary, the CEDC shall pay to the City the aforementioned sum of Four
Hundred Fifty Thousand Dollars ($450,000) for Impact Fees and H -E -B shall have no further
obligation to pay Impact Fees related to the Project to the City.
SECTION 2. Other Terms. All other terms, conditions and provisions of the Agreement are
hereby ratified and confirmed and will remain in full force and effect as of the date thereof, except
as expressly modified hereby.
SECTION 3. Recitals. The foregoing recitals are hereby incorporated by reference for all
purposes hereunder.
SECTION 4. Counterparts. This Amendment may be executed by facsimile transmission in
two or more counterparts, each of which will be deemed to be an original, but all of which taken
together will constitute but one and the same instrument.
SECTION 5. Electronic Signatures. The Parties agree that this Amendment to be delivered in
connection herewith may be electronically signed, and that any electronic signatures, with the
exception of italic font, appearing on this Amendment are the same as handwritten signatures,
which shall be considered as original signatures for the purposes of validity, enforceability and
admissibility. Without limitation, "electronic signature" shall include DocuSign, faxed versions of
an original signature, or electronically scanned and transmitted versions (e.g., via pdf) of an
original signature.
SECTION 6. Binding Effect. This Amendment will be binding upon and inure to the benefit of
the Parties and their respective successors and assigns.
SECTION 7. Defined Terms. All capitalized terms not otherwise defined herein shall have the
meanings ascribed to them in the Agreement.
[Signature Page Follows]
2
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be duly
executed as of the Amendment Effective Date.
ATTEST:
Peggy Cimics
City Secretary
CITY:
CITY OF CIBOLO TEXAS,
a Texas Home -Rule Municipality
By:_
Date:
CEDC:
CIBOLO ECONOMIC DEVELOPMENT
CORPORATION,
a Texas Development Corporation
By:
Date:
H -E -B, LP,
a Texas limited partnership
By:
Name: Benjamin R. Scott
Title: Group Vice President of Real Estate
and Shopping Center Development
Date:
CITY OF CIBOLO TEXAS,
CIBOLO ECONOMIC DEVELOPMENT CORPORATION,
AND
HEB GROCERY COMPANY, LP
CHAPTER 380 ECONOMIC DEVELOPMENT
AGREEMENT
This CHAPTER 380 ECONOMIC DEVELOPMENT AGREEMENT ("Agreement") is
entered into by and between the City of Cibolo, Texas, a Texas home -rule municipality (the
"City'), the Cibolo Economic Development Corporation, a Texas development corporation (the
"CEDC" ), and H E -B, LP, a Texas limited partnership ("HEB ") (the City, the CEDC and HEB
each referred to herein sometimes individually as a "Party" and collectively as the "Parties ").
RECITALS
(a) HEB is the owner of approximately 45.184 acres known as the FM 1103 and Main
Street Commercial Subdivision located at the southeast coiner of the intersection of FM 1103 and
Main Street within the City of Cibolo (the "Property
(b) The Property is depicted on the attached Exhibit A.
(c) HEB intends to build an H -E -B branded grocery store (a.k.a, discount super
store/supermarket) with approximately 110,000 square feet on the Property (the "Store") along
with an approximately 55,000 square foot facility Economic Fulfillment Center (the "EFC
Facility") supporting HEB's Curbside and Delivery Business (the "Curbside Facility ") (the Store,
EFC Facility and Curbside Facility are together referred to herein as the "Project").
(d) The City seeks to incentivize the Project by providing a ten (10) -year ad valorem
tax rebate of the Maintenance & Operation (M&O) portion of the ad valorem for a maximum
rebate of One Million Dollars ($1,000,000) and providing impact fee offsets and other economic
development incentives as further described. in this Agreement.
(e) The City possesses the legal and statutory authority under Chapter 380 of the Texas
Local Government Code to create programs to promote local economic development and to
stimulate business and commercial activity within the City.
(f) The City has determined that the City's economic development program and
incentives set forth in this Agreement will serve the public purpose of promoting local economic
development and stimulating business and commercial activity including creation and retention of
jobs within the City.
(g) The City has concluded and hereby finds that the specific initiatives set forth in the
Agreement promote economic development in the City, and, as such, meet the requisites under
Chapter 380 of the Texas Local Government Code, and further, that this Agreement is in the best
interests of the City.
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(h) The City has concluded and hereby finds that this Agreement promotes economic
development in the City, and, as such, meets the requirements of Article III, Section 52-a of the
Texas Constitution, by assisting in the development and diversification of the economy of the
State, by eliminating unemployment or underemployment in the State, and by the development or
expansion of commerce within the State.
(i) Section 380.001, Texas Local Government Code, authorizes the City Council of the
City to establish and provide for the administration of one or more programs in order to stimulate
business and commercial activity in the City including, but not limited to, programs for making
loans and grants of public money to promote local economic development, (ii) accepting
contributions, gifts and other resources to develop and administer a program.
0) The City has established an economic development program for the purposes of
creation and retention of jobs for the citizens of the City and region, to promote economic
expansion, and to add to the tax base of the City and now the City desires to enter into this
Agreement, under the authority granted by Chapter 380 of the Texas Local Government Code;
(k) The CEDC, pursuant to state law, was established by the City Council for the
purposes of promoting the general economic welfare of the City of Cibolo and its residents and
businesses by developing new or expanded business enterprises that create or retain primary jobs.
(1) The CEDC has concluded and hereby finds that the Project will result in new
economic development in the City including creating new jobs; and therefore desires to enter into
this Agreement under the authority granted by Chapters 501 and 505 of the Texas Local
Government Code.
(in) HEB's proposed Project will result in new economic development in the City,
including creating new jobs, increasing sales and use tax revenues for the City and increasing
property values and ad valorem taxes within the City.
(n) HEB's proposed Project will have a direct positive and measurable economic benefit
to the City and HEB therefore desires to enter into this Agreement.
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 City, the CEDC and HEB agree as follows:
ARTICLE 1.
TERM
This Agreement shall be effective as of the Effective Date and shall continue until the
payment of all Tax Rebates (as defined below), Impact Fee Offsets (as defined below) and other
economic development incentives specified in Articles 2 and 3 due to HEB hereunder or earlier
termination as provided hereunder.
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ARTICLE 2.
HEB PERFORMANCE CONDITIONS
The City and the CEDC acknowledge and agree that HEB is not obligated to construct the
Project. However, HEB also acknowledges and agrees that it will only be eligible to receive the
Tax Rebates and the Impact Fee Offsets provided in Article 2 and other economic development
incentives provided for in Articles 2 and 3 under this Agreement if it fulfills the following terms
and conditions:
(a). Store Opening. HEB shall open the Store for business to the public on or before June
30, 2023 (the "Store 41etting").
(b) Curbside Facility. HEB will construct and open the Curbside Facility on the same
timeline as the Store; provided, however, that, with the City's approval, HEB may commence
operations at the Curbside Facility up to eighteen (18) months after the Store Opening.
(c) EFC Facility. HEB will construct and open the EFC Facility on the same timeline
as the Store; provided, however, that with the City's approval, HEB may commence operations at
the EFC Facility up to eighteen (18) months after the Store Opening.
(d) Main Street Widening. HEB will complete the construction required to widen Main
Street in accordance with the plans referenced on the attached Exhibit B, no later than the Store
Opening.
(e) Traffic Signal along FM 1103. HEB will complete the construction and installation
of the traffic signal meeting the specifications described on the attached Exhibit B, will make
commercially reasonable efforts to complete by the Store Opening subject to TxDOT approval.
(f) Regional Trail. HEB will construct a 10' wide concrete trail per specifications in
Exhibit C in the general location shown on Exhibit B. Upon completion, HEB will grant a public
access (trail) easement to the City.
(g) Trailhead Parking Lot. HEB will rough grade an area for the city to construct a
Trailhead Parking lot as shown on the site plan (see Exhibit B).
(h) Submittal of Building Permit. HEB will submit its initial Building Permit plans to
the City by no later than 11/4/2021. The City will expedite its review and issue of comments to
HEB's Building Permit plans within thirty (30) calendar days (and each subsequent round) to
progress toward issuance of a building permit. Should the City not provide comments within thirty
(30) days, the City will provide HES with an update as to when comments will be provided.
(i) Truck Route. HEB agrees that its class 8 or class 9 delivery vehicles ("HEB Delivery
Velticles") shall NOT utilize Main Street south of the Property for access to or from the Property.
Exhibit D shows the primary path for HEB Delivery Vehicles. The HEB Delivery Vehicles shall
not utilize Main Street between the Store's south most entrance and FM 78. Notice and.
coordination with HEB of any change in routes due to future construction, shall come from the
City Manager or designee at least thinly (30) days prior to the change taking effect.
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HEB will also inform its vendors of the approved Truck Route and on the prohibition of
class 8 and 9 vehicles using Main Street south of the Property for access to or from the Property.
ARTICLE 3.
ECONOMIC DEVELOPMENT GRANTS
(a) Property Tax Rebate. In the manner described below, the City shall do a ten (10)
year ad valorem tax rebate to pay HEB amounts (such amounts, the "Tax Rebates") equal to
100% rebate of the Maintenance & Operation (M&O) portion of the ad valorem for the first five
(5) years, reduced to seventy five percent (75%) for years six through eight and then reduced to
fifty percent (501/o) for final two years of the ad valorem property taxes paid by HEB and levied
against the Property by the City or any special district formed by the City (unless HEB expressly
petitions the City for the formation of such special district) and attributable to the ten-year period
commencing on January 1st of the first calendar year commencing after the date that the Store
opens for business to the public (the "Tax Rebate Period"); provided; however, that such Tax
Rebates shall be capped at an aggregate total of One Million Dollars ($1,000,000) based on actual
taxes received during the ten (10) year ad valorem tax rebate. The City shall pay to HEB such
Tax Rebates in annual payments due on or before June 1 st of each year of the Tax Rebate Period.
The Tax Rebates shall only be made to the extent HEB is not delinquent on the payment of its ad
valorem taxes. In the event HEB is disputing the ad valorem tax in accordance with state law, HEB
shall not be deemed delinquent; however, the City shall not pay the Tax Rebate until the dispute
is resolved.
(b) Credits Toward Impact Fees. Reference is hereby made to any current or future
ordinance adopted by the City thatimposes water, wastewater, drainage, or transportationrmpact fees
against the Project (any such fees, the "Impact Fees'). The City agrees to offset (the "Impact Fee
Offsets') against any Impact Fees payable in connection with the Project the amount of up to Four
Hundred Fifty Thousand Dollars ($450,000) in consideration of the benefits of HEB's undertakings
pursuant to this agreement, such Impact Fee Offsets to be in addition to any that HEB may qualify for
under the City's impact fee ordinances in connection with HEB's construction of qualifying public
infrastructure.
(c) Transportation and Drainage Impact Fee Credit. HEB will receive from the City
Transportation and Drainage Impact Fee Credits for construction of Main Street Widening and
construction of a hike and bike trail from the south end of their Property to FM 1103 on the north
end of the Property. Transportation Fee Credits shall be in the amount of Five Hundred Sixty
Thousand Dollars ($560,000) and Drainage Fee Credits shall be in the amount of One Hundred
Ninety Thousand Dollars ($190,000).
(d) Reimbursement for Enhanced Trail Width. The City will reimburse HEB an amount
of Fifteen Thousand Five Hundred Dollars ($15,500) for expanding the 8 -foot wide hike and bike
trail to a 10 -foot wide hike and bike trail from the south end of their Property to FM 1103 as
depicted in Exhibit B pursuant to the specifications in Exhibit C. Payment by the City shall be
made within thirty (30) days of the City receiving the executed trail easement fiom HEB.
ARTICLE 4.
CEDC OBLIGATIONS
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(a) If HEB fulfills the terns and conditions under Article 2 of this Agreement including
constructing the EFC, acceptance of the EFC by the City and the opening of the EFC in
accordance with the terns and conditions under Article 2 of this Agreement, the CEDC shall pay
to HEB the amount of Four Hundred Fifty Thousand Dollars ($450,000) for the EFC that together
with the rest of the HEB Project will result in new economic development in the City including
creating new jobs. If HEB fails to fulfill its obligations involving the EFC under Article 2 of this
Agreement, the CEDC shall have no obligation to pay HEB the sum of $450,000.
ARTICLE 5.
DEFAULT AND REMEDIES
(a) Before any failure of any Party to perform its obligations under this Agreement shall be
deemed to be a breach of this Agreement such that another Party's remedies are available, the Patty
claiming such failure shall notify, in writing, the Party alleged to have failed to perform of the alleged
failure and shall demand performance. No breach of this Agreement may be found to have occuned if
such breach has been cured within sixty (60) days following the receipt of such notice; provided,
however, if such breach is not reasonably curable within such 60 -day period, and HEB has commenced
and is pursuing such remedies as shall be reasonably necessary to cure such breach, then HEB shall
have an additional ninety (90) days to cure such breach (the "Cure Period"). -
(b) In the event of a breach of this Agreement by HEB beyond the applicable CurePeriod,
the City may seek to exercise its rights to (i) recapture any Tax Rebates provided to HEB (if any) (ar')
recapture any Impact Fee Offsets provided to HEB that HEB would not have be entitled to pursuant to
the City's ordinances but for this Agreement; (iii) recapture any other economic development
incentives provided to HEB; (iv) recover from HEB any legal expenses incurred by the City to enforce
recaptureprovisions orany otherprovision underthis Agreement; and/or (v) terminate this Agreement
by the delivery of written notice to HEB.
(c) In the event of a breach of this Agreement by the City beyond the Cure Period, HEB may
(i) seek to exercise its rights to enforce City's obligations hereunder in order to receiveTax Rebates or
Impact Fee Offsets due to HEB; (ii) seek to recover from City any legal expenses incurred by HEB
to enforce City's payment of monetary obligations underthis Agreement; and/or (iii) terminate this
Agreement by the delivery of written notice to the City.
(d) In the event of a breach by HEB as to the CEDC, the CEDC may seek to exercise
its rights to (i) enforce HEB's obligations underthis Agreement; (ii) recover the $450,000 paid to
HEB; and/or (iii) recover from HEB any legal expenses incurred by the CEDC to enforce HEB's
obligations to the CEDC under this Agreement.
ARTICLE 6.
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.
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(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 lie in the state district courts of Guadalupe County, Texas.
(c) Assignment. This Agreement may not be assigned by HEB without the express
written consent of the City and the CEDC, which shall not be unreasonably withheld or delayed.
Notwithstanding the foregoing, HEB may assign this Agreement to an affiliate of HEB without
the City's and the CEDC's consent but shall provide notice of such assignment promptly to the
City and the CEDC.
(d) Binding Obligation. This Agreement shall becorne a binding obligation on the
signatories upon execution by all signatories hereto. The City warrants and represents that the
individual executing this Agreement on behalf of the City has full authority to execute this
Agreement and bind the City to the same. The CEDC warrants and represents that the individual
executing this Agreement on behalf of the CED C has full authority to execute this Agreement and
bind the CEDC to the same. HEB warrants and represents that the individual executing this
Agreement on HEB 's behalf has full authority to execute this Agreement and bind HEB 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) Entire Agreement. This written agreement represents the final agreement between
the parties and may not be contradicted by evidence of prior, contemporaneous, or subsequent oral
agreements of the Parties. There are no unwritten oral agreements between the Parties.
(h) Force Majeure. It is expressly understood and agreed by the Parties to this Agreement
that if the performance of any obligations hereunder is delayed by reason of war, civil commotion,
acts of God, inclement weather, fire or other casualty, court injunction, delays in issuing permits of
approvals, the unavailability of materials, pard emit or other public health conditions, or other cause
outside the control of the Party who is to perform, the Party so obligated or permitted shall be
excused from doing or performing the same during such period of delay, so that the time period
applicable to such obligation or requirement shall be extended for a period of time equal to the
period such Party was delayed.
(i) Notice. All notices required to be given under this Agreement shall be given in
writing and shallbe effective whenactually 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 addresses shown
below. Any Party may change its address for notices under the 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, each Party agrees to keep the other informed at all times of its current address. The
addresses of the Parties are:
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If to the City: City of Cibolo
200 South Main Street
Cibolo, TX 78108
Attn: City Manager
If to the CEDC: Cibolo Economic Development Corporation
200 South Main Street
Cibolo, TX 78108
Attn: President of the Board
If to HEB: H -E -B, LP
646 South Flores
San Antonio, TX 78204
Attn: Benjamin Scott
0) Severability. The provisions of this Agreement are severable, If any paragraph,
section, subdivision, sentence, clause, or phrase of this Agreement is for any reason held by a court
of competent jurisdiction to be contrary to law or contrary to any rule or regulation that have the
force and effect of the law, the remaining portions of the Agreement shall be enforced as if the
invalid provision had never been included.
(k) Employment of Undocumented Workers. During the term of this Agreement, HEB
agrees not to knowingly employ any undocumented workers at the Project, and if convicted of a
violation under 8 U.S.C. Section 1324a (f), HEB shall repay the amount of the Tax Rebates, Impact
Fee Offsets and any other economic development incentives received by HEB as of the date of such
violation within 120 days after the date HEB is notified by the City of such violation, plus interest at
the rate periodically announced by the Wall Street Journal as the prime or base commercial lending
rate, or if the Wall Street Journal shall ever cease to exist or cease to announce a prime or base lending
rate, then at the annual rate of interest from time to time announced by Citibank, N.A. (or by any other
New York money center bank selected by the City) as its prime or base commercial lending rate, filom
the date of such notice until paid.
(1) Incorporation of Recitals. Any recitals in this Agreement are represented by the
Parties to be accurate and constitute a part of the Agreement.
(in) Payment of Expenses. Except as otherwise expressly provided in this Agreement, (i)
each of the Patties shall pay its own costs and expenses relating to this Agreement, including, but
not limited to, its costs and expenses of the negotiations leading up to this Agreement, and of its
performance and compliance with this Agreement, and (ii) in the event of a dispute between the
Parties in connection with this Agreement, the prevailing Party in the resolution of any such dispute,
whether by litigation or otherwise, shall be entitled to full recovery of all legal expenses including
reasonable and necessary attorneys' fees (including a reasonable hourly fee for in-house legal
counsel), costs and expenses incurred in connection therewith, including costs of court, from the
non -prevailing Party to the extent allowed by law.
(n) Limitations on Liability. The City and/or the CEDC shall not be liable for
consequential damages, specifically lost profits, and any damages claimed against the City and/or
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the CEDC shall be limited to amounts recoverable under§271.153 ofthe Texas Local Government
Code. The parties agree that this Agreement shall not be interpreted as or otherwise claimed to be
a waiver of sovereignty on the part of the City and/or the CEDC.
(o) Effective Date. The word s "Effective Date" mean the date this Agreement has been
executed by the City, the CEDC and HEB.
(p) Exhibits. The following exhibits are attached to this Agreement and incorporated
hereto for all purposes:
A. Legal Description and Survey
B. Site Plan illustrating street, signal, and trail improvements
C. Trail Specifications
D. Truck Route
[The Remainder of this Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to be duly
executed.
ATTEST:
APPROVED AS TO FORK
APPROVED AS TO FORM:
CITY:
CITY OF CIBOLO TEXAS,
a Texas Home -Rule Municipality
By:
Date: 2, Z—
CE DC:
CIBOLO ECONOMIC DEVELOPMENT
CORPORATION,.
a Texas Development Corporation
B
�hu dnBarrera Date:
H -E -11' *LP;
a Texas limited partnership
By:
Name: Uvw�
Title: fmkik-
Date: McLm+ i
.L & B 24672MOM2036172DOM3 9
EXHIBIT A
OF A 45.184 ACRE TRACT LOCATED IN THE CITY OF CIBOLO, GUADALUPE
COUNTY, TEXAS, BEING OUT OF THE DAVID MILLER SURVEY NO. 87,
ABSTRACT 226, BEING TIIE FOLLOWING TRACTS OF LAND: THAT CERTAIN
40.93 ACRE TRACT CONVEYED TO STANLEY W. SHIPMAN BY DEED OF
RECORD IN VOLUME 1319, PAGE 780, OF THE DEED RECORDS OF GUADALUPE
COUNTY, TEXAS; THAT CERTAIN 2.00 ACRE TRACT CONVEYED TO GLORIA
HEUBAUM SHOAF AND CHARLES J. SHOAF BY DEED OF RECORD IN VOLUME
6225 PAGE 109 OF SAID DEED RECORDS; AND THAT CERTAIN 2.00 ACRE
TRACT CONVEYED TO STANLEY W. SHIPMAN AND WIFE, KAREN K.
SHIPMAN BY DEED OF RECORD IN VOLUME 595, PAGE 708 OF SAID DEED
RECORDS.
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EXHIBIT B
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EXHIBIT C
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CIBOLO CIP
TYPICAL SECTION
{OREENULT TAAIL)
EXHIBIT D