19-M-07 - Reimbursement agreement with SCH1103 LLC for construction of a waterline extensionWHEREAS, this ordinance and agreement was previously approved by city council at
final reading being November 28, 2017 and never executed by either party.
WHEREAS, the original developer has requested the name on the agreement be changed
to the name of the new owner.
WHEREAS, a water main needs to be extended from FM 1103 at Old Wiederstein Road
to Fairfax Drive to connect to an existing main on Sunridge Drive within the Riata Subdivision.
WHEREAS, a water main extension across the frontage of the proposed Schertz Retail
Center property is being built in accordance with the City's Unified Development Code.
WHEREAS, the water main needs to be extended beyond the frontage of the proposed
development in order to loop the water main to alleviate the potential for stagnant water in a
dead -end main.
WHEREAS, SCHI 103, LLC., as the Developer of the Schertz Retail Center Subdivision,
agrees to construct the entire water main extension of which a portion is more than what is
required by this development.
WHEREAS, the City Council finds that it is in the best interest of the City to enter into
the Agreement with Developer for Construction of Public Improvement in order to avoid having
a dead -end main.
WHEREAS, Section 212.071, et. seq. of the Texas Local Government Code authorizes
municipalities to enter into a contract with a developer of a subdivision or land in the
municipality to construct public improvements related to the development without complying
with the competitive sealed bidding procedures of Chapter 252 of the Texas Local Government
Code; and
WHEREAS, Section 212.071, et. seq. of the Texas Local Government Code limits the
participation by the municipality at a level not to exceed 30 percent of the total contract price.
NOW, THEREFORE, DE IT ORDAINED BY THE CITY COUNCIL OF THE
CIYT OF SCHERTZ, TEXAS: The City Council hereby authorizes the City Manager to
execute the agreement with Developer for Construction of Public Improvement with CVS
Pharmacy, Inc., for infrastructure that will alleviate a dead -end main by looping the water main.
Section 1. The recitals contained in the preamble hereof are hereby found to be true,
and such recitals are hereby made a part of this Ordinance for all purposes and are adopted as a
part of the judgment and findings of the City Council.
Section 2. That should any section, clause, or provision of this ordinance be declared
by a court of competent jurisdiction to be invalid, the same shall not affect the validity of this
ordinance or any other ordinance of the City as a wlaole or any part thereof, other than the part so
declared to be invalid.
Section 3. That it is officially found, determined and declared that the meeting at
which this Ordinance 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 ordinance,
was given, all as required by Chapter 551, as amended, Texas Government Code.
Section 4. This Ordinance shall be effective upon the date of final adoption hereof
and any publication required by law.
Section 5. This Ordinance shall be cumulative of all other ordinances of the City of
Schertz, and this Ordinance shall not operate to repeal or affect any other ordinances of the City
of Schertz except insofar as the provisions thereof might be inconsistent or in conflict with the
provisions of this Ordinance, in which event such conflicting provisions, if any, are hereby
repealed. Specifically. this Ordinance shall repeal and replace Ordinance No. 17 -M -48.
Approved on first reading the 5th day of February, 2019
PASSED, APPROVED AND ADOPTED, on final reading the 12th day of February, 2019.
ATTEST:
CITY OF SCHERTZ, TEXAS
-2-
REIMBURSEMENT AGREEMENT WITH DEVELOPER FOR
CONSTRUCTION OF PUBLIC IMPROVEMENT
THE STATE OF TEXAS §
§ KNOW ALL PERSONS BY THESE PRESENTS:
COUNTY OF GUADALUPE §
This Development Agreement (the "Agreement ") is by and between the City of Schertz, a Texas
municipal corporation (the "City "), and SCH1103, LLC owner and developer of certain
hereinafter described property located within the City (the "Developer "), all collectively
referred to as "Parties ", and is effective upon the execution of this Agreement by the Developer and
the City (the "Effective Date ").
WHEREAS, Developer wishes to develop certain property (the "Property ") located within the
City limits, which is approximately 6.850 acres of land situated in the Rafael Garza Survey No.
98, Abstract No. 138, in the City of Schertz, Guadalupe County, Texas; being portion of a 2.00
Acre Tract of Land Described in Volume 1474, Page 960, Being that same tract of Land as
described as 1.91 Acres in Deed of Trust as recorded in Volume 3172 Page 535 and portion of a
10.0 Acre Tract of Land Described in Volume 1969, Page 269 of the Official Public Records or
Guadalupe County, Texas.
WHEREAS, the Property is the subject of the application for Subdivision Plat establishing
Schertz Retail Center; and
WHEREAS, the Property abuts an existing subdivision and ROW wherein all water and
sewer infrastructure (collectively the "Improvements ") from the intersection of FM 1103 and Old
Wiederstein Road, to Fairfax Road and along Fairfax Road to Sunridge Road have not been
completed; and
WHEREAS, during the development planning stage for the Property, the Developer submitted to
the City a request that the City participate in the completion of the Improvements, which will
benefit portions of the City beyond the Schertz Retail Center Subdivision; and
WHEREAS, the City has no immediate plans to construct the required Improvements, but is
willing to share in the cost of the construction of such facilities, and has funds appropriated and
available to do so; and
WHEREAS, Developer has requested that it be allowed to construct the required Improvements
to serve the Property, and share the costs with the City; and
WHEREAS, Section 212.071, et. seq. of the Texas Local Government Code authorizes
municipalities to enter into a contract with a developer of a subdivision or land in the
municipality to construct public improvements related to the development without complying
with the competitive sealed bidding procedures of Chapter 252 of the Texas Local Government
Code; and
WHEREAS, Section 212.071, et. seq. of the Texas Local Government Code limits the
participation by the municipality at a level not to exceed 30 percent of the total contract price.
NOW THEREFORE, for and in consideration of the premises and mutual obligations, covenants,
and benefits hereinafter set forth, the Parties agree as follows:
AR'T'ICLE I — Definitions.
The followirfg`terms and phrases used in this Agreement shall have the meanings ascribed
hereto:
I.I. "Agreement" means this agreement, including any amendments hereto, between
the City and Developer.
1.2. "Contractor" shall mean the person, firm, corporation, partnership, association, or
other entity awarded the contact by Developer for the construction and installation of the
Improvements.
1.3. "Improvements" shall mean the improvements described on Exhibit "A"
1.4. "City's Participation Costs" shall mean costs associated with the construction of
the Improvements, as designated on Exhibit "B" as City of Schertz responsibility.
I'ICLE II — Construction of Improvements.
2.1. Construction of Improvements. Developer agrees to construct the Improvements
in accordance with the plans and specifications approved by the City Engineer as
illustrated in Exhibit "A" attached hereto. No change in the construction plans shall
be made by Developer without the prior written consent of the City Engineer. The
entire cost of the construction of the Improvements shall be the responsibility and
obligation of Developer, except as herein provided.
2.2. Contracts for Construction. Developer shall contract with a qualified Contractor to
construct the Improvements in accordance with the approved plans and specifications.
The City Engineer shall review all contract documents and costs estimates, and shall
approve the Contractor prior to the award of the contract for the Improvements.
Developer shall be solely responsible for payment of the work as it is completed, and
shall make all payments in a timely manner to the Contractor, sub - contractors, and other
parties involved in the construction of the Improvements.
2.3. Performance, Payment and Maintenance Bonds. Developer shall post within the
City faithful performance, payment, and maintenance bonds for construction of the
Improvements to ensure completion of the project. The bond must be executed by a
corporate surety in accordance with Chapter 2253, Texas Government Code.
2.4. Inspection. The City Engineer or designee shall periodically inspect the
construction of the Improvements in the same manner, and shall possess the same
authority, as is provided during the construction of subdivision improvements pursuant to
the City of Schertz Subdivision Ordinance, as amended.
2.5. Insurance. The Contractor awarded the contract to construct the Improvements
shall be required to carry Worker's Compensation Insurance on his employees and
public liability and property damage insurance on his equipment and employees. The
public liability insurance shall be not less than five hundred thousand dollars
($500,000.00) per person and one million dollars ($1,000,000.00) per occurrence,
with property damage insurance of not less than five hundred thousand dollars
($500,000.00). In addition, City shall be furnished with Certificates of Insurance and
shall be named an additional named insured on such Certificates, and City shall be
notified within thirty calendar days of any cancellation of such insurance.
2.6. Accounting. Developer shall submit to City a complete accounting of all costs
incurred by Developer in the construction of the Improvements. City will not contribute
or pay for any costs incurred by Developer which were not approved by City prior to
it being incurred. Developer shall maintain the accounting of the Improvements for a
period of two years from the date of acceptance by the City, and the City may inspect
the Developer's books and records related to the Improvements at any time with
reasonable notice.
2.7. Indemnity. Developer agrees to protect, indemnify and save City harmless
from and against all claims, demands and causes of action of every kind and
character arising in favor of any third party on account of, or resulting from, the
performance of this Agreement by Developer or Developer's agents,
representatives, employees, contractors, or subcontractors.
ARTICLE III — Obligations and Payments.
3.1. City Obligations. The City agrees to pay to Developer City's Participation Costs
which shall equate to the actual costs for the City's responsibility at as illustrated on
Exhibit "A ". Notwithstanding any provision of this Agreement to contrary, City's
Obligation shall only b e for the reimbursement of costs incurred by Developer and
shall not in any event exceed Seventy -Seven Thousand Eight Hundred Ninety -Seven
Dollars and Fifty -Seven Cents ($77,897.57) (hereinafter the "City's Share ").
3.2. Payment Procedures. City shall deliver to Developer full payment of the City's
Share as provided in this this section.
3.2.1 Submittal and review. Developer shall submit and the City Engineer
shall review documentation, as may be reasonably required by City Engineer,
showing final, actual construction costs paid by the Developer.
3.2.2 Upon the City Engineer's review and approval of the documents, a
final inspection on the Improvements shall be conducted, noting any required
corrections or repairs. Once corrections or repairs are made and deemed
acceptable, the City will accept the Improvements.
3.2.3 Within 30 days of acceptance of the Improvements, the City will pay
to Developer the City's Share. Any additional costs above Seventy -Seven
Thousand Eight Hundred Ninety -Seven Dollars and Fifty -Seven Cents
($77,897.57) must be approved by the City prior to being incurred.
Article IV — Assignment, Modification and Waiver.
4.1. Assignment. This Agreement shall bind and benefit the respective Parties and
their legal successors and shall not be assignable, in whole or in party, by any party
without first obtaining written consent of the other party.
4.2. Amendment or Modification. Except as otherwise provided in this Agreement,
this Agreement shall be subject to change, amendment or modification only in writing,
and by the signatures and mutual consent of the Parties.
4.3. Parties in Interest. This Agreement shall be for the sole and exclusive benefit of
the Parties hereto and shall not be construed to confer any rights upon any third party.
4.4. Remedies Not Exclusive. The rights and remedies contained in this Agreement
shall not be exclusive, but shall be cumulative of all rights and remedies now or
hereinafter existing, by law or in equity.
4.5. Waiver. The failure of any party to insist in any one or more instances on the
performance of any of the terms, covenants or conditions of this Agreement, or to
exercise any of its rights, shall not be construed as a waiver or relinquishment of such
term, covenant, or condition, or right with respect to further performance.
4.6. Entire Agreement. This Agreement constitutes the entire agreement between the
Parties related to the subject matter of this Agreement and supersedes any and all
prior agreements, whether oral or written, dealing with the subject matter of this
Agreement.
4.7. Venue. This Agreement shall be performable and enforceable in Guadalupe
County, Texas, and shall be construed in accordance with the laws of the State of Texas.
4.8. Severability. If any term or provision of this Agreement is held to be invalid,
void or unenforceable by a court of competent jurisdiction, the remainder of the
terms and provisions of this Agreement shall remain in full force and effect and shall not
in any way be invalidated, impaired or affected.
4.9. Notices. Any notice provided or permitted to be given under this Agreement
must be in writing and may be served by (i) depositing the same in the United States
mail, addressed to the party to be notified, postage prepaid, registered or certified mail,
return receipt requested; or (ii) by delivering the same in person to such party; or
(iii) by overnight or messenger delivery service that retains regular records of
delivery and receipt; or (iv) by facsimile; provided a copy of such notice is sent
within one (1) day thereafter by another method provided above. The initial addresses
of the parties for the purpose of notice under this Agreement shall be as follows:
If to City: CITY OF SCHERTZ
1400 Schertz Parkway
Schertz, TX 78154
Attention: City Manager
With copy to: Denton Navarro Rocha Bernal & Zech, P.C.
2417 N. Main Avenue
San Antonio, TX 78212
Attention: Charles Zech
If to Developer: SCH 1103, LLC.
116 Jefferson Street, Suite 202
Huntsville, AL 35801
4.10. No Joint Venture. 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. It is understood and agreed that this Agreement
does not create a joint enterprise, nor does it appoint either Party as an agent of the other
for any purpose whatsoever. Except, as otherwise specifically provided herein, neither
Party shall in any way assume any of the liability of the other for acts of the other or
obligations of the other.
4.11. Counterparts. This Agreement may be executed in multiple counterparts, each of
which shall be considered an original, but all of which constitute one instrument.
[ Signatures and acknowledgments on the following pages-]
Signature n to
Agreement with Developer for Construction of Public Improvemej
This Agreement has been executed by the parties as of the dates of the
Acknowledgments to be effective as of the Effective Date.
THE STATE OF §
COUNTY OF §
This instrument was acknowledged before me on the day of , 2019 by
for SCH 1103, LLC,., for the purposes herein expressed.
(SEAL)
Notary Public in and for
The State of Texas
My Commission Expires:
Signature n 4o
Aereewnt with Developer f1, Construction of Public
This Community Facilities Agreement has been executed by the parties as of the dates
of the Acknowledgments to be effective as of the Effective Date.
City:
CITE' OF SCHERTZ,
a Texas municipal corporation
By:
Name: Mark Browne, its City Manager
THE STATE OF TEXAS
COUNTY OF GUADALUPE
This instrument was acknowledged before me on the day of , 2019 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
IMPROVEMENTS
'0 M
PARTICIPATION COSTS