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13-R-13 - Approved Forms, Community Facilities, Construction Performance, Performance EscrowRESOLUTION NO. 13-R-13 A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS AUTHORIZING FORMS OF A COMMUNITY FACILITIES AGREEMENT, CONSTRUCTION PERFORMANCE BOND, AND PERFORMANCE ESCROW AGREEMENT, AND OTHER MATTERS IN CONNECTION THEREWITH WHEREAS, the City staff of the City of Schertz (the "City") has recommended that the City Council approve template forms of a Community Facilities Agreement, a Construction Performance Bond, and a Performance Escrow Agreement to be utilized on routine projects when a developer proposes to provide security for the completion of public infrastructure improvements in a subdivision to allow the developer to record the plat of the subdivision; and do so. THAT: WHEREAS, tl~e City Council has determined that it is in the best interest of the City to BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS Section 1. The City Council hereby authorizes the City Manager (aj to connplete and execute and deliver Community Facilities Agreements from time to time with developers utilizing the format set forth on Exhibit A in order to comply with Section 21.4.15.F, of the City's Unified Development Code (the "UDC") and (b) to accept or enter into Construction Performance Bonds and Performance Escrow Agreements utilizing completed versions of the formats set forth in Exhibit B and Exhibit C, respectively, in order to comply with Section 21.3.15.6. of the UDC. (Exhibits A, B, and C are hereby designated the "City Foi7ns".) In addition, the City lVlanager may enter into Community Facilities Agreements and accept or enter into Construction Performance Bonds and Performance Escrow Agreements utilizing different forms of such instruments if the City Manager or his designee and the City Attorney determine that such alternative foams contain terms substantially similar to the City Foirris. Section 2. The recitals contained in the preamble hereof are hereby found to be true, and such recitals are hereby made a paz•t of this Resolution for all purposes and are adopted as a part of the judgment and findings of the City Council. Section 3. AlI resolutions, or parts thereof, which are in conflict or inconsistent with any provision of this Resolution are hereby repealed to the extent of such conflict, and the provisions of this Resolution shall be and remain controlling as to the matters resolved herein.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. .: _. -_. _ _ _ --- ~~ I - = 7 ~~ I ._ w . . . _ ~ . . . . . . . . . w . . . . . . . . . . . w . .. R EXHIBIT A FORM OF COMMUNITY FACILITIES AGREEMENT See attached sa~ozi~~.~ A-1 EXHIBIT B FORIYI OF PERFORMANCE BOND See attached so6oz~ i l.~ B-1 EXH~BYT C FORM OF PERFORMANCE ESCROW AGREEMENT See attached softoz i ~ i. i C-1 SCHERTZ CITY COUNCIL REGULAR SESSION HAL BALDWIN MUNICII'AL COMPLEX COUNCIL CHAMBERS 1400 SCHERTZ PARKWAY BUILDING #~l SCIIERTZ, TEXAS 7815 The City Council may, for its convenience or for the convenience of City Staff or persons in attendance, modify the order in which items an the agenda are considercd by the City Council. Call to Order - Re ular Session Invocation and Pledges of Allegiance to the Flays of the United States and State of Texas. {P~rstor Stephen Prescorl, Ch~rr~„~~,,....,_ ~-•~~•~•~~~~•~~~~~•~~._. rclt of the First Born) Ci~y Events antl Announcements Announcements of upcoming City Events (D. Harris/J. BiersclrwaleB. James} Anrrouneements and recognitions by City Manager (J. Kessel} Proclamation Proclamation recognizing the "Train a Dog/Save A Warrior Program" (Mayor Carpenter} Workshop Item • Discussion and direction regarding the final design of the Animal Adoption Center. (B. James/P. Gaudreau} Presentations • FY 2011-12 Comprehensive Annual Financial Report (CAFR} (J. KessellJ. Santoya & D. Fraser} Hearing of Residents This tune is set aside for• crny person r~~ho rs~ishes to address the Cr`ty Council. Each person should frll out the speaker's register pr•ior• to the meeting. Presentations should be limited to no more than 3 rninrrtes. 03-05-2013 Council Agenda All remarks shall be addressed to the Council as a body, acrd riot to arty individual nlenrber• thereof. Arly person ranking personal, impertinent, or slartderorrs remarks wflile addressing the Council may be req!lested to leave the meeting. Discussion by the Council of tray item not on the agenda shall be limited to statements of specif c factual information given in response to an}j inquiry, a r•ecitcrtion of existing policy in response to an inquiry, and/or a proposal to place the item on a firtarre agenda. The presiding offrcer•, dlrring the Hearing of Residents portion of the agenda, tivill call on those persons tivho have signed rrp to speak in the order they have registered. Consent Agenda Items The Consent Agenda is considered to be self-explanatory and will be enacted by the Council with one motion. There will be no separate discussion of these items unless they are removed from the Consent Agenda upon the request by the Mayor or a Councilmember. 1. Minutes -Consideration andlor action regarding the approval of the minutes of the Special Pre-Budget Workshop meeting of February 22, 2013, and the Regular Meeting of February 26, 2013. (J. KessellB. Dennis) 2. CAFR FY 2011-12 - Consideration and/or action regarding the FY 2011-12 Comprehensive Annual Financial Report {CAFR). {J. Kessel/J. Santoya & D. Fraser} 3. Resolution No. 13-R-14 -Consideration andlor action approving a Resolution authorizing an Interlocal Agreement with Guadalupe Regional Medical Center, and other matters in connection therewith. (.l. Bierschwale/S. Dyal) 4. Resolution No. 13-R-15 - Consideration andlor action approving a Resolution authorizing an Interlocal Agreement with Comal County District Attorney, and other ~r~atters in connection therewith. {J. Bierschwale/M. Harris) 5. Resolution No. 13-R-13 -Consideration andlor action approving a Resolution authorizing forms of a Community Facilities Agreement, Construction Performance Bond, and Performance Escrow Agreement and other matters in connection therewith. {B. JamesllVl. Spain) b. Ordinance No, 13-F-03 -Consideration andlor action approving Ordinance No. 13- F-03 Granting Cibolo Waste Incorporated, DBA Bexar Waste Inc., a Franchise for Municipal Solid Waste Collection, Recycling, and Household Hazardous Waste Collection and Disposal Program; imposing provisions and conditions relating to the exercise of sair~e; and providing for penalties not to exceed $200 for violation thereof; repealing all Ordinances or parts of Ordinances in conflict with this Ordinance. Final Reading {J. Bierschwale/S. Willoughby) Roll Call Vote Confirmation Executive Session 03-05-2©13 Cite Council tlgenda Page _ 2 - Called under: Section 551.071 Texas Government Code Delibera#ion regarding litigation, pending or contemplated litigation; Section 551.072 Texas Government Code - Deliberation -t~egarding the purchase, exchange, sale, lease, or value of real property, or real estate; Section 551,074 Texas Government Code - Deliberation regarding personnel matters, policies, duties, employment, and evaluation of certain public officials a~~d employees; Section 551,07€ Texas Government Code - Deliberation regarding personnel matters and the appointment, employment, evaluation, reassignment, duties, discipline, or dismissal of the City Manager and City Secretary. Section 551.087 Texas Government Code - Deliberation regarding Economic Developmen# Negotiations. Reconvene into Regular Session 7. Take any action deemed necessary as a result of the Executive Session. Re uests and Announcements 8. Announcements by City Manager • Citizen Kudos • Recognition of City employee actions • New Departmental initiatives 9. Requests by Mayor and Councilmembers that itenns be placed on a future City Council agenda. 10. Requests by Mayor and Councilmembers to City Manager and Staff for information. 11. Announcements by Mayor and Councilmembers • City and community events attended and to be attended • City Council Committee and Liaison Assignments (see assignments below} • Continuing education events attended and to be attended • Recognition of actions by City employees • Recognition of actions by conununity volunteers • Upcoming City Council agenda items Adjournment CERTIFICATION 03-05-2013 City Council Agenda Page - 3 - FORM PERFORMANCE ESCROW AGREEMENT This PERFORii~fANCE ESCROW AGREEMENT (this "Agreement") is among _ IAl a Texas [B] (the "Developer"}, CITY OF SCHERTZ, TEXAS, a Texas home rule city (the "City"), and SCHERTZ BANK & TRUST COMPANY, a Texas banking corporation (the "Escrow Bank") as of~[Cl , 201_ (the "Effective Date"). Recitals: WHEREAS, the Developer, the City, and the Escrow Bank {the "Parties"} desire to execute this Agreement in order to set forth the terms of the Developer's obligations to complete a project relating to [~ Subdivision [Unit ~], a copy of the final plat of which is attached hereto as Exhibit A, Agreement: NOW, THEREFORE, for and in consideration of the sum of Ten and No/100 Dollars ($10.00} and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Developer, the City, and the Escrow Bank hereby agree as follows: 1. The Project. The infi•astiucture project covered by this Agreement (the "Project") is the completion of E , as further described on Exhibit B attached hereto and made a part hereof, The Developer is obligated, at its sale expense, to complete construction of the Project and submit the completed Project to the City for acceptance. The purpose of this Agreement is to set forth the terms whereby the Developer is escrowing funds with the Escrow Bank as security for the City in the event the Developer does not complete the Project when and as required and to authorize the City to utilize the escrowed finds to complete the Project, including reimbursing the City far any and all third-party actual expenses incurred by tl~e City which are directly related to and arising from this Agreement. The Developer has contracted with both (a} ~ {the "Engineer"} for all necessary engineering work, oversight of the construction, and all submittals to and coordination with the City, and (b) IGl (the "Contractor"} to do all of the construction of the Project. 2. Escrowed Funds. The Escrow Bank hereby acknowledges receipt on the Effective Date of the sum of $~H~ from the Developer (the "Escrowed Funds"). The Escrow Bank hereby agrees to hold and disburse the Escrowed Funds in strict accordance with the terms and provisions of this Agreement. The Developer has also made the deposit required by Section 5 hereof. 3. Escrow Acco~mt. The Escrow Bank shall hold the Escrowed Funds in a separate interest- bearing account at the Escrow Bank (the "Escrow Account"). Earnings on the Escrowed Funds shall be deposited to the credit of a subaccount of the Escrow Account The Developer's tax identification number is ,[i~ .The City's tax identification number is 74-1469344. 4. Distribution of Funds. The Escrowed Funds and the earnings thereon shall be distributed as set forth in this Section 4. {a) Disbursement of Escrowed Funds. In the event that either {a} construction of the Project has not Commenced (as defned herein) within 30 days after the Effective Date of this Agreement, or (b} the Project has not been completed and dedicated to and accepted by the City within 120 days after the Effective Date of this Agreement, the City may instruct the Escrow Bank to disburse funds to such persons or entities, in such amounts, and at such times as necessary to complete the Project, including to reimburse the City for Project costs incurred by the City. As used in the first sentence of this paragraph, the term "Commenced" shall mean the placement of construction barricades and the start of necessary clearing and grading work. The Developer and the Contractor shall give the City and the Escrow Bank written notice of the date construction of the Project has Commenced. The Developer and the Engineer shall also give the City and the Escrow Bank written notice of the date when construction of the Project is corpleted and the date the Project is submitted to the City for its acceptance. The City's disbursement instructions to the Escrow Bank must be in writing and signed by the City Manager or his designated representative, with a copy to the Developer. After {i) the City has accepted the Project and {ii} the City has been reimbursed from the Escrow Account for any remaining expenses of the City relating to the City's completion of the Project, the City shall, within 20 days of the later of such events, provide written instruction to the Escrow Bank, with a copy to the Developer, to return any remaining portion of the Escrowed Funds {excluding earnings thereon in the subaceount) to the Developer. After the Project has been accepted by the City, the City shall provide the Developer with a report describing its use of any Escrowed Funds. The Escrow Bank shall have no obligation to investigate or determine the occurrence or non- occurrence of any fact or event related to such instruction, but shall disburse funds in accordance with any such instruction received from the City. {b) Disbursement of Earnings. Upon disbursement in full of the Escrowed Funds pursuant to Section ~1(a), earnings thereon held in the subaccount shall be disbursed as follows: (i} if all of the Escrowed Funds have been returned to the Developer pursuant to Section ~4{a), all earnings on the Escrowed Funds in the subaccount shall be disbursed to the Developer; (ii} if all of the Escrowed Funds have been disbursed to or• at the direction of the City to complete the Project pursuant to Section 4(a}, all earnings on the Escrowed Funds in the subaccount shall be disbursed to the Ciry; and (iii) if a portion of the fully-disbursed Escrowed Funds has been returned to the Developer and a portion has been disbursed to or at the direction of the City to complete the Project pursuant to Section ~l{a), the earnings on the Escrowed Funds shall be disbursed to the Developer and the City in proportion to the disbursements of the Escrowed Fund to the Developer and the City. The Account shall thereupon be closed and this Agreement shall terminate. {c} No Disbursement afi Developer's Direction. The Developer agrees that it has no authority to direct the Escrow Bank regarding the disbursement by the Escrow Bank of money held by it pursuant to this Agreement other than to provide wiring instructions to the Escrow Bank regarding City_authorized disbursements to the Developer. 5. Escrow Fee. In addition to the Escrowed Funds, the Escrow Bank firrther acknowledges receipt of $100.00 from the Developer as payment in full for the Escrow Bank's services under this Agr•eernent. sa6azrr9.r - 2 - 6. Liability of the Escrow Bank. The Escrow Bank shall be liable only to hold the Escrowed Funds and the earnings thereon and to deliver same to the persons or entities in accordance with the provisions of this Agreement and any amendments hereto, it being expressly understood that, by acceptance hereof, the Escz•ow Bank is acting in the capacity of a depository only and shall not be liable or responsible to anyone for any damages, losses or expenses, unless same shall be caused by the Eserow Bank's gross negligence or willfizl malfeasance. It is further understood and agreed that the Escrow Bank shall have no duty to investigate or inquire regarding genuiness ar validity of any written instruction received purporting to be from the City and containing a signature purporting to be of an authorized representative thereof, and the Escz•ow Bank shall incur no liability for acting in accordance with such written instruction, 7. Intezpleader by Escrow Bank. Subject to Subsection 4{c} of this Agreement, in the event of conflicting demands or instructions or other occurrences received by the Escrow Bank which the Escrow Bank in its sole judgment exposes it to potential liability, the Escrow Bank may file a petition in interpleader and place the funds held in escrow into the registry of an applicable Court. S. Amendments. Except for the termination of this Agreement pursuant to Section 4, this Agreement shall not 6e modified, revoked, released, or terrrrinated, except by the written agreement of the Developer, the City, and the Eserow Bank. Should, at any time, any attempt be made to modify this Agreement in a manner that would materially increase the duties and responsibilities of the Escrow Bank, or to modify this Agreement in any manner that the Escrow Bank shall reasonably deem undesirable, the Escrow Bank may resign by notifying the parties hereto in writing, by certified mail, postage prepaid, return receipt requested, to their respective addresses set forth hereinbelow; provided, such resignation shall not be effective until a successor banking entity agrees to assume the obligations of the Escrow Bank hereunder and the Escrow Bank has transferred the Escrowed Funds and earnings to date thereon to the successor banking entity. 9. Entire Agreement. THIS AGREEMENT IS THE ENTIRE AGREEMENT AMONG THE PARTIES REGARDING THE ESCROWED FUNDS AND THE EARNINGS THEREON AND MAY NOT BE CONTRADICTED BY EVIDENCE Of' PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES, THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES REGARDING THE ESCROWED FUNDS. 10. Governing Law• This Agreement shall be governed by and construed in accordance with the laws of the State of Texas. 11. Notices. Any notices, consents or other communications required or• permitted to be given pursuant to this Agreement must be in writing and must be given by hand delivery, facsimile transmission or certified mail (postage prepaid, return receipt requested), and shall (except to the extent otherwise expressly provided herein) be deemed to have been given and received (whether actually received or not) when a letter containing such notice, consent or other communication, is (i) received, if sent via facsimile transmission or hand delivered or (ii} deposited in an official depository under the regular care and custody of the United States Postal so~o2rr~.r - 3 Service located within the confines of the continental United States of America, if mailed, addressed to the parties hereto at the following respective addresses: To the Developer: J ,TX Attention: With a co~~to: K ,TX Attention: To the City: City of Schertz, Texas 1400 Schertz Parkway Sehe~~tz, TX 7$154 Attention; City Manager With a co~y to: Fulbright & Jaworski L.L.P. 300 Convent Street, Suite 2100 San Antonio, TX 78205 Attn: Katherine Tapley Telephone: (210j 270-7191 Fax: (210j 270-7205 e-mail: ktapley@fulbright.com To the Escrow Bank: Schertz Bank & Trust 519 Main Street Schertz, TX 78154 Attention: Mark Sunde~•rrzan or to such other substitute address and/or addressee as any party hereto shall designate by written notice to the other party in accordance with the terms of this Section; provided, however, that no such notice of change of address arzd/or addressee shall be effective unless and until actually received by the party to whom such notice is sent, so6oz~zs.z - 4 - 12. Multi le Counte arts• Bindin Effect. This Agreement may be executed in multiple countezparts each of which shall be an original and all of which together shall constitute one instrument. This Agreement shall be binding upon and shall inure to the benefit of and be enforceable by the Parties and their respective successaz•s and assigns. 13. No Relationship, The Parties agree that nothing contained herein shall create a thiz•d- party beneficiary relationship as to any other persons or entities. Accordingly, this Escrow Agreezxzent is executed solely for the benefit of the Parties. 14. Invalidity. If one or more of the provisions hereof shall for any reason be held to be invalid, illegal, or unenforceable in any respect under applicable law, such invalidity, illegality, or unenforceability shall not affect any other provisions hereof, and this Agreement shall be construed as if such invalid, illegal, oz• unenforceable provision had never been contained herein. 1 S. Headings. The captions or headings at the beginning of the various paragraphs or sections of this Agreement are inserted for convenience only, and shall not add to or subtract from the meaning or contents of each paragraph or section. ~ Signcrtarres on tl~e Follotiving Page J soso2l ~9. ~ - 5 The parties have executed this Eserow Agreement to be effective as of the Effective Date. THE DEVELOPER: l~ By: _ Name: Title: THE CITY: THE CITY OF SCHERTZ, TEXAS By: .iohn C, Kessel, City Manager THE ESCROW BANK: By: SCHERTZ BANK & TRUST COMPANY Mark Sundeinian, President sos©zi~9.~ S-1 Exhibit A (D~ ~ Subdivision [Unit ] Plat sa6az ~ i s. i A-1 Jrxhibit B Project Description and Drawing [Describe in detail all required ~vork] sob©zi~9.~ B-1 Blanks in the Performance Escrow Agreement I'or~n to be completed as follows: [A] Full legal name of the Developer [B] Form of entity of the Developer (corporation, limited liability company, partnership, etc.) [C] Effective Date of the Agreement [D] Name of the subdivision (add Unit designation, if applicable) [E] General description of public inlastructure improvements to be completed [F] Full legal name of Developer's Engineer [G] Full legal name of Developer's Contractor [H] Amount of surety (125% of anticipated cost of completion of incomplete public infrastructure improvements) [I] Developer's taY identification number [J] Notice details for the Developer [K] Notice details for an additional Developer notice party {optional) EXHIBIT A -Copy of the final plat EXHIBIT B -Detailed description of public infrastructure improvements to be completed s©6az~~9.i RESOLUTION NO. 13-R-13 A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS AUTHORIZING FORMS OF A COMMUNITY FACILITIES AGREEMENT, CONSTRUCTION PERFORiVIANCE BOND, AND PERI'ORMANCE ESCROW AGREEMENT, AND OTHER MATTERS IN CONNECTION THEREWITH WHEREAS, the City staff of the City of Schertz {the "City"} has recommended that the City Council approve template forms of a Community Facilities Agreement, a Construction Performance Bond, and a Performance Escrow Agreement to be utilized on routine projects when a developer proposes to provide security for the completion of public inlrastructure improvements in a subdivision to allow the developer to record the plat of the subdivision; and do so. THAT: WHEREAS, the City Council has determined that it is in the best interest of the City to BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS Section 1. The City Council hereby authorizes the City Manager (a} to complete and execute and deliver Community Facilities Agreements from time to time with developers utilizing the format set forth on Exhibit A in order to comply with Section 21.~1.15.F. of the City's Unified Development Code {the "UDC") and (b} to accept or enter into Construction Performance Bonds and Performance Escrow Agreements utilizing completed versions of tl~e formats set forth in Exhibit B and Exhibit C, respectively, in ordez• to comply with Section 21.3.15.6, of the UDC, {Exhibits A, B, and C are hereby designated the "City p'arms".} In addition, the City Manager may enter into Community Facilities Agreements and accept or enter into Construction Performance Bonds and Performance Escrow Agreements utilizing different forms of such instruments if the City Manager or his designee and the City Attorney determine that such alternative forms contain terms substantially similar to the City Forms. Section 2. The recitals contained in the preamble hereof are hereby found to be tzue, and such recitals are hereby made a part of this Resolution for all purposes and are adopted as a paz•t 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 ~. This Resolution shall be construed and enforced in accordance with the laws of the State of Texas and the United States of America. Section S. If arty provision of this Resolution or the application thereof to any pez•san 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 frorri and after its final passage, and it is so resolved. PASSED AND ADOPTED, this 5`h day of March, 2013. CITY OF SCHERTZ, TEXAS Michael R. Carpenter, Mayor ATTEST: Brenda Dennis, City Secretary {CITY SEAL) sa6oai i i. ~ EXHIBIT A FORM OF COMMUNITY FACILITIES AGREEMENT See attached so~oz i ~ E. i A-1 EXHIBIT B FORM OF PERFORMANCE BOND See attached 506©2111.1 B-1 EXHIBIT C FORM OF PERFORMANCE ESCROW AGREEMENT See attached saboz~ i 1. ~ C-1 After Reeordilig, P1e~se.Return To: Fulbrigltt & Jaworski L.L.P. 300 Convent Street, Suite 2I00 San Antonio, Texas 78205 Attention: Katherine Tapley STATE OF TEXAS § COUNTY OF [A~ ~ § Foy KNOW ALL PERSONS BY THESE PRESENTS: COMMUNITY FACILITIES AGREEMENT This COMMUNITY FACILITIES AGREEMENT {this "A~reement"} is between [B] , a Texas [C~ (the "Owner"}, and the CITY OF SCHERTZ, a Texas municipal corporation {the "C~"), 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 the real property located in the City of Schertz, Texas, descz•ibed on Exhibit A {the "Pro er "). WHEREAS, the Owner submitted to the City a final plat application (the "Final Plat"} for ~ Subdivision, [Unit ~,] which the Owner seeks to develop on the Property (the "Subdivision"). WHEREAS, on ~E~ ~, 201_, the City's Planning and Zoning Coz~zuission {the "Commission"j approved the Final Plat (the "Plat Approval Date"). WHEREAS, a copy of the Final Plat, as finally approved by the Commission on the Plat Approval Date, is attached as Exhibit B. WHEREAS, certain public infrastructure improvements shown on the Final Plat have not been completed, and the Owner desires to record the Final Plat in the records of Bexar County, Texas. NOW THEREFORE, in consideration of the agreements set foz•th herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby stipulated, the Owner and the City agree as follows; 1. O~vnership 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. So long as the Owner has any obligation under this Agreement, the Owner agrees with the City that it shall not make any such canveyance, assignment, or transfer unless this Agreement is attached to and incorporated by reference into the instrument of conveyance, assignment, or transfer and (a) the City [approves such conveyance, assignment, or transfer in writing and] [INCLUSION OR so6oaz©s.z NON-INCLUSION OF THIS REQUIREMENT SHALL BE DETERMINED BY STAFF] receives a contemporaneous copy of such instrument, and (b) the Purchaser under any such instz•zzment agrees to be bound by the terms of this Agreement. This Agreement shall be recorded in the zeal property records of Bexar County, Texas, and the terms hereof shall run with the Property. 2. Const~•uctian of Improvements; Covenants. The Owner covenants and agrees to the following: (a) The Owner shall construct, or cause to be constz•ucted, the public infrastructure improvements described on Exhibit C (the "Improvements"). (b) The Impzavezxzents shall be built and completed in accordance with City design standards within ~F,1 after the Plat Approval Date. (c} On ar before the date on which the Final Plat of the Subdivision is filed of record, the Owner shall deliver to the City afully-executed contract to build and complete the Improvements (the "Contract") assigned on behalf of the Owner to the City for enforcement by the City if the Owner does not build and complete the Improvements. The pz•ice set forth in the Cantract (the "Contract Pz•ice"} shall be effective for at least the term of the Surety. (d) On or before the date on which the Final Plat of the Subdivision is filed of z•ecord, the Owner shall provide surety to the City in the fozm attached hereto as Exhibit D {the "Sure in the amount of one hundred twenty-five percent {125%) of the Cantract Price, with such total amount of the required surety being G and _1100 Dollars ($ }. [The Developer shall also pay S1U0.00 to Schertz Bank & Trust Company for its fee as Surety holder.] (e) If the Owner fails to construct the Improvements in accordance with this Agreement, the City may utilize the Surety to canstz•uct, or complete the constz•uction of, the Improvements in accordance with the Contract. (f} The Owner shall warranty the Improvements far a period of one (1) year following the date that the City accepts the Improvements and shall provide a maintenance band or other security of a type and in a form acceptable to the City in the City's sole discretion, in the amount of twenty percent (20%) of the costs of the Improvements throughout such one (1} year period following acceptance by the City of the Improvements. 3. Approval of Agreement. The City has approved the execution and delivery of this Agreement pursuant to Section 21.1.1 S(F.)(1.) of the City's Unified Development Code, and the Owner repzesents and wazz•ants that it has taken all necessary action to authorize its execution and delivery of this Agreement. 50603208.2 -2- 4. Recorclativn of Final Plat. Upan execution and delivery of this Agreement by the City and the Developer and the City's acceptance of the original executed Surety, the Developer may file the Final Plat in the real property records of ~] County, Texas. 5. Governmental Immunity. The City does not waive oz• relinquish any immunity or defense on behalf of itself, its officers, employees, Councihnezrzbers, and agents as a result of the execution of this Agreement and the performance of the cavenants and actions contained herein. 6, Binding Effect. This Agreement shall be binding upon and inzzre 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 and the Subdivision. 7. Caunterparts. 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 eonstz•ued together and shall constitute one and the same Agreement. $. Effect of Waiver ar C©nsent. No waiver ar consent, express or implied, by any parry to or of any breach or default by any party in the performance by such party of its abligations hereunder shall be deemed or construed Eo be a consent or waiver to or of any other breach or default in the performance by such party of the same or any other obligations of such party hereunder. Failure on the part of a party to complain of any act of any party or to declare any party in default, izxespective of how Lang such failure continues, shall not constitute a waiver by such party of its rights hereunder until the applicable statute of Iiznitatian period has run. 9. Inteeratian. This Agreement is the complete agreement between the paz•ties as to the subject matter hereof and cannot be varied except by the written agreement of the Owner and floe City. The Owner and the City each agrees that there are no oral agreements, understandings, representations or warranties which az•e not expressly set forth herein. 10. 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 far notice znay be changed by written notice delivered as provided herein. All notices hereunder shall be in writing and served as follows: If to the Owner; TX Attention: sosos2os.z -3_ With a copy to: rz ,Tx Attention: If to the City: City of Schertz 1 X00 Schertz Parkway Schertz, TX 78151 Attention: City Manager With a co~~to: Fulbz•igl~t & Jaworski L.L.P. 300 Convent Street, Suite 2100 San Antonio, TX '1$205 Attention: Katherine Tapley 11. Leal Constructive, If any provision in this Agreement is for any reason unenforceable, to the extent the unenfoxeeability does not destroy the basis of the bargain among the parties, such unenfoxceability 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 az•e fox zefezence only and are not intended to restrict oz• 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. 12. 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 incozporated 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. 13. Time. Time is of the essence. Unless otherwise specified, all references to "days" mean calendar days. Business days exclude Saturdays, Sundays, and legal public holidays. If the date far performance of any obligation falls on a Saturday; Sunday, or legal public federal or Texas state holiday, the date for performance will be the next following regular business day. 1~. Survival of Coveeaets. 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 of this Agreement. so6as2os.2 -~- 1 S. No Joint Venture. It is acknowledged and agreed by the parties that the terms hez•eof are not intended to, and shall not be deemed to, create a partnership or joint venture among the parties. 16. Attorneys' Fees and Expenses, In the event that the Owner should default under any of the provisions of this Agreement and the City should employ one or more attorneys or incur other expenses for the collection of the payments due under this Agreement or the enforcement of perfoz7zzance or observance of any obligation or agreement on the part of the Owner herein contained, the Owner agrees to pay to the City rcasonable fees of such attorneys and such other expenses so incurred by the City. 17. Choice of Lativ. This Agreement will be construed under the laws of the State of Texas without regard to cl~oice-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, ~ Sfgncrtur•es ar~d c~cknozz>ledgrrtents on the fvllotit~ing pages 50603208.2 -S- Signature Page to Community Facilities Agreement This Community Facilities Agreement has been executed by the paz•ties as of the dates of the Acknowledgments to be effective as of the latter of such dates. The !)~vnerr THE STATE OF TEXAS COUNTY OF This instrument was acknowledged before me on the day of , 201_ by ,the of , a Texas , on behalf of said (SEAL} a Texas T~ By: Name: Title: Date: Notary Public in and for The State of Texas My Commission Expires: 50603208.2 S-1 Signature Page to Community Facilities Agreement This Community Facilities Agreement has been executed by the parties as of the dates of the Acknowledgments to be effective as of the latter of such dates. The Ci THE STATE OF TEXAS COUNTY Oh' GUADALUPE CITY OF SCHERTZ, a Texas municipal corporation By: Name: Date: John C. Kesel, City Manager This instrument was acknowledged before ine on the day of , 201_ 6y John C. Kesel, 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: 50603208.2 S-2 EXHIBIT A The Property C SEE r1 TTACHED ~ 50603308.2 A- ~ EXHIBIT B The Final Plat I SEE rI TTr~CHED J 5©643208.2 $-1 EXHIBIT C The Improvements ~DESCRIBEINDETAIL ALL REQUIRED WORK.] SOb03208.2 C- ~ EXHIBIT D The Surety (S~~ AZ`T~CH~'D] sa~o3zos.z D-1 Blanks iYi the Community )<+'acilities Agreement form to be completed as follows: [A] County where the Property is located [B] Full legal name of the Owner [C] Form of entity of the Owner (corporation, limited liability company, partnership, etc.) [D] Name of the Subdivision (add Unit designation, if applicable) [E] Date of P&Z approval of Final Plat [F] Tune period for completion of the public infrastructure improvements [G] Amount of surety, spelled out and in numerals (125% of the Contract Price for completion of incomplete public infrastructure improvements); delete reference to ~ 100 deposit if the Surety is a Construction Performance Bond [H] Notice details for the Owner [1] Notice details for an additional Owner notice party {optional) Exhibit A -Metes and bounds of property Exhibit B -Copy of Final Plat Exhibit C -Detailed description of public infrastructure improvements to be completed Exhibit D -Final form of Surety, with all required attachments 506©3208.2 FORM CONSTRUCTION PERFORMANCE BOND STATE OF TEXAS ) COUNTY OF GUADALUPE } KNOW ALL BY THESE PRESENTS that ~ , T _ ..... . whose address is jl~ (the "Principal"), and jCl a corporation organized and existing under the laws of the State of D and fully licensed to transact business in the State of Texas, as surety (the "Surety"), are held and firmly bound unto the CITY OF SCHERTZ, a Texas municipal corporation organized and existing under the laws of the State of Texas (the "Beneficiary"}, in the penal sum of [Ej ~ Dollars ($ [Fj )plus twenty-five percent {25%) of the stated penal sum as an additional sum of money representing additional court expenses, attorneys' fees, and liquidated damages arising out of or connected with the below identified Contract (for a total sum of jG1 _ Dollars ($ jHj } (the "Total Sum"} in lawful money of the United States to be paid to the Beneficiary, its successors and assigns, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, executors, administrators, and SuCCesSOrS and assigns, jointly and severally, firmly by these presents. The Total Sum of this Bond shall automatically be increased by 125% of the amount of any change order or supplemental agreement which increases the Contract price, but in no event shall a change order ar supplemental agreement which reduces the Contract price decrease the Total Sum of this Bond. THE OBLIGATION TO PAY SAME is conditioned as follows: WHEREAS, the Principal entered into a Contract with [lj , dated on or about the [J] {the "Contract"), a complete copy of which is attached hereto as Exhibit A and being incorporated herein and made a part hereof as fully and to the same extent as if written herein word for word, to furnish all permits, licenses, bonds, insurance, products, materials, equipment, labor, supervision, and othez• accessories necessary for the constz•uction of the following Project improvements: Project Name: K Project Number: [L] in the City of Sehertz, Texas, as more pa-•ticzilarly described and designated in the Contract. NOW, THEREFORE, if the Principal shall well, truly, and faithfully perform and fulfill all of the undertakings, covenants, terms, conditions, and agreements of the Contract in accordance with all Contract documents, including but not limited to plans and specifications relating thereto, during the original term thereof and any extension thereof which may be. granted in writing by the Beneficiary, with or without notice to the Surety, and during the life of any guaranty or warranty required under the Contract, and shall also well and truly perform and fulfill all the undertakings, covenants, terms, conditions, and agreezxzents of any and all duly authorized modifications of any and all Contract documents that may hereafter be made, notice SU~196891. f of which modifications to the Surety being hereby waived {except for written notice to the Surety of any increase in the Total Sum}; and, if the Principal shall fully indemnify and save harmless the I3eneficiaty from and against all cos#s and damages r~vhich the Beneficiary may suffer by reason of the Principal's failure to so perf©rrn hereon and shall fully rei~nhurse and repay the Beneficiary all outlay and expense which the Beneficiary may incur in making good any default or deficiency, then this obligation shall be void; otherwise, it shall remain in full force and effect and the Beneficiary may demand payment hereon, and the Surety shall make immediate payment hereon to the Beneficiary. PROVIDED FURTHER, if any legal action be filed on this Bond, exclusive venue shall lie in Guadalupe County, Texas• AND PROVIDED FURTHER, the Surety, foz• value received, hereby stipulates and agrees that no change, extension of time, alteration, or addition to the tez7ns of the Contract or to the work to be performed thereunder or the plans, specifications, and all other Contract docuuments related to the Project shall in any way affect its obligation on this Bond, and (except for written notice to the Surety of any increase in the Total Sum} it does hereby waive notice of any such change, extension of time, alteration, or addition to the terms of the Contract, or to the plans, specifications, or other Contract documents or to the work to be performed thereunder. This Bond is given pursuant to the provisions of Chapter 2253 of the Texas Government Cade, and any other applicable statutes of the State of Texas. The undersigned and designated agent is hereby designated by the Surely herein as the Resident Agent in Guadalupe County oz• ~jM~ County to whom any requisite notices may be delivered and on whom sezvice of process may be lead in matters arising out of such suretyship, as provided by Article 7.19-1 of the Texas Insurance Code, as amended. 1N WITNESS WHEREOF, this instrument is executed in six copies, each one of which shall be deemed an original, this, the day of _ , 20 PRINCIPAL: A By: Name: Title: SURETY: C By: Name: Title: sa~g~$~f.i - 2 - The Resident Agent of the Surety in Guadalupe County or jM~_~ County, Teas, for delivery of all notices hereunder and service of process relating hereto is: Name: Physical Address: _ City, State, Zip Code: Mailing Address: , City, State, Zip Cade: SEkt96891.1 - 3 - EXHfBIT A The Contract [Attach complete copy of the Contract.] 50~49689i.1 A° 1 Blanks in the Construction Performance Bond form to be completed as follows: [A] Full legal name of the Principal [B] Complete address of the Principal [C] Full legal name of the Surety [D] State of incarporation of the Surety [E] Dollar amount of the total projected costs of the uncompleted iinpro~ements covered by the bond, spelled out [F] Same as [E], in numerals [G] Dollar amount of 12S% of [E], spelled out [H] Same as [G], in numerals [I] pull legal name of the other party to the Contract far the bonded Project [J] Date {month, day and year) of the Contractor's Contract with the Principal [K] City's name for the bonded Project [L] City's project number for the bonded Project [M] Te;~as County in which the Surety's office is located. [N] Name of Surety's Resident Agent and physical and mailing addresses EXHIBIT A -Complete capy of the final Contract soa~bsg~. ~