21-R-92 - Excrow Agreement regarding sewer facilities with Quik Trip CorporationRESOLUTION NO. 21 -R -92
A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF
SCHERTZ, TEXAS AUTHORIZING AN EXCROW AGREEMENT
REGARDING SEWER FACILITIES WITH THE QUIK TRIP
CORPORATION, AND OTHER MATTERS IN CONNECTION
THEREWITH
WHEREAS, in order to file the plat for the QT 4032 Addition, the property owner is
required to construct certain public improvements as required by the City of Schertz Unified
Development Code; and
WHEREAS, one of those improvement is to extend a sewer line along the frontage of
Schwab Road, and
WHEREAS, that sewer line will not provide service for other properties until such time
as the City extends it under IH 35; and
WHEREAS, there is not currently funding or a timeline for the future extension under IH
35; and
WHEREAS, the City staff of the City of Schertz (the "City ") has recommended that the
City enter into an Escrow Agreement regarding Sewer Facilities associated with the Quik Trip
Development on Lot 1, Block 2 of the QT 4032 Addition; and
WHEREAS, the City Council has determined that it is in the best interest of the City to
enter into an Escrow agreement generally in the form as attached per Exhibit "A ".
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 an
escrow agreement with the owner of Lot 1, Block 2 of the QT 4032 Addition, generally as per
the attached Exhibit "A ".
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any provision of this Resolution are hereby repealed to the extent of such conflict, and the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.
50501288.1
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 24th day of August, 2021.
CITY OF SCHERTZ, TEXAS
May r, alp utierrez
ti
ATTEST:
.£ ty 9ecretary, BrencTa Dennis
(CITY
50501288.1
EXHIBIT A
AGREETMETN REGARDING CYPRESS POINT SEWER FACILITIES
50501288.1 B -1
EXHIBIT B
AGREEMENT FOR THE CONSTRUCTION OF WATER TRANSMISSION
MAIN IMPROVEMENTS
50501288.1 B -1
ESCROW AGREEMENT
THIS Escrow Agreement (this "Agreement ") made and entered into as of this
of August, 2021 by and among QT South LLC (the "Developer "), City of Schertz,
"City "), and Chicago Title San Antonio as Escrow Agent, a
organized and existing under the laws of the State of Texas ( "the Escrow Agent ").
RECITALS
day
Texas (the
WHEREAS, Developer and City have entered into an agreement whereby the City shall construct
certain Public Improvements within the next ten (10) years, to wit: an 8" sewer line for
1PEproximately 556 feet along the west boundary of Lot 1, Block 2 of the QT 4032 Addition,
adi acent to Schwab Road and 2 manholes (Exhibit A).
WHEREAS, Developer, rather that construct said improvements at this time, have agreed that it
is more beneficial to them to pay the estimated costs of the improvement, as shown on Exhibit B,
into an escrow account for the City to draw upon at such time the City determines it is in the City's
interest to construct the improvements.
WHEREAS, Escrow Agent hereby agrees to hold the Escrow Funds, pursuant to the terms of this
Agreement, for a period not to exceed ten (10) years from the date of deposit. Should the City not
draw upon the Escrowed Funds prior to the expiration of the ten (10) year terms, the Escrowed
Funds shall be returned to Developer or Developer's assigns.
AGREEMENT
NOW, THEREFORE, the Developer, the City and Escrow Agent agree to the terms of this
Agreement as follows:
I. Commencement of Duties. Simultaneously with the execution and delivery of this
Agreement, shall transfer to the Escrow Agent the aggregate sum of One Hundred Fifty Two
Thousand Dollars ($152,000) (the "Escrowed Funds "). Upon receipt of the Escrowed Funds and
after the parties' submission of all documentation required by the Escrow Agent to comply with
the Bank Secrecy Act, the duties, and obligations of each of the parties to this Agreement will
commence.
2. Operation of the Escrow.
With respect to any requested disbursement, the Developer and the CY (i) certify they have
reviewed any wire instructions set forth in such written disbursement direction to confirm such
wire instructions are accurate, (ii) agree to indemnify and hold harmless the Escrow Agent from
and against any and all claim, demand, loss, liability, or expense sustained, including but not
limited to attorney fees, and expenses resulting directly or indirectly as a result of making the
disbursement requested, and (iii) agree they will not seek recourse from the Escrow Agent as a
result of losses incurred by it for making the disbursement in accordance with the disbursement
direction.
City of Schertz Escrow Agreement Page 1 of 7
3. Escrowed Funds. Upon receipt of the Escrowed Funds, the Escrow Agent shall hold the
Escrowed Funds in escrow pursuant to the terms of this Agreement. Until such time as the
Escrowed Funds shall be distributed by the Escrow Agent as provided herein, unless the Escrow
Agent is otherwise directed in writing in a joint written investment direction signed by the
Dev_eller and the Cam, the Escrowed Funds shall be invested and reinvested by the Escrow Agent
in the fund. The parties hereto acknowledge that the Escrow Agent does not have
a duty, nor will it undertake any duty to provide investment advice.
(a) The Escrow Agent shall be entitled to sell or redeem any such investment as
necessary to make any distributions required under this Agreement and shall not be liable
or responsible for any loss resulting from any such sale or redemption.
(b) Income, if any, resulting from the investment of the Escrowed Funds shall be
retained by the Escrow Agent and shall be considered, for all purposes of this Agreement,
to be part of the Escrowed Funds.
4. Duties of the Escrow Agent. The Escrow Agent shall have no duties or responsibilities
other than those expressly set forth in this Agreement, and no implied duties or obligations shall
be read into this Agreement against the Escrow Agent. The Escrow Agent has no fiduciary or
discretionary duties of any kind. The Escrow Agent is not a parry to, or bound by, the Purchase
Agreement or any other agreement among the other parties hereto, and the Escrow Agent's duties
shall be determined solely by reference to this Agreement. The Escrow Agent shall have no duty
to enforce any obligation of any person, other than as provided herein. The Escrow Agent shall be
under no liability to anyone by reason of any failure on the part of any party hereto or any maker,
endorser or other signatory of any document or any other person to perform such person's
obligations under any such document.
5. Liability- of the Escrow Agent; Indemnification. The Escrow Agent acts hereunder as a
depository only. The Escrow Agent is not responsible or liable in any manner for the sufficiency,
correctness, genuineness, or validity of this Escrow Agreement or with respect to the form of
execution of the same. The Escrow Agent shall not be liable for any action taken or omitted by it,
or any action suffered by it to be taken or omitted, in good faith, and in the exercise of its own best
judgment, and may rely conclusively and shall be protected in acting upon any order, notice,
demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent),
statement, instrument, report or other paper or document (not only as to its due execution and the
validity and effectiveness of its provisions, but also as to the truth and acceptability of any
information therein contained) which is believed by the Escrow Agent to be genuine and to be
signed or presented by the proper person(s). The Escrow Agent shall not be held liable for any
error in judgment made in good faith by an officer or employee of the Escrow Agent unless it shall
be proved that the Escrow Agent was grossly negligent in ascertaining the pertinent facts or acted
intentionally in bad faith. The Escrow Agent shall not be bound by any notice of demand, or any
waiver, modification, termination or rescission of this Agreement or any of the terms hereof, unless
evidenced by a writing delivered to the Escrow Agent signed by the proper party or parties and, if
the duties or rights of the Escrow Agent are affected, unless it shall give its prior written consent
thereto. In no event shall the Escrow Agent be liable for incidental, indirect, special, consequential
or punitive damages or penalties (including, but not limited to lost profits), even if the Escrow
City of Schertz Escrow Agreement Page 2 of 7
Agent has been advised of the likelihood of such damages or penalty and regardless of the form of
action. The Escrow Agent shall not be responsible for delays or failures in performance resulting
from acts beyond its control, including without limitation acts of God, strikes, lockouts, riots, acts
of war or terror, epidemics, governmental regulations, fire, communication line failures, computer
viruses, power failures, earthquakes, or other disasters. The Escrow Agent shall not be obligated
to take any legal action or commence any proceeding in connection with the Escrowed Funds, any
account in which Escrowed Funds are deposited, this Agreement or any other agreement, or to
appear in, prosecute or defend any such legal action or proceeding.
The Escrow Agent may consult legal counsel in the event of any dispute or question as to the
construction of any provisions hereof or its duties hereunder, and it shall incur no liability and shall
be fully protected in acting in accordance with the opinion or instructions of such counsel.
The Escrow Agent shall not be responsible, may conclusively rely upon and shall be protected,
indemnified and held harmless by Develoijer and Ci_yt , acting jointly and severally, for the
sufficiency or accuracy of the form of, or the execution, validity, value or genuineness of any
document or property received, held or delivered by it hereunder, or of the signature or
endorsement thereon, or for any description therein; nor shall the Escrow Agent be responsible or
liable in any respect on account of the identity, authority or rights of the persons executing or
delivering or purporting to execute or deliver any document, property or this Agreement.
In the event that the Escrow Agent shall become involved in any arbitration or litigation relating
to the Escrowed Funds, the Escrow Agent is authorized to comply with any decision reached
through such arbitration or litigation.
Developer and Citv, jointly and severally, hereby agree, to the extent permitted by law, to
indemnify the Escrow Agent and each direction, officer, employee, attorney, agent and affiliate of
the Escrow Agent for, and to hold it harmless against any loss, liability or expense incurred in
connection herewith without gross negligence or willful misconduct on the part of the Escrow
Agent, including without limitation legal or other fees arising out of or in connection with its
entering into this Agreement and carrying out its duties hereunder, including without limitation
the costs and expenses of defending itself against any claim of liability in the premises or any
action for interpleader. The Escrow Agent shall be under no obligation to institute or defend any
action, suit, or legal proceeding in connection herewith, unless first indemnified and held harmless
to its satisfaction in accordance with the foregoing, except that the Escrow Agent shall not be
indemnified against any loss, liability or expense arising out of its own gross negligence or willful
misconduct as finally determined by a court of competent jurisdiction, subject to no further appeal.
Such indemnity shall survive the termination or discharge of this Agreement or resignation of the
Escrow Agent.
6. The Escrow Agent's Fee. Escrow Agent shall be entitled to fees and expenses for its
regular services as Escrow Agent as set forth in Exhibit (C). Additionally, Escrow Agent is entitled
to fees for extraordinary services and reimbursement of any out of pocket and extraordinary costs
and expenses, including, but not limited to, attorneys' fees. Escrow Agent shall have a first lien
upon all Escrowed Funds for the purposes of paying its fees and expenses. All of the Escrow
Agent's compensation, costs and expenses shall be paid by Developer. Any fees and expenses shall
City of Schertz Escrow Agreement Page 3 of 7
be payable from and may be deducted by Escrow Agent from interest and/or principal of any
monies held in Escrowed Funds by Escrow Agent.
7. Security Interests. No party to this Escrow Agreement shall grant a security interest in any
monies or other property deposited with the Escrow Agent under this Escrow Agreement, or
otherwise create a lien, encumbrance or other claim against such monies or borrow against the
same.
8. Dispute. In the event of any disagreement between the undersigned or the person or persons
named in the instructions contained in this Agreement, or any other person, resulting in adverse
claims and demands being made in connection with or for any papers, money or property involved
herein, or affected hereby, the Escrow Agent shall be entitled to refuse to comply with any demand
or claim, as long as such disagreement shall continue, and in so refusing to make any delivery or
other disposition of any money, papers or property involved or affected hereby, the Escrow Agent
shall not be or become liable to the undersigned or to any person named in such instructions for
its refusal to comply with such conflicting or adverse demands, and the Escrow Agent shall be
entitled to refuse and refrain to act until: (a) The rights of the adverse claimants shall have been
fully and finally adjudicated in a Court assuming and having jurisdiction of the parties and money,
papers and property involved herein or affected hereby, or (b) All differences shall have been
adjusted by agreement and the Escrow Agent shall have been notified thereof in writing, signed
by all the interested parties.
9. Resit!i7ation of Escrow Agent. Escrow Agent may resign or be removed, at any time, for
any reason, by written notice of its resignation or removal to the proper parties at their respective
addresses as set forth herein, at least thirty (30) days before the date specified for such resignation
or removal to take effect; upon the effective date of such resignation or removal:
(a) All cash and other payments and all other property then held by the Escrow Agent
hereunder shall be delivered by it to such successor Escrow Agent as may be designated in
writing by the Developer and the City, whereupon the Escrow Agent's obligations
hereunder shall cease and terminate.
(b) If no such successor Escrow Agent has been designated by such date, all obligations
of the Escrow Agent hereunder shall, nevertheless, cease and terminate, and the Escrow
Agent's sole responsibility thereafter shall be to keep all property then held by it and to
deliver the same to a person designated in writing by the Developer and the City or in
accordance with the directions of a final order or judgment of a court of competent
jurisdiction.
(c) Further, if no such successor Escrow Agent has been designated by such date, the
resigning or removed Escrow Agent may petition any court of competent jurisdiction for
the appointment of a successor agent. In such instance, the resigning or removed Escrow
Agent may pay into court all monies and property deposited with Escrow Agent under this
Agreement.
City of Schertz Escrow Agreement Page 4 of 7
10. Notices. All notices, demands and requests required or permitted to be given under the
provisions hereof must be in writing and shall be deemed to have been sufficiently given, upon
receipt, if (i) personally delivered, (ii) sent by telecopy and confirmed by phone or (iii) mailed by
registered or certified mail, with return receipt requested, delivered as follows:
If to City: CITY OF SCHERTZ
1400 Schertz Parkwa
Schertz, Texas 78154
Attention: Suzanne Williams
With copy to: Denton Navarro Rocha Bernal & Zech, P.C.
2517 N. Main Avenue
San Antonio, TX 78212
If to Developer:
Attention:
With a copy to:
If to the Escrow Agent Chicago Title San Antonio
270 N. Loop 1604 East Suite 100
San Antonio, Texas 78232
Attention: Dou Becker
ecker
11. Govemin i-� Law. This Agreement shall be construed and enforced in accordance with the
laws of the State of Texas without regard to the principles of conflicts of law.
12. Binding Effect: Benefit. This Agreement shall be binding upon and inure to the benefit of
the permitted successors and assigns of the parties hereto.
13. Modification. This Agreement may be amended, modified, or terminated at any time by a
writing executed by the Develope r, the Cam, and the Escrow Agent; provided the party making
such assignment provides written notice to the other parties hereto.
14. Counterparts. This Agreement may be executed in one or more counterparts, each of which
will be deemed an original, but all of which together will constitute one and the same instrument.
Copies, telecopies, facsimiles, electronic files, and other reproductions of original executed
documents shall be deemed to be authentic and valid counterparts of such original documents for
all purposes, including the filing of any claim, action, or suit in the appropriate court of law. The
parties hereto agree that the transactions described herein may be conducted and related documents
may be stored by electronic means.
City of Schertz Escrow Agreement Page 5 of 7
15. HeadinL,_s. The section headings contained in this Agreement are inserted for convenience
only, and shall not affect in any way, the meaning or interpretation of this Agreement.
16. Severabilitv_. This Agreement constitutes the entire agreement among the parties and
supersedes all prior and contemporaneous agreements and undertakings of the parties in
connection herewith. No failure or delay of the Escrow Agent in exercising any right, power or
remedy may be, or may be deemed to be, a waiver thereof, nor may any single or partial exercise
of any right, power or remedy preclude any other or further exercise of any right, power, or remedy.
In the event that any one or more of the provisions contained in this Agreement, shall, for any
reason, be held to be invalid, illegal, or unenforceable in any respect, then to the maximum extent
permitted by law, such invalidity, illegality or unenforceability shall not affect any other provision
of this Agreement.
17. Earnini7s Allocation: Tax Matters: Regulatoij• Compliance. The parties hereto agree that,
for tax reporting purposes, all interest or other income, if any, attributable to the Escrowed Funds
or any other amount held in escrow by the Escrow Agent pursuant to this Agreement shall be
allocable to the Developer. The Developer and the City agrees to provide the Escrow Agent
completed Forms W -9 (or Forms W -8, in the case of non -U.S. persons) and other forms and
documents that the Escrow Agent may reasonably request (collectively, "Tax Reporting
Documentation ") at the time of execution of this Agreement. Additionally, the parties hereto agree
that they will provide any information reasonably requested by the Escrow Agent to comply with
the USA Patriot Act of 2001, as amended from time to time, and the Bank Secrecy Act of 1970,
as amended from time to time (together the "Acts "), which information will be used to verify the
identities of the parties to ensure compliance with the terms of such Acts. The parties hereto
understand that if such Tax Reporting Documentation is not so certified to the Escrow Agent, the
Escrow Agent may be required by the Internal Revenue Code, as it may be amended from time to
time, to withhold a portion of any interest or other income earned on the investment of monies or
other property held by the Escrow Agent pursuant to this Escrow Agreement.
[SIGNATURE PAGES FOLLOW]
City of Schertz Escrow Agreement Page 6 of 7
Developer:
By:
Name:
Title:
City:
By:
Name: H 'V— �Ir�
Title:+
Escrow Agent:
By:
Name:
Title:
City of Schertz Escrow Agreement Page 7 of 7
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QT 4032 Sanitary Sewer Costs
Item
unit price
Qty
Units
Cost
Mobilization
$18,000.00
1
LS
$18,000.00
Ground Preparation
$0.00
1
LS
$0.00
8" PVC Sewer Line
$135.00
556
LF
$75,060.00
Manholes
$10,000.00
2
EA
$20,000.00
Trench Restoration
$62.34
556
LF
$34,661.04
Traffic Control
$4,500.00
1
1 LS
$4,500.00
Total: $152,221.04