LEGAL & REGULATORY RISK FINDING

Development Agreement
Legal Issues

A provision-by-provision read of the First Amended & Restated Development Agreement (approved January 17, 2023) against the Texas Local Government Code, the Texas Water Code, and the San Marcos Development Code as it stood on that date. Twenty findings, each tied to quoted text from the agreement and the statute or code section it runs against.

Important disclaimer: This page is a plain-text legal analysis of the recorded development agreement and public records obtained through Texas Public Information Act requests. It is not legal advice, and nothing here should be read as a definitive judicial ruling - only a court can decide whether a specific provision violates state law. Every claim below is tied to a quoted document excerpt or a linked primary source so it can be checked independently.

Overview

The development agreement governing the SMART Terminal / TriTexas Logistics Park site (Development Case No. PDA-22-07, ~2,017 acres between SH 80 and the Union Pacific Railroad) was approved by City Council via Resolution 2023-20 on January 17, 2023, and executed by the City Manager and the owner, Franklin Mountain San Marcos 1, LP, in March 2023. The full text is posted on Key Documents.

Reading the agreement against Texas statute, the City's own Development Code, and the City's public records surfaces twenty distinct issues. Sections 1 through 4 below cover the term length, the annexation and zoning sequencing, the annexation application the developer withdrew, and the Cotton Center MUD acreage. Sections 5 through 20 work through the rest of the document clause by clause: how the 2023 restatement differs from the 2019 agreement it replaced, the county named for recording, the authority cited for the Development Code waivers, the contents state law and city code require an agreement of this kind to contain, the impact fee freeze, the impervious cover and floodplain provisions, the noise and odor and toxics standards the agreement adopts by reference, the municipal utility district clauses, the land use matrix, a set of cross-reference and citation defects that change what individual provisions mean, and finally how the agreement allocates the power to amend itself - which is where the two changes actually made since 2023 were decided.

How to read this page. Each finding quotes the agreement and then quotes the statute or code section it is measured against, so any of them can be checked independently. They are not all the same weight. Some are hard conflicts with mandatory statutory language - the §43.0672 service agreement contents, the Water Code limits on MUD consent conditions, the §212.172(b-1) disclosure. Some are conflicts with the City's own Development Code. Some are internal contradictions within the agreement itself, which no external authority resolves. Some are drafting errors that would be trivial in a short contract but are not trivial in a document that governs 2,017 acres for decades and takes priority over the City's ordinances wherever the two conflict. And in two places noted below, the records show the problem in the text was not carried into practice - the agreement was recorded in the correct county despite saying otherwise, and the fire station parcel with a fixed deadline was in fact conveyed on time.
Which version of the Development Code this is measured against. This matters more than it sounds, because the agreement freezes "all City of San Marcos codes and ordinances in effect on the Effective Date" and its waivers are keyed to specific section numbers. Per the City's Code Updates page, the Development Code was amended by Ord. 2021-88 on November 3, 2021 and not amended again until Ord. 2023-72 on October 17, 2023. The code in force on January 17, 2023 is therefore the November 3, 2021 edition. Every code provision cited on this page was read out of the Ord. 2023-72 adopted redline - a 460-page document whose base layer is that November 2021 text, footer-stamped as such on every page - and each one was checked to confirm it appears as existing black text rather than as a tracked change. Where a section number shifted in a later edition, both numbers are given. See Sources for the full list of provisions verified this way.

1. A Term That Runs Past Both the City's Own Cap and the State Cap

Section 6.01 ("Term") of the agreement reads:

"The term of this Agreement will commence on the Effective Date and continue for forty-five (45) years thereafter (“Initial Term”), unless sooner terminated under this Agreement. After the Initial Term, the Agreement may be extended for a fifteen (15) year period by Owner, with City's approval... Following expiration of the second 15-year term, the Agreement may be extended for up to three successive five (5) year periods by Owner, with City's approval..." Development Agreement, Section 6.01, p.12

Read literally, that is a 45-year initial term, plus a 15-year extension, plus a second reference to "the second 15-year term" (only one 15-year term is actually defined earlier in the same clause), plus up to three more 5-year extensions - a total that could run to roughly 75-90+ years from the January 2023 effective date, depending on how the undefined "second 15-year term" is read.

But the statute the agreement itself invokes as its authority - Texas Local Government Code §212.172, part of Subchapter G governing development agreements for land in a city's extraterritorial jurisdiction - caps that duration directly:

"The total duration of the contract and any successive renewals or extensions may not exceed 45 years." Tex. Loc. Gov't Code §212.172(d)
The conflict: Section 212.172(d) caps the total duration of the contract, counting every renewal and extension, at 45 years. Section 6.01 of this agreement describes a structure that, on its face, extends well beyond that ceiling. A Texas municipal-law firm's own public explainer of this statute confirms the same read of the cap: development agreements under §212.172 are "limited to a term of 45 years," after which the property "can be rezoned like any other property."

Section 6.03.A of the agreement expressly cites §212.172 as its statutory authority, so the agreement cannot both claim that authority and exceed the limit that authority comes with.

It's worse than that at the city level. San Marcos's own Development Code, independent of state law, capped development agreement terms even tighter. Section 2.4.3.2.E.11, as it read at the time this agreement was approved and signed (the version amended through November 3, 2021, still in effect through the agreement's January/March 2023 execution), required:
"The term of the agreement and provisions for extension, if any, which shall not exceed 30 years." San Marcos Development Code §2.4.3.2.E.11 (version amended through Nov. 3, 2021, in effect when this agreement was executed)

That means when the City signed this agreement, its own code allowed a development agreement term of at most 30 years - and this agreement's 45-year initial term alone already exceeded that, before any of the extensions in Section 6.01 are even considered.

The 30-year cap then stayed in place for another three and a half years. It survived Ordinance 2023-72 (October 17, 2023) unchanged, and it was still the rule in the version of the Development Code adopted by Ordinance 2025-01, effective January 21, 2025, which reads word for word as it did in 2021: "The term of the agreement and provisions for extension, if any, which shall not exceed 30 years." The City did not raise its cap to match the state's 45-year ceiling until Ordinance 2026-08, effective June 16, 2026, whose adopted redline shows the change on its face - "shall not exceed 30 45 years." That is three and a half years after this agreement was executed. And even measured against that current, looser 45-year city cap, the agreement's stacked extensions (potentially 75-90+ years total, see above) still exceed it.

2. Contract Zoning: Deciding the Outcome Before the Vote

Under longstanding Texas common law, zoning is a legislative act, and a city cannot contract away that legislative discretion in advance - a city cannot agree, in exchange for a developer's promises, to zone a property a certain way before its council actually votes on the merits. That practice is commonly called "contract zoning," and Texas courts have long treated it as unenforceable. As one Texas local-government law firm summarizes the doctrine: contract zoning "prohibits a city from agreeing to zone a property in a certain way in exchange for some act or omission of the property owner," because zoning "cannot be delegated or bargained for."

The Texas Legislature carved out a specific, narrow exception to that common-law rule: Chapter 212, Subchapter G lets a city and a landowner negotiate binding land-use terms for ETJ land before annexation, through a development agreement - which is the authority this agreement itself invokes. That exception does not erase the underlying concern; it just moves it into statute, with the 45-year cap (see above) as one of the Legislature's guardrails.

Two provisions of this agreement are worth reading with that doctrine in mind:

"Owner has submitted applications for annexation and zoning of the 573 acres... City agrees to consider the annexation and zoning ordinances concurrently and at the same meeting." Development Agreement, Section 1.08.B, p.8
"This Agreement and any annexation contemplated herein... are specifically contingent on the City zoning, as contemplated in Section 1.08, and annexing all or portions of the Property as contemplated herein." Development Agreement, Section 5 ("Contingency"), p.13
Why this matters: The agreement frames annexation and the accompanying zoning ordinance as a package the City commits in advance to bring to a single vote, rather than two independent decisions each judged on its own public record. That is exactly the structure the contract-zoning doctrine is meant to guard against - even though it is common practice for development agreements to describe an expected annexation/zoning process this way, and even though Council's vote on the actual annexation and zoning ordinances remains, formally, a separate legislative act. Whether this specific language crosses the line from a normal development-agreement commitment into an improper pre-decision is a legal question a court would ultimately have to resolve; this page lays out the exact contract language so residents can judge it for themselves.

3. The Developer Withdrew the Annexation Application the Agreement Requires

The agreement's own annexation clause (Section 1.08.B, quoted above) states that the owner "agrees to the full purpose annexation" of the ~573 acres not already inside city limits or a Municipal Utility District, and that the owner "has submitted applications for annexation and zoning" of that land - referenced in city case files as AN-22-20 (annexation) and ZC-23-01 (zoning change).

The contradiction: A signed, Council-approved development agreement has the owner "agree[ing] to" full-purpose annexation and states the applications for that annexation were already filed - and five months later, the owner's own representative formally withdrew consent to that same annexation and zoning case. The land in question (roughly 573 acres, plus about 57 acres of right-of-way) has, as a result, not gone through the annexation and zoning ordinance process the agreement itself describes as already underway.

Source: correspondence obtained through a Texas Public Information Act request to the City of San Marcos Planning & Development Services Department (email, Clayton Kendall to Amanda Hernandez, AICP, June 23, 2023, Subject: "Withdrawal: AN-22-20 ; ZC-23-01").

4. Cotton Center MUD: Annexation Already Agreed to, Just Not Yet

A separate part of the property - the roughly 660-acre Cotton Center Municipal Utility District No. 1 - is not annexed today, but the agreement locks in that it eventually will be, on the City's terms, without a future owner having any real say in the matter:

"[The MUD land] may be annexed for full purpose during the term of this agreement following the amendment of the existing Consent Agreement or mutual negotiation of a new consent agreement... Owner and all subsequent owners of the MUD... voluntarily consent to annexation by the City upon the terms and conditions set forth in this Agreement." Development Agreement, Section 1.08.C / 1.08.C.2, p.9

That consent is memorialized in a recordable Memorandum of Agreement (Exhibit F) filed in the county deed records, meaning it runs with the land - any future purchaser of property inside the Cotton Center MUD inherits a pre-signed consent to annexation whenever the City chooses to amend or renegotiate the existing MUD consent agreement, with no separate opportunity to object built into the development agreement itself.

Update: the underlying Cotton Center agreement this clause depends on has since been terminated. Cotton Center Municipal Utility District No. 1 was created in 2015 under a separate state law, H.B. 1372 (84th Legislature), covering approximately 2,358 acres - the same acreage figure tied to the City's 2016 "Cotton Center Development Agreement" with Walton Texas, LP and related Walton entities, which is almost certainly the same MUD referenced in Section 1.08.C above (both match on acreage, county, and timeline, though no single document explicitly cross-references the other). On November 5, 2025, City Council adopted Resolution 2025-212R, which reads in relevant part: "approving an agreement to mutually terminate an Amended and Restated Cotton Center Development Agreement and Consent Agreement concerning approximately 1,786 acres of land in Caldwell County... and approving the release of said land from the City's extraterritorial jurisdiction." Section 1.08.C's annexation path for the SMART Terminal DA's MUD acreage was expressly conditioned on "amendment of the existing Consent Agreement or mutual negotiation of a new consent agreement" - and that underlying Consent Agreement is now the one the City and the Cotton Center developer have terminated.

To be precise about what is and isn't confirmed: Resolution 2025-212R terminates the City-developer contractual relationship - the Development Agreement and Consent Agreement themselves - and releases roughly 1,786 acres of the broader Cotton Center tract from the City's ETJ. Checking the City's own ETJ map layer, the roughly 660-acre portion described in Section 1.08.C is still shown inside the City's ETJ today - so that specific land was not among the acreage released. What was terminated is the underlying Development Agreement and Consent Agreement itself, which is exactly the document Section 1.08.C says must be amended (or replaced with "a new consent agreement") before the City can annex this land. In other words: the land is still in the ETJ, but the specific legal mechanism Section 1.08.C relies on to eventually annex it no longer exists in its original form. No public document addresses this consequence directly, and Cotton Center MUD No. 1 itself - a distinct political subdivision created by state statute - has not been shown to be formally dissolved (that would typically require a separate TCEQ order, Legislature action, or a district election under Water Code Chapters 49/54). But the City has, at minimum, terminated the contract this annexation clause is built on.

5. What the 2023 Restatement Deleted From the 2019 Agreement

Several of the problems that follow are easiest to understand by reading the 2023 agreement against the document it replaced. The 2019 original was a Chapter 380 Economic Development Incentive and ETJ Development Agreement. The 2023 restatement's own recitals say the owner wanted to "remove references to the Katerra Tract and the economic development agreement" - and it did. What survived, and what did not, follows a consistent pattern.

15 → 45
Initial term, in years (2019 → 2023)
Deleted
The 5-year "no progress" expiration
Deleted
The Chapter 380 economic development basis
Caldwell → Hays
County named for recording

The 2019 term clause read: "The Initial term of this Agreement will commence on the Effective Date and continue for 15 years thereafter. If, however, no progress toward completion of the Project, as defined under Section 245.005 of the Texas Local Government Code, is made within five years of the Effective Date, this Agreement shall expire. This Agreement may be extended for additional terms for up to 45 years upon mutual written agreement of the Parties."

Three changes in one clause. The initial term tripled from 15 to 45 years. The automatic expiration for lack of progress was removed entirely, so the entitlements and the frozen 2019 fee schedule now survive indefinitely whether or not anything is ever built. And extensions moved from "upon mutual written agreement of the Parties" to an election exercisable "by Owner, with City's approval" - a structural shift in who initiates. Read together with Section 1 above, the result is a term that exceeds the state cap the agreement itself invokes, with the safety valve that used to limit it taken out.

The 2019 contingency clause had teeth too: "If the City fails to do so within 14 days of annexing the First Annexation Tract, this Agreement and the annexation shall become null and void." The 2023 replacement (Section 5) keeps the contingency but drops both the deadline and the consequence, leaving a condition with no expiration and no stated remedy for non-satisfaction. It also mis-cites its own subject matter, referring to "the land described in Section 1.07(B)" when the annexation land is described in Section 1.08(B); Section 1.07(B) is the infrastructure-cost provision.

6. The Agreement Directs Itself to Be Recorded in the Wrong County

The property is in Caldwell County. Every metes-and-bounds description in Exhibit A says Caldwell County. The 2019 original agreement said it "shall be recorded in the official public records of Caldwell County, Texas." The 2023 restatement says something different, twice:

"Pursuant to the requirements of Section 212.172(f), Texas Local Government Code, this Agreement shall be recorded in the official public records of Hays County, Texas." Development Agreement, Section 6.05.A
"The Agreement shall be recorded in the Hays County land records to place subsequent purchasers on notice at Owners' expense..." Development Agreement, Section 6.05.B

State law and the City's own code both require otherwise, and both use mandatory language:

"A contract must... be recorded in the real property records of each county in which any part of the land that is subject to the contract is located." Tex. Loc. Gov't Code §212.172(c)(4)
"Provisions for recording the agreement. The agreement shall be recorded in each county in which some of the land subject to the agreement is located." San Marcos Development Code §2.4.3.2.E.14 (in force on the Effective Date; a parallel duty on the Responsible Official to record in each county was added at §2.4.3.5.A.7 by Ord. 2023-72 in October 2023)
In practice, it was recorded correctly. Whatever Section 6.05 directs, the agreement was in fact recorded in the right county. The recorded copy obtained through a Public Information Act request carries the Caldwell County clerk's stamp on its first page: instrument 2023-001629, recorded March 21, 2023 at 3:08 p.m., 43 pages, Teresa Rodriguez, County Clerk, Caldwell County, Texas. So the notice function Section 6.05.B describes was accomplished, and §212.172(c)(4) was satisfied in substance. This finding is about the text, not about a failure of notice.
Why the text still matters. Three things survive the correct recording. First, the operative covenant in Section 6.05 remains an obligation to record in the wrong county, and Section 6.05.B ties the owner's continuing duties - including providing the City copies of all restrictive covenants "prior to filing" - to that same clause; a dispute about whether a future amendment or assignment was properly recorded would be litigated against text that names the wrong records. Second, Section 6.07.B is not cured by anything: it states the agreement "is performable in Hays County, Texas" and submits the parties to that county's courts, for land lying entirely in Caldwell County. Texas mandatory-venue rules for actions involving real property point to the county where the land is located, and a contractual venue clause does not override a mandatory venue statute. Third, the pattern is evidence about how carefully the restatement was drafted: Section 6.05.A cites §212.172(f) as its authority while contradicting §212.172(c)(4); the Memorandum of Agreement at Exhibit F is captioned "COUNTY OF CALDWELL" and says the agreement "has been recorded in the records of Caldwell County"; and the 2019 predecessor said Caldwell. Someone at the recording stage caught what the drafting stage did not.

7. The Agreement Governs Land That Neither Authority It Cites Reaches

Both the statute and the city code that authorize development agreements are limited, on their face, to land in the extraterritorial jurisdiction:

"The governing body of a municipality may make a written contract with an owner of land that is located in the extraterritorial jurisdiction of the municipality to..." Tex. Loc. Gov't Code §212.172(b)
"Applicability. A development agreement shall be approved only for land located in the Extraterritorial Jurisdiction of the City..." San Marcos Development Code §2.4.3.1.D

But the agreement's own Section 1.08.A states: "The parties recognize that approximately 734.6 acres of the Property included in the Smart Terminal Development Agreement have been formally annexed into the municipal boundaries of the City." That acreage was inside the city limits on the day the agreement was signed, and the agreement's regulatory provisions - including the seven Development Code waivers in Section 1.04.B - apply to "the Property or any portion of the Property."

The gap: For land already inside the city limits, the ordinary route to a deviation from the Development Code is a variance, an alternative-compliance approval, or a zoning amendment - each with its own criteria, decision-maker, and public process. Section 212.172 does not supply authority to grant those deviations by contract for in-city land, because it only speaks to land in the ETJ. Note that §212.172(f) does provide that "annexation by a municipality of land subject to a contract does not invalidate the enforceability of the contract" - so land that was in the ETJ when a valid contract was made keeps its contract rights after annexation. That is a different question from whether a city can extend a new ETJ development agreement over acreage that had already been annexed years earlier.

8. The Waiver Authority the Agreement Cites Prohibits One of the Waivers It Grants

Section 1.04.B is the operative waiver clause. It names its authority precisely:

"Pursuant to the City's authority under section 2.4.5.1 of the City's Development Code and under Section 212.172 of the Texas Local Government Code, the City hereby agrees to the following waivers and modifications..." Development Agreement, Section 1.04.B

Section 2.4.5.1 of the Development Code is the first section of "DIVISION 5: APPLICATION FOR WAIVER OR MODIFICATION OF DEVELOPMENT STANDARDS AS AN ECONOMIC DEVELOPMENT INCENTIVE." Two limits in that division matter here.

"Applicability. A waiver or modification of development standards may be approved only for projects approved by the City Council under the city's economic incentives policy." San Marcos Development Code §2.4.5.1.B
"A waiver or modification may not be granted pursuant to this Division 5 for a waiver or modification of the environmental standards in Chapter 6 of this Development Code." San Marcos Development Code §2.4.5.1.B.1
Problem one: the economic development predicate was deleted from this very agreement. Division 5 waivers exist to implement an economic incentives package; §2.4.5.2 requires the waiver request to "accompany an application for city economic development incentives," and §2.4.5.3.B.3 says "the approved economic development incentives agreement shall specify all applicable deviations." The 2019 predecessor was a Chapter 380 economic development agreement and fit that frame. The 2023 restatement expressly removed the economic development agreement (see Section 5 above) while continuing to cite the economic-incentive waiver authority.
Problem two: waiver number 6 is a Chapter 6 waiver. Section 1.04.B.6 modifies "Section 6.1.2.2 and 6.1.2.3, which allow up to four feet of cut and fill by right and eight feet approved administratively." Sections 6.1.2.2 and 6.1.2.3 sit in Chapter 6, Environmental Regulations - the chapter §2.4.5.1.B.1 says may not be waived under Division 5. On its face, the agreement grants a waiver under an authority that expressly excludes it.
Verified against the code that was actually in force. Both quotations above were checked against the adopted redline for Ordinance 2023-72, whose base text is stamped "San Marcos Development Code Amended: November 3, 2021" on every page - the version in effect on January 17, 2023, since no development code amendment was adopted between November 2021 and October 2023. In that document §2.4.5.1.B and §2.4.5.1.B.1 appear in unmarked black text, meaning they were existing law rather than anything the October 2023 amendment added. Chapter 6 was titled "Environmental Regulations" then as now, and §§6.1.2.2 and 6.1.2.3 sat inside it. The waiver in Section 1.04.B.6 was granted under an authority that, on the date it was granted, said it could not be.

9. Cut and Fill: The Text and the Controlling Exhibit Say Different Things

The baseline in the Development Code is four feet. Section 6.1.2.3.A lets the Responsible Official administratively adjust that up to eight feet. Anything above eight feet requires City Council approval as alternative compliance, and - critically - is subject to a substantive finding under §6.1.2.3.B.2 that "enhanced measures identified in the City Stormwater Technical Manual are used to manage construction and post-construction stormwater runoff quality to levels that would be the same or better quality as would result from a cut or fill of not more than four feet."

Section 1.04.B.6 of the agreement replaces that structure:

"i. Up to fifteen feet of cut or fill is allowed by right within the limits designated on Exhibit 'G'.
ii. Up to twenty feet of cut or fill is allowed by right within the limits designated on Exhibit 'G'.
iii. Up to four feet of cut or fill is allowed by right within the anticipated floodplain reclamation limits with administrative approval of Floodplain Study.
iv. Cut or fill over twenty feet will require approval of the City Council." Development Agreement, Section 1.04.B.6

Exhibit G, which Section 6.04.A incorporates into the agreement "for all purposes," labels the same areas differently:

"CUT-FILL ALLOWED UP TO 20-FEET WITH ADMINISTRATIVE APPROVAL"
"CUT-FILL ALLOWED UP TO 15-FEET WITH ADMINISTRATIVE APPROVAL" Development Agreement, Exhibit G (Cut-Fill Extents Exhibit) legend
The conflict: "By right" means no application, no review, no findings. "With administrative approval" means a staff decision that can be conditioned or denied. The operative text says one thing for 15 and 20 feet; the incorporated exhibit says the other for the identical areas. Subsection iii manages to say both in a single sentence. Because Section 1.04.A gives the agreement priority over the Code in any conflict but supplies no rule for a conflict within the agreement, the reviewing standard for grading up to five times the code limit across a 2,017-acre site is genuinely unsettled on the face of the document.
What is lost either way. Under the Code, every cut or fill above eight feet goes to Council and must satisfy the §6.1.2.3.B.2 water-quality equivalency finding. Under Section 1.04.B.6, nothing between eight and twenty feet reaches Council, and the water-quality equivalency finding is never made - the agreement does not carry it forward, substitute an alternative, or mention it.
In practice the exhibit is winning, and the City is enforcing it. Two things in the record cut against the "by right" reading. First, an administrative amendment approved April 12, 2023 re-issued Exhibit G, and the re-issued legend still reads "CUT-FILL ALLOWED UP TO 20-FEET WITH ADMINISTRATIVE APPROVAL" and "UP TO 15-FEET WITH ADMINISTRATIVE APPROVAL" - so the exhibit's review requirement survived a formal amendment rather than being conformed to the operative text. Second, City engineering is enforcing Exhibit G on its own terms. Review comment 2 on the Axis Logistics Park Watershed Protection Plan (project 2024-50491, review completed August 29, 2024) reads: "Comply with the development agreement regarding showing a maximum of 4-ft of cut/fill in areas indicated on exhibit G of the development agreement." That is the exhibit being applied as a binding limit in permit review.
The amendment also improved the third category. The version approved in January 2023 read "ANTICIPATED RECLAIMED FLOODPLAIN LIMITS; CUT-FILL ALLOWED UP TO 4-FEET WITH ADMINISTRATIVE APPROVAL AND FLOODPLAIN STUDY APPROVED BY ENGINEERING." The April 2023 re-issue drops the word "reclaimed" and substitutes: "ANTICIPATED FLOODPLAIN LIMITS; DEVELOPMENT IN THESE AREAS SHALL COMPLY WITH CITY CODES FOLLOWING A DETAILED FLOODPLAIN STUDY. BUFFER ZONES PER SAN MARCOS DEVELOPMENT CODE SECTION 6.2.2.2 SHALL BE TWO TIMES THOSE PRESCRIBED WIDTHS." Doubling the code's buffer widths is a real concession, and the City's own FAQ described the amendment that way: "The administrative amendment approved on 4/12 requires the applicant double the size of the buffer zones and no build near these areas." How that amendment was processed is the subject of Section 20 below.

10. Required Contents the Agreement Does Not Supply

Development Code §2.4.3.2.E is a mandatory-minimum list: "A development agreement at a minimum shall contain the following provisions, which shall be drafted to the satisfaction of the City Attorney." Measured against that list, several items are either absent or answered by a general cross-reference rather than the required content.

The same gap appears in state law, with a sharper consequence. Section 6.03.A cites Tex. Loc. Gov't Code §43.0672 as one of the agreement's statutory authorities. That section governs owner-requested annexation and is not optional about content:
"(a) The governing body of the municipality that elects to annex an area under this subchapter must first negotiate and enter into a written agreement with the owners of land in the area for the provision of services...
(b) The agreement must include: (1) a list of each service the municipality will provide on the effective date of the annexation; and (2) a schedule that includes the period within which the municipality will provide each service that is not provided on the effective date.
(c) The municipality is not required to provide a service that is not included in the agreement." Tex. Loc. Gov't Code §43.0672
Read subsection (c) again. The agreement contains no list of services the City will provide on the effective date of annexation, and no schedule for services it will not. Under §43.0672(c) that cuts both ways, and neither way is good: residents and future occupants of the annexed acreage have no contractual service commitment to point to, and the statutory precondition to the annexation itself - a service agreement containing those two elements - is not satisfied by this document.
The annexation ordinance asserts a service agreement exists but does not say which document it is. When the City annexed 7.553 acres of the property in 2024 (Case No. AN-24-03, Axis Logistics), Ordinance No. 2024-27 recited: "3. The Owner and the City have entered into a written agreement for the provision of services to the Property." Its Section 3 then provides: "Services to the Property will be provided under the terms of the written agreement for the provision of services entered into between the Owner and the City as noted in Recital 3." Recital 3 is the bare sentence quoted above. It gives no title, no date, no case number, and no reference to the Development Agreement or to any separate services agreement. So the ordinance's compliance with §43.0672 rests on a document the ordinance never identifies - and if the identified document is the Development Agreement, the missing service list and schedule are the whole problem. Which document Recital 3 refers to remains the single cleanest question to put to the City Attorney.
One obligation with a real deadline, and it was met. Section 1.07.F.1 required that "dedication of the westernmost parcel shall occur within a year of the Effective Date" - by January 17, 2024. It happened. A Special Warranty Deed dated January 17, 2024 conveyed 3.140 acres out of the 765.723-acre tract, on the northwest line of FM 1984, from Franklin Mountain San Marcos I, LP to the City of San Marcos, with the stated consideration "As a donation to Grantee as required pursuant to that certain Amended and Restated Development Agreement dated January 17, 2023." It was recorded the same day as Caldwell County instrument 2024-000375. That is performance on the final day of the one-year window, and it is worth stating plainly: where this agreement set a fixed calendar deadline, the deadline was honored.
Which is exactly why the second parcel is worth watching. The easternmost three-acre site is due "within 180 days of the approval of the final plat containing the site." That is a condition, not a date. No plat means no second fire station site, for as long as no plat is filed - the same open-ended structure that appears in the annexation schedule (§2.4.3.2.E.10 above) and the Exhibit F recording trigger (Section 14 below). The contrast between the two subsections of the same provision is the clearest illustration in the document of how much the drafting depends on which kind of trigger was chosen.

A smaller note on the same provision: the two City-produced copies of the approved agreement disagree on where the fire station locations are shown. One says they are "generally described in Exhibit 'E'" and the other says Exhibit "B." Exhibit E is the document that actually carries a "GENERAL LOCATION OF FUTURE FIRE STATION" label.

11. A 2019 Impact Fee Schedule, Frozen, Without Its 2019 Legal Basis

"Due to the significant investment undertaken by Owner in developing the Property, the City agrees that all water and wastewater impact fees to be charged by the City during the development of the Property will be the fees in effect as of March 19, 2019." Development Agreement, Section 1.05.A.3

March 19, 2019 is the effective date of the Chapter 380 agreement the 2023 restatement deleted. The freeze has no stated end date, so it runs with the agreement's term. Three separate statutes bear on whether a city can do this by contract.

"This chapter does not apply to... (6) fees imposed in conjunction with development permits." Tex. Loc. Gov't Code §245.004 (Exemptions)

That matters because the agreement leans on Chapter 245 repeatedly - Section 6.03.B recites that the agreement "constitutes a permit under Chapter 245," and Sections 1.07.B, 2.01, and 2.04 each preserve future changes that "fall within the exemptions listed under Section 245.004." Chapter 245's vesting doctrine is the usual reason a developer's standards freeze at application date. But §245.004(6) carves fees out of Chapter 245 entirely. The agreement's own chosen framework does not support freezing fees, and elsewhere in the same document the agreement acknowledges the very carve-out it needs to ignore here.

"A political subdivision is authorized to enter into an agreement with the owner of a tract of land for which the plat has been recorded providing for the time and method of payment of the impact fees." Tex. Loc. Gov't Code §395.018
What Chapter 395 authorizes, and what it does not. Section 395.018 is the Legislature's grant of authority for impact fee agreements, and it reaches the time and method of payment - not the amount. The only express waiver or reduction authority in the chapter is §395.016(g), limited to service units qualifying as affordable housing under 42 U.S.C. §12745. Section 395.017 already protects a developer from increases once fees are assessed at platting, which is the point at which the Legislature chose to fix the number. And §395.052 requires the City to update its land use assumptions and capital improvements plan at least every five years, with fees recalculated against actual costs - a cycle a decades-long freeze at 2019 rates sits outside of. Section 395.073 adds that state and local restrictions on impact fees are cumulative.
The authority also has a precondition the property does not meet. §395.018 authorizes an agreement only with "the owner of a tract of land for which the plat has been recorded." No plat has been recorded for this property, and Section 1.10 of the agreement, titled "No Waiver of Platting Requirements," confirms that platting requirements are not waived. That matters twice over. It means the §395.018 authority to contract about impact fees was arguably not available when the agreement was signed. And it means San Marcos Code §86.298(a)(2) governs assessment: "for a new development on platted property the assessment shall occur at the time of plat recordation, and shall be the maximum amount of the impact fee per service unit in effect for the date of recordation." On August 5, 2026, the City's Assistant Director of Engineering told Council the same thing twice, stating that the fee is "locked in at the time a plat is recorded" and that "plats recorded before October 1, 2026, keep the current rates." Under the City's own stated rule, a property with no recorded plat does not keep the current rates.
The reserved capacity is an inherited number, and its source agreement no longer exists. The fee freeze in Section 1.05.A.3 is a separate provision from the capacity reservation in Section 1.07.D.3, which reads: "The City confirms that, as originally allocated in the Cotton Center Development Agreement, Owner shall be entitled to use of 2,108 LUEs of Wastewater Service on the Property." So the figure is an allocation carried over from a different agreement covering different land, rather than an engineering projection of what this site needs. The Cotton Center agreement was restated twice, removed Franklin Mountain as a party effective June 7, 2024, and was terminated outright on November 5, 2025 by Res. 2025-212R. Section 1.07.D.3 reads as a standalone confirmation by the City rather than a condition, so the entitlement likely survives on its own terms, but the capacity accounting that produced the number is gone and nothing in the record re-derives it against this project's demand.
The counter-argument, stated fairly. There is a real defense available here and it should be acknowledged. Section 212.172(g)(2) provides that a development agreement "is a program authorized by the legislature under Section 52-a, Article III, Texas Constitution" - which forecloses the argument that the value conveyed is an unconstitutional gratuitous grant of public money. That answers the constitutional objection. It does not answer the statutory one: §212.172(g)(2) blesses the program, while Chapter 395 governs what a city may agree to about impact fees, and §395.018 is the provision that speaks to agreements. Whether the general authority in §212.172(b)(9) to "include other lawful terms" absorbs a fee freeze that Chapter 395 does not itself authorize is an open question, and one the removal of the Chapter 380 program makes harder rather than easier to answer.

There is also a self-consistency problem with the City's own approval criteria. §2.4.3.6.A.7 directs the City to consider whether "the agreement authorizes the City to recoup the costs of Capital Improvements provided to the development while it remains in the Extraterritorial Jurisdiction." A fee schedule locked at 2019 rates against decades of construction cost inflation moves in the opposite direction, and the gap between the frozen rate and the adopted rate is made up by the rest of the system's ratepayers.

This became a live question in 2026. The City is in the middle of its five-year Chapter 395 update. Ordinance 2026-29 passed first reading 6–1 on August 5, 2026, with a second reading set for September 1 and an effective date of October 1, raising the wastewater fee from $2,684 to $11,161 per service unit and the water fee from $3,801 to $14,519. The City's own 2026 Wastewater Impact Fee Study reaches that figure by dividing $295,489,198 in eligible costs by 26,475 service units of projected growth, and separately carries the "SMART Development (FM 110) Gravity Main" at $24,078,600, 63 percent attributed to growth, with a stated project driver of "the proposed SMART development." The 2,108 reserved units are roughly 8 percent of that denominator. The Impact Fees page works through the calculation, the Schedule 1 service-unit methodology, what happens to units above 2,108, and an open question about the advisory committee's recommendation.

12. Impervious Cover, Floodplain Reclamation, and Chapter 39

Section 2.03 sets the site's headline environmental number, and then defines it in a way that changes what the number means:

"Impervious cover on the Property, after full development, shall not exceed 70 percent of the entire gross acreage of the Property. The total impervious cover for an individual lot within the Property shall not exceed 90 percent of the gross area of the lot... Acreage counted toward 30% pervious areas to include utility corridors (including ARWA and LCRA corridors), floodplains, and detention and stormwater quality facilities." Development Agreement, Section 2.03
The per-lot number exceeds the base zoning district and is not on the waiver list. The Heavy Industrial district standard - §4.4.4.4 in the code in force in January 2023, renumbered to §4.4.4.5 in later editions - is "Impervious Cover 80% max." Section 2.03 sets 90 percent per lot. That is a ten-point increase over the base district standard, and it appears in the agreement's "Environmental Standards" section rather than in the Section 1.04.B waiver schedule - so it is never identified as a waiver, never tied to a waiver authority, and never included in the list §2.4.3.2.E.5 requires. For the 734.6 acres already inside the city limits, raising a zoning district's lot coverage standard is ordinarily a zoning action.
The 70 percent is a smaller number than it looks. Utility corridors, floodplain, and the detention and water-quality ponds the development itself requires all count toward the 30 percent that must stay pervious. Those categories are largely undevelopable to begin with, or are infrastructure built to serve the impervious area. Netting them out leaves a much higher effective cap on the developable remainder - roughly 83.5 percent on the acreage figures in the record. Development Code §6.1.2.5 also imposes lower impervious cover limits on steep slopes (35 percent above 15 percent gradient, 20 percent above 25 percent), which Section 2.03 does not acknowledge.

The floodplain accounting compounds this. Section 2.03 credits floodplain acreage toward the pervious requirement, while Section 1.04.B.6.iii and Exhibit G contemplate filling "anticipated floodplain reclamation limits." Nothing in the agreement prevents the same acreage from being counted as pervious and later reclaimed and paved.

Reclamation is also where the agreement is most conspicuously silent about the rules that already exist. Section 2.02 is titled "Water Quality Zone Reclamation" and describes how reclamation should be designed - channel shape, native vegetation, trees at the top of bank - without ever addressing whether it is permitted:

And Section 1.04.A points the other way. "In the event of a conflict between this Agreement and the SMDC or the City's Codes and Ordinances, this Agreement shall control." Chapter 39 is a City ordinance. San Marcos adopted it, in the City Council's own stated intent, so that "the requirements of this article comply with federal requirements pertaining to the Federal Emergency Management Agency's authority concerning flood hazards" - which is to say, as a condition of National Flood Insurance Program participation. Two state statutes point the same direction: §245.004(9) excludes flood-prevention regulations from Chapter 245 vesting, and §43.002(c)(5) preserves a city's power to impose flood control regulations after annexation notwithstanding continued-use rights. A contract clause that subordinates the City's flood damage prevention ordinance to a private agreement, and freezes it for decades, runs against all three.
The watershed protection plan process was applied notwithstanding the agreement's silence. This is the clearest instance on this page of the code working despite the contract. In the Phase 1 review of the Axis Logistics Park Watershed Protection Plan (project 2024-50491, review completed August 29, 2024), the City's reviewing engineer wrote: "This proposal appears to meet the threshold for a Qualified Watershed Protection Plan (QWPP) and, given the need for detailed modeling review, should be submitted as a QWPP2. Prior to approval an informative meeting with the Planning & Zoning Commission to review the development will be required." That happened. The Watershed Protection Plan Phase 2 approval certificate (2024-49696, issued to Scarborough Lane Development for "2862 FM 1984; Axis Logistics Park," effective September 26, 2024, expiring September 26, 2026, covering "drainage, site grading, utility, and roadway improvements") carries as its first permit note: "Presentation to Planning and Zoning Commission for water quality and buffer zone reclamation per LDC sections 2.6.1.1(D) & 2.6.1.3(B) was provided on 8/27/24." So the §2.6.1.1.D threshold was found to be met, the qualified plan track was used, and reclamation went before the Planning and Zoning Commission - none of which the agreement provides for or requires.
The same review file shows City engineering pushing back on the impervious cover numbers. Comment 8 on project 2024-50491 addresses the CLOMR report: "Impervious cover listed for ultimate conditions for UT1-01 and UT1-02 appear to be low for the industrial nature of this development. Use IC estimates that are reflective of industrial development or provide support for using an IC of 65% when as much as 90% is" permitted. That is the City's own engineer treating Section 2.03's 90 percent per-lot allowance as the realistic planning number, which is the point made above about what the headline 70 percent figure actually means. Two further comments in the same letter bear on Section 2.03's pervious-area credits: comment 6 notes "grading is shown outside of the parcel boundary within the electric substation property," and comment 7 asks for "preliminary approval for grading within LCRA easement near transmission tower" - grading inside the very utility corridors that Section 2.03 counts toward the 30 percent that must remain pervious.
Buffer widths were doubled by the April 2023 amendment. As set out in Section 9, the re-issued Exhibit G requires that "buffer zones per San Marcos Development Code Section 6.2.2.2 shall be two times those prescribed widths" in the anticipated floodplain limits, and that development there "shall comply with City codes following a detailed floodplain study." That is a genuine improvement on the January 2023 text and should be weighed against the criticisms above.

13. What the Noise, Odor, Vibration and Toxics Standards Actually Say

Sections 2.05 and 2.06 do most of their work by cross-reference, adopting Development Code §§7.4.2.1, 7.4.2.2, 7.4.2.3 and 7.4.2.5 as the operative standards for a 24-hour rail-served intermodal terminal. Reading those sections is worthwhile.

Noise: the code section the agreement adopts exempts trains. Section 2.05 provides that "noise level maximums and measurements will be regulated and undertaken pursuant to Section 7.4.2.1." Section 7.4.2.1.C.6 exempts from those maximums "sound produced by aircraft in flight or in operation at an airport, or railroad equipment in operation on railroad rights-of-way." For a project whose defining feature is rail freight handling, the single noise standard the agreement adopts does not reach the principal noise source. Section 2.05 then reinforces the point: "Notwithstanding, locomotives may sound their horns in accordance with local, State and Federal requirements," and the quiet zone study is conditional on the City asking for one.
Noise: the limits and the measuring point were written for a different problem. Section 7.4.2.1 permits 85 dB(A) from 10:00 a.m. to 10:00 p.m. and 75 dB(A) overnight, and §7.4.2.1.B.1 directs that a police officer take the measurement "from either the closest public right-of-way to the offending residence or business, or with the consent of a complainant... from the property line of the complainant." That is a complaint-driven urban nuisance provision. There is no standard measured at the project's own boundary, and 85 dB(A) as an all-day industrial ceiling is permissive by the standards of most municipal industrial performance codes.
Vibration: the code promises a standard that does not exist. Development Code §7.4.1.1.B states that uses shall conform to "performance standards for noise, smoke, and particulate matter, odorous matter, fire, or explosive hazard material, toxic and noxious matter, vibration, and glare." Division 2 then sets out standards for noise (7.4.2.1), smoke and particulate matter (7.4.2.2), odorous matter (7.4.2.3), fire or explosive hazard material (7.4.2.4), and toxic and noxious matter (7.4.2.5). There is no vibration section. For a site combining heavy rail, container handling, and up to twenty feet of cut and fill, the agreement adopts a code whose stated vibration standard is empty and adds nothing to fill it - even though §2.4.3.2.E.7 requires the agreement to list "special standards applicable to development of the property that normally do not apply." The agreement's entire list of special standards (Section 1.06) is one item: internal truck signage.
Odor: a zero-tolerance standard, converted into a reporting protocol. Development Code §7.4.2.3.A is absolute: "No use shall be located or operated which involves the emission of odorous matter from a source of operation where the odorous matter is clearly detectable at the bounding property line or any point beyond the tract." Section 2.06 adopts that section and then adds: "Any odors not regularly emitted from the Property shall be reported to the Planning and Development Services Department and Public Safety staff in an effort to inform staff of unexpected correspondence with community members." The added sentence presupposes odors that are regularly emitted, makes the response notification rather than abatement, and frames the purpose as managing community contacts. Section 1.04.A gives the agreement priority in a conflict.
Toxics: the standard points at an agency and a regulation that no longer exist. Section 2.06 adopts §7.4.2.5, which sets the limit at "ten percent of the concentration (exposure) considered as the threshold limit for an industrial worker as such standards are set forth by the Texas State Department of Health Services in 'Threshold Limit Values Occupational Health Regulation No. 3'." That agency was reorganized out of existence in 2004 and that regulation is long superseded. Section 7.4.2.2.A.2, adopted in the same sentence, limits particulate emissions to "0.5 pounds per acre of property within the plant site" without stating a time period. The agreement freezes both for the life of the term.

Section 2.06's prohibition on hazardous-waste emissions and on "manufacturing of finished products producing the release of volatile organic compounds, or toxic or poisonous emissions at levels unsafe for human inhalation" is meaningful language, but "levels unsafe for human inhalation" is not tied to any numeric standard, monitoring requirement, reporting obligation, or agency threshold. Section 2.06 also adopts §§7.4.2.2, 7.4.2.3 and 7.4.2.5 while omitting §7.4.2.4, "Fire or Explosive Hazard Material," from its list.

Section 2.08 freezes federal and state environmental standards, and claims authority the City does not have. "Activities on the Property shall be conducted to meet or exceed such TCEQ and EPA standards in effect as of November 1, 2016. If any activity on the Property is subject to the rules or regulations of the TCEQ or EPA, no variances from or waivers of TCEQ or EPA rules or regulations shall be permitted." A city cannot fix a floor at 2016 versions of state and federal rules in a way that displaces current TCEQ and EPA requirements, and it has no power to grant or withhold TCEQ or EPA variances. Read as a contractual covenant the City can enforce against the owner, the first sentence has some force; read as a statement of the governing regulatory standard, it does not. The second sentence is not something the City can enforce as written.

14. The MUD Provisions Against Chapter 43 and Water Code §54.016

Section 1.08.C sets the terms the City committed to seek in any amended or new MUD consent agreement:

"An amended or new consent agreement will address, but not be limited to: the Owner confirming no bonds will be issued by the MUD, confirmation that the City will not assume any debt of a MUD as a result of annexation, and that the MUD may undertake certain operation and/or maintenance functions and, in support of such functions, may levy an operations and maintenance tax in the MUD." Development Agreement, Section 1.08.C

Each of those three elements runs into a specific statute.

"No bonds will be issued" is a condition a city may not impose. Water Code §54.016(a) provides that a city's consent "shall not place any restrictions or conditions on the creation of a noncity service district... other than those expressly provided in Subsection (e) of this section and shall specifically not limit the amounts of the district's bonds." Subsection (e) permits restrictions on bond terms and sale conditions only "if the restrictions and conditions do not generally render the bonds and notes of districts in the city's extraterritorial jurisdiction unmarketable." A flat prohibition on issuing bonds is not a restriction on terms. Section 54.016(a) also gives the landowner a remedy: petition the TCEQ, which "may declare any provision of the consent to be null and void." Local Government Code §42.042(a) independently bars conditions "other than those expressly permitted by Sections 54.016(e) and (i), Water Code." The City appears to have bargained for a term it cannot obtain and a future owner can have struck.
"The City will not assume any debt" is contradicted by statute on full annexation. Local Government Code §43.075(d) provides that where all of a district's area becomes part of the municipality, the municipality "shall take over all the property and other assets of the district; assumes all the debts, liabilities, and obligations of the district; and shall perform all the functions of the district, including the provision of services." Under §43.075(e) the district is abolished within 90 days. Those are statutory consequences of full-purpose annexation, not terms a city and a landowner can contract around.
A district that survives annexation and levies a tax requires a different instrument entirely. A district that continues to exist after full-purpose annexation, performing functions and levying an operations and maintenance tax, is a "limited district" under Local Government Code §43.0751 - and a limited district can only be created through a strategic partnership agreement. That statute requires adoption by both governing bodies (§43.0751.c), two public hearings by each with at least one held inside the district (§43.0751.d), recording in the deed records, and a limited district term that "shall not exceed 10 years" per term, renewable (§43.0751.g.2). The agreement routes all of this through a "Consent Agreement" instead, with none of those procedural requirements, against a term measured in decades.
An unpriced City obligation nobody addressed. Local Government Code §43.0715(b) provides that if a municipality under 1.5 million population "annexes a special district for full or limited purposes and the annexation precludes or impairs the ability of the district to issue bonds, the municipality shall, prior to the effective date of the annexation, pay in cash to the landowner or developer of the district a sum equal to all actual costs and expenses incurred... that would otherwise have been eligible for reimbursement from bond proceeds under the rules and requirements of the Texas Commission on Environmental Quality." Subsection (c) requires an audit-format report and escrow of estimated amounts; subsection (d) attaches a six percent penalty plus one percent per month on any delinquent sum. The agreement's "no debt assumption" language does not address this obligation and does not waive it - a developer reimbursement under §43.0715 is not a "debt of the MUD." This is a contingent cash liability of the City, triggered by exactly the sequence Section 1.08.C sets up, that the agreement never quantifies or acknowledges.
The notice to future owners may never be recorded. Section 1.08.C.2 says subsequent owners' consent to annexation "shall be evidenced by the Memorandum of Agreement attached as Exhibit 'F' which will be recorded in the deed records of Caldwell County within 30 days of the bond election of the Municipal Utility District or any subsequent Sub-Districts." The same subsection C requires the owner to confirm that no bonds will be issued. If there are no bonds, there is no bond election, and the recording trigger for the instrument that binds future purchasers never fires. The agreement's backup - a note "added to all final subdivision plats" - depends on plats being filed.

15. The Land Use Matrix: A Use With No Code Definition, and Uses That Contradict Each Other

Exhibit D operates in absolute terms: "Notwithstanding any restrictions, rights or privileges under applicable laws or the City's Development Code and other ordinances, the Permitted Uses shall be allowed on the Property and the Prohibited Uses are expressly prohibited." It supplies no rule for what happens when the two lists overlap, and they do.

Data center: permitted use no. 45, defined by the agreement because the Code has no such use. The phrase "data center" does not appear anywhere in the San Marcos Development Code. Exhibit D acknowledges this and supplies its own definition: "a facility of networked computer systems and associated components, such as telecommunications and storage systems, that businesses or other organizations use to organize, process, store and disseminate large amounts of data." Because there is no corresponding Code use category, none of the Code's use-specific standards attach to it - no parking ratio, no screening standard, no accessory-use limits keyed to the use, no threshold triggering additional review. The definition also contains no limit on electrical load, cooling water demand, on-site generation capacity, or fuel storage.
And a data center's standby power is on the prohibited list. Prohibited use no. 23 bars "refining or retail sale or bulk storage of fuel, liquified petroleum and flammable liquids." Prohibited use no. 5 bars "manufacturing or storage of hazardous materials or explosives, except for fuels contained in vehicles, locomotives, or railcars." Utility-scale data centers depend on banks of diesel generators with bulk on-site fuel storage, which is neither a vehicle, a locomotive, nor a railcar. The agreement permits the use and prohibits the infrastructure the use requires, and provides no priority rule. The same tension reaches permitted use no. 13, "Electrical Substation," which carries no capacity limit.
Two permitted uses swallow the prohibited list. Permitted use no. 35 is "Manufacturing Processes not Listed." Permitted use no. 51 is "All Heavy Industrial Uses authorized by the COSM Zoning Code, not specifically prohibited by Subsection (B)." Number 51 is drafted correctly - it defers to the prohibitions. Number 35 is not, and on its own terms authorizes any unlisted manufacturing process. Permitted use no. 46, "Distribution and processing of construction materials," similarly sits against prohibited uses no. 24 ("manufacturing of cement, lime, and gypsum plaster") and no. 25 ("rock crushers").

The prohibited list is the strongest environmental protection in the agreement, and the record shows it has been used - covenant-based rejections of carbon battery manufacturing, smelting, and acid manufacturing appear in the project's own correspondence. That is precisely why the internal contradictions matter: a prohibition that a permitted use can be read to override is weaker than it appears on the page. See Permitted & Prohibited Uses for the full matrix.

16. Eighty-Foot Outdoor Storage, and the Standards Not Waived With It

"Section 5.1.3.2.B, which limits the height of outdoor storage to twelve feet, is modified in areas to be utilized for intermodal container transloading and/or storage operations to allow up to 80 feet in height when items being stored are 200 feet from a public right of way." Development Agreement, Section 1.04.B.7
The recital describes a limit the code did not contain. The Development Code in force on January 17, 2023 did not cap outdoor storage at twelve feet. It provided that "all outdoor storage shall be no taller than the primary building height" - a relative standard tied to whatever building the storage is accessory to. The agreement modifies a twelve-foot rule that did not exist, and says nothing about the rule that did.
Eighty feet clears two district height standards, neither of which is waived. The Heavy Industrial district standards - §4.4.4.4 in the January 2023 code, renumbered to §4.4.4.5 in later editions - set "Principle Building Height: 4 stories max. 62 ft. max." and "Accessory Structure Height: N/A / 24 ft. max." Outdoor storage is expressly an accessory use: the code provides that "outdoor storage shall be accessory to a primary use and is not permitted as a primary use." So the agreement authorizes an accessory use at 80 feet against a 24-foot accessory structure standard and a 62-foot principal building cap, and waives neither. It also does this without addressing Section 2.07's airport compatibility review, and without acknowledging that an 80-foot obstruction near the San Marcos Municipal Airport is the kind of structure that draws FAA Part 77 notice requirements. Section 2.07 itself directs that adverse impact determinations "assume the condition of the airport following the addition of one or more runways as part of the expansion proposed in the City's Airport Master Plan."
The waiver addresses height only. The outdoor storage provision it modifies contains several requirements, and the agreement leaves the rest in place: outdoor storage "shall be screened from view from the public right-of-way by a wall constructed in accordance with Section 7.2.6.1 or by the parking lot screening requirements," and storage adjacent to any district other than HI or HC "shall be subject to a transitional protective yard C or D." An 80-foot container stack cannot be screened from view by a wall, and the agreement does not say how that requirement is satisfied, modified, or waived.
The 200-foot buffer is measured to the wrong thing. The trigger is distance "from a public right of way." The neighbors most affected by an 80-foot container wall are residences and farms on adjoining private land in unincorporated Caldwell County, not motorists on a public road. Nothing in Section 1.04.B.7 sets a setback from a property line.

17. The Waiver Schedule Was Drafted Against a Superseded Version of the Code

Section 1.04.A freezes "all City of San Marcos codes and ordinances in effect on the Effective Date," and §2.4.3.2.E.5 requires waivers to be "referenced to the standards in this Development Code." Both make the accuracy of the citations in Section 1.04.B load-bearing: a waiver keyed to a provision that no longer exists may not attach to anything. Four of the seven waivers have citation problems.

How these were checked. Each of the four was verified against the adopted redline for Ordinance 2023-72, whose base text is stamped "Amended: November 3, 2021" on every page - the Development Code as it stood on the agreement's Effective Date, since no development code amendment was adopted between November 2021 and October 2023. In every case the provision appears there in unmarked black text rather than as a tracked change, so each discrepancy is between the agreement and the code as it actually read when the agreement was signed - not an artifact of a later amendment.
Two more substantive gaps in the waiver schedule. Waiver 1 recites that Table 3.1 "requires a maximum 5,000 ft block perimeter and maximum 400 ft dead end street length" and then modifies only the block perimeter, to 10,000 feet. The 400-foot dead-end limit is quoted and left in force, which is difficult to reconcile with 10,000-foot blocks in an industrial park. Waiver 1 also provides that the enlarged block perimeters "shall include Thoroughfare Plan Roads as illustrated in Exhibit 'E'" - roads that do not yet exist - while Development Code §3.6.2.1.C.1 requires that "all public rights-of-way proposed in order to meet the block standards must be improved with a street." Exhibit E's own legend includes "2018 TMP + PROPOSED REALIGNMENTS," meaning some of the roads being counted are not on the adopted Thoroughfare Plan either.
A protective trigger that cannot fire here. Waiver 2's articulation requirements apply only to walls "visible from and within 300 feet of a public right-of-way or a residentially zoned property," and exempt everything else along with all loading dock doors. The land surrounding this site is unincorporated Caldwell County, which has no zoning - so there is no "residentially zoned property" adjacent to the project for the standard to protect. The same structural problem affects the transitional protective yard requirement in the outdoor storage provision, which is triggered by adjacency to a zoning district.

18. One Traffic Study for 2,017 Acres and Forty-Five Years

"Prior to or concurrent with the submittal of the first plat application for development on the Property or any portion thereof, a traffic impact analysis ('TIA') will be required in accordance with Sections 3.5.2.7 and 3.5.2.8..." Development Agreement, Section 1.05.A.4

The Development Code treats traffic analysis as a recurring, per-development test rather than a one-time gate. Section 3.5.2.8.B requires a traffic impact analysis whenever a development creates 200 or more dwelling units, generates 2,000 or more trips per day, or involves "avenues, boulevards, and commercial streets not appearing on the City's adopted Thoroughfare Plan." A 2,017-acre intermodal and heavy industrial district will cross those thresholds repeatedly, phase by phase, over decades.

The interaction with Section 6.03.C is what makes this bind. The agreement commits the City not to impose "any land use or development regulation that limits the rate or timing of land use approvals, whether affecting preliminary plans, final plats, site plans, building permits, certificates of occupancy or other necessary approvals," and provides that no "growth restriction, or other limitation affecting the rate, timing or sequencing of development" applies if it "would have the effect of increasing Owner's obligations or decreasing Owner's rights and benefits under this Agreement." Read with Section 1.05.A.4, the combined effect is a single traffic study at the front end plus a covenant against conditioning later approvals on traffic capacity. The carve-outs in Section 6.03.C are narrow: temporary moratoriums "uniformly imposed throughout the City and ETJ due to an emergency constituting an imminent threat to the public health or safety," and moratoria authorized by Subchapter E, Chapter 212.

A related point on Section 6.03.C: §43.002(c) preserves a city's power, after annexation, to impose regulations relating to imminent destruction of property or injury to persons, public nuisances, flood control, and the storage and use of hazardous substances, notwithstanding continued-use rights. Section 1.04.A's code freeze and Section 6.03.C's no-new-regulation covenant are both drafted more broadly than §43.002(c) allows, with no carve-out for those categories.

19. Statutory Preconditions and Drafting Defects

The pre-offer disclosure, and the consequence of not making it. Effective September 1, 2021 - sixteen months before this agreement - the Legislature added §212.172(b-1), requiring that "at the time a municipality makes an offer to a landowner to enter into an agreement under this subchapter, the municipality must provide the landowner with a written disclosure" containing five specified items: that the landowner is not required to enter the agreement; the authority under which the city may annex, with statutory references; a plain-language description of the applicable annexation procedures; whether those procedures require the landowner's consent; and "a statement regarding the municipality's waiver of immunity to suit." Subsection (b-2) supplies the sanction: "An agreement for which a disclosure is not provided in accordance with Subsection (b-1) is void." Nothing in the agreement or its exhibits recites that such a disclosure was given.
What the released records show, and what that does and does not prove. A full-text search across the roughly 900 machine-readable documents released to date - the agenda packets, staff reports, negotiation drafts, and the internal and external correspondence surrounding this agreement - returns no occurrence of "§212.172(b-1)," "written disclosure," "not required to enter into," "waiver of immunity," or "immunity to suit." Every reference to §212.172 in the record is either the agreement citing its own authority or a resident's correspondence raising the term-length problem. That is meaningful negative evidence but not proof: roughly 190 released documents are image-only scans that no text search reaches, and the released set reflects specific Public Information Act requests rather than the City's complete file. The clean way to resolve it is a request directed at the disclosure itself. Two features of the record make the question worth pressing. First, §212.172(b-1) is triggered by a municipal offer, and here the owner sought the agreement, so the City may take the position that no offer was made and no disclosure was owed. Second, the fifth required element of that disclosure is a statement about the City's waiver of immunity - and the executed agreement closes with a clause asserting the opposite.
The immunity clause contradicts the statute the agreement invokes. Section 212.172(i) provides: "A municipality that enters into a contract waives immunity from suit for the purpose of adjudicating a claim for breach of the contract," and §§212.172(j) and (k) then define the available damages. The agreement's closing block says the opposite: "The City's execution of and performance under this Agreement will not act as a waiver of any immunity of the City to suit or liability under applicable law." The statutory waiver operates by law and a contract term cannot undo it, so the clause is most likely simply ineffective. It is also the same subject the §212.172(b-1)(5) disclosure is required to address, which makes its presence in the executed document notable.
Two cure periods for the same default. Section 6.02.A requires written notice and "at least thirty (30) days from receipt of the notice to cure the default," with an extension where a cure cannot reasonably be completed in thirty days. Section 6.02.C then provides that "no party shall be deemed to be in default hereunder until the passage of ten (10) business days after receipt... Upon the passage of ten (10) working days without cure of the default, such party shall be deemed to have defaulted." The two provisions set different cure periods for the same event, and 6.02.C introduces a third term ("working days") in its second sentence. Which controls determines when either party can act on a breach.
Assignment without consent, with a full release. Section 6.06.A permits the owner to assign the agreement "to a subsequent purchaser of all or a portion of the undeveloped property... or to an affiliate of the Owner... without any consent of the City being required," and provides that "upon any such assignment, the assignor will be released of any further obligations under this Agreement as to the property sold and obligations assigned." The City has no approval right over who assumes decades of environmental, drainage, and infrastructure obligations across a 2,017-acre site, and no recourse against the original owner afterward. The agreement requires no financial capacity showing from the assignee.
The end-buyer carve-out is broader than the statute's. Section 212.172(f) provides that a contract "is not binding on, and does not create any encumbrance to title as to, any end-buyer of a fully developed and improved lot within the development, except for land use and development regulations that may apply to a specific lot." Section 6.06.B of the agreement reproduces the exemption and drops the exception: "This Agreement will not, however, be binding upon, or create any encumbrance to title as to, any ultimate consumer who purchases a fully developed and improved lot within the Property." As written, lot-level obligations - impervious cover limits, prohibited uses, storage standards - would not follow the lot to its eventual owner, which is the opposite of what the statute preserves and of what Section 6.05.B says recording is for.
Smaller defects that still affect meaning. Section 1.07 uses the subsection letter "E" twice - once for Electric Service and again for the Parkland Obligation - with Section 1.07.F (the fire station donation) in between, so a citation to "Section 1.07.E" is ambiguous. Section 1.10 is captioned "No Waiver of Platting Requirements" and provides that "nothing in this Article 3 shall be construed as a waiver of any platting requirements," but it sits in Section 1 and the agreement has no Article 3. Section 5, the sole contingency clause, cross-references Section 1.07(B) for land described in Section 1.08(B). Section 1.07.E.1 obligates the owner to "convey and eight-acre parcel" for a public park "which will be privately maintained," without specifying timing, the conveyance instrument, or what happens if private maintenance stops.

20. Minor Change or Major Change: Who Decides, and Against What Test

The agreement has been amended administratively at least once, and at least one further change was made with no amendment at all. Both turn on Section 6.04, which is the provision that allocates amendment authority. It is worth reading in full because of how little it settles.

"B. Owner may make minor changes to the Conceptual Land Use Plan and other attachments to this agreement with approval from the Director of Planning & Development Services and may make major changes with approval by City Council. Minor change shall consist of but are not limited to:
  1. A change that does not materially affect a change of lot or unit density contemplated by this Agreement by more than 10%
  2. Changes to the phasing plan resulting from availability of infrastructure to serve the Property.
  3. Changes to accommodate tree preservation of the protection of KARST features.
C. Owner may appeal the Planning and Development Services Director's determination of a minor change to the City Manager within 10 days of the date of notification of the decision.
D. Major changes shall consist of but are not limited to:
  1. The addition of land area;
  2. Density beyond what is permitted in SMDC, except as allowed by this Agreement;
  3. Changes in roadway alignments more than what is necessary to meet Code;
  4. Change in the base zoning." Development Agreement, Section 6.04.B, C and D
Neither list is closed, and nothing fills the gap. Both the minor list and the major list are introduced with "shall consist of but are not limited to." So the two categories are each open-ended, they are not defined against each other, and the agreement supplies no default rule, no residual clause, and no tiebreaker for a change that appears on neither list. For any change that is not one of the seven enumerated items, the question "is this minor or major" has no textual answer - it has only a decision-maker, and under Section 6.04.B that decision-maker is the Director of Planning & Development Services.
The one quantitative test for "minor" cannot operate on this project. Minor category 1 is "a change that does not materially affect a change of lot or unit density contemplated by this Agreement by more than 10%." Lot and unit density are residential metrics. The base zoning here is Heavy Industrial and Heavy Commercial (Section 1.03), parkland dedication is excluded because the development is "commercial or industrial" (Section 1.05.A.5), and the Conceptual Land Use Plan at Exhibit B shows land use areas rather than lots or units. There is no unit count in the agreement against which a 10 percent change could be measured. The only numeric threshold the drafters supplied for distinguishing minor from major is therefore inoperative, which leaves categories 2 and 3 - phasing and tree/KARST preservation - as the entire enumerated definition of "minor" for a 2,000-acre industrial district.
And that list was broadened during negotiation. An earlier draft in the released record, where the provision is numbered 2.04, lists only two minor categories: the 10 percent density test and tree/KARST preservation. "Changes to the phasing plan resulting from availability of infrastructure to serve the Property" was added before execution. The administrative amendment authority in the signed agreement is wider than the draft's.
Only the Owner can appeal, and only to the City Manager. Section 6.04.C gives a right of appeal from the Director's minor-change determination to "Owner" - and to no one else. There is no notice requirement, no public comment, no Planning and Zoning Commission role, and no Council review of a minor-change determination. So the only party with standing to contest a determination is the party that requested it, and the only realistic grievance it would ever press is a determination that a change was major. A determination that a change is minor is, as a practical matter, unreviewable.
The agreement's own land-use-plan amendment clause routes elsewhere - to a section that does not exist. Section 6.04 is not the only amendment provision. Section 1.01.A, which establishes the Conceptual Land Use Plan as "the land use plan under Section 2.4.3.3 of the San Marcos Development Code," provides that it "may be amended from time to time in accordance with the processes and procedures outlined in Section 2.4.3.7.C of the SMDC or as stated in Sections 1.05 and 7.04 below." Two problems. The agreement has no Section 7.04 - it has no Section 7 at all; its sections run 1.01 through 1.10, 2.01 through 2.08, unnumbered Sections 3, 4 and 5, and 6.01 through 6.07. And Section 1.05 is "Application Procedures," which says nothing about amending the land use plan. So the internal alternative to the code procedure points at nothing, and Section 6.04 - the provision actually used - is not among the routes Section 1.01.A identifies.
What the code procedure it does cite actually requires. Development Code §2.4.3.7.C, in force on the Effective Date and unchanged since:
"Amendment. The development agreement and land use plan may be amended from time to time under the procedure for approval of an application for a development agreement." San Marcos Development Code §2.4.3.7.C
There is no administrative track in the code. "The procedure for approval of an application for a development agreement" is the full sequence in §§2.4.3.2 through 2.4.3.5: initial authorization by City Council, circulation among city departments and the City Manager, review against the §2.4.3.6 criteria, published notice of a public hearing under §2.3.2.1, a consolidated staff report to Council, and Council action approving the agreement by resolution. Nothing in Division 3 authorizes a director to amend a development agreement or its land use plan. So Section 6.04.B's administrative route is a creature of the contract, and the contract's own Section 1.01.A points at the code procedure instead. Which controls is a live question, and it matters because the two produce completely different amounts of public process.

Against that framework, here is what the record shows about the two changes actually made.

The April 2023 administrative amendment. A revised exhibit set "ISSUED APRIL 5, 2023" was approved administratively and carries a digital signature from the City's Legal Department dated April 12, 2023 at 12:58 p.m. It changed at least the following: the Conceptual Land Use Plan's project-area note went from approximately 2,017 acres to approximately 1,980 acres, with a new note that FEMA-mapped floodplain within the project is approximately 325 acres; the legend added an "EXCLUSIVE AREA WHERE CONTAINER STORAGE IS ALLOWED UP TO 80' IN HEIGHT PER DA SECTION 1.04.B.7," mapping to a defined area an entitlement the agreement's text had granted property-wide; the legend added a "100' WIDE REEDVILLE RESIDENTIAL BUFFER"; and Exhibit G was re-issued with the doubled buffer widths and code-compliance language described in Section 9. On the substance, most of that runs in the community's favor.
But no written minor-change determination for it appears in the released record. What the record contains is the signed exhibit set, the City's FAQ describing the amendment's effect ("The administrative amendment approved on 4/12 requires the applicant double the size of the buffer zones and no build near these areas"), and a resident's April 13, 2023 email to the developer beginning "I just reviewed the minor changes made to the Development agreement." There is no memorandum, staff report, or finding explaining which of the three enumerated minor categories the amendment fell within, or why a change to the project's stated acreage and to the geographic scope of the 80-foot storage entitlement was minor rather than major. Since the acreage note moved down, §6.04.D.1 ("the addition of land area") is not literally triggered - but that is an argument from the absence of a listed category, which is exactly the gap the open-ended lists create.
The 2024 roadway realignment: no amendment at all, and the stated reason is not the contract's test. Section 6.04.D.3 makes "changes in roadway alignments more than what is necessary to meet Code" a major change requiring Council approval. When a resident asked the Mayor in May 2024 about the Energy Parkway realignment - noting that the right-of-way had been moved south, toward existing residences, at the developer's request rather than to meet code - the City's written answer, from the Assistant City Manager on May 23, 2024 after checking "with our Engineering and Legal staff," was:
"This change is not a major change and does not require an amendment to the development agreement.... While the submitted construction plans did shift the connection of the proposed roadway along FM 1984 when compared to the development agreement alignment, the exhibit in the development agreement is conceptual. The current proposed alignment more closely follows the City Thoroughfare Plan." City of San Marcos, Assistant City Manager to resident, May 23, 2024 (obtained under the Texas Public Information Act)
Three things about that answer. First, it does not apply the test in §6.04.D.3. That test asks whether the realignment exceeded "what is necessary to meet Code." The answer given is that the exhibit is conceptual and that the new alignment tracks the Thoroughfare Plan more closely - neither of which is the contractual standard, and the second of which is a statement about the outcome rather than about necessity. Second, calling Exhibit E "conceptual" is difficult to square with Section 6.04.A of the same provision: "All exhibits attached to this Agreement are incorporated into and made a part of this Agreement for all purposes." If an incorporated exhibit can be departed from because it is conceptual, then §6.04.D.3 has no subject matter, because roadway alignments exist in the agreement only as exhibits. Third, the conclusion was not that the change was minor - it was that no amendment of any kind was required. That places the realignment outside Section 6.04 altogether, and so outside both the Director's approval under 6.04.B and Council's under 6.04.D.
Why this compounds rather than sits on its own. Section 1.01.A provides that "development applications for the Property shall be consistent with the Conceptual Land Use Plan," and Section 1.05.A.2 that "the approved land uses in each final plat... shall be consistent with the Conceptual Land Use Plan and Exhibit 'B'." Consistency with an exhibit is the mechanism by which the agreement's land use commitments reach individual plats and permits. If the exhibits are conceptual for purposes of departing from them, the consistency requirement loses most of its content - and the community's ability to hold the project to what was approved in January 2023 rests almost entirely on those exhibits.

Why This Matters

A development agreement is supposed to give a landowner predictability in exchange for real, bargained-for commitments - not a mechanism to lock in decades beyond what state law allows, or to convert a City Council's vote on annexation and zoning into a formality for an application the applicant may later abandon. Residents and reporters evaluating this project deserve to know exactly what the agreement says, measured against the actual statute it claims as its authority and against the City's own public record of what has and has not happened since.

Read as a whole, the nineteen findings above point in one direction. The document is consistently precise where it grants something - the waiver schedule, the 80-foot storage height, the 2019 fee date, the 45-year term, the supremacy clause - and consistently imprecise where it would constrain something. The service schedule state law requires is absent. The list of standards that do not apply, which the city code requires, is absent. The annexation schedule is a condition rather than a date. The environmental sections adopt code provisions that exempt railroads, point at a defunct state agency, and promise a vibration standard that does not exist, and add no special standards beyond truck signage. The contingency that used to void the agreement if the City did not act now has no deadline and no remedy. The expiration that used to kill the agreement if nothing was built is gone entirely.

Four questions of that kind have now been answered by the records, and each answer cuts in the City's favor. The agreement was recorded in Caldwell County (instrument 2023-001629, March 21, 2023) despite Section 6.05 directing otherwise. The westernmost fire station parcel was dedicated on time (instrument 2024-000375, January 17, 2024). A qualified watershed protection plan was required and processed, with water quality and buffer zone reclamation taken to the Planning and Zoning Commission on August 27, 2024 and a Phase 2 certificate issued September 26, 2024 - none of which the agreement provides for. And City engineering is enforcing Exhibit G's cut-and-fill limits as written in permit review rather than the "by right" language in Section 1.04.B.6. Each is noted where it arises above. Together they matter to the overall picture: the administration of this agreement has in several places been better than its drafting, and the City's own reviewing engineers have been the ones applying the code the contract is silent about.

Three questions remain genuinely open. Whether the §212.172(b-1) pre-offer disclosure was ever made is a public information request; a full-text search of the roughly 900 machine-readable documents released so far turns up no trace of one. Which document Recital 3 of Ordinance 2024-27 means when it asserts that "the Owner and the City have entered into a written agreement for the provision of services" is a question for the City Attorney, and the answer determines whether the §43.0672 content problem is live. And no written determination has surfaced explaining why the April 2023 exhibit amendment was a minor change under Section 6.04.B rather than a major one under Section 6.04.D - the one place the City has put major-versus-minor reasoning in writing is the 2024 roadway realignment, where the reason given was that the exhibit is "conceptual," which is difficult to reconcile with Section 6.04.A.

Sources

  1. First Amended & Restated SMART Terminal Development Agreement, executed January 17, 2023. Sections 1.08, 5, 6.01, 6.03. Full text (PDF).
  2. Resolution 2023-20, City of San Marcos, adopted January 17, 2023. Legistar record.
  3. Texas Local Government Code §212.172 (Development Agreement; Subchapter G, Chapter 212). Texas Statutes (official); verbatim text of subsection (d) cross-checked against Texas Public Law and FindLaw.
  4. San Marcos Development Code §2.4.3.2.E.11: the 30-year cap appears as unmarked, already-in-force text in the adopted redline for Ord. 2023-72 (base text stamped "Amended: November 3, 2021"), and still reads "shall not exceed 30 years" in the code adopted by Ord. 2025-01 effective January 21, 2025. The 30→45 change appears as a tracked redline ("shall not exceed 30 45 years") in the adopted redline for Ord. 2026-08, effective June 16, 2026.
  5. "Contract Zoning and When It's Okay", Randle Law Office (Texas local-government law firm). Article.
  6. City of San Marcos Charter (through the November 2017 election). Full text (PDF).
  7. Annexation/zoning withdrawal correspondence (AN-22-20, ZC-23-01), Clayton Kendall (Scarborough Lane Development) to City of San Marcos Planning & Development Services, June 23, 2023. Obtained via Texas Public Information Act request.
  8. H.B. 1372, 84th Texas Legislature (2015), creating Cotton Center Municipal Utility District No. 1. Bill text.
  9. Resolution 2025-212R, City of San Marcos, adopted November 5, 2025, terminating the Cotton Center Development/Consent Agreement and releasing ~1,786 acres from the City's ETJ. Nov. 5, 2025 agenda packet.
  10. Chapter 380 Economic Development Incentive and ETJ Development Agreement (the 2019 original, effective March 19, 2019), Sections 9.01, 9.02, 15.10. Full text (PDF).
  11. Texas Local Government Code Chapter 245 (Issuance of Local Permits), §§245.002, 245.004, 245.005. Texas Statutes (official).
  12. Texas Local Government Code Chapter 395 (Financing Capital Improvements), §§395.011, 395.016, 395.017, 395.018, 395.052, 395.073. Texas Statutes (official).
  13. Texas Local Government Code Chapter 43 (Municipal Annexation), §§43.002, 43.0671, 43.0672, 43.0715, 43.075, 43.0751. Texas Statutes (official).
  14. Texas Local Government Code §42.042 (Creation of Political Subdivision in ETJ). Texas Statutes (official).
  15. Texas Water Code §54.016 (Consent of City), subsections (a), (e), (f), (f-1). Texas Statutes (official).
  16. San Marcos Development Code as it stood on the agreement's Effective Date. Per the City's own Code Updates page, the Development Code was amended by Ord. 2021-88 on November 3, 2021 and not amended again until Ord. 2023-72 on October 17, 2023. The version in force on January 17, 2023 is therefore the November 3, 2021 code, and its text is reproduced as the unmarked base layer of the Ord. 2023-72 adopted redline (460 pages, every page footer stamped "San Marcos Development Code Amended: November 3, 2021"). Every code provision cited on this page was read out of that document and checked for tracked-change markup, so that a provision the October 2023 amendment introduced is not mistaken for one the agreement was signed against. Provisions verified this way: §§2.4.3.1.D, 2.4.3.2.E.1–15, 2.4.3.3.D, 2.4.5.1–2.4.5.4, 2.6.1.1.C–E, 3.5.2.8, 3.6.2.1 and Table 3.1, 4.3.5.3, 4.3.5.4, 4.4.4.4 (Heavy Industrial), 5.1.3.2, 6.1.2.2, 6.1.2.3, 6.1.2.5, 6.2.3.1–6.2.3.5, 7.2.6.2, 7.4.1.1, 7.4.2.1–7.4.2.5. Section numbers shifted in later editions in two places noted in the text: the Heavy Industrial district standards moved from §4.4.4.4 to §4.4.4.5, and building type cross-references moved from §4.4.6.x to §4.4.5.x.
  17. Current and intervening code editions, used only to identify what changed: Ord. 2025-01 Development Code effective January 21, 2025, and Ord. 2026-08 Development Code effective June 16, 2026 (current). Municode.
  18. Ordinance 2021-47, adopted August 3, 2021, renaming the Employment Center (EC) district to Commercial (CM). Adopted redline.
  19. Recorded Amended and Restated Development Agreement, Caldwell County Official Public Records instrument 2023-001629, recorded March 21, 2023, 43 pages, Teresa Rodriguez, County Clerk. Obtained through a Texas Public Information Act request; the clerk's recording stamp appears on page 1.
  20. Special Warranty Deed (westernmost fire station parcel, 3.140 acres out of the 765.723-acre tract), Franklin Mountain San Marcos I, LP to City of San Marcos, dated and recorded January 17, 2024, Caldwell County instrument 2024-000375. Obtained through a Texas Public Information Act request.
  21. San Marcos City Code Chapter 39 (Flood Damage Prevention), Article 2 and Article 3 (Floodplain Reclamation Standards, adopted by Ord. 2020-87, 12-15-2020), §§39.011, 39.049, 39.049.1, 39.049.2, 39.050, 39.051. Municode.
  22. Quotations from the 2023 agreement are taken from the text approved by and attached to Resolution 2023-20 (Legistar item ID #23-314), which is machine-readable. The separately posted executed copy is a scanned image of the same document; both City-produced copies of the approved text were compared and the only substantive difference found is the Exhibit E / Exhibit B reference for the fire station locations noted in Section 10 above.
  23. Approved Administrative Amendment to the Development Agreement: revised Exhibit B (Conceptual Land Use Plan) and Exhibit G (Cut-Fill Extents), exhibits "ISSUED APRIL 5, 2023," bearing a City of San Marcos Legal Department digital signature dated April 12, 2023. Amendment exhibits (PDF); also in the Legistar file for item ID #23-314.
  24. Ordinance No. 2024-27 (Case No. AN-24-03, Axis Logistics), annexing approximately 7.553 acres in Caldwell County; Recital 3 and Section 3 address the written agreement for the provision of services. Obtained through a Texas Public Information Act request.
  25. Watershed Protection Plan Phase 1 Review, project 2024-50491 (Axis Logistics Park, 2862 FM 1984), City of San Marcos Development Services, review completed August 29, 2024 - comment 1 (qualified watershed protection plan threshold and required Planning and Zoning Commission meeting), comment 2 (Exhibit G cut/fill compliance), comments 6 and 7 (grading in the electric substation property and the LCRA easement), comment 8 (impervious cover assumptions). Obtained through a Texas Public Information Act request.
  26. Watershed Protection Plan Phase 2 Approval Certificate No. 2024-49696, issued to Scarborough Lane Development, effective September 26, 2024, expiring September 26, 2026; permit note 1 records the August 27, 2024 Planning and Zoning Commission presentation on water quality and buffer zone reclamation under LDC §§2.6.1.1(D) and 2.6.1.3(B). Obtained through a Texas Public Information Act request.
  27. Correspondence on the Energy Parkway roadway realignment and Section 6.04.D.3, City of San Marcos Assistant City Manager to a resident, May 23, 2024, copying the Mayor, the City Manager's executive team, Planning & Development Services, Engineering and the Legal Department. Obtained through a Texas Public Information Act request.
  28. Earlier negotiation draft of the development agreement (provisions numbered 2.03 through 2.05 rather than 6.03 through 6.05), showing a two-item minor-change list and the same Hays County recordation language. Released in the City's public information response as meeting-notes attachments.
  29. City of San Marcos SMART Terminal Frequently Asked Questions (2023, version 4), describing the effect of the April 12, 2023 administrative amendment on buffer zone widths. Obtained through a Texas Public Information Act request.
  30. See also Key Documents, Permitted & Prohibited Uses, Impact Fees, and Maps & Exhibits.