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20-R-52 - agreement with the Developer of the Homstead Subdivision project for reimbursement of costs associated with easement acquisitionRESOLUTION NO. 20 -R -52 A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS AUTHORIZING AN AGREEMENT WITH THE DEVELOPER OF THE HOMESTEAD SUBDIVISION PROJECT FOR THE REIMBURSMENT OF COSTS ASSOCIATED WITH EASEMENT ACQUISITION NECESSARY FOR PUBLIC IMPROVEMENTS. WHEREAS, there is a lack of sewer service to serve an area of northern Schertz near the intersection of IH -35 and Schwab road. WHEREAS, the sewer forcemain improvements offsite sewer improvements are needed to provide adequate sewer service to these areas and there is limited space to provide this public infrastructure. WHEREAS, the Developer of the Homestead Subdivision agrees to construct sewer infrastructure of which the capacity is more than is required by the Homestead property, WHEREAS, there is a benefit to oversizing sewer infrastructure to serve other properties, WHEREAS, the Developer of the Homestead Subdivision has acquired some of the easements necessary for construction of the sewer improvements, but has not been able acquire them all, and WHEREAS, the Developer of the Homestead Subdivision has requested the City assist in acquiring the remaining easements, WHEREAS, the City Council finds that it is in the best interest of the City to enter into the Agreement with Developer for acquisition of the easement necessary for the construction of Public Improvement in order to provide the infrastructure to serve other properties outside the boundary of the proposed Homestead Subdivision plat. 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 execute the agreement with Developer for easement acquisition associate with construction of Public Improvement with ELF N -T Owner, LP for infrastructure that will serve properties outside of the Homestead Subdivision and to defer construction of public improvements, generally in the form attached, 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. PASSED AND ADOPTED, this 26th day of May, 2020. ATTEST: l City Secretary, Brenda Dennis CITY OF SCHERTZ, TEXAS - 1#-49 Ma r al utierrez -2- After Recording:. Please Return To: Denton Navarro Rocha Bernal & Zech, P.C. 2517 N. Main Avenue San Antonio, Texas 78212 Attention: T. Daniel Santee STATE OF TEXAS KNOW ALL PERSONS BY THESE PRESENTS: COUNTY OF COMAL IMPROVEMENT AGREEMENT HOMESTEAD SUBDIVISION — PUBLIC IMPROVEMENTS EASEMENT ACQUISITION REIMBURSEMENT This IMPROVEMENT AGREEMENT (the "Agreement ") is by and between ILF N -T Owner, LP, a Delaware limited partnership (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, and Guadalupe County, Texas, more specifically described on Exhibit A , attached hereto and made a part hereof for all purposes (the "EL op " or "Subdivision "); WHEREAS, the Owner seeks to continue to develop the Property and such development requires the construction of certain public improvements: and WHEREAS, there is a lack of sewer service to an area of northern Schertz near the intersection of IH -35 and Schwab Road; and, WHEREAS, the sewer forcemain improvements offsite sewer improvements are needed to provide adequate sewer service to these areas and there is limited space to provide this public infrastructure; and WHEREAS, the Owner agrees to construct sewer infrastructure of which the capacity is more than is required by the Homestead property; and WHEREAS, there is a benefit to oversizing sewer infrastructure to serve other properties; and WHEREAS, the Owner has acquired some of the easements necessary for construction of the sewer improvements, but has not been able acquire them all, and WHEREAS, the City finds that it is in the best interest of the City to enter into the Agreement with the Owner for acquisition of the easement necessary for the construction of Public Improvement in order to provide the infrastructure to serve other properties outside the boundary of the proposed Homestead Subdivision plat: 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 Properly. 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. Acquisition of Easements: 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, sewer improvements. b) Construction of the sewer improvements requires acquisition of offsite easements and the Owner is required to bear the cost of easement acquisition. The Owner has not been able to acquire all of the necessary easements and has sought the City's assistance in acquiring the remaining easements see Exhibit B . The Owner agrees to reimburse the City for all costs associated with acquiring the easements, including but not limited to the acquisition price and attorney's fees. The Owner shall pay the City the amount required to purchase the easements in advance of the City closing on the purchase. 3. Approval of Agreement. The City has approved the execution and delivery of this Agreement pursuant to Section 21.4.15(C.)(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 Immuni(y. 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. 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. 7. Interation. 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: ILF N -T Owner, LP, a Delaware limited partnership 500 Boylston Street, Suite 2010 Boston, MA 02116 Attention: Mr. Jesse Baker, Authorized Signatory If to the Citv: CITY OF SCHERTZ 1400 Schertz Parkway Schertz, Texas 78154 Attention: City Manager With copy to: Denton Navarro Rocha Bernal & Zech, P.C. 2517 N. Main Avenue San Antonio, Texas 78212 Attention: T. Daniel Santee 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 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] Signature Page to Improvement Agreement This Improvement Agreement has been executed by the parties as of the dates of the Acknowledgments to be effective as of the Effective Date. Owner: ILF N -T OWNER, LP, A DELAWARE LIMITED PARTNERSHIP By: Name: Title: Date: THE STATE OF TEXAS § COUNTY OF § This instrument was acknowledged before me on the day of , 2020 by , the of ILF N -T Owner, LP on behalf of said limited partnership. (SEAL) Notary Public in and for The State of Texas My Commission Expires: Sitnature Page to Improvement Agreement This Improvement Agreement has been executed by the parties as of the dates of the Acknowledgments to be effective as of the Effective Date. Citjy: CITY OF SCHERTZ, a Texas municipal corporation Lo Name: Mark Browne, City Manager Date: THE STATE OF TEXAS COUNTY OF GUADALUPE This instrument was acknowledged before me on the day of , 2020 by Mark Browne, 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: EXHIBIT A The Property Legal Metes and Bounds and Master Plan [ See attached] EXHIBIT B The Easements [See attached]