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18-R-145 - Agreement with Babcock Road 165 LTD, Totaling no more than $395,867.00 for reimbursement of Roadway Improvements for extension of Ripps KreuslerWHEREAS, Babcock Road 165, Ltd., a Texas limited partnership ( "Developer ") has contracted to purchase approximately 1.395 acres of real property in the City of Schertz, Texas situated in the John Saladin Survey No. 404, Abstract 299, Guadalupe County, Texas and out of that remaining portion of a 150.231 acre tract of land conveyed unto Edwin Ripps, Jr., et al by warranty deed recorded in Volume 2969, Page 150, Guadalupe County Official Public Records; in all, said 1.395 acre tract being more particularly described as set forth Exhibit "A" (the "Property "); and WHEREAS, Developer intends to develop the Property as a public roadway. The public improvements are more particularly described in specifications related to the construction of the public improvements prepared by Coursen - Koehler Engineering and Associates (hereafter collectively called "the Specifications ") attached hereto as Exhibit "B "; and WHEREAS, in accordance with Article III, Section 52 -a of the Texas Constitution, and Section 380.001 of the Texas Local Government Code ( "Section 380 "), the City may establish and provide for the administration of a program for making loans and grants of public money to promote state or local economic development and to stimulate business and commercial activity in the City; and WHEREAS, City's Contribution shall be reimbursed to the Developer from the Roadway Impact Fees collected by the City for Service Area 2 as identified in its Capital Improvement Plan ( "SA 2 Impact Fees "). City shall reimburse Developer an amount equal to Thirty (30) percent of all SA 2 Impact Fees collected on an annual basis until the Developer has been reimbursed in full for an amount equal to the City's Contribution; and WHEREAS, Developer has agreed, in exchange and as consideration for funding by the City, to satisfy and comply with certain terms and conditions, including the construction of the Public Improvements (as more fully defined in Exhibit B); and WHEREAS, the City and Developer hereby agree, based on the cost itemization attached as Exhibit "C" hereto, that the cost of the Public Improvements, is estimated to be Three Hundred Ninety Five Thousand Eight Hundred and Sixty Seven United States Dollars ($395,867.00) (the "Estimated Total Improvement Cost "); and WHEREAS, the City and Developer agree that the provisions of this Agreement substantially advance a legitimate interest of the City by providing public infrastructure, expanding the tax base of the City, increasing employment and promoting economic development. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS THAT: Section 1. The City Council hereby authorizes the City Manager to enter into an agreement with Babcock Road 165, Ltd. not to exceed $395,867 for reimbursement of roadway improvements for the extension of Ripps Kreusler in a form generally as attached hereto as Exhibit D after the City has entered into an agreement with the City of Cibolo for the improvement of Wiederstein Road. Section 2. The recitals contained in the preamble hereof are hereby found to be true, and such recitals are hereby made a part of this Resolution for all purposes and are adopted as a part of the judgment and findings of the City Council. Section 3. All resolutions, or parts thereof, which are in conflict or inconsistent with any provision of this Resolution are hereby repealed to the extent of such conflict, and the provisions of this Resolution shall be and remain controlling as to the matters resolved herein. Section 4. This Resolution shall be construed and enforced in accordance with the laws of the State of Texas and the United States of America. Section 5. If any provision of this Resolution or the application thereof to any person or circumstance shall be held to be invalid, the remainder of this Resolution and the application of such provision to other persons and circumstances shall nevertheless be valid, and the City Council hereby declares that this Resolution would have been enacted without such invalid provision. Section 6. It is officially found, determined, and declared that the meeting at which this Resolution is adopted was open to the public and public notice of the time, place, and subject matter of the public business to be considered at such meeting, including this Resolution, was given, all as required by Chapter 551, Texas Government Code, as amended. Section 7. This Resolution shall be in force and effect from and after its final passage, and it is so resolved. PASSED AND ADOPTED, this 13"' day of November, 2018 ATTEST: CITY OF/-$MRTZ, TEXAS -2- Carpenter, Mayor f ecretary -3- Westwood Exhibit A STATE OF TEXAS 1.438 ACRE TRACT PROD. NO. 13433.00 COUNTY OF GUADALUPE 62,655 SQ. FT OCTOBER 10, 2018 FIELD NOTE DESCRIPTION of a 1.438 acre tract of land within the corporate limits of the city of Schertz and situated in the Jahn Saladin Survey No. 404, Abstract 299, Guadalupe County, Texas and out of that remaining portion of a 150.231 acre tract of land conveyed unto Edwin Ripps, Jr., et at by warranty deed recorded in Volume 2969, Page 150, Guadalupe County Official Public Records, in all, said 1.438 acre tract being more particularly described as follows: BEGINNING at a W' iron rod found on the southeast line of Lot 6, Block 1 as shown by plat of Medical Office Building Subdivision recorded in Volume 6, Page 779, Guadalupe County Plat Records coincident with the common north corner of Ripps — Kreusler Road (an 80 foot right -of -way) as described in warranty deed recorded in Volume 1942, Page 624, said Official Public Records and a north corner of said remaining portion of a 150.231 acre tract, for the west corner and POINT OF BEGINNING of the herein described tract of land; THENCE, along the northwest line of said remaining portion of a 150.231 acre tract, North 59° 37' 35" East, 586.21 feet to a %" iron rod found at the common east corner of Lot 8, Block 1 as shown by plat of Schertz — Fairfield Inn recorded in Volume 7, Page 368, said Plat Records and the south corner of a 35.841 acre tract of land conveyed unto Babcock Road 165, LTD by warranty deed recorded in Document No. 2018004043, said Official Public Records for an angle point of the herein described tract of land; THENCE, along the common southwest line of said 35.841 acre tract and the northwest line of said remaining portion of a 150.231 acre tract, North 59° 27' 06" East, 292.00 feet to a W' iron rod set with an orange plastic cap stamped "WESTWOOD" for the north corner of the herein described tract of land; THENCE, across said remaining portion of a 150.231 acre tract of land the following courses: South 31' 49' 06" West, 34.77 feet to a'' /:" iron rod set with an orange plastic cap stamped "WESTWOOD" at the beginning of a curve to the right, Along the arc of said curve with length of 271.79 feet a radius of 559.94 feet, a delta of 27° 48' 39 ", and a chord bearing and distance of South 45° 43' 20" West, 269.13 feet to a %" iron rod set with an orange plastic cap stamped "WESTWOOD ", and South 59° 37' 35" West, 586.21 feet to a %" iron rod found at the common east corner of said Ripps— Kreusler Road and a reentrant corner of said remaining portion of a 150.231 acre tract of land for the south corner of the herein described tract of land; THENCE, North 30° 22' 25" West, 80.00 feet to the POINT OF BEGINNING. Containing in all, 62,655 square feet of land or 1.438 acres, more or less. Bearings based on Texas State Coordinate System (NAD 1983) for the South Central Zone, 4204. This field note description is based upon the same field work compiled to create the Category 1A, Condition II Land Title Survey for Project No. 13433.00 of the same date and prepared by Westwood Professional Services, Inc. 1718 Dry Creek Way, Suite 110 . San Antonio, Texas 78259 Main 210.265.8300 . westwoodps.com TBPE Firm No. F -11756 . TBPLS Firm No. 10194064 Jason R. Gabriel, RPLS Texas No 6530 '•doll zj ICA r o a O u M cgg o S o �N; ego QQro \l �.-o w x 3 3 m 1Om ono � p h ow h 4 C !") 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THIS IS AN ESTIMATE ONLY. CONSTRUCTION PLANS HAVE NOT BEEN COMPLETED. 2. NO INFLATION FACTOR HAS BEEN INCLUDED IN THE COSTS. 3. PROFESSIONAL FEES ARE AN ESTIMATE ONLY. A FORMAL PROPOSAL HAS NOT BEEN PREPARED AND THIS ESTIMATE SHOULD NOT BE REPRESENTED AS SUCH. 4. ESTIMATE DOES NOT INCLUDE UTILITY EXTENSIONS OR IMPROVEMENTS. C:\ Users \GECOURSEN\AppData \Local \Temp \Bluebeam Software95017869.xlsx DEVELOPMENT COST ESTIMATE SUMMARY SHEET Ripps - Kruesler Improvements Ripps - Kruesler Improvements November 6, 2018 Job No. R0013433.00 SITEWORK & EROSION CONTROL $ 27,500.00 STREET IMPROVEMENTS $ 242,792.00 DRAINAGE IMPROVEMENTS $ 69,575.00 IMPROVEMENTS SUB -TOTAL $ 339,867.00 Estimated Professional Services Fees DESIGN, PREPARE, AND PROCESS CIVIL DOCUMENTS $ 23,000.00 STORM WATER MANAGEMENT PLAN $ 4,000.00 STORM WATER POLLUTION PREVENTION PLAN $ 1,500.00 CONSTRUCTION ADMINISTRATION $ 2,500.00 PREPARE & PROCESS PLANS OF RECORD $ 1,750.00 ESTABLISH CONTROL POINTS & LIMITS OF CONSTRUCTION $ 1,250.00 PRELIMINARY / FINAL STREET & DRAIN STAKING $ 5,000.00 PROFESSIONAL SERVICES SUB -TOTAL $ 39,000.00 SUB -TOTAL $ 378,867.00 CONTINGENCY $ 17,000.00 PERFORMANCE & WARRANTY BONDING By Developer TOTAL $ 395,867.00 C: \Users \GECOU RSEN\AppData \Local \Temp \Bluebeam Software95017869.x1sx DEVELOPMENT COST ESTIMATE Ripps- Kruesler Improvements Schertz ITEM DESCRIPTION UNIT EST /QTY $ /UNIT AMOUNT 1 MOBILIZATION LS 1 $0.00 $0.00 2 PREPARE ROW /EASEMENTS AC 1.5 $2,500.00 $3,750.00 3 CONSTRUCTION ENTRANCE EA 1 $1,750.00 $1,750.00 4 SILT FENCE LF 900 $2.50 $2,250.00 5 ROCK BERM LF 50 $45.00 $2,250.00 6 WASHOUT PIT EA 1 $750.00 $750.00 7 REMOVE & REPLACE FENCE LF 900 $12.50 $11,250.00 8 FINAL STABILIZATION OF DISTURBED AREAS LS 1 $5,500.00 $5,500.00 9 HMAC TYPE C (2.0" COMPACTED THICKNESS) SY 4,170 TOTAL COST $27,500.00 61 2 ITEM DESCRIPTION UNIT EST /QTY $ /UNIT AMOUNT 1 SAWCUT & TIE TO EXISTING ROAD LS 1 $6,000.00 $6,000.00 2 EXCAVATION CY 2,250 $5.00 $11,250.00 3 EMBANKMENT CY 750 $3.50 $2,625.00 4 TREATED SUBGRADE SY 4,490 $4.00 $17,960.00 5 FLEXIBLE BASE (12" COMPACTED DEPTH) SY 4,170 $13.00 $54,210.00 6 PRIME COAT GAL 834 $4.00 $3,336.00 7 TACK COAT GAL 417 $3.00 $1,251.00 8 HMAC TYPE D (2.0" COMPACTED THICKNESS) SY 4,170 $10.00 $41,700.00 9 HMAC TYPE C (2.0" COMPACTED THICKNESS) SY 4,170 $11.00 $45,870.00 10 MACHINE LAID CONCRETE CURB & GUTTER LF 1,610 $16.50 $26,565.00 11 5' CONCRETE SIDEWALK - ONE SIDE SY 405 $55.00 $22,275.00 12 PAVEMENT MARKINGS LS 1 $6,000.00 $6,000.00 13 CONSTRUCTION & MATERIAL TESTING LS 1 $3,750.00 $3,750.00 TOTAL COST $242,792.00 DRAINAGE IMPROVEMENTS ITEM DESCRIPTION UNIT EST /QTY $ /UNIT AMOUNT 1 24" STORM PIPE LF 45 $85.00 $3,825.00 2 36" STORM PIPE LF 250 $125.00 $31,250.00 3 10' CURB INLET EA 2 $13,500.00 $27,000.00 4 OUTFALL END TREATMENT EA 1 $7,500.00 $7,500.00 TOTAL COST $69,575.00 C: \Users \GECOURSEN \App Data \Local \Temp \Bluebeam Software95017869.x[sx CHAPTER 380 ECONOMIC DEVELOPMENT AGREEMENT THIS AGREEMENT ( "Agreement ") by and between Babcock Road 165, Ltd., a Texas limited partnership ( "Developer ") and the CITY OF SCHERTZ, TEXAS ( "City "), a home rule municipal corporation (City and Developer collectively referred to as the "Parties" and sometimes individually as a "Party"), is entered into upon the "Effective Date," as more clearly defined herein. WHEREAS, Developer has contracted to purchase approximately 1.438 acres of real property in the City of Schertz, Texas situated in the John Saladin Survey No. 404, Abstract 299, Guadalupe County, Texas and out of that remaining portion of a 150.231 acre tract of land conveyed unto Edwin Ripps, Jr., et al by warranty deed recorded in Volume 2969, Page 150, Guadalupe County Official Public Records; in all, said 1.438 acre tract being more particularly described as set forth Exhibit "A" (the "Property "); and WHEREAS, Developer intends to develop the Property as a roadway (the "Project," as defined below). The public improvements are more particularly described in specifications related to the construction of the public improvements prepared by Coursen - Koehler Engineering and Associates (hereafter collectively called "the Specifications ") attached hereto as Exhibit "B "; and WHEREAS, in accordance with Article I1I, Section 52 -a of the Texas Constitution, and Section 380.001 of the Texas Local Government Code ( "Section 380 "), the City may establish and provide for the administration of a program for making loans and grants of public money to promote state or local economic development and to stimulate business and commercial activity in the City; and WHEREAS, City's Contribution shall be reimbursed to the Developer from the Roadway Impact Fees collected by the City for Service Area 2 as identified in its Capital Improvement Plan ( "SA 2 Impact Fees "). City shall reimburse Developer an amount equal to Thirty (30) percent of all SA 2 Impact Fees collected on an annual basis until the Developer has been reimbursed in full for an amount equal to the City's Contribution; and WHEREAS, the City Council of the City of Schertz, Texas, has adopted Resolution No.18 -R -145 on November 13, 2018 (the "Resolution "), authorizing the City Manager to enter into this Agreement; and WHEREAS, Developer has agreed, in exchange and as consideration for funding by the City, to satisfy and comply with certain terms and conditions, including the construction of the Public Improvements (as more fully defined below); and WHEREAS, the Parties hereby agree, based on the cost itemization attached as Exhibit "C" hereto, that the cost of the Public Improvements, including appropriate road, water, wastewater, and drainage impact fees, is estimated to be Three Hundred Ninety Five Thousand 1 I Page Schertz 380 4835 - 7078 -5146, v. 1 Eight Hundred and Sixty Seven United States Dollars ($395,867.00) (the "Estimated Total Improvement Cost "); and WHEREAS, the City and Developer agree that the provisions of this Agreement substantially advance a legitimate interest of the City by providing public infrastructure, expanding the tax base of the City, increasing employment and promoting economic development. NOW, THEREFORE, for and in consideration of the promises and the mutual agreements set forth herein, the Parties hereby agree as follows: 1. Recitals. The recitals set forth above are declared true and correct by the Parties and are hereby incorporated as part of this Agreement. MM • 1 D U' 1. Authority. The City's execution of this Agreement is authorized by Chapter 380 of the Texas Local Government Code and constitutes a valid and binding obligation of the City. The City acknowledges that Developer is acting in reliance upon the City's performance of its obligations under this Agreement in making the decision to commit substantial resources and money to the establishment of the Project, hereinafter established. 2. Term. This Agreement shall become enforceable upon the Effective Date, hereinafter established, and shall continue until the Expiration Date, hereinafter established, or until the Maximum Grant Amount has been reached, or by Section Article IV 1.(b), unless terminated sooner or extended by mutual agreement of the Parties in the manner provided for herein. • ' it DEFINITIONS As used in this Agreement, the following terms shall have the meanings ascribed below. All undefined terms shall retain their usual and customary meaning as ascribed by common and ordinary usage. "Actual Total Improvement Costs" means the actual cost of the Public Improvements, as determined by the Construction Progress Reports, including appropriate road, water, wastewater, and drainage impact fees, as itemized in Exhibit "C" 2 1 P a g e Schertz 380 4835 - 7078 -5146, v. 1 `Bankruptcy" or "Insolvency" shall mean the dissolution or termination of a Party's existence as a going business, insolvency, appointment of receiver for any parry of such Party's property and such appointment is not terminated within ninety (90) days after such appointment is initially made, any general assignment for the benefit of creditors, or the commencement of any proceeding under any bankruptcy or insolvency laws by or against such party and such proceeding is not dismissed within ninety (90) days after the filing thereof. "Effective Date" shall mean the date Developer closes on the purchase of the Property, which must occur on or before December 7, 2018, however, this date may be extended thirty (30) days if agreed to in writing by the Parties. "Expiration Date" shall mean the earlier of: 1. The City's reimbursement of the Maximum Grant Amount to Developer; or 2. Ten (10) years from the Effective Date of this Agreement, however, the Agreement will automatically renew for two (2) additional five (5) year periods if Developer has not yet received the Maximum Grant Amount; or 3. The date of termination, provided for under Article VIII of this Agreement. "Estimated Total Improvement Cost" means the estimated cost of the Public Improvements, including appropriate road, water, wastewater, and drainage impact fees, in the amount of Three Hundred Ninety Five Thousand Eight Hundred and Sixty Seven United States Dollars ($395,867.00) as reflected on Exhibit "C ". "Force Majeure: shall mean any contingency or cause beyond the reasonable control of a party, including, without limitation, acts of God or the public enemy, war riot, civil commotion, insurrection, government or de facto governmental action (unless caused by the intentionally wrongful acts or omissions of a party), fires, explosions or floods, strikes, slowdowns or work stoppages. "Fiscal Year" shall mean October 1st of any given calendar year through September 30th of any given following calendar year. Gender: The gender of the wording throughout this Agreement shall always be interpreted to mean either sex, and where the context requires, the plural of any word shall include the singular. "Grant(s)" shall mean an amount equal to Thirty (30) percent of all Roadway Impact Fees collected by the City for Service Area 2 as identified its Capital Improvement Plan ( "SA 2 Impact Fees ") those funds to be reimbursed to the Developer. "Grant Period" shall mean a full calendar year beginning January 1 and ending December 31, except that the first Grant Period shall be from the City Acceptance Date of the Public Improvements through December 31 of the same year. 31 Page Schertz 380 4835 - 7078 -5146, v. 1 "Hard Costs" shall mean the actual, substantiated costs of construction, labor, and materials incurred by Developer for Public Improvements. "Maximum Grant Amount" shall mean an amount not to exceed Three Hundred Ninety Five Thousand Eight Hundred and Sixty Seven United States Dollars ($395,867.00). "Project" shall mean the complete development of the Public Improvements Project that shall comply, in substantial shape and form, with the Project Improvements Site Plan, attached hereto as Exhibit "B" "Property" shall mean the real property described in Exhibit "A" upon which the majority of the Project, authorized by this Agreement, shall be constructed. "Public Improvements" shall collectively mean the improvements constructed by the Developer for the purpose of improving Ripps Kreusler and adjacent areas, including, but not limited to, drainage, utilities, traffic signals, and sidewalks as more particularly described in the Project hmprovements Site Plan, attached hereto as Exhibit "B ". "Soft Costs" shall mean architectural, engineering, and legal fees incurred by Developer for Public Improvements. "State of Texas" shall mean the Office of the Texas Comptroller, or its successor. ARTICLE IV ECONOMIC DEVELOPMENT GRANTS 1. Grants a. City's Contribution In consideration of the obligations incurred by the Developer pursuant to this Agreement, the City agrees to participate in the funding of the actual construction costs of the public improvements listed in Exhibit "C" said amount to be no more than $395,867.00 ( "City Contribution "). Actual costs are to be verified by submission of receipts and invoices. The contingency amount listed in Exhibit "C" may only be used upon written agreement by the City. b. Reimbursement of City's Contribution City's Contribution shall be reimbursed to the Developer from the Roadway Impact Fees collected by the City for Service Area 2 as identified its Capital Improvement Plan ( "SA 2 Impact Fees "). City shall reimburse Developer an amount equal to Thirty (30) percent of all SA 2 Impact Fees collected on an annual basis until the Developer has been reimbursed in full for an amount equal to the City's Contribution. The reimbursement to the Developer will be paid 41 Page Schertz380 4835 - 7078 -5146, v. 1 to the Developer by January 31 for the preceding year. (i.e. The reimbursement of any SA Impact Fees collected by the City in 2018 would be paid to the Developer by January 31, 2019.) Current Revenue. The Grants made hereunder shall be paid solely from lawfully available funds that have been appropriated by the City. Such funds shall be further limited to SA 2 Impact Fees for the applicable Grant Period consummated at the Project. Under no circumstances shall City's obligations hereunder be deemed to create any debt within the meaning of any constitutional or statutory provision. The Grant shall be paid solely from appropriations from funds of the City as may be legally set aside for such purpose consistent with Article III, Section 52(a) of the Texas Constitution. Further, City shall not be obligated to pay any commercial bank lender or similar institution for any loan or credit agreement made by Developer. None of the City's obligations under this Agreement shall be pledged or otherwise encumbered in favor of any commercial lender and /or similar financial institution. ARTICLE V The obligation of the City to pay GRANTS shall be conditioned upon Developer's continued compliance with and satisfaction of each of the conditions set forth in this Agreement. 1. Developer shall have fully completed all of the Public Improvements in substantial accordance with the Project Improvement Site Plan as set forth in Exhibit "B ". 2. Payment Requirement. Developer shall, as a condition precedent to the payment of any GRANT, provide the City with a Payment Request in suitable form for the applicable GRANT period. 3. Construction Progress Reports. Beginning Developer shall deliver to City the following reports: (a) Certified invoices of actual Hard and Soft Costs incurred by Developer to complete the Public Improvements described in Article V.1, including a proposed completion date. 4. Recapture. In the event of default, the City shall, after providing Developer notice and an opportunity to cure, have the right to recapture all GRANTS provided to Developer. The recapture of any GRANTS from Developer shall be in like manner and subject to the same penalties as provided by Article X(17) hereof. 5. Guidelines for Submission. The City Manager shall develop guidelines setting forth the specific details and procedural requirements for the timely submission of Payment Requests and the disbursement of grants pursuant to this Agreement. Such guidelines shall be implemented by written order signed by the City Manager. 6. Additional Request for Improvements. The City may request Developer to undertake construction of improvements in addition to the Public Improvements set out in 5 1 P a g e Schertz380 4835 - 7078 -5146, v. 1 Exhibit B. In such event, Developer shall institute necessary change orders, with its contractors, to facilitate the requested construction, provided: (a) The request is limited to improvements to public facilities such as streets, sidewalks, drainage, water or sewer facilities; and (b) The City agrees to pay Developer for all actual costs expended for the additional work within 30 days of receipt of invoice; and (c) The scope of work and terms of payment shall be more fully set out in an Addendum to this Agreement, that shall be executed by City and Developer (contemporaneously with the City's submittal and Developer's acceptance of the request); and (d) The Addendum, reference immediately above complies with the requirements of Texas Local Government Code Section 212.072, including but not limited to: Except in the case of oversizing, the cumulative costs of improvements authorized by the Addendum or Addendums does not exceed thirty percent (30 %) of the total Public Infrastructure Costs; or ii. If the City request oversizing of an improvement, which is authorized by this Agreement as a Public Improvement, the cumulative costs of improvements authorized by the Addendum or Addendums does not exceed one - hundred percent (100 %) of the cost to oversize the Public Infrastructure." ARTICLE VI COVENANTS AND DUTIES 1. Developer's Covenants and Duties. Developer makes the covenants and warranties to the City and agrees to timely and fully perform the obligations and duties contained in Article V of this Agreement. Any false or substantially misleading statements contained herein or failure to timely and fully perform those obligations and duties within this Agreement shall be an act of Default by the Developer. (a) Developer is authorized to do business and is in good standing in the State of Texas and shall remain in good standing in the State of Texas and the United States of America during any term of this Agreement. (b) The execution of this Agreement has been duly authorized by Developer's authorized agent, and the individual signing this Agreement is empowered to execute such Agreement and bind the entity. Said authorization, signing, and binding effect is not in contravention of any law, rule, regulation, or of the provisions of Developer's by -laws, or of any agreement or instrument to which Developer is a party to or by which it may be bound. (c) Developer is not a party to any bankruptcy proceedings currently pending or contemplated, and Developer has not been informed of any potential involuntary bankruptcy proceedings. (d) To its current, actual knowledge, Developer has acquired and maintained all necessary rights, licenses, permits, and authority to carry on its business in the 6 1 P a g e Schertz380 4835 - 7078 -5146, v. 1 City and will continue to use its best efforts to maintain all necessary rights, licenses, permits, and authority. (e) Developer shall timely and fully comply with all of the terms and conditions of this Agreement. (0 Developer agrees to complete, or cause to be completed, the Public Improvements described herein at its sole cost and expense. Developer also agrees to obtain or cause to be obtained, all necessary permits and approvals from City and /or all other governmental agencies having jurisdiction over the construction of Public Improvements to the Property. (g) To the extent not already attached to this Agreement as Exhibit "B," Developer agrees to prepare, or cause to be prepared, plans and specifications for the Public Improvements prior to starting any construction. (h) Developer agrees to supervise the construction of the Project and cause the construction to be performed substantially in accordance with the Public Improvements approved by the City in accordance with federal, state and local laws and ordinances and this Agreement. (i) Developer shall be responsible for paying, or causing to be paid, to City and all other governmental agencies the cost of all applicable permit fees and licenses required for construction of the Project. Developer agrees to develop the Project in accordance with the ordinances, rules, and regulations of the City in effect on the date the Project was designated, unless specified otherwise in this Agreement. Developer, in its sole discretion, may choose to comply with any or all City rules promulgated after the Effective Date of this Agreement. 0) Developer agrees to commence and complete the Project in substantial accordance with the Project Improvements Site Plan. (k) Developer shall, at its own cost and expense, maintain or cause to be maintained, the Public Improvements and all the other public improvements identified within Exhibit "B" until acceptance by the City, as evidenced by written acceptance by the City Manager, and for one year thereafter. After the expiration of one (1) year after such acceptance, maintenance of all Public Improvements, except streets and roads, public utilities, medians, traffic signals, and sidewalks, shall be the responsibility of Developer, and the City will assume responsibility for all publicly- dedicated streets and roads. Developer, its agents, employees, and contractors will not interfere with reasonable use of all the Public Improvements by the general public, except for drainage retention improvements. Developer shall dedicate streets and roads to the City at no additional cost or expense to City within sixty (60) days after completion and acceptance of the Public Improvements. (1) Developer shall cooperate with City in providing all necessary information to assist City in complying with this Agreement. (m) The cost of the Public Improvements and all other improvement expenses associated with the Project shall be funded through the use of Developer's own capital or through credit secured solely by the Developer. The Developer may use 7 1 P a g e Schertz380 4835 - 7078 -5146, v. 1 any or part of the Property as collateral for the construction loan or loans as required for the financing of the Project; however, no property with a lien still attached may be offered to the City for dedication. In the event property is dedicated to the City with a lien attached; and Developer does not cure such lien within the period prescribed in section 3 of this Article, Developer shall be in breach of this Agreement. (n) In accordance with Texas Government Code section 2264.051 Developer certifies that it, and all branches, divisions or departments of Developer do not and will not knowingly employ an undocumented worker, as that term is defined in the section. (o) Developer shall submit written annual reports, starting no later than thirty (30) days following the end of the fiscal year in which the Project was created, and thereafter through the duration of the Project, on its construction progress and construction expenses to City. (p) Developer shall diligently work to complete successfully any and all required Public Improvements that are not completed before the Project terminates. Such completion shall be at no additional cost to the City. (q) Developer shall pay, or cause to be paid, monthly rates and charges for all utilities (such as water, electricity, and sewer services) used by Developer in regard to the development of the Project, the Property for all areas owned by Developer during construction of the Project, and for so long as Developer owns those areas. (r) Developer Bears Risk of Reimbursement. Developer represents that it understands that any contributions made by Developer in anticipation of reimbursement from Grant Funds shall not be, nor shall be construed to be, financial obligations of the City. Developer shall bear all risks associated with reimbursement. 2. City's Covenants and Duties. (a) Grant Pam. The City is obligated to pay Developer an amount not to exceed the Maximum Grant Amount from sources contemplated by this Agreement over a period not to exceed the Expiration Date, subject to Developer's timely and full satisfaction of all applicable duties and terms within this Agreement, as reasonably determined by the City Council of the City of Schertz, Texas. Further, City's obligations to pay Developer shall cease upon the earlier of. (1) payment in full of the Maximum Grant Amount; (2) reaching the Agreement's Expiration Date; or (3) Default by Developer. 3. Substantial Compliance and Default. Failure by either Party to timely and substantially comply with any performance requirement, duty, or covenant shall be considered an act of Default if uncured within sixty (60) days of receiving written notice from the other Party. Failure of Developer to timely and substantially cure a default will give the City the right to terminate this Agreement, as reasonably determined by the City Council of the City of Schertz, Texas. 8 1 P a g e Schertz 380 4835 - 7078 -5146, v. 1 ARTICLE VII I . Plan. As stated previously, the Project shall be developed in substantial accordance with the Project Improvements Site Plan, attached hereto as Exhibit "B ". Developer may submit an updated Project Improvements Site Plan after the Effective Date of this Agreement, provided however, that the amended Project Improvements Site Plan is approved by the City. 1. Termination. This Agreement shall terminate upon the earliest occurrence of any one or more of the following: (a) The written agreement of the Parties; (b) Upon ten (10) days written notice from Developer to City, if by December 7, 2018, Developer has not taken fee simple title to the Property by that date, however, this date may be extended thirty (30) days if agreed to in writing by the Parties; (c) The Agreement's Expiration Date; (d) In accordance with Section Article IV l.(b); (e) Default by Developer; or (f) The Payment of the Maximum Grant Amount. 2. Termination by Maximum Grant Amount. If the Agreement is terminated by reaching the Maximum Grant Amount, the City is required to issue a letter to the Developer stating that the Maximum Grant Amount has been reached. 3. Termination by Failure to Perform. If the Developer does not complete the public improvements and they are not accepted by the City within 18 months of the execution of this agreement subject to any delay caused by a Force Majeure event, the agreement shall be considered terminated and no Grant funds will be paid. Additional time may be granted only upon written approval by the City Manager. 4. Extension Beyond Term and Reimbursement. Notwithstanding any other provision of this Agreement to the contrary, the Expiration Date of this Agreement will be extended until Developer has received the Maximum Grant Amount, provided that such extension shall continue no more than five years beyond the Expiration Date provided in this Agreement. ARTICLE 1. Mediation. If a dispute arises out of or relates to this Agreement or the breach thereof, the Parties shall first in good faith seek to resolve the dispute through negotiation 91Page Schertz 380 4835 - 7078 -5146, v. 1 between the upper management of each respective Party. If such dispute cannot be settled through negotiation, the Parties agree to try in good faith to settle the dispute by mediation under the Commercial Mediation Rules of the American Arbitration Association, San Antonio, Texas, before resorting to arbitration, litigation, or some other dispute resolution procedure; provided that a Party may not invoke mediation unless it has provided the other Party with written notice of the dispute and has attempted in good faith to resolve such dispute through negotiation. Notwithstanding the foregoing, any Party may seek immediate equitable relief, without attempting to settle a dispute through mediation, in any case where such Party is entitled to equitable relief by law, the terms of the Agreement, or otherwise. All costs of negotiation, mediation, and arbitration collectively known as alternate dispute resolution ( "ADR ") shall be assessed equally between the City and Developer with each party bearing their own costs for attorneys' fees, experts, and other costs of ADR and any ensuing litigation. 2. During the term of this Agreement, if Developer files and / or pursues an adversarial proceeding against the City regarding this Agreement without first engaging in good faith mediation of the dispute, then, at the City's option, all access to the Grants provided for hereunder may be deposited with a mutually acceptable escrow agent that will deposit such finds in an interest bearing account until the resolution of such adversarial proceeding. 3. Under no circumstances will the Grant funds received under this Agreement be used, either directly or indirectly, to pay costs or attorney fees incurred in any adversarial proceeding regarding this Agreement against City. ARTICLE X MISCELLANEOUS I . Binding Agreement. The terms and conditions of this Agreement shall be binding on and inure to the benefit of the City, Developer, and their respective successors and assigns. The City Manager shall be responsible for the administration of this Agreement and shall have the authority to execute any instruments, duly approved by the City Council of the City of Schertz, Texas, on behalf of the City related thereto. Notwithstanding any other provision of this Agreement to the contrary, performance of either Party under this Agreement is specifically contingent on Developer obtaining fee simple title to the Property on or before December 7, 2018, however, this date may be extended thirty (30) days if agreed to in writing by the Parties. In the event Developer has not taken fee simple title to the Property by such date, or such date as amended as described above, Developer may, in its sole absolute discretion, upon ten (10) days written notice to City, terminate this Agreement, whereupon the Parties shall have no further obligation to one another under this Agreement. 2. Mutual Assistance. City and Developer will do all things reasonably necessary or appropriate to carry out the terms and provisions of this Agreement and to aid and assist each other in carrying out such terms and provisions. 3. Representations and Warranties. City represents and warrants to Developer that this Agreement is within their authority, and that they are duly authorized and empowered to enter into this Agreement, unless otherwise ordered by a court of competent jurisdiction. 101Page Schertz380 4835 - 7078 -5146, v. 1 Developer represents and warrants to the City that it has the requisite authority to enter into this Agreement. 4. Assi ng ment. Developer shall have the right to assign all of its rights, duties, and obligations under this Agreement to a duly qualified third party with prior written approval of the City Council of the City of Schertz, Texas. Any assignment provided for herein shall not serve to enlarge or diminish the obligations and requirements of this Agreement, nor shall they relieve Developer of any liability to the City including any required indemnity in the event that any Assignee hereof shall at any time be in default of the terms of this Agreement. The City may demand and receive adequate assurance of performance including the deposit or provision of financial security by any proposed Assignee prior to its approval of an assignment. 5. Independent Contractors. (a) It is expressly understood and agreed by all Parties hereto that in performing their services hereunder, Developer at no time will be acting as an agent of the City and that all consultants or contractors engaged by Developer respectively will be independent contractors of Developer; and nothing contained in this Agreement is intended by the Parties to create a partnership or joint venture between the Parties and any implication to the contrary is hereby expressly disavowed The Parties hereto understand and agree that City will not be liable for any claims that may be asserted by any third party occurring in connection with services performed by Developer respectively under this Agreement, unless any such claims are due to the fault of the City. (b) By entering into this Agreement, the Parties do not waive, and shall not be deemed to have waived, any rights, immunities, or defenses either may have, including the defense of parties, and nothing contained herein shall ever be construed as a waiver of sovereign or official immunity by the City with such rights being expressly reserved to the fullest extent authorized by law and to the same extent which existed prior to the execution hereof. (c) No employee of City, or any councilmember or agent of City, shall be personally responsible for any liability arising under or growing out of this Agreement. 6. Notice. Any notice required or permitted to be delivered hereunder shall be deemed delivered by actual delivery, facsimile with receipt confirmation, or by depositing the same in the United States Mail, postage prepaid and certified with return receipt requested, addressed to the Party at the address set forth below: If intended for City: City of Schertz 1400 Schertz Pkwy Schertz, Texas 78154 Attn: City Manager I I I P a g e Schertz 380 4835 - 7078 -5146, v. 1 With a copes: Denton, Navarro, Rocha, Bernal & Zech, PC Attention: T. Daniel Santee 2517 North Main Avenue San Antonio, TX 78212 If to the Developer: Babcock Road 165, Ltd. 6101 Holiday Hill Road Midland, Texas 79707 Attn: Charles F. Hedges, Jr. With a copy to: Barton Benson Jones PLLC Attention: Buck Benson 745 E. Mulberry Suite 550 San Antonio, TX 78212 Either Party may designate a different address at any time upon written notice to the other Party. 7. Governmental Records. All invoices, records and other documents required for submission to the City pursuant to the terms of this Agreement are Governmental Records for the purposes of Texas Penal Code Section 37.10 8. Governing Law. The Agreement shall be governed by the laws of the State of Texas, and the venue for any action concerning this Agreement shall be in Guadalupe County, Texas. The Parties agree to submit to the personal and subject matter jurisdiction of said court. 9. Amendment. This Agreement may be amended by mutual written agreement of the Parties, as approved by the City Council of the City of Schertz, Texas. 10. Legal Construction. In the event any one or more of the provisions contained in this Agreement shall, for any reason, be held invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect other provisions of this Agreement, and it is the intention of the Parties to this Agreement that, in lieu of each provision that is found to be illegal, invalid, or unenforceable, a provision be added to this Agreement which is legal, valid and enforceable and is as similar in terms as possible to the provision found to be illegal, invalid, or unenforceable. 11. Interpretation. Each of the Parties has been represented by counsel of their choosing in the negotiation and preparation of this Agreement. Regardless of which Party prepared the initial draft of this Agreement, this Agreement shall, in the event of any dispute, whatever its meaning or application, be interpreted fairly and reasonably and neither more strongly for or against any Party. 121 Page Schertz380 4835 - 7078 -5146, v. 1 12. Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter covered in this Agreement. There is no other collateral oral or written agreement between the Parties that, in any manner, relates to the subject matter of this Agreement, except as provided for in any Exhibits attached hereto or duly approved amendments to this Agreement, as approved by the City Council of the City of Schertz, Texas. 13. Paragraph Headings. The paragraph headings contained in this Agreement are for convenience only and will in no way enlarge or limit the scope or meaning of the various and several paragraphs. 14. Counterparts. This Agreement may be executed in counterparts. Each of the counterparts shall be deemed an original instrument, but all of the counterparts shall constitute one and the same instrument. 15. Exhibits. Any Exhibits attached hereto are incorporated by reference for all purposes. 16. Survival of Covenants. Any of the representations, warranties, covenants, and obligations of the Parties, as well as any rights and benefits of the Parties, pertaining to a period of time following the termination of this Agreement shall survive termination. 17. Employment of Undocumented Workers. During the term of this Agreement, Developer agrees to not knowingly employ any undocumented workers, and, if convicted of a violation under 8 U.S.C. Section 1324a(1), Developer shall be in Default and repay the amount of the Grants and any other funds received by Developer from the City as of the date of such violation within one hundred twenty (120) days after the date Developer is notified by the City of such violation, plus interest at the rate of six percent (6.00 %) compounded annually from the date of the violation until paid in full. Developer is not liable for an unknown violation of this Section by a subsidiary, affiliate, or franchisee of Developer or by a person with whom Developer contracts provided however that identical federal law requirements provided for herein shall be included as part of any agreement or contract which Developer enters into with any subsidiary, assignee, affiliate, or franchisee for which Grants provided herein will be used. 18. Indemnification. 131Page Schertz 380 4835 - 7078 -5146, v. 1 19. Additional Instruments. City and Developer agree and covenant to cooperate, negotiate in good faith, and to execute such other and further instruments and documents as may be reasonably required to fulfill the public purposes provided for and included within this Agreement. 20. Future permits. Developer acknowledges that the inclusion of the Project Improvements Site Plan and Public Improvements Cost Itemization, as Exhibits "B" and "C" herein, in no way infers the City's approval of any aspect of the proposed Project; but, rather, such exhibits represent certain requirements for Developer's eligibility to receive Grant payments under this Agreement. All aspects of the Project must comply with applicable provisions of the City's Code of Ordinances, Unified Development Code, and other codes as may have been adopted by the City, in order to obtain necessary approvals of officers or staff of the city under the review processes set out in such codes. 21. Disclosure of Business Relationships /Affiliations; Conflict of Interest Questionnaire. Developer represents that it is in compliance with the applicable filing and disclosure requirements of Chapter 176 of the Texas Local Government Code, Conflicts of Interest Questionnaire and Chapter 2252 of the Texas Government Code, Form 1295 Certificate of interested Parties online filing with the Texas Ethics Commission. 22. Boycott Israel requirement. Pursuant to State law, the Developer recognizes that City may not enter into a contract with a company for goods and services unless the contract contains a written verification from the company that it; (i) does not boycott Israel; and (ii) will not boycott Israel during the term of the contract (Texas Government Code, Chapter 2270.002). As such, the Developer hereby verifies that it does not boycott Israel, and agrees that, during the term of this Agreement, will not boycott Israel as that term is defined in the Texas Government Code, Section 808.001, as amended. Further, the Developer hereby certifies that it is not a company identified under Texas Government Code, Section 2252.152 as a company engaged in business with Iran, Sudan, or Foreign Terrorist Organization. Executed on this day of 2018. CITY OF SCHERTZ, TEXAS IN ATTEST: 141Page Schertz 380 4835 - 7078 -5146, v. 1 City Secretary APPROVED ONLY AS TO FORM: City Attorney Babcock Road 165, Ltd., a Texas limited partnership BY: Fasken Management, LLC, a Texas limited liability company, Its General Partner C Charles F. Hedges, Jr., Senior Vice President 151Page Schertz380 4835 - 7078 -5146, v. 1 Exhibit "A" Legal Description of the Property Exhibit "B" Project Improvements Site Plan Exhibit "C" Public Improvements Cost Itemization 161Page Schertz380 4835 - 7078 -5146, v. 1