16-R-82 - Subdivision Improvement Agreement with Comal Independent School District=01111111KNUIONLIK
WHEREAS, the City staff of the City of Schertz (the "City") has been approached by
COMAL INDEPENDENT SCHOOL DISTRICT (Comal ISD) to enter into a Subdivision
Improvement Agreement to allow the filing of the final plat for Middle School #6 prior to
acceptance of the public improvements; and
WHEREAS, City staff has determined that it is interest of the community to allow Comal
ISD to proceed with the construction of Middle School #6 in a timely manner in order to be able
to open in the fall of 2018 to serve the growing number of student in the community; and
WHEREAS, the Planning and Zoning Commission has recommended a waiver to allow
deferral of construction of the required public improvements conditioned upon City Council
authorizing a Subdivision Improvement Agreement; and
WHEREAS, pursuant to Section 21.4.15 Public Infrastructure Improvement Construction
Plans and Community Facility Agreements allows for property owners to enter into a subdivision
improvement agreement to defer the construction of public improvements; and
WHEREAS, the City Council has determined that no surety is required of Comal ISD, a
political subdivision of the State of Texas, to secure the obligations to construct public
improvements; and
Section 1. The City Council hereby authorizes the City Manager to execute and
deliver a Subdivision Improvement Agreement with Comal ISD generally per the attached
Exhibit A, subject to changes approved by the City Manager and City Attorney.
Section 2. The recitals contained in the preamble hereof are hereby found to be true,
and such recitals are hereby made a part of this Resolution for all purposes and are adopted as a
part of the judgment and findings of the City Council.
Section 3. All resolutions, or parts thereof, which are in conflict or inconsistent with
any provision of this Resolution are hereby repealed to the extent of such conflict, and the
provisions of this Resolution shall be and remain controlling as to the matters resolved herein.
Section 4. This Resolution shall be construed and enforced in accordance with the
laws of the State of Texas and the United States of America.
Section 5. If any provision of this Resolution or the application thereof to any person
or circumstance shall be held to be invalid, the remainder of this Resolution and the application
of such provision to other persons and circumstances shall nevertheless be valid, and the City
Council hereby declares that this Resolution would have been enacted without such invalid
provision.
Section 6. It is officially found, determined, and declared that the meeting at which
this Resolution is adopted was open to the public and public notice of the time, place, and subject
matter of the public business to be considered at such meeting, including this Resolution, was
given, all as required by Chapter 551, Texas Government Code, as amended.
Section 7. This Resolution shall be in force and effect from and after its final
passage, and it is so resolved.
CITY OF SCHERTZ, TEXAS
MiAtiel R. Carpenter, Mayor
ATTEST: ------ -
'4r-6nda Dennis, City Secretary
(CITY SEAL)
50077397.1
EXHIBIT A
Subdivision Improvement Agreement Comal ISD Middle School #6
50077397.1 A- I
After Recording, Please Return To:
Denton Navarro Rocha Bernal Hyde & Zech, P.C.
2517 N. Main Avenue
San Antonio, Texas 78212
Attention: Charles Zech
STATE OF TEXAS
KNOW ALL PERSONS BY THESE PRESENTS:
COUNTY OF COMAL
COMAL ISD FACILITIES AGREEMENT
MIDDLE SCHOOL #6 — PUBLIC IMPROVEMENTS
This COMMUNITY FACILITIES AGREEMENT (the "Agreement ") is by and between
Comal Independent School District, (the "Owner "), and the CITY OF SCHERTZ, a Texas
municipal corporation (the "City "), and is effective upon the execution of this Agreement by the
Owner and the City (the "Effective Date ").
WHEREAS, the Owner is the owner of that certain real property located in the City of
Schertz, Comal County, Texas, more specifically described on Exhibit "A ", attached hereto and
made a part hereof for all purposes (the " Property");
WHEREAS, the Owner seeks to develop a public school ( "Middle School #6 ") on the
Property (the "Subdivision ") that requires the construction of certain public improvements: and
WHEREAS, this Agreement is made solely with respect to the current plat application on
file with the City known as the " Comal ISD Middle School #6 Subdivision ";
WHEREAS, pursuant to Section 21.4.15(E.)(2.) and (F.)(1.) of the City's Unified
Development Code the obligation to construct the public improvements that serve the
Subdivision may be deferred, for up to two years after the recordation of the final plat, if a
Community Facility Agreement is executed and if sufficient surety is provided to secure the
obligation to construct the public improvements; and
WHEREAS, the Planning and Zoning Commission has granted a waiver to the requirement to
construct public improvements prior to filing the final plat conditioned upon entering into a
Subdivision Improvement Agreement; and
WHEREAS, the public improvements must be constructed and accepted prior to issuing a
certificate of occupancy for the Middle School #6; and
WHEREAS, the Owner seeks to defer the construction of the public improvements to a
future date, not to exceed two years, after the recording of the final plat for Comal ISD Middle
School 46 pursuant to this Agreement and Section 21.4.15 of the City's Unified Development
Code:
Community Facility Agreement
NOW THEREFORE, in consideration of the agreements set forth herein and for other
reciprocal good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged and stipulated by the Parties, the Owner and the City agree as follows:
1. Ownership of the Property. The Owner hereby represents and warrants that, as of
the Effective Date, it has not conveyed, assigned, or transferred all or any portion of its interest
in the Property to any other person or entity (any such person or entity referred to herein as
"Purchaser "), nor is it a party to any contract or other understanding to do so that is not subject to
this Agreement.
2. Construction of Improvements; Covenants. The Owner and the City covenant and
agree to the following:
a) The Owner is obligated by Section 21.12.10 of the City's Unified Development
Code to construct, or cause to be constructed, roadway, traffic signal, utility, and
drainage improvements (the "Improvements ") as required by the City's
regulations.
b) Owner agrees that within two years of the date of recordation of the Final Plat for
the subdivision to complete all construction of the Improvements in full
compliance with City of Schertz Unified Development Code Section 21.4.15,
which is incorporated by reference herein as though fully set forth in this Section
of this Agreement. For the purpose of clarification, and in no way limiting
Owner's obligations under Section 21.4.15, the Parties agree that full completion
of construction of the Improvements shall not occur until the City accepts the
Improvements in the manner prescribed in Section 21.4.15. H., and Owner
provides a Warranty Bond as required by Section 21.4.15. I.
c) Owner acknowledges that no certificate of occupancy will be granted for any
structure on the Property prior to acceptance of the required public improvements
by the City.
3. Approval of Agreement. The City has approved the execution and delivery of this
Agreement pursuant to Section 21.4.15(E.)(2.) of the City's Unified Development Code, and the
Owner represents and warrants that it has taken all necessary action to authorize its execution
and delivery of this Agreement.
4. Governmental Immunity. The City does not waive or relinquish any immunity or
defense on behalf of itself, its officers, employees, Councilmembers, and agents as a result of the
execution of this Agreement and the performance of the covenants and actions contained herein.
5. Binding Effect. ffect. This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective heirs, executors, representatives, successors, and assigns,
and the terms hereof shall run with the Property.
6. Counterparts. This Agreement may be executed in any number of counterparts
with the same effect as if all signatory parties had signed the same document. All counterparts
shall be construed together and shall constitute one and the same Agreement.
Community Facility Agreement
7. Integration. This Agreement is the complete agreement between the parties as to
the subject matter hereof and cannot be varied except by the written agreement of the Owner and
the City. The Owner and the City each agrees that there are no oral agreements, understandings,
representations or warranties which are not expressly set forth herein.
8. Notices. Any notice or communication required or permitted hereunder shall be
deemed to be delivered three (3) days after such notice is deposited in the United States mail,
postage fully prepaid, registered or certified mail return receipt requested, and addressed to the
intended recipient at the address shown herein. Any address for notice may be changed by
written notice delivered as provided herein. All notices hereunder shall be in writing and served
as follows:
If to the Owner:
Comal ISD
1404 IH 35 North
New Braunfels, Texas 78130
Attn: John Montelongo
With copy to:
Thompson & Horton, LLP
3200 Southwest Freeway, Suite 2000
Houston, Texas 77027
Attention: Maureen R. M. Singleton
If to the City:
CITY OF SCHERTZ
1400 Schertz Parkway
Schertz, Texas 78154
Attention: City Manager
With copy to:
Denton Navarro Rocha Bernal Hyde & Zech, P.C.
2517 N. Main Avenue
San Antonio, Texas 78212
Attention: Charles Zech
9. Legal Construction. If any provision in this Agreement is for any reason
unenforceable, to the extent the unenforceability does not destroy the basis of the bargain among
the parties, such unenforceability will not affect any other provision hereof, and this Agreement
will be construed as if the unenforceable provision had never been a part of this Agreement.
Whenever the context requires, the singular will include the plural and neuter include the
masculine or feminine gender, and vice versa. Article and section headings in this Agreement
Community Facility Agreement
are for reference only and are not intended to restrict or define the text of any section. This
Agreement will not be construed more or less favorably between the parties by reason of
authorship or origin of language.
10. Recitals; Exhibits. Any recitals in this Agreement are represented by the parties
hereto to be accurate, constitute a part of the parties' substantive agreement, and are fully
incorporated herein as matters of contract and not mere recitals. Further, any exhibits to this
Agreement are incorporated herein as matters of contract and not mere exhibits.
11. No Joint Venture. It is acknowledged and agreed by the parties that the terms
hereof are not intended to, and shall not be deemed to, create a partnership or joint venture
among the parties.
12. Choice of Law. This Agreement will be construed under the laws of the State of
Texas without regard to choice -of -law rules of any jurisdiction. Venue shall be in the State
District Courts of Guadalupe County, Texas with respect to any lawsuit arising out of or
construing the terms and provisions of this Agreement. No provision of this Agreement shall
constitute consent by suit by any party.
[Signatures and acknowledgments on the following pages]
Community Facility Agreement
Signature Page to
Subdivision Improvement Agreement
This Subdivision Improvement Agreement has been executed by the parties as of the
dates of the Acknowledgments to be effective as of the Effective Date.
nuirnpr-
COMAL INDEPENDENT SCHOOL DISTRICT
By:
Name:
Title:
Date:
THE STATE OF TEXAS §
COUNTY OF §
This instrument was acknowledged before me on the day of , 2015 by
, the of Comal Independent School District, a
political subdivision of the State of Texas on behalf of said School District.
(SEAL)
Notary Public in and for
The State of Texas
My Commission Expires:
Community Facility Agreement
Signature Page to
Subdivision Improvement Agreement
This Subdivision Improvement Agreement has been executed by the parties as of the
dates of the Acknowledgments to be effective as of the Effective Date.
City:
CITY OF SCHERTZ,
a Texas municipal corporation
By:
Name
Date:
THE STATE OF TEXAS
COUNTY OF GUADALUPE
John C. Kessel, its City Manager
This instrument was acknowledged before me on the day of , 2015 by John C.
Kessel, City Manager of the City of Schertz, Texas, a Texas municipal corporation, on behalf of
said City.
(SEAL)
Notary Public in and for
The State of Texas
My Commission Expires:
Community Facility Agreement
EXHIBIT "A"
The Property
Approved final plat exhibit
and
Legal Metes and Bounds
[See attached]
Community Facility Agreement