RES 1363 05/13/2008 J OF c/
�IIM.
CJ
r �o
+ y
i
x
x
T e X P s
RESOLUTION NO. 1363
A RESOLUTION OF THE CITY OF CIBOLO, TEXAS, (CITY) AS
REGARDS LAREDO I-35 NORTH, LTD., A TEXAS LIMITED
PARTNERSHIP, ITS SUCCESSORS AND ASSIGNS (THE "OWNER"),
AND THE CIBOLO ECONOMIC DEVELOPMENT CORPORATION
(THE "CEDC") ENTERING INTO A PERFORMANCE AGREEMENT
RELATIVE TO 80.480 ACRES OF LAND LOCATED AT THE
SOUTHWEST CORNER OF 1-35 AND WIEDERSTEIN ROAD.
WHEREAS, the Board of Directors of the CEDC has authorized certain economic
development incentives be provided to the Owner in recognition of the positive
economic benefits which will accrue to the CEDC and the City of Cibolo through
the Owner's efforts to develop approximately 80 acres of land, the majority of
which is located in the City of Cibolo, Guadalupe County, Texas, as more
particularly described and/or depicted on the attached Exhibit "A" (the
"Proper ") of the Performance Agreement, as a retail project;
WHEREAS, the CEDC desires to offer incentives to the Owner over a period of time which
will enable the Owner to develop the Property as an integrated, planned
development retail project ("Proiect') in substantial conformity with the
standards set forth and agreed upon with the City of Cibolo and with an overall
theme highlighting Cibolo's heritage and location on the Old Spanish Trail and
showcasing the Project as the gateway to the City of Cibolo, as illustrated by the
Project's name "Cibolo Crossing at Old Spanish Trail";
WHEREAS, the CEDC believes that the Project is suitable for certain infrastructure necessary
to promote, expand and develop new business enterprises; and
WHEREAS, in consideration of the mutual benefits described in this Agreement, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the CEDC and the Owner make such agreement, as allowed by the
City of Cibolo, Texas.
NOW, THEREFORE BE IT RESOLVED by the CITY COUNCIL OF THE CITY OF
CIBOLO, TEXAS, THAT:
SECTION 1.
The CEDC's execution of this Agreement is authorized by Texas Revised Civil Statutes
Annotated Article 5190.6 as codified and effective April 1, 2009 in the Texas Local Government
Code and constitutes a valid and binding obligation of the CEDC subject to the condition
precedent that Owner completes development of the Project as specified within the Performance
Agreement. The Owner's execution and performance of this Agreement constitutes a valid and
binding obligation of Owner if the Owner proceeds with the development of the Property.
SECTION 2.
The CEDC is hereby authorized to execute all documents necessary to accomplish the purposes of this
resolution.
SECTION 3.
This resolution shall be in full force and effect from and after its final adoption..
APPROVED AND ADOPTED on this the 13th day of May, 2008.
*ennif:—/-a2rtZm)--an, Mayor
Attest:
!� y61�L
Peggy Cimics, City Secretary
EXHIBIT A
PERFORMANCE AGREEMENT
BETWEEN
CIBOLO ECONOMIC DEVELOPMENT CORPORATION
AND
LAREDO I-35 NORTH, LTD. OR ITS AFFILIATES
This Performance Agreement (this "Agreement") is entered into between Laredo
I-35 North, Ltd., a Texas limited partnership, its successors and assigns (the "ON,ner")
and Cibolo Economic Development Corporation (the "CEDC"). The Owner and
CEDC may be referred to jointly herein as "the Parties" and individually as a "Party."
RECITALS
WHEREAS, the Board of Directors of the CEDC has authorized certain
economic development incentives be provided to the Owner in recognition of the positive
economic benefits which will accrue to the CEDC through the Owner's efforts to develop
approximately 80 acres of land, the majority of which is located in the City of Cibolo,
Guadalupe County, Texas, as more particularly described and/or depicted on the attached
Exhibit "A" (the "Proper "), as a retail project;
WHEREAS, the CEDC desires to offer incentives to the Owner over a period of
time which will enable the Owner to develop the Property as an integrated, planned
development retail project ("Project') in substantial conformity with the standards set
forth and agreed upon with the City of Cibolo and with an overall theme highlighting
Cibolo's heritage and location on the Old Spanish Trail and showcasing the Project as
the gateway to the City of Cibolo, as illustrated by the Project's name "Cibolo Crossing
at Old Spanish Trail"; and
WHEREAS, the CEDC believes that the Project is suitable for certain
infrastructure necessary to promote, expand and develop new business enterprises.
NOW, THEREFORE, in consideration of the mutual benefits described in this
Agreement, and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the CEDC and the Owner agree as follows:
1.
Authority
The CEDC's execution of this Agreement is authorized by Texas Revised Civil
Statutes Annotated Article 5190.6 as codified and effective April 1, 2009 in the Texas
Local Government Code and constitutes a valid and binding obligation of the CEDC
subject to the condition precedent that Owner completes development of the Project as
specified herein. The Owner's execution and performance of this Agreement constitutes
a valid and binding obligation of Owner if the Owner proceeds with the development of
the Property. The CEDC acknowledges that the Owner is acting in reliance upon the
CEDC's performance of its obligations under this Agreement in making its decision to
commit substantial resources and money to develop the Property and Owner
acknowledges that CEDC is acting in reliance upon Owner's performance of its
obligations under this Agreement in making its decision to commit substantial resources
to this Project.
2.
Definitions
As used in this Agreement, the following words or phrases shall have the
following meanings:
2.1 "Act of Default or Default" means failure to timely, fully, and
completely comply with one or more requirements, obligations, duties, terms, conditions
or warranties, as stated in this Agreement. CEDC may accept substantial compliance in
lieu of full compliance by waiving in writing such Act of Default.
2.2 "Actual Project Sales Tax" means the Quarter Cent Sales Tax Revenue
collected by the CEDC, during each year, from all applicable retail stores, restaurants,
and other business, located within the Project, a portion of which will be paid to Owner in
the form of Reimbursement Payments, as set forth in this Agreement.
2.3 "CEDC of Cibolo or CEDC" means the Cibolo Economic Development
Corporation.
2.4 "City" means the City of Cibolo, Texas.
2007. 2.5 "Code" means the Cibolo Code of Ordinances in effect on September 1,
2.6 "Designated Successors and Assigns" shall mean (i) an entity to which
Owner assigns (in writing) all or a portion of its rights and obligations contained in this
Agreement pursuant to Section 13.4(b), (ii) any entity which is the successor by merger
or otherwise to all or substantially all of Owner's assets and liabilities including, but not
limited to, any merger or acquisition pursuant to any public offering or reorganization to
obtain financing and/or growth capital; or (iii) any entity which may have acquired all of
the outstanding stock or partnership interest of Owner.
2.7 "Effective Date" means the date this Agreement has been signed by all
Parties.
-2—
2.8 "Event of Bankruptcy or Insolvency" shall mean the dissolution or
termination of a party's existence as a going business, insolvency, appointment of
receiver for any part of such party's property and such appointment is not terminated
within ninety (90) days after such appointment is initially made, any general assignment
for the benefit of creditors, or the commencement of any proceeding under any
bankruptcy or insolvency laws by or against such party and such proceeding is not
dismissed within ninety (90) days after the filing thereof.
2.9 "Force Majeure" means any event in which any Party shall be delayed,
hindered in or prevented from the performance of any act required under this Agreement
by reason of strikes, lockouts, labor troubles, inability to procure materials, failure of
power, unavailability of any utility service, restrictive governmental laws or regulations,
riots, insurrections, the act, the failure to act, or default of another Party or a material
worsening of current conditions caused by acts of terrorism or war (whether or not
declared), or severe weather occurring after the execution of this Agreement, which
materially impair the Party's ability to perform any act required under this Agreement.
2.10 "Gross Leasable Space" means that space under roof and air conditioned
and heated and ready for finish-out work for a selected occupant.
2.11 "Gross Taxable Sales" as defined by the Texas Tax Code and being the
amount of taxable sales during a fiscal year.
2.12 "Hard Costs" means actual costs of construction and materials as
reflected on Exhibit "B" that are incurred by Owner for the Reimbursable Items.
2.13 "Insolvent" means failure to timely pay debts in the ordinary course of
business or can not pay all debts when and as they become due, or is insolvent within the
meaning of the federal bankruptcy law.
2.14 "Maximum Reimbursement Amount" means the actual Hard Costs and
Soft Costs incurred by the Owner for construction of the Reimbursable Items; provided,
however the sum of Hard Costs and Soft Costs shall not exceed a combined total of
$2,779,230.00. The Parties hereby acknowledge and agree that the dollar amounts
allocated to each line item and category shown on Exhibit "B" attached hereto are
estimates only and Owner shall have the right to re-allocate the dollar amounts between
the line items and categories so long as the Maximum Reimbursement Amount is not
exceeded. Notwithstanding the above or anything to the contrary contained in this
Agreement, the CEDC hereby acknowledges and agrees that the Maximum
Reimbursement Amount (i) may be increased pursuant to Section 2.19 of this Agreement
to encompass any Acquisition Costs (as hereinafter defined), and (ii) may be increased by
up to $416,884.50 in the event that the actual Hard Costs and/or Soft Costs of the Public
Infrastructure (as hereinafter defined and as referenced on Exhibit "B") exceed
$2,779,230.00.
2.15 "Quarter Cent Sales Tax Revenue" means the total annual amount of
sales tax revenues collected by the CEDC from the imposition of a quarter (1/4) percent
municipal sales tax, such as that presently in effect pursuant to Section 321.101(a) and
Section 321.103, Texas Tax Code.
2.16 "Owner" means Laredo I-35 North, Ltd., a Texas limited partnership,
incorporated and authorized to do business in the State of Texas.
2.17 [intentionally omitted].
2.18 "Project" means Owner's planned development of approximately 80
acres, more particularly described on Exhibit "A" attached hereto. The Project is
identified as the "Cibolo Crossing at 01d Spanish Trail" Project which (i) shall consist of
an overall theme highlighting Cibolo's heritage and location on the Old Spanish Trail and
showcasing the Project as a gateway to the City; and (ii) may be constructed in phases as
set forth herein in Section 7A.
2.19 "Public Infrastructure" shall mean the construction of (i) the extension
of Ripps-Kreusler Blvd. and related access drives (the "& s-Kreusler Extension") and
(ii) the drainage improvements (the "Drainage Imprownients"), as each are referenced on
Exhibit "B" and more particularly described/depicted on Exhibit "C" attached hereto
and made a part hereof. Notwithstanding the above, if Owner is required to expend funds
to acquire any right-of-way needed for the Ripps-Kreusler Extension ("Acguisition
Costs"), such Acquisition Costs shall also be included in the definition of "Public
Infrastructure" for purposes of this Agreement and the Maximum Reimbursement
Amount shall be increased by the amount of Acquisition Costs.
2.20 "PD" shall mean the Planned Unit Development for Cibolo Town Center
at Old Spanish Trail dated of even date herewith.
2.21 "Reimbursable Items" means collectively the Public Infrastructure.
2.22 "Reimbursement Payment(s)" means the amount(s) paid by the CEDC
to the Owner under this Agreement.
2.23 "Reimbursement Term" means, for purposes of sales tax
reimbursements, a twenty (20) year period beginning on the first day of the first fiscal
year after the CEDC has received sales tax revenue from the Property and continuing for
each consecutive year through the end of the 20th fiscal year.
2.24 "Soft Costs" mean costs incurred by Owner for engineering, design,
insurance, permits, project management (including contractor general conditions
expenses), and all other costs associated with construction of the Reimbursable Items
-4-
which are not included in the Hard Costs, as specifically detailed on Exhibit "B"
attached hereto.
3.
Term
This Agreement will become enforceable upon the Effective Date and will
terminate on the first to occur of. (a) the expiration of the Reimbursement Term; (b) upon
receipt by the Owner of payments made by the CEDC of the Maximum Reimbursement
Amount; or (c) upon tennination as provided for herein, whichever occurs first (the
"Term"). In recognition of the fact that Reimbursement Payments are, by necessity,
calculated and paid after taxes have been levied by and paid to the City, the Tenn of this
Agreement will be deemed extended until any Reimbursement Payments relating to
Actual Project Sales Tax attributable to the specified Term of the Agreement have been
paid by the CEDC to the Owner.
4.
Owners Performance Criteria
4.1 The Property may be developed in phases, however, within thirty-six (36)
months after the Effective Date, Developer agrees that either (i) 50,000 square feet of
Gross Leaseable Space or (ii) improvements with a taxable value of at least Ten Million
Dollars ($10,000,000.00) shall have been constructed within the Project (the "Initial
Completion Items"). Owner acknowledges that Owner will not receive any
Reimbursement Payments until such time as the Initial Completion Items have been
completed.
5.
CEDC Performance Criteria
5.1 The CEDC is obligated to pay to Owner an amount not to exceed the
Maximum Reimbursement Amount, subject to the conditions precedent that Owner has
timely and fully complied with all applicable terms and conditions contained in this
Agreement. Further, CEDC's obligation to pay Owner shall cease upon payment in full
of the Maximum Reimbursement Amount, or the expiration of this Agreement after the
Reimbursement Tenn, even if the Maximum Reimbursement Amount has not been paid,
or termination of this Agreement by CEDC as provided herein, whichever occurs first.
5.2 Sales Tax Refund
CEDC shall pay to Owner the applicable percentage, as shown below, of the
Actual Project Sales Tax within sixty (60) days of receipt by CEDC until (a) the
-5-
Maximum Reimbursement Amount is paid to Owner by CEDC from the sources
contemplated by this Agreement, (b) until the expiration of this Agreement after the
Reimbursement Term, even if the Maximum Reimbursement Amount has not been paid
or (c) the termination of this Agreement by CEDC as provided herein, whichever occurs
first, in accordance with the following schedule. CEDC shall be required to issue only
one (1) sales tax refund check per quarter (based on the CEDC's fiscal year) to Owner or
Owner's designee.
Schedule 5.3: Percentages for Sales Tax Refund
Year(s)of CEDC's Performance CEDC's Time of Performance
Term Requirements
1 - 2 Fifty percent (50%) of Actual Quarterly within sixty (60) days after
Project Sales Tax eceipt from the Texas Comptroller o
Actual Sales Tax Collected by the
CEDC
3 - 10 Seventy percent (70%) of Actual Quarterly within sixty (60) days after
Project Sales Tax eceipt from the Texas Comptroller o
Actual Sales Tax Collected by the
CEDC
11 - End of Fifty percent (50%) of Actual Quarterly within sixty (60) days after
Term Project Sales Tax receipt from the Texas Comptroller o
Actual Sales Tax Collected by the
CEDC
5.4 Sales Tax Disclosure. Owner covenants and agrees to include as a
condition or covenant filed as a deed restriction, language which requires Owner, its
successors and assigns to sign, or cause to be signed, any documentation necessary to
authorize the State Comptroller's Office to release and disclose to the CEDC any and all
sales tax information relating to any businesses generating sales and use tax within the
Property, including, as necessary a form in materially the same form as that attached
hereto as Exhibit "D" ("Sales Tax Disclosure").
5.5 Audit. Owner shall, upon forty-five (45) days written notice to CEDC
and during normal business hours, but in any event not more than two (2) times per
calendar year, have the right to audit and inspect CEDC's records and books and all other
relevant records related to each of the economic development considerations and
incentives and performance requirements, as stated in this Agreement, but the
confidentiality of such records and information shall be maintained by CEDC unless
disclosure of such records and information shall be required by a court order, a lawfully
issued subpoena, or at the direction of the Office of the Texas Attorney General.
-6—
6.
Owner's Covenants, Warranties, Obligations and Duties
6.1 Owner makes the following covenants and warranties to CEDC, and
agrees to timely and fully perform the following obligations and duties. Any false or
substantially misleading statement contained herein or failure to timely and fully perform
as required in this Agreement shall be an Act of Default by Owner. Failure to comply
with any one covenant or warranty shall constitute an Act of Default by Owner.
6.1.1 Owner is authorized to do business and is in good standing in the
State of Texas and shall remain in good standing in the State of Texas during the
Term of this Agreement.
6.1.2 The execution of this Agreement has been duly authorized by
Owner's general partner, and the individual signing this Agreement is the
manager of the general partner, empowered to execute such Agreement and bind
the partnership, said authorization, signing and binding effect is not in
contravention of any law, rule or regulation, or of the provisions of Owner's
partnership agreement, or by-laws, or of any agreement or instrument to which
Owner is a party or by which it may be bound, such authority to be evidenced by
a partnership resolution, attached hereto at the time of execution.
6.1.3 No litigation or governmental proceeding is pending or, to the
knowledge of Owner or Owner's officers, threatened against or affecting Owner
that may result in any material adverse change in Owner's business, properties or
operation. No consent, approval or authorization of or registration or declaration
within any governmental authority is required in connection with the execution of
this Agreement or the transactions contemplated hereby.
6.1.4 There are no bankruptcy proceedings or other proceedings
currently pending or contemplated, and Owner has not been informed of any
potential involuntary bankruptcy proceedings.
6.1.5 To its current, actual knowledge, Owner has acquired and
maintained all necessary rights, licenses, permits and authority to carry on its
business in Cibolo, Texas, and will continue to use its best efforts to maintain all
necessary rights, licenses, permits and authority.
6.1.6 The funds herein granted shall be utilized solely for the purpose of
constructing the Public Infrastructure.
6.1.7 Owner shall timely and fully comply with all of the terms and
conditions of this Agreement.
-7-
6.1.8 During the term of this Agreement; the Owner agrees not to
knowingly employ any undocumented workers and if convicted of a violation
under 8 U.S.C. Section 1324a (0, Owner shall repay the amount of the
reimbursements received by the Owner as of the date of such violation within 120
business days after the date the Owner is notified by the County 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 CEDC) as its prime or base
commercial lending rate, from the date of such notice until paid.
6.1.9 Insurance. Throughout the term of this Agreement, Owner shall, at
its expense, maintain in full force and effect insurance in the types and amounts
required by Code.
6A.
City Participation
6A.1 The CEDC hereby acknowledges that pursuant to the terms of that certain
Chapter 380 Economic Development Agreement between Owner and the City ("C
Lty
Chapter 380 Agi eenwnt"), the City is participating in a portion of the cost of the Project.
7.
Suspension of Pavments
7.1 CEDC, under the following circumstances, and at its sole discretion, may
suspend its obligations under this Agreement and all future payment obligations
shall automatically cease:
7.1.1 In the Event of Bankruptcy or Insolvency on the part of Owner.
7.1.2 Any Breach of this Agreement or Act of Default if not cured as
provided for in Section 9.1.
8.
Reporting and Monitoring
8.1 Owner agrees to the following reporting and monitoring provisions, and
failure to fully and timely comply with any one requirement shall constitute an
Act of Default:
8.1.1 CEDC shall, upon forty-five (45) days' prior written notice to
Owner and during normal business hours, but in any event not more than two (2)
- 8-
times per calendar year, have the right to audit and inspect Owner's records and
books and all other relevant records related to each of the economic development
considerations and incentives and performance requirements, as stated in this
Agreement, but the confidentiality of such records and information shall be
maintained by CEDC unless disclosure of such records and information shall be
required by a court order, a lawfully issued subpoena, or at the direction of the
Office of the Texas Attorney General.
9.
Owner's Liability
9.1 Should Owner fail to timely or substantially comply with any one or more
of the requirements, obligations, duties, terms, conditions or warranties of this Agreement
such failure shall be an Act of Default by Owner and, if not cured and corrected within
ninety (90) days after written notice to do so, CEDC as its sole and exclusive remedy,
may cease making any further economic payments pursuant to this Agreement.
Furthermore, if Owner fails to timely satisfy the obligations set forth in Section 4.1 of
this Agreement, then Owner shall be required to repay all Reimbursement Payments
previously paid by CEDC to Owner within ninety (90) days after written notice to do so
from CEDC. Owner shall not be liable to CEDC for any alleged consequential damages.
Notwithstanding the above, if such Act of Default is such a matter that cannot be cured
by reasonably diligent efforts within ninety (90) days, then such occurrence shall not be
an Act of Default so long as Owner promptly initiates and diligently and continuously
attempts to cure the same, even if the same is not cured within said ninety (90) day
period.
9.2 In the event of unforeseeable third party delays or Force Majeure and upon
a reasonable showing by Owner that it has immediately and in good faith commenced
and is diligently and continuously pursuing the correction, removal or abatement of such
delays by using its diligent, good faith efforts, CEDC may consent to and excuse any
such delays, which consent and excuse shall not be unreasonably withheld.
9.3 Any delay for any amount of time by CEDC in providing notice of Default
to Owner shall in no event be deemed or constitute a waiver of such Default by CEDC of
any of its rights and remedies available in law or in equity.
9.4 Any waiver granted by CEDC to Owner of an Act of Default shall not be
deemed or constitute a waiver of any other existing or future Act of Default by Owner or
of a subsequent Act of Default of the same act or event by Owner.
9.5 The CEDC may at its option, offset any amounts due and payable under
this Agreement against any debt (including taxes) lawfully due and owing to the CEDC
from the Owner, regardless of whether the amount due arises pursuant to the terms of this
-9-
Agreement or otherwise, and regardless of whether of not the debt has been reduced to
judgment by a court.
9.6 Should Owner be in default of this Agreement, as defined within this
Agreement, CEDC shall have all remedies as recited under Section 9.1.
10.
CEDC's Liability Limitations
Should the CEDC fail to timely or substantially comply with any one or more of
the requirements, obligations, duties, terms, conditions or warranties of this Agreement,
such failures shall be an Act of Default by CEDC and CEDC and shall have ninety (90)
days to cure and remove the Default upon receipt of written notice to do so from Owner.
Owner specifically agrees that CEDC shall only be liable to Owner for the amount of the
money grants it is required to convey to Owner and shall not be liable to Owner for
attorneys fees, costs of court and for any alleged or actual consequential damages. It is
further specifically agreed that CEDC shall only be required to pay the amounts solely
out of its portion of the Actual Project Sales Tax on this Project and for Public
Infrastructure actually completed.
11.
Responsibility Assignment
11.1 The provisions contained in this Agreement shall be the individual
requirement of or benefit to (as the case may be) Owner and its Designated Successors
and Assigns. Notwithstanding the above, if Owner sells only a portion of the Property to
a third party (e.g. sale to an anchor tenant, pad user, etc. [herein referred to as a `Suver"),
the Buyer shall only be obligated to comply with the terms and conditions set forth in the
PD and will not be deemed to have assumed the obligations (e.g. obligation to construct
the Reimbursable Items) or have been granted the rights (e.g. right to receive
Reimbursement Payments) of the "Owner"under this Agreement.
11.2 If Owner sells all or substantially all of the Property to a Designated
Successor or Assign, such Designated Successor or Assign shall assume all of the rights
and obligations of "Owner" under this Agreement; provided however, Owner may
expressly retain the right to receive Reimbursement Payments. Upon such assignment by
the Owner, Owner shall no longer be liable for the assigned rights and obligations and the
City shall look solely to the Designated Successors or Assigns for performance under this
Agreement.
11.3 To aid in determining the applicability of Sections 11.1 and 11.2 above,
Owner shall designate in the deed (or other similar document of record) whether the
- 10-
purchasing entity is a Buyer or a Designated Successor or Assign. If no such designation
is made, the purchasing entity shall be deemed a "Buyer".
12.
Miscellaneous Provisions
12.1 Changes in Law. If, during the Term of this Agreement, State law
applicable to municipal sales taxes changes and, as a result, the Reimbursement Payments
differ from the amount which would have been paid to Owner under the laws in effect as
of the Effective Date, then the CEDC, in its sole discretion, may adjust the
Reimbursement Payments utilizing whatever discretionary taxes and revenues are legally
available to the CEDC to be allocated to the Reimbursement Payments. The foregoing
does not require the CEDC to use funds from other sources and/or sources that are not
within the CEDC's discretion to allocate to the Project in order to achieve the same
economic benefits to both Parties, which would have resulted if the law had not changed.
12.2 Complete Agreement/Amendment. This Agreement represents a
complete agreement of the parties and supersedes all prior written and oral matters
related to this Agreement. This Agreement may be canceled, changed, modified or
amended, in whole or in part, only by the written and recorded agreement by the CEDC
and the then current owner of the Property. In the event that the Property shall be owned
by more than one owner, then this Agreement may be canceled, changed, modified or
amended, in whole or in part, only by the written and recorded agreement by the CEDC
and the owners of sixty percent (60%) of the land area of the Property; provided,
however, that so long as Owner or its Designated Successors and Assigns have at least a
ten percent (10%) ownership interest in the Property, it shall be required to join in any
cancellation, change, amendment or modification of this Agreement.
12.3 Mutual Assistance/Good Faith. The CEDC and the Owner each agree to
act in good faith and to do all things reasonably necessary or appropriate to carry out the
terms and provisions of this Agreement, and to aid and assist the other in carrying out
such terms and provisions in order to put the other in the same condition contemplated by
this Agreement, regardless of any changes in public policy, the law or taxes or
assessments attributable to the Property.
12.4 Representations and Warranties. The Parties represent and warrant to
one another 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.
12.5 Release and Indemnification. THE CEDC SHALL NOT BE LIABLE
FOR ANY LOSS, DAMAGE, OR INJURY OF ANY KIND OR CHARACTER TO
ANY PERSON OR PROPERTY ARISING FROM THE ACTS OR OMMISSIONS OF
THE OWNER PURSUANT TO THIS AGREEMENT. THE OWNER HEREBY
- ]1 -
WAIVES ALL CLAIMS AGAINST CEDC, ITS OFFICERS, AGENTS AND
EMPLOYEES (COLLECTIVELY REFERRED TO IN THIS SECTION AS "CEDC" )
FOR DAMAGE TO ANY PROPERTY OR INJURY TO, OR DEATH OF, ANY
PERSON ARISING AT ANY TIME AND FROM ANY CAUSE OTHER THAN THE
SOLE NEGLIGENCE OR WILLFUL MISCONDUCT OF CEDC. THE OWNER
DOES HEREBY INDEMNIFY AND SAVE HARMLESS THE CEDC FROM AND
AGAINST ANY AND ALL LIABILITIES, DAMAGES, CLAIMS, SUITS, COSTS
(INCLUDING COURT COSTS, ATTORNEY'S FEES AND COSTS OF
INVESTIGATION) AND ACTIONS OF ANY KIND BY REASON OF INJURY TO
OR DEATH OF ANY PERSON OR DAMAGE TO OR LOSS OF PROPERTY
ARISING FROM THE OWNER'S BREACH OF ANY OF THE TERMS AND
CONDITIONS OF THIS AGREEMENT, OR BY REASON OF ANY ACT OR
OMISSION ON THE PART OF THE OWNER, ITS OFFICERS, DIRECTORS,
SERVANTS, AGENTS, EMPLOYEES, REPRESENTATIVES, SUBCONTRACTORS,
LICENSEES, SUCCESSORS OR PERMITTED ASSIGNS IN THE PERFORMANCE
OF THIS AGREEMENT (EXCEPT WHEN SUCH LIABILITY, CLAIMS, SUITS,
COSTS, INJURIES, DEATHS OR DAMAGES ARISE FROM OR ARE ATTRIBUTED
TO THE SOLE NEGLIGENCE OF THE CEDC). IN THE EVENT OF JOINT OR
CONCURRENT NEGLIGENCE OF BOTH THE CEDC AND OWNER, THE
RESPONSIBILITY, IF ANY, SHALL BE APPORTIONED COMPARATIVELY IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, WITHOUT,
HOWEVER, WAIVING ANY GOVERNMENTAL IMMUNITY AVAILABLE TO
THE CEDC AND WITHOUT WAIVING ANY DEFENSES OF THE PARTIES
UNDER TEXAS LAW. IF ANY ACTION OR PROCEEDING SHALL BE BROUGHT
BY OR AGAINST CEDC IN CONNECTION WITH ANY SUCH LIABILITY OR
CLAIM, THE OWNER SHALL BE REQUIRED, ON NOTICE FROM CEDC, TO
DEFEND SUCH ACTION OR PROCEEDINGS AT THE OWNER'S EXPENSE, BY
OR THROUGH ATTORNEY'S REASONABLY SATISFACTORY TO THE CEDC.
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.
12.6 Force Maieure. All obligations of Owner and CEDC shall be subject to
events of "force maj eure" which shall mean any contingency or cause beyond the
reasonable control of a party, as applicable, including, without limitations, acts of God or
the public enemy, war, riot, civil commotion, insurrection, adverse weather, government
or de facto governmental action or inaction (unless caused by negligence or omissions of
such party), fires, explosions, floods, strikes, slowdowns or work stoppages, shortage of
materials and labor.
12.7 Binding Effect. This Agreement will be binding on and inure to the
benefit of the Parties and their respective successors and assigns.
- 12-
12.8 Termination. If the Owner elects not to proceed with the development of
the Project as contemplated by this Agreement, the Owner will notify the CEDC in
writing, and this Agreement and the obligations of all Parties will be deemed terminated
and of no further force or effect as of the date of such notice, except those that expressly
survive the termination hereof. if any. Notwithstanding the above, Owner agrees to
reimburse CEDC for all professional fees expended in the negotiation and preparation of
this Agreement.
12.9 Notice. Any notice or other communication ("Notice") given under this
Agreement must be in writing, and may be given: (i) by depositing the Notice in the
United States Mail, postage paid, certified, and addressed to the Party to be notified with
return receipt requested; (ii) by personal delivery of the Notice to the Party, or an agent of
the Party; or (iii) by confirmed facsimile, provided that a copy of the Notice is also given
in one of the manners specified in (i) or (ii). Notice deposited in the mail in the manner
specified will be effective two (2) business days after deposit. Notice given in any other
manner will be effective only if and when received by the Party to be notified. For the
purposes of Notice, the addresses of the Parties will, until changed as provided below, be
as follows:
Owner: Laredo I-35 North, Ltd.
Attn: Marcus Moreno
16818 Tuscany Stone, Suite 100
San Antonio, Texas 78258
Ph: (210) 497-3385
Fax: (210) 495-2587
With a copy to: Drenner & Golden Stuart Wolff, LLP
Attn: Talley J. Williams
301 Congress Ave., Suite 1200
Austin, Texas 78701
Ph: (512) 404-2234
Fax: (512) 404-2244
CEDC: Cibolo Economic Development Corporation
Attn: Nancy McBeth
200 South Main Street
Cibolo, Texas 78108
Ph: (210) 658-8000
Fax: (210) 658-1687
With a copy to: Charles Zech
c/o Denton, Navarro, Rocha & Bernal, P.C.
Attn: Charles E. Zech
- 13 -
2517 N. Main Avenue
San Antonio, Texas 78212
Ph: (210) 227-3243
Fax: (210) 225-4481
All Parties may designate a different address at any time by giving Notice to the
other Parties.
12.10 Interpretation. Each of the Parties have been represented by counsel of
their choosing in the negotiation and preparation of This Agreement. In the event of any
dispute regarding the interpretation of this Agreement, this Agreement will be interpreted
fairly and reasonably and neither more strongly for or against any Party based on
draftsmanship.
12.11 Relationship of the Parties. This Agreement will not be construed as
establishing a partnership or joint venture,joint enterprise, express or implied agency, or
employer-employee relationship between the parties. Neither the CEDC nor their past,
present or future officers, elected officials, employees or agents, assume any
responsibility or liability to any third party in connection with the development of the
Project or the design, construction or operation of any portion of the Project.
12.12 Applicable Law. This Agreement is made, and will be construed and
interpreted, under the laws of the State of Texas and venue will lie in Guadalupe County,
Texas. No Party to this Agreement waives or relinquishes any immunity or defense on
behalf of itself, its officers, employees, agents or representatives as a result of the
approval or execution of this Agreement.
12.13 Severability. If any provision of this Agreement is held to be illegal,
invalid or unenforceable under present or future laws, it is the intention of the Parties that
the remainder of this Agreement not be affected and it is also the intention of the Parties
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 or enforceable and is as
similar in terms as possible to the provision found to be illegal, invalid or unenforceable.
12.14 Paragraph Headings. The paragraph headings contained in this
Agreement are for convenience only and will in no quay enlarge or limit the scope or
meaning of the paragraphs.
12.15 No Third Partv Beneficiaries. This Agreement is not intended to nor
shall it be interpreted to confer any rights, privileges or causes of action upon any third
party.
12.16 Counterparts. This Agreement may be executed simultaneously in two
or more counterparts, each of which will be deemed an original, but all of which will
- 14-
constitute one and the same instrument. A facsimile signature will be deemed to be an
original signature for all purposes.
12.17 City Chanter 380 Agreement Invalidation. Both Parties agree that the
City Chapter 380 Agreement is an integral part of this Agreement and to the extent that
said City Chapter 380 Agreement is invalidated by either legislative act or an act of the
City of Cibolo permitted under the City Chapter 380 Agreement, CEDC shall be
completely relieved of any further liability under this Agreement which shall
automatically terminate and CEDC shall owe no further Reimbursement Payments to
Owner. This section is in addition to and including any other remedies provided for
under this Agreement.
12.18 Exhibits. The following exhibits are attached to and incorporated into this
Agreement for all purposes.
Exhibit "A": Property Description
Exhibit"B": Reimbursable Items
Exhibit "C": Public Infrastructure
Exhibit "D": Agreement for Disclosure of Sales Tax Information
After Recording, Return to:
16818 Tuscany Stone, Suite 100
San Antonio, Texas 78258
- 15-
EXECUTED to be effective as of the day of 2008.
OWNER:
LAREDO I-35 NORTH, LTD.,
a Texas limited partnership
By: ABG Enterprises, Ltd., a Texas limited partnership,
its general partner
By: Galo, Inc.
a Texas corpora on,
its general pa
By:
Name:
Title: •25i to
Date:
CEDC:
CIBOLO ECONOMIC DEVELOPMENT CORPORATION
By: rn
P
Name:
Title: Pro-;"dent
Date: Gn 4 Za(D R
Approved As To Form and Content:
EDC Ati 7—
(� Bury-F Partners
ENGINEER I NG SOLLJTIONS
80.480 ACRES FN NO. 50672-02-1
(3, 505, 722 SQ. FT. ) DECEMBER 18, 2006
50672-02ti.DWG JOB NO. 50672-02 .92
FIELD NOTE DESCRIPTION
OF A 80.480 ACRE TRACT OF LAND SITUATED IN THE JACOB DE CORDOVA
SURVEY NO, 514, ABSTRACT NO, 117, AND JOHN SALADIN SURVEY NO.
404, ABSTRACT NO. 299, CITY OF CIBOLO, GUADALUPE COUNTY, TEXAS,
AND BEING COMPRISED OF THE REMAINDER OF THAT CERTAIN 78. 79 ACRE
TRACT OF LAND CONVEYED TO TRC JOINT VENTURE 35 NORTH, AND
RECORDED IN VOLUME 654, PAGE 715, AND THAT CERTAIN SAME 35. 906
ACRE TRACT OF LAND CONVEYED TO WILLIAM DEAN III (TRACT2)
RECORDED IN VOLUME 654, PAGE 770, BOTH DOCUMENTS BEING RECORDED
IN DEED RECORDS OF GUADALUPE COUNTY, TEXAS; SAID 80.480 ACRE
TRACT BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS;
BEGINNING, AT A FOUND TEXAS DEPARTMENT OF TRANSPORTATION
CONCRETE MONUMENT MARKING THE SOUTHERLY END OF A CUT BACK CORNER
AT THE INTERSECTION OF THE SOUTHWESTERLY RIGHT OF WAY LINE OF
WIEDERSTEIN ROAD WITH THE SOUTHEASTERLY RIGHT OF WAY LINE OF
INTERSTATE HIGHWAY 35 (VARIABLE ROW) ;
THENCE, N 84056' 14 W, ALONG THE SAID CUT BACK LINE, A DISTANCE
OF 61.37 FEET TO A FOUND CONCRETE MONUMENT ON THE SOUTHWESTERLY
LINE OF WIEDERSTEIN ROAD, MARKING THE MOST NORTH-NORTHEASTERLY
CORNER OF HEREIN DESCRIBED TRACT;
THENCE, ALONG THE SOUTHWESTERLY LINE OF WIEDERSTEIN ROAD, THE
FOLLOWING COURSES;
S 31011'24" E, A DISTANCE OF 99 .94 FEET TO A FOUND TEXAS
DEPARTMENT OF TRANSPORTATION CONCRETE MONUMENT;
S 57002'23"E, A DISTANCE OF 56.01 FEET TO A FOUND TEXAS
DEPARTMENT OF TRANSPORTATION CONCRETE MONUMENT;
S 31012'45" E, A DISTANCE OF 966 .23 FEET TO A FOUND % INCH
IRON ROD, MARKING THE EASTERLY CORNER OF HEREIN DESCRIBED
TRACT, AND THE NORTHERLY CORNER OF LANTANA SUBDIVISION UNIT
3 AS RECORDED IN BOOK 6, PAGE 691 PLAT RECORDS OF GUADALUPE
COUNTY, TEXAS;
THENCE, ALONG THE WESTERLY LINE OF SAID LANTANA SUBDIVISION UNIT
3, AND THE WESTERLY LINE OF LANTANA SUBDIVISION UNIT 2 AS
RECORDED IN BOOK 6, PAGE 640 PLAT RECORDS OF GUADALUPE COUNTY,
TEXAS, THE FOLLOWING COURSES;
S 06040' 54" W, A DISTANCE OF 403 .48 FEET TO A FOUND % INCH
IRON ROD, FOR A CORNER OF HEREIN DESCRIBED TRACT;
S 08042' 24"W, A DISTANCE OF 376. 84 FEET TO A SET % INCH
IRON ROD WITH BPI CAP, FOR A CORNER OF HEREIN DESCRIBED
TRACT;
S 35008' 30" W, A DISTANCE OF 397.72 FEET TO A FOUND 3z INCH
IRON ROD, FOR A CORNER OF HEREIN DESCRIBED TRACT;
S 43049' 39" W, A DISTANCE OF 397.63 FEET TO A FOUND INCH
IRON ROD, ON THE NORTHEASTERLY LINE OF THAT CERTAIN 160
ACRE TRACT CONVEYED TO EVELYN KRAMME RIPPS AS RECORDED IN
VOLUME 261, PAGE 168 DEED RECORDS OF GUADALUPE COUNTY,
TEXAS, FOR THE WESTERLY CORNER OF SAID LANTANA SUBDIVISION
UNIT 2;
THENCE, N 30001159 W, ALONG THE NORTHEASTERLY LINE OF SAID 160
ACRE TRACT, A DISTANCE OF 21.71 FEET TO A FOUND % INCH IRON ROD
FOR THE NORTHERLY CORNER OF SAID 160 ACRES, AND THE EASTERLY
CORNER OF SAID ROBERT JOHN DEAN TRACT;
THENCE, S 59023151 W, ALONG THE COMMON LINE OF SAID 160 ACRE
TRACT AND SAID ROBERT JOHN DEAN TRACT, A DISTANCE OF 982 .99 FEET
TO A FOUND % INCH IRON ROD FOR THE SOUTHERLY CORNER OF SAID
ROBERT JOHN DEAN TRACT, SAME BEING THE EASTERLY CORNER OF THAT
CERTAIN 35. 906 ACRE TRACT CONVEYED TO R.D.L. PROPERTIES AS
RECORDED IN VOLUME 1258, PAGE 345 OFFICIAL RECORDS OF GUADALUPE
COUNTY, TEXAS;
THENCE, N 30036'23 W, ALONG THE COMMON LINE OF SAID 35 . 906 ACRE
TRACT AND SAID ROBERT JOHN DEAN TRACT, A DISTANCE OF 1433 . 06
FEET TO A FOUND CONCRETE MONUMENT ON THE SOUTHEASTERLY RIGHT OF
WAY LINE OF INTERSTATE HIGHWAY 35 (VARIABLE ROW) , FOR THE
WESTERLY CORNER OF SAID ROBERT JOHN DEAN TRACT;
THENCE, ALONG THE SOUTHEASTERLY RIGHT OF WAY LINE OF INTERSTATE
HIGHWAY 35 (VARIABLE ROW) , THE FOLLOWING COURSES;
N 41046'45" E, A DISTANCE OF 92 .93 FEET TO A CONCRETE
MONUMENT FOR A CORNER OF HEREIN DESCRIBED TRACT;
N 41°45'24" E, A DISTANCE OF 508.44 FEET TO A FOUND
CONCRETE MONUMENT FOR A CORNER OF HEREIN DESCRIBED TRACT;
N 44019109 E, A DISTANCE OF 400.48 FEET TO A FOUND CONCRETE
MONUMENT FOR A CORNER OF HEREIN DESCRIBED TRACT;
N 46°40'46 E, A DISTANCE OF 23 .56 FEET TO A FOUND CONCRETE
MONUMENT FOR A CORNER OF HEREIN DESCRIBED TRACT;
N 46030' 19 E, A DISTANCE OF 862. 08 FEET TO A FOUND CONCRETE
MONUMENT FOR A CORNER OF HEREIN DESCRIBED TRACT;
N 41046' 26 E, A DISTANCE OF 317.33 FEET TO THE POINT OF
BEGINNING, AND CONTAINING 80.480 ACRES OF LAND, MORE OR
LESS.
I, JAMES W. RUSSELL, A REGISTERED PROFESSIONAL LAND SURVEYOR, DO
HEREBY CERTIFY THAT THE PROPERTY DESCRIBED HEREIN WAS DETERMINED
BY A SURVEY MADE ON THE GROUND UNDER MY DIRECTION AND
SUPERVISION.
BURY & PARTNERS, INC.
2:nw.G=ELL
�,"�
ENGINEERS AND SURVEYORS
922 ISOM ROAD, SUITE #100 R.P.L.S #4230
SAN ANTONIO, TEXAS 78216 STATE OF TEXAS
�P�w OT�T��19
JAMES W.RUSSELL
..... . .�..,
+4230
ee
? o�
SUR`
Cibolo Crossing
at Old Spanish Trail
Reimbursable Items
Total Funded
Public Infrastructure
Onsite Infrastructure for a Regional Improvement
Regional Drainage
Public Drainage Onsite $ 821,223
Detention Ponds $ 233,750
Public Roadways
Onsite
Ripps-Kruessler&Access Drives $ 829,181
Offsite
Offsite Ripps-Kruessler Extension $ 895,076
Total Expenses* $ 2,779,231
*Maximum Reimbursement amount may be increased pursuant to express items set forth in the Performance
Agreement
I
�l
� o
As
yt
k«
i
pl
Bury-Partners RIPPS-KRUESSLER ROAD
ENOINEERINO SOLUTIONS
�i Eu lnt k.'l suite 1Do CIBOLO CROSSING AT
�1
S.lntod0,TS 70210
T&1210)5;3-0020 Pu 1210 26-05217 OLD SPANISH TRAIL
Oap�Putam-Sl,IOe.R,('op1rIE612000 CIBOLO,TX
DATE: Jan-24-2008 SCALE: I*.3D0' DRAVM Dr KS FlLE:c\672\02\D)ltBiTS\IIPUTY\67202EM170.a.g PRO£CT No.: 672-02.00
y'
�I
I III
t s•
14
i
iI
y f:
li
y` Ni
0
N
II O
O
0
o-
0
S= BUPy-f-Partners DRAINAGE IMPROVEMENTS
E N O I N F E 2 1 N O S O L U T 10 N S
(33 922 1—R.-d,Suite 100
=1s...AnW.W,Ts 762. CIBOLO TOWN CENTER AT
Td.(2191525-MG F..1210)125-0529 THE OLD SPANISH TRAIL
B�.y+N.Nn<t,-SA,Inu.0Cop)rfeht 2097 CIBOLO,TX
DAit- )on-24-'_C88 SCALP 1'=Sa0' OR,,W1 81, KC Fahr -- Pac,CCT!lo,. 572-01.00
Exhibit D
AGREEMENT FOR DISCLOSURE OF CONFIDENTIAL
TAX INFORMATION
This agreement is entered into between Cibolo Economic Development
Corporation (hereafter the "CEDC") and (business name) (hereinafter the "taxpayer")
for the purposes indicated herein.
1, (title), and the duly authorized agent of
(—business name)—a vendor doing business at Name and Address of Facility do hereby
stipulate and agree as follows:
I hereby authorize the Texas Comptroller's Office to release and disclose any and
all Sales and Use tax information relating to the operation of the above referenced
taxpayer's business location to the CEDC. I understand and agree that this release will be
made by the Comptroller's Office to the CEDC on an ongoing monthly basis beginning
on the date this Agreement is executed. This Agreement waives any and all rights with
respect to the parties regarding the confidentiality of tax information under Sections
111.006, 151.027, Tax Code, or other state law.
The CEDC agrees that it will use the tax information disclosed by the Comptroller
pursuant to this Agreement solely and exclusively for the purposes of calculating
payments to be made pursuant to a Performance Agreement between the CEDC and
Laredo I-35 North, Ltd. dated effective , 2008.
This Agreement is entered into in or with regard to property located in Cibolo,
Guadalupe County, Texas and Texas law will apply to its interpretation and enforcement.
SIGNED AND AGREED TO on this the day of , 2008.
name name
title title
On Behalf of the "CEDC" On behalf of the "Taxpayer"
Texas Taxpayer Identification No.
- 17-