22-R-102 - Agreements with CIty of Schertz and Schertz 1518, LTDRESOLUTION NO. 22-R-102
A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS
AUTHORIZING A SUBDIVISION IMPROVEMENT, REIMBURSEMENT AND
CAPITAL RECOVERY OFFSET AGREEMENTS WITH SCHERTZ 1518, LTD. AND
OTHER MATTERS IN CONNECTION THEREWITH
WHEREAS, the Landowner desires to defer certain dedication and improvement obligation for
Crossvine Module 3A, Unit 1; and
WHEREAS, pursuant to Section 21.4.15 of the City's Unified Development Code, the obligation
to dedicate and construct improvements for the Subdivision may be deferred if an Improvement
Agreement is executed and if sufficient surety is provided to secure the obligation to construct
the improvements; and
WHEREAS, the City staff of the City of Schertz has recommended that the City enter into a
Subdivision Improvement Agreement; and
WHEREAS, the City of Schertz is obligated to relocate and construct certain improvements
adjacent to FM 1518; and
WHEREAS, the developer is obligated to make certain improvements adjacent to FM 1518, and
WHEREAS, the developer and City have agreed that it is in the public interest for the developer
to construct all of the improvements and be reimbursed by the City for the portions the City is
obligated to improve; and
WHEREAS, the developer has offered to construct improvement to Lower Seguin Road, beyond
their obligation and do so within a specified time frame; and
WHEREAS, the City agrees to reimburse the developer for the cost to construct Lower Seguin
Road beyond their obligation; and
WHEREAS, the City Council has determined that it is in the best interest of the City to authorize
the City Manager to enter into Agreements.
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
agreements as outlined in Exhibits "A ", "B" and "C" generally as attached.
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 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provision of this Resolution are hereby repealed to the extent of such conflict, and the provisions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. 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 5. This Resolution shall be construed and enforced in accordance with the laws
of the State of Texas and the United States of America.
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 11th day of October, 2022.
Ralph ' utie , Mayor
ATTEST:
rfda- Yennis, City Secretary
AL OF THE CITY)
AA.
Exhibit "A"
Subdivision Improvement Agreement
The Crossvine, Module 3A, Unit 1
Exhibit "B"
Reimbursement Agreement with Developer for Construction of Public Improvements
Associated with Module 3A, Unit 1(The Crossvine)
Exhibit "C"
Roadway Capital Recovery Offset and Reimbursement with
Developer for Construction of Public Improvement Agreement
For Lower Sequin Road
After Recordin_. Please Return To:
Denton Navarro Rocha Bernal Hyde & 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 BEXAR
SUBDIVISION IMPROVEMENT AGREEMENT
THE CROSSVINE, MODULE 3A, UNIT 1
This SUBDIVISION IMPROVEMENT AGREEMENT (the "A..- reement ") is by and
between SCHERTZ 1518, LTD., a Texas limited partnership (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 that certain real property located in the City of
Schertz, Bexar County, Texas, more specifically described on Exhibit "A ". attached hereto and
made a part hereof for all purposes (the "Pro a ");
WHEREAS, the Owner seeks to develop a residential subdivision on the Property (the
"Subdivision ") that requires the construction of certain public improvements;
WHEREAS, this Agreement is solely with respect to the final plat of The Crossvine
Module 3A, Unit I which has been submitted to the City for approval, which has been approved
by City staff, and which the parties anticipate to be approved by the City of Schertz Planning and
Zoning Commission, a copy of such proposed final plat being attached hereto as Exhibit "B ", and
incorporated herein by reference;
WHEREAS, certain utility and other improvements (collectively, the "Improvements ")
necessary to provide services to The Crossvine Module 3A. Unit 1 are not yet complete and will
be constructed at a future time, as set forth hereafter, but which will be after the recording of the
final plat for The Crossvine Module 3A, Unit 1 ; and
WHEREAS, the Improvements remaining to be constructed are more specifically
identified in Section 2 below;
WHEREAS, pursuant to Section 21.4.15(E.)(2.) of the City's Unified Development Code
the obligation to construct public improvements that serve a Subdivision may be deferred if a
subdivision improvement agreement is executed and if sufficient surety is provided to secure the
obligation to construct the public improvements.
WHEREAS, the Owner seeks to defer the construction of the Improvements to a future
date as set forth hereinafter after the recording of the final plat for The Crossvine Module 3A.
Unit 1(the "Final Plat Recordation") pursuant to this Agreement and Section 21.4.15 of the City's
Unified. Development Code:
NOW THEREFORE, in consideration of the agreements set forth herein and for other good
and valuable consideration, the receipt and sufficiency of which are hereby acknowledged and
stipulated, the Owner and the City agree as follows:
1. Ownershir of the Pros - ert.�, . 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 Crossvine Module 3A, Unit 1 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. Score of Inirrovements. The Improvements addressed and contemplated by this
Agreement to be completed subsequent to Final Plat Recordation include (i) improvements being
undertaken by Owner on its own behalf and on behalf of the City, and (ii) improvements being
undertaken by City on behalf of the City.
(a) The Improvements to be completed by Owner are those improvements
identified on construction plans which have been approved by the City and are more
specifically identified as Module 3A Unit 1 Construction Plan Improvements
prepared by Malone Wheeler, Inc. ( "M_ odule 3A Unit 1 Construction Plan
Improvements ") as:
(b) The Improvements to be completed by City are those
improvements identified on construction plans which have been approved by the
City and are more specifically identified as the "Woman Hollerin _, Creek
Wastewater Lines" (herein so called) prepared by Cobb Findley;
(c) The parties hereto acknowledge and agree that the cost
and expenses associated with the Improvements that are the Woman Hollering
Creek Wastewater Lines are the responsibility of the City. The parties hereto
acknowledge and agree that the cost and expenses associated with the
Improvements that are the Module 3A Unit 1 Construction Plan Improvements are
the responsibility of the Owner; subject, however, to the agreement of the City to
reimburse Owner as provided for in a separate Reimbursement Agreement with
Owner for Construction of Public Improvements Associated with Module 3A Unit
1 (The Crossvine) (the "Reimbursement A reement ") between the parties.
3. Construction of hul royements: 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, all Module 3A
Unit 1 Construction Plan Improvements including roadway, drainage, wastewater,
electric, and certain water improvements more particularly shown on those Module
3A Unit 1 Construction Plan Improvements referenced in Section 2(a) which have
been approved and have been included as part of the application for plat approval
for the subdivision titled The Crossvine Module 3A. Unit 1.
(b) Section 21.12.10 of the City's Unified Development Code
requires the completion of the Woman Hollering Creek Wastewater Lines more
2
particularly shown on those certain Woman Hollering Creek Wastewater Lines
referenced in Section 2(b) above.
(c) The completion of the Woman Hollering Creek
Wastewater Lines, which is required in order for the Owner to complete the Module
3A Unit 1 Construction Plan Improvements, have been delayed and such delay has
resulted in a corresponding delay in the completion of the Module 3A Unit 1
Construction Plan Improvements.
(d) The City agrees that it shall promptly and expeditiously
undertake the construction and completion of the Improvements represented by the
Woman Hollering Creek Wastewater Lines and shall prosecute the completion
thereof in a prompt and workmanlike fashion and the date of completion and
acceptance thereof shall be the "Woman Hollering Creek_ Wastewater—Lines
Completion Date ".
(e) The Module 3A Unit 1 Construction Plan Improvements
shall be built and completed in accordance with City design standards by Owner
within six months (6 months) after the Woman Hollering Creek Wastewater Lines
Completion Date.
M The remaining cost of the Module 3A Unit 1 Construction
Plan Improvements is estimated to be One Million Two Hundred Sixty -Five
Thousand and NO /100 ($1,265,000,00) (the "Cost Estimate - Improvements "). The
Owner and the City agree that the amount of the Cost Estimate - Improvements set
forth herein is a commercially reasonable estimate of the remaining cost of the
Module 3A Unit 1 Construction Plan Improvements.
(g) In lieu of the (i) Owner's obligation to construct, or cause
to be constructed, the Module 3A Unit 1 Construction Plan Improvements at or
before the Final Plat Recordation, Owner shall provide to the City, concurrent with
the execution of this Agreement, surety in the form attached hereto as Exhibit "C"
(the "Sure ") in an aggregate amount equal to 100% of the Cost Estimate -
Improvements (the "Im; )rovement Funds ") and which Surety shall provide that it
automatically renews in the event that it has not been released at the time of its
expiration.
(h) City acknowledges that Owner has entered into an
agreement with a reputable general contractor to complete the Module 3A Unit 1
Construction Plan Improvements.
(i) Owner agrees within six (6) months of the Woman
Hollering Creek Wastewater Lines Completion Date to complete the construction
of the Module 3A Unit 1 Construction Plan Improvements in accordance with the
Construction Plans and in full compliance with City of Schertz Unified
Development Code Section 21.4.15, which is incorporated by reference herein as
though fully set forth in this Section of this Agreement.
3
0) For the purpose of clarification, and in no way limiting
Owner's obligations under Section 21.4.15, the Parties agree that full completion
of construction of the Module 3A Unit 1 Construction Plan Improvements shall not
be deemed to have occurred until the City accepts such Improvements in the manner
prescribed in Section 21.4.15. D of the City's Unified Development Code.
(k) In the event Owner fails to fully complete construction of
the Module 3A Unit 1 Construction Plan Improvements within six (6) months of
the Woman Hollering Creek Wastewater Lines Completion Date in the manner
prescribed herein, City may declare this Agreement to be in default and at the City's
sole discretion:
(i) require that all Improvements be installed by Owner regardless of
the extent of completion of the improvements on the Property at the
time this Agreement is declared to be in default;
(ii) unilaterally draw from the Improvement Funds sufficient amount to
complete the Improvements itself or through a third party; or
(iii) assign the Improvement Funds to any third party, including a
subsequent owner of the Property, provided that such
Improvements Funds shall only be assigned for the purpose of
causing the construction of the Improvements by such third party
and for no other purpose and in exchange for the subsequent owner's
agreement and posting of security to complete the Improvements.
(1) Within 30 days of the City's acceptance of the
Improvements, the City shall release the Surety to Owner and the Parties shall have
no further obligation to each other under this Agreement.
4. A_- rroval of A- reement. The City has approved the execution and delivery of this
Agreement pursuant to Section 21.4.15(E.)(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.
5. Governmental Immunity . 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.
6. Bindin:, Effect. 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.
7. Counte! parts. 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.
8. InteLration. 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
4
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.
9. 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:
Schertz 1518, Ltd.
2402S.2 nd St.
Austin, Texas 78704
Attn: Bradley Bechtol
With copy to:
Round One Capital
9525 N. Capital of Texas Hwy., Suite 123
Austin, Texas 78759
Attn: Bradford L. Pittenger
If to the Citv:
CITY OF SCHERTZ
1400 Schertz Parkway
Schertz, Texas 78154
Attention: City Manager
With cor "•° to:
Denton Navarro Rocha Bernal Hyde & Zech, P.C.
2517 N. Main Avenue
San Antonio, Texas 78212
Attention: T. Daniel Santee
10. Le:: al 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.
11. 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_
5
12. 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.
13. 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 Guadalulpe 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 a consent
by suit by any party.
[Signatures and acknowledgments on the followingpages]
Z
Signature Page to
Subdivision Im provement Agreement
This Subdivision Improvement Agreement has been executed by the parties as of the dates
of the Acknowledgments to be effective as of the Effective Date.
Owner:
SCHERTZ 1518, LTD.
a Texas limited liability company
By: MTR- Schertz 1518 Management Company,
LLC .?
am
Date:
THE STATE OF TEXAS §
COUNTY OF TRAVIS §
This instrument was acknowledged before me on the I � day of September, 2022 by Bradley
Bechtol, the manager of MTR- Schertz 1518 Managemen -- fo pah , C, the general partner of
Schertz 1518, Ltd., a Texas limited partnership, on beha of4aid limite0yo n- ephip.
KEVIN PALM
Notary PuDW- Stale
+rq� Gomm Expires 02-G,;
Notary ID 129257269
7
1
Pu . i c in and for
The Rtnte-efyf exas
M Commission Ex ires:� 10'1 IdD?,S-
Notary
Y P
Signature Page to
Subdivision Improvement A „, reement
This Subdivision Improvement Agreement has been executed by the parties as of the dates
of the Acknowledgments to be effective as of the Effective Date.
City
CITY OF SCHERTZ,
a Texas municipal corporation
By:
Name: Dr. Mark Browne, its City Manager
Date:
THE STATE OF TEXAS §
COUNTY OF GUADALUPE §
This instrument was acknowledged before me on the day of September, 2022 by Mark
Browne, City Manager of the City of Schertz, Texas, a Texas municipal corporation, on behalf of
said City.
(SEAL)
8
Notary Public in and for
The State of Texas
My Commission Expires:
EXHIBIT "A"
Legal Description - The Property
Module 3A. Unit 1 of The Crossvine
See attached J
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EXHIBIT "B"
Submitted Final Plat
'Module 3A, Unit 1
[ See attached
EXHIBIT "C"
Im1)rovement Funds Surety
IRREVOCABLE STANDBY LETTER OF CREDIT NO.
Date:
Beneficiary: City of Schertz
1400 Schertz Parkway, Building #1
Schertz,Texas 78154
Attn: City Manager
Applicant: Schertz 1518, Ltd..
314 E. Commerce, Suite 600
San Antonio, Texas 78205
Gentlemen:
Expiration Date: (+ one year)
We hereby issue our Irrevocable Standby Letter of Credit No. in your favor up to the
aggregate amount of US$ .00 d Thousand Hundred and No /I00 United States
Dollars) ( "Stated Amount ") available by draft(s) drawn on us at sight, marked "Drawn under Irrevocable
Standby Letter of CreditNo. of Bank, , Texas" accompanied by the
following:
1. Beneficiary's written statement signed by its authorized representative reading as follows: "The
undersigned is an authorized representative of the City of Schertz, Texas (hereinafter "Beneficiary") and
has the authority to make any one of the following statements. 1) Schertz 1518, Ltd. (hereinafter
"Applicant ") has provided security for the Subdivision Improvement Agreement for The Crossvine, Module
3A, Unit 1 as entered into by and between Schertz 1518, Ltd. and the City of Schertz, Texas, a Texas
Municipal Corporation (hereinafter the "Agreement "); 2) Schertz 1518, Ltd . has failed to perform in
accordance with the terms and conditions of the Agreement; and 3) Beneficiary is entitled to the amount of
(insert amount l under Bank Irrevocable Standby Letter of Credit No.
OR
"The undersigned is an authorized representative of the City of Schertz, Texas (hereinafter
"Beneficiary ") and has the authority to make any one of the following statements. 1) Beneficiary has
received notice from Bank that Standby Letter of Credit No. will not
be extended beyond its current expiration date and Beneficiary has not received an acceptable
replacement Letter of Credit or suitable Security from Applicant and 2) Beneficiary is therefore entitled
to the amount of inrc rt amount under Bank Irrevocable Standby Letter of Credit
No.
This original Letter of Credit and any amendments thereto (if any).
Special Conditions:
1. Partial and multiple drawings are permitted however the aggregate amount of all drawings may
not exceed the Stated Amount. In the event of a partial drawing, the original Letter of Credit
will be endorsed and returned to you, unless the Letter of Credit has expired or the amount
available has been reduced to zero.
2. It is a condition of this Letter of Credit that it shall be automatically extended without
amendment for an additional period of one year fi-om the current expiration date and each
future expiration date, unless and until you have been notified by us in writing by registered
mail or overnight courier, not less than one hundred eighty (180) days before the expiration
date, with a copy to Denton Navarro Rocha Bernal & Zech, P.C., 2517 N. Main Avenue, San
Antonio, Texas 78212, Attention: T. Daniel Santee, that we elect not to extend this Letter of
Credit.
3. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall
not in any way be modified, amended or amplified by reference to any document, instrument
or agreement referred to herein or to which this letter of credit relates, and any such reference
shall not be deemed to incorporate herein by reference any document, instrument or agreement,
it being understood that any reference to any such document, instrument or agreement is for
informational purposes only.
4. Except as expressly stated herein, this undertaking is not subject to any agreement, condition
or qualification. The obligation of Bank under this Letter of Credit is the individual
obligation of Bank, and is in no way contingent upon reimbursement with
respect thereto.
5. If, prior to the expiration date, the Applicant's obligation to you has been fulfilled and you no
longer require this Letter of Credit, we kindly request that you return the original Letter of
Credit and all original amendments (if any), together with your signed letter, giving us your
consent to close the Letter of Credit. The Letter of Credit and your letter should be returned to
Bank at the address listed below.
6. All issuing bank fees shall be for the account ofthe Applicant:
We hereby engage with you that documents drawn under and in compliance with the tehis of this
Irrevocable Standby Letter of Credit will be duly honored if presented for payment to Bank,
Texas , Attention: , prior to _:00 p.m.
Central Time on or before the expiration date of this Letter of Credit.
This Letter of Credit is subject to the International Standby Practices 1998, International Chamber of
Commerce Publication No. 590 ( "ISP98 "), in effect on the date this Letter of Credit is issued, and as to
matters not addressed by ISP98 is subject to and governed by Texas State Law and applicable U.S.
Federal Law.
l�
Name:
Title:
REIMBURSEMENT AGREEMENT WITH DEVELOPER FOR
CONSTRUCTION OF PUBLIC IMPROVEMENTS
ASSOCIATED WITH MODULE 3A UNIT 1(THE CROSSVINE)
THE STATE OF TEXAS
KNOW ALL PERSONS BY THESE PRESENTS:
COUNTY OF BEXAR
This Reimbursement Agreement with Developer for Construction of Public Improvements
Associated with Module 3A Unit 1 (The Crossvine) (the "Agreement") is by and between the
City of Schertz, a Texas municipal corporation (the "City "), and Schertz 1518, Ltd., 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 (hereinafter, the "Property" or
" Crossvine Module 3A Unit 1 Subdivision") located within the City limits, which is
approximately 53.27 acres of land, out of the Julian Diaz Survey No.66, Abstract No. 187, County
Block 5059, the E.R. Evans Survey No. 80, Abstract No. 216, County Block 5060 and being out
of a 145.427 acre tract of land as conveyed to Schertz 1518, LTD ofrecord in Volume 11564 Page
1814 and a 91.288 acre tract of land as conveyed to Schertz 1518, LTD of record in Volume 11601
Page 2280, all being of the official public records of Bexar County, Texas and situated in the City
of Schertz, Bexar County, Texas.
WHEREAS, the Property abuts FM 1518, a Texas Department of Transportation ( "TxDOT")
ROW, wherein all City of Schertz water infrastructure (the "Improvements ") must be relocated
as depicted in Exhibit "A ", and where said Improvements have not been completed; and
WHEREAS, during the development planning stage for the Property, the City submitted to the
Developer a request that the Developer undertake the completion of the Improvements for the
benefit of the City, which Improvements will benefit portions of the City beyond The Crossvine
Module 3A Unit 1 Subdivision; and
WHEREAS, TxDOT is expanding FM 1518 and by such expansion requiring the existing City
of Schertz water infrastructure to be relocated out of the FM 1518 ROW and into utility
easements; and
WHEREAS, Developer and the City have agreed that the Developer will construct certain
Improvements that must be relocated out of the FM 1518 ROW as depicted in Exhibit "A", and
the City has agreed to reimburse the Developer for all of the costs associated with the
construction of the Improvements as more specifically set forth herein; and
WHEREAS, the City and Developer find it to be to their mutual advantage to enter into this
Agreement for the construction of the Improvements; and
WHEREAS, the Property and Improvements are located within the Schertz Tax Increment
Reinvestment Zone Number Two; 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,
NOW THEREFORE, for and in consideration of the premises and mutual obligations,
covenants, and benefits hereinafter set forth, the Parties agree as follows:
ARTICLE I — Definitions.
The following terms and phrases used in this Agreement shall have the meanings ascribed
hereto:
1.1. "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 contract by Developer for the construction and installation
of the Improvements.
1.3. "City's Costs" shall mean all of the costs associated with the construction of the
Improvements including, but not limited to, construction costs, engineering costs, legal
costs, administrative costs, and consulting costs of third parties, the cost of bonds and
insurance, costs or expenses associated with soliciting bids for the construction of the
Improvements, costs of acquiring easements, surveying, geotechnical, and materials
testing costs; ancillary costs associated with, caused by, or occasioned by any delay on
the part of the City in obtaining permits, approving plans, submissions, or applications,
i.e., remobilization costs or increases in the cost of materials resulting from such delays,
and similar costs or expenses; it being the intent hereof that all such costs shall be the
responsibility of the City of Schertz and Developer shall have no cost, exposure or
liability therefor except as set forth in Section 2.2 below. The City's Costs are
estimated to be approximately One Million Two Hundred Eighty Thousand and No /100
Dollars ($1,280,000.00).
1.4. "Improvements" shall mean the improvements depicted on Exhibit "A"
ARTICLE II — Construction of Improvements.
2.1. Acquisition of Easements. Developer agrees to acquire and dedicate (or provide
for future dedication of) all necessary utility easements required in order to construct
the Improvements. Easements may be dedicated via approved recorded subdivision
plat or through separate instrument approved by the City.
2.2. Construction of Improvements. Developer agrees to construct the Improvements
in accordance with the plans and specifications previously approved by the City
Engineer and the construction permits issued by the City. No change in the
Pa
construction plans shall be made by Developer without the prior written approval of
the City Engineer, which approval shall not be unreasonably hindered, withheld, or
delayed. For the purposes hereof, all changes in construction plans which are submitted
to the City of Schertz for approval shall be approved or denied within ten (10) calendar
days of submission and, if not denied within such time period they shall be deemed
approved. The entire responsibility for the payment of the costs and expenses
associated with the planning, administration, and construction of the Improvements
shall be the responsibility and obligation of Developer, subject, however, to the
reimbursement obligations of the City as herein provided.
2.3. Contracts for Construction. The City acknowledges that Developer has utilized
the competitive sealed bidding procedure as defined in Local Government Code
Sec.252 Subchapter C to select a qualified Contractor to construct the improvements
in accordance with the plans and specifications which have been approved by the City
Engineer. 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,
subject, however, to the reimbursement obligations of the City as herein provided.
2.4. Performance, Payment, and Warranty Bonds. Developer shall post (or cause to
be posted) with the City faithful performance, payment, and warranty 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. The Developer shall covenant to warrant the Improvements for a period of two
(2) years following acceptance by the City of all Improvements. A warranty bond shall
be provided in the amount of 20% of the costs of the Improvements for such period.
The costs of such bonds shall be a City Cost and shall be reimbursable to Developer.
2.5. 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.
2.6. 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 insured on such Certificates, and City shall be notified
within thirty calendar days of any cancellation of such insurance.
2.7. 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 contemplated to be
reimbursable costs by City. Developer shall maintain the accounting of the
3
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.
2.8. 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
gross negligence or willful misconduct of Developer or Developer's agents,
representatives, employees, contractors, or subcontractors.
ARTICLE III — Obligations and Payments.
3.1. Developer Obligations. The Developer agrees to dedicate or cause to be
dedicated to the City all necessary easements required in order to construct the
Improvements. Easements which are granted will be reflected on the final plats or,
where necessary, dedicated by separate instrument. Easements granted by third parties
will be dedicated by separate instrument.
3.2. City Obligations. The City agrees to pay City's Costs to Developer as set forth
herein pursuant to the procedures set forth in Section 3.3 below.
3.3. Payment Procedures. City shall deliver to Developer payment of the City's Costs
as provided in this this section.
3.3.1 Developer shall periodically submit (anticipated to be monthly) a
draw request (the "Draw Request ") and the City Engineer shall review the Draw
Request _showing costs incurred by the Developer during the prior month (or
similar construction period) which are City's Costs. The Draw Request shall
include lien waivers from the contractor for the percentage of completion or
amount requested. Within eight (8) days of the submission of the Draw Request
to the City, the Developer shall certify to the City that it has approved the Draw
Request. Provided, however, City understands and recognizes that Developer is
advancing its capital for City's Costs and that Developer may submit Draw
Requests more frequently than monthly to the extent that some invoices and/or
Draw Requests are submitted by the Contractor to Developer more frequently
than monthly.
3.3.2 Upon the City Engineer's receipt of each Draw Request, the City
Engineer shall promptly inspect the Improvements (or otherwise be satisfied
with information and evidence submitted by Developer) to confirm the
percentage of completion as set forth in the Draw Request. The City Engineer
shall approve or reject the Draw Request within ten (10) days of submission of
the Draw Request by Developer. If approved, the City Engineer shall promptly
cause the City to reimburse Developer for the amount of the Draw Request
which Draw Request shall be funded within fifteen (15) days of approval by the
City Engineer. If rejected, the City Engineer shall specify the reason for
rejection and the requirements to cure the objection. Upon cure and approval,
4
the City Engineer shall immediately cause the City to reimburse Developer for
the amount of the Draw Request. It is understood and acknowledged that the
City's Costs may be part of a larger draw request for work being performed by
and for Developer.
3.3.3 Upon the City Engineer's receipt of the final Draw Request, 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 and reimburse Developer the
final payment as represented by the final Draw Request.
3.3.4 Developer shall submit, and the City Engineer shall review,
documentation dedicating all required utility easements. Utility easements shall
be considered dedicated upon appropriate approval, execution, and recordation
of any documents establishing the easements with the Bexar County Clerk's
office. The recording fees (if any) shall be a reimbursable cost.
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: T. Daniel Santee
If to Developer: Schertz 1518, Ltd.
2402S.2 nd St.
Austin, Texas 78704
Attn: Bradley Bechtol
With a copy to: Bradford L. Pittenger
Round One Capital
9525 N. Capital of Texas Hwy., #123
Austin, Texas 78759
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]
T
Sip-nature Page to
Reimbursement Agreement with Developer for Construction of Public hn provements
Associated with Module 3A Unit 1(The Crossvine)
This Agreement has been executed by the parties as of the dates of the Acknowledgments
to be effective as of the Effective Date.
Developer:
SCHERTZ 1518, LTD., a Texas limited
partnership
BY: MTR- Schertz 1518 Management
Company, LLC, a Texas limited liability
company
By: ILI
G _
radley Bechtol, Manager
THE STATE OF TEXAS §
COUNTY OF TRAVIS §
This instrument was acknowledged before me on the j-:i— day of 2022 by Bradley
Bechtol, Manager of for the MTR- Schertz 1518 Management-Company, 1.LC, a Texas limited
liability company, general partner of Schertz 1518, Ltd., a exas limited t artnershi,, in behalf
of such entities, purposes herein expressed. { ,
SAl I
Ncuary puuk,.
Comm Expires 02 -,L,,
Notary ID 1 _
7
Notary Public �n and for
The State of Te), as
My Commission Expires: 0, ' 101.
Signature Page to
Reimbursement Agreement with Developer for Construction of Public Improvements
Associated with Module 3A Unit 1 (The Crossvine)
This Agreement has been executed by the parties as of the dates of the Acknowledgments
to be effective as of the Effective Date.
Cam:
CITY OF SCHERTZ,
a Texas municipal corporation
By: -
Name: Mark Browne, its City Manager
THE STATE OF TEXAS
COUNTY OF BEXAR
This instrument was acknowledged before me on the day of , 2022 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
MATCH LINE -THIS SHEET
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6
THE STATE OF TEXAS §
§ SS.
BEXARCOUNTY §
ROADWAY CAPITAL RECOVERY OFFSET AND REIMBURSEMENT WITH
DEVELOPER FOR CONSTRUCTION OF PUBLIC IMPROVEMENT AGREEMENT
FOR LOWER SEGUIN ROAD
This Agreement ( "Agreement ") is made by and between the City of Schertz, (hereinafter "City ")
a Texas Home Rule municipality and Schertz 1518, Ltd. (hereinafter "Developer ") a Limited
Partnership created under the laws of Texas, (collectively, the "Parties ") and is effective upon the
execution of this Agreement by the Developer and the City (the "Effective Date ").
RECITALS
WHEREAS, pursuant to City of Schertz Code of Municipal Ordinances Chapter 78, Article VII,
the City of Schertz has adopted Roadway Capital Recovery Fees (sometimes hereinafter referred
to as "capital recovery fee "); and
WHEREAS, pursuant to City of Schertz Code of Municipal Ordinances Section 78 -178, where,
in order to serve new development, a developer is required to construct, contribute to, or dedicate,
a capital improvement or facility expansion identified in the capital improvements plan (the
"Required Improvements ") the City and Developer may enter into this Agreement whereby the
Developer is: (1) credited for the reasonable and necessary costs of the capital improvement or
facility expansion against the impact fees otherwise due from the new development; or (2)
reimbursed for all or a portion of the reasonable and necessary costs of the capital improvement or
facility expansion from impact fees as received from other new developments that use the capital
improvement or facility expansion; and
WHEREAS, Developer wishes to develop certain property (the "Property ") within the Project
which is located within the City limits, identified as a portion of The Crossvine Module 2A which
is more specifically identified and graphically depicted on Exhibit "A" attached hereto and
incorporated herein by reference; 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 Required Improvements as well
as Additional Improvements (hereinafter defined) (the Required Improvements and the Additional
Improvements may collectively be referred to as the "Improvements "), which will benefit
portions of the City beyond the Property; and
WHEREAS, Developer is proposing to construct some roadway capital improvements (including
the Additional Improvements) prior to when they are required to under municipal ordinances of
the City; and,
WHEREAS, City and Developer agree that it is mutually beneficial to construct the Additional
Page 1 of 16
Schertz Roadway Capital Recovery Offset Agreement
Improvements in conjunction with the construction of the Required Improvements; and,
WHEREAS, Developer has requested that it be allowed to construct all the Improvements and
share the costs with the City as further set forth herein; and
WHEREAS, the City desires to have the East Lower Seguin Improvements constructed
concurrently with the construction of the Improvements upon the terms and conditions as further
set forth herein; and
WHEREAS, the City and Developer find it to be to their mutual advantage to enter into this
Agreement for the construction of appropriate and necessary public facilities; 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, the zoning of the Property that would trigger the obligation of the Developer to
construct the Required Improvements allows for commercial residential development; and,
WHEREAS, the Credits (hereafter defined) are of less value to the Developer when used for
commercial residential development than traditional residential development given the percentage
of the maximum assessable fee the City actually charges; and,
WHEREAS, City and Developer desire to enter into this Agreement in order to memorialize
Roadway Capital Recovery Fee Credits (sometimes hereinafter referred to as the "Credits ")
achieved by Developer for reasonable and necessary costs of the capital improvement or facility
expansion incurred and as further described herein.
NOW THEREFORE, in consideration of the foregoing recitals and the mutual covenants and
agreements contained herein, and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the Parties hereto, intending to be legally bound,
hereby agree as follows:
ARTICLE I.
DEFINITIONS
A. Additional Benefitted Prop em. . The Additional Benefitted Property is the property owned by
Developer (or affiliates) which would be obligated to provide for the construction of the
Additional Improvements (or some portion thereof) at the time such property is rezoned,
replatted, or is otherwise the subject of a development application to the City which Additional
Benefitted Property is more specifically identified and graphically depicted in Exhibit "A ".
B. Additional Imi ,_rovements. Developer is proposing a capital improvement facility expansion
to include the construction of the full width of Lower Seguin Road from FM 1518 west for a
distance of approximately 2,000 feet as are more specifically identified and graphically
depicted in Exhibit 'B" to the western boundary of the Proj ect. The Additional Improvements
Page 2 of 16
Schertz Roadway Capital Recovery Offset Agreement
are those which Developer will be obligated to develop and complete in the future when
property owned by Developer adjacent to the area of the Additional Improvements is rezoned,
replatted, or is otherwise the subject of a development application to the City.
C. City Participating Property. The City Participating Property is (i) that property owned by the
City or property for which the City is obligated to bear the costs of Improvements as is more
specifically identified and graphically depicted in Exhibit "A ", and (ii) the East Lower Seguin
Improvements (if applicable).
D. Cii,�'s Participation Costs. The City's Participation Costs shall mean those costs associated
with the construction of the Improvements (and the East Lower Seguin Improvements, if
applicable) which are associated with the City Participating Property and are equal to the City's
Participation Percentage of the total Construction Costs.
E. Ci:_, 's Participation Percentage. The City Participating Property comprises twenty -one percent
(21 %) of the project area (exclusive of the area associated with the East Lower Seguin
Improvements) and the City's Participation Percentage shall be twenty -one percent (21 %) of
the total Construction Costs (exclusive of the Construction Costs associated with the East
Lower Seguin Improvements). The City's Participation Percentage for the East Lower Seguin
Improvements is one hundred percent (100 %) of the Construction Costs associated with the
East Lower Seguin Improvements.
F. Construction Costs. The Construction Costs shall be inclusive of all (i) all permits, costs for
submission of applications and similar costs, (ii) engineering, legal, surveying, and
professional services costs, (iii) all construction costs as set forth in the construction contract
for the Improvements (and the East Lower Seguin Improvements, if applicable) as well as any
change orders that may be executed between the parries, and (iv) all ancillary and related costs
associated with the construction of the Improvements (and the East Lower Seguin
Improvements, if applicable),- including costs or value of dedications, bonds, warranties, and
fiscal sureties.
G. Contribution. Developer's Contribution shall be the amount of money which Developer has
spent from time to time which has been reviewed and approved by the City as set forth herein.
H. East Lower Se %, fn Improvements. The East Lower Seguin Improvements shall include
improvements to Lower Seguin east of the intersection of Lower Seguin and FM1518 and
which are not adjacent to any Additional Benefitted Property. The location of the East Lower
Seguin. Improvements is graphically depicted and more specifically identified on Exhibit "B"
attached hereto.
I. Improvements. The Improvements shall include the Required Improvements as well as the
Additional Improvements but shall not be deemed or construed to include the East Lower
Seguin Improvements unless specifically noted.
J. Location. The project is located on the west side of FM 1518 generally in the area which is
north of Ware Seguin Road and extending to include areas north of Lower Seguin Road, as is
more specifically graphically depicted in Exhibit "C ".
Page 3 of 16
Schertz Roadway Capital Recovery Offset Agreement
K. Project. The project is The Crossvine master planned community which is subject to Planned
Development District Zoning which is identified as The Crossvine PDD as established by the
Sedona Trails PDD which was originally approved by the Planning and Zoning Commission
and the City Council of Schertz, Texas on January 24, 2012 (the "Sedona Trails PDD ") by
Ordinance 12 -S -01. The Sedona Trails PDD was subsequently amended by (i) Ordinance 12-
5-16 on August 21, 2012 (the "First Amendment") (ii) Ordinance 14 -S -08 on March 11th,
2014 (the "Second Amendment "), (iii) Ordinance 17 -S -01 on February 28, 2017 (the "Third
Amendment "), (iv) Ordinance 21 -S -08 on March 23, 2021 (the "Fourth Amendment "), (v)
Ordinance 21 -S -22 on June 8, 2021 (the "Fifth Amendment "), and (vi) Ordinance 21 -S -51 on
December 14, 2021 (the "Sixth Amendment ").
J. Pro e . The portion of the Crossvine Module which is more specifically identified and
graphically depicted in Exhibit "A ".
K. Re. _uired Im. rovements. The Required Improvements are those which are required to be
provided by Developer pursuant to the requirements of City of Schertz Code of Municipal
Ordinances Section 78 -178 as a condition to the rezoning or replatting of the Property, such
Required Improvements being more specifically identified and graphically depicted in Exhibit
,FB,►
ARTICLE H.
ROADWAY CAPITAL RECOVERY FEES; SCOPE OF IMPROVEMENTS
A. Roadwa. v Capital Recover Fees. The Maximum Assessable Roadway Capital Recovery Fee
in Service Area 3 are $1,044.48 and $1,061.26 per service unit depending on the platting date.
Residential development in Service Area 3, is collected at $1,000.00 per service unit for
residential and $175.00 per service unit for non - residential.
B. Scope of Improvements. The Improvements shall be as shown and reflected on Exhibit "B".
Exhibit "B" shows the Required Improvements and the Additional Improvements. It is
understood that the area and scope of the Additional Improvements may be impacted by (i)
the approval, consent, and cooperation of the adjacent landowner (the "Adjacent
Landowner ") of the "Adjacent Property" (as shown and defined on Exhibit "A'), (ii) the
approval, consent, and cooperation of TXDOT in the construction of the intersection at Lower
Seguin Road and FM1518. In the event that the Adjacent Landowner or TXDOT shall not
approve, consent to, or cooperate in the full Scope of Improvements as shown on Exhibit `B';
then, in that event, the Improvements shall be limited to the maximum Scope of Improvements
which can be constructed without the approval, consent, or cooperation of Adjacent
Landowner or TXDOT and the City's participation shall be adjusted accordingly.
C. Scope of East Lower Seguin Improvements. The East Lower Seguin Improvements shall be
as shown and reflected on Exhibit "B ". It is understood that the approval, permitting, and
construction of the East Lower Seguin Improvements is dependent upon the approval, consent,
and cooperation of TXDOT in the construction of the intersection at Lower Seguin Road and
FM1518 and the collaborative construction of the East Lower Seguin Improvements as
contemplated herein.
Page 4 of 16
Schertz Roadway Capital Recovery Offset Agreement
ARTICLE III.
CAPITAL IMPROVEMENT PLAN IMPROVEMENTS MADE BY DEVELOPER
A. Rous- °h Proi ortionalit,, . The Parties acknowledge that as provided in Texas Local Government
Code Section 212.904, the City may require Developer to contribute a portion of the costs of
municipal infrastructure improvements by the making of dedications, the payment of fees, or
the payment of Construction Costs (collectively the "Infrastructure Costs "), provided
Developer's portion of Infrastructure Costs do not exceed the amount required for
infrastructure improvements that are roughly proportionate to the Project impact (the
"Proportionate Costs ").
B. Construction of Improvements and East Lower Se_ :din Improvements. Developer agrees to
construct the Improvements (and the East Lower Seguin Improvements, if applicable) in
accordance with plans and specifications to be prepared by Malone/Wheeler, Inc. which shall
be submitted and approved by the City Engineer. The parties acknowledge that the plans and
specifications for the Improvements (and the East Lower Seguin Improvements, if applicable)
have not yet been completed or approved by the City. No change in the construction plans
after they have been approved shall be made by Developer without the prior written consent
of the City Engineer. The Construction Costs for the Improvements shall be the responsibility
and obligation of Developer, except for (i) the City's Share as set forth in Article IV, Section
A, and (ii) the reimbursement to Developer of Roadway Impact Fees as set forth in Article V,
Section A(i) as therein provided. The Construction Costs for the East Lower Seguin
Improvements shall be the responsibility and obligation of the City as set forth in Article IV,
Section A,
C. Timin for Com letion of Imrrovements and East Lower SeTuin Improvements. The
Improvements (and the East Lower Seguin Improvements, if applicable) shall be completed in
accordance with a mutually agreed schedule between the parties. The parties agree to the
following schedule:
i. Construction plans (the "Plans ") for the Improvements (and the East Lower Seguin
Improvements, if applicable) shall be completed and submitted to the City of Schertz no
later than June 30, 2023; and
ii. The Plans will be approved by the City no later than December 31, 2023;
iii. Construction of the Improvements (and the East Lower Seguin Improvements, if
applicable) shall be completed by June 30, 2024.
iv. The foregoing dates shall be extended day for day in the event of (i) any delay in approval
of the Plans, (ii) force majeure as defined in the construction contract for the Improvements
(and the East Lower Seguin Improvements, if applicable), (iii) changes or circumstances
outside the control of the parties, or (iv) delays associated with coordination and integration
with TXDOT's construction and improvements to FM1518 and the intersection of Lower
Seguin Road and FM 1518.
Page 5 of 16
Schertz Roadway Capital Recovery Offset Agreement
D. Contracts for Construction. Developer shall utilize the competitive sealed bidding procedure
as defined in Local Government Code Sec.252 Subchapter C to select a qualified Contractor
to construct the Improvements (and the East Lower Seguin Improvements, if applicable) in
accordance with the approved plans and specifications if required per Local Government Code
Sec. 212 Subchapter C. The contract may be awarded to either to the lowest responsible bidder
or to the bidder who provides goods and services at the best value for the municipality. The
City Engineer shall review and approve in writing all bid documents, contract documents, and
cost estimates prior to putting the construction of the Improvements (and the East Lower
Seguin Improvements, if applicable) out to bid. 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
(and the East Lower Seguin Improvements, if applicable).
E. Performance. Pa -vment . and Warrant \\ Bonds_ . The Contractor selected pursuant to Subsection
D above shall post with the City faithful performance, payment, and warranty bonds for
construction of the Improvements (and the East Lower Seguin Improvements, if applicable) to
ensure completion of the Improvements (and the East Lower Seguin Improvements, if
applicable). The bond must be executed by a corporate surety in accordance with Chapter 2253,
Texas Government Code. The Developer shall covenant for the Improvements (and the East
Lower Seguin Improvements, if applicable) to be warranted for a period of two (2) years
following acceptance by the City of the Improvements .(and the East Lower Seguin
Improvements, if applicable). The warranty bond to be provided shall be in the amount of 20%
of the costs of the Improvements (and the East Lower Seguin Improvements, if applicable) for
such period.
F. Inspection. The City Engineer or designee shall have the right to periodically inspect the
construction of the Improvements (and the East Lower Seguin Improvements, if applicable) 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.
G. Insurance, The Contractor awarded the contract to construct the Improvements (and the East
Lower Seguin Improvements, if applicable) 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.
H. Accounting_. Developer shall periodically submit to City a complete accounting of all costs
incurred by Developer in the construction of the Improvements (and the East Lower Seguin
Improvements, if applicable). 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 (and the East Lower Seguin Improvements, if
Page 6 of 16
Schertz Roadway Capital Recovery Offset Agreement
applicable) 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 (and the East Lower
Seguin Improvements, if applicable) at any time with reasonable notice.
I. Indemnit% . 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 parry on account of, or resulting from, the performance of this Agreement by Developer
or Developer's agents, representatives, employees, contractors, or subcontractors.
J. Restriction on Plattin. . Developer understands, acknowledges, and agrees that, absent the
express written permission of the City, Developer may not plat property north of Lower Seguin
Road which would generate more than 200 vehicle miles in the aggregate for such proposed
platted uses until after the City has accepted the Improvements.
ARTICLE IV.
CITY SHARE OF IMPROVEMENTS AND EAST LOWER SEGUIN IMPROVEMENTS
A. Cis 's Partici; ,ation Costs. The City shall be responsible for the City's Participation Percentage
of the Construction Costs to be paid as set forth in subsection B of this Article IV below.
B. Pa. meat of Cit. 's Participation Percenta -e.
i. Developer shall periodically submit (anticipated to be monthly) a draw request (the "Draw
Request ") and the City Engineer shall review the Draw Request showing costs incurred
by the Developer during the prior month (or similar construction period). The Draw
Request shall include lien waivers from the contractor for the percentage of completion or
amount requested. Within eight (8) days of the submission of the Draw Request to the
City, the Developer shall certify to the City that it has approved the Draw Request.
ii. Upon the City Engineer's receipt of each Draw Request, the City Engineer shall promptly
inspect the Improvements (and the East Lower Seguin Improvements, if applicable) or
otherwise be satisfied with information and evidence submitted by Developer to confirm
the percentage of completion as set forth in the Draw Request. The City Engineer shall
approve or reject the Draw Request within ten (10) days of submission by Developer. If
approved, the City Engineer shall promptly cause the City to reimburse Developer for the
City's Participation Percentage of the Draw Request. The City shall fund the City's
Participation Percentage of the Draw Request within fifteen (15) days of approval by the
City Engineer. If rejected, the City Engineer shall specify the reason for rejection and the
requirements to cure the objection. Upon cure and approval, the City Engineer shall
immediately cause the City to reimburse Developer for the City's Participation Percentage
of the Draw Request.
iii. Upon the City Engineer's receipt of the final Draw Request, a final inspection on the
Improvements (and the East Lower Seguin Improvements, if applicable) shall be conducted,
noting any required corrections or repairs. Once corrections or repairs are made and
deemed acceptable, the City will accept the Improvements (and the East Lower Seguin
Improvements, if applicable) and reimburse Developer for the City's Participation
Page 7 of 16
Schertz Roadway Capital Recovery Offset Agreement
Percentage of the final Draw Request.
ARTICLE V.
ROADWAY CAPITAL RECOVERY FEE REMBURSEMENT
A. Roadwa_ Carital Recovery Fee Offset Credit Calculation. The Parties agree to the following:
i. In. lieu of providing roadway capital recovery fee offset credits for the sections of the
system facility the Developer is to be obligated to construct at time of platting, the City
will reimburse the Developer from Roadway Impact Fees collected within the Project
beginning on June 30, 2022 and continuing thereafter, on an annual basis until the
Developer has been reimbursed in full for an amount equal to their Contribution. The
reimbursement to the Developer will be paid to the Developer by January 31 for the
preceding year (i.e., the reimbursement of any Impact Fees collected by the City in 2022
would be paid to the Developer by January 31, 2023) up to the amount of the Contribution
which has been submitted and approved pursuant to Article Ill.
ii. Developer shall not begin receiving reimbursements of collected Roadway Impact Fees as
set forth in (ii) above until the Plans have been approved by the City. Thereafter, Developer
shall only receive annual reimbursement for costs and expenses which are compensable
under this Agreement which have actually been incurred by Developer. Developer shall
not be paid the final reimbursement of Construction Costs for completion of the public
improvements contemplated by this Agreement until the City's acceptance of same for
public maintenance in accordance with the terms of applicable provisions of the City's
Code of Ordinances.
ARTICLE VI.
MISCELLANEOUS
The following miscellaneous provisions are made part of this Agreement :
A. Additional Instruments. City and Developer agree and covenant to cooperate, negotiate in good
faith, and to execute such other and further instruments and documents as may be reasonably
required to fulfill the public purposes provided for and included within this Agreement.
B. Amendments. This Agreement constitutes the entire understanding and agreement of the
parties as to the matters set forth in this Agreement. No alteration of or amendment to this
Agreement shall be effective unless given in writing and signed by the party or parties sought
to be charged or bound by the alteration or amendment.
C. Al,, Jicable Law and Venue. This Agreement shall be governed by and construed in accordance
with the laws of the State of Texas, and all obligations of the parties created hereunder are
performable in Bexar County, Texas. Venue for any action arising under this Agreement shall
lie in the state district courts of Bexar County, Texas.
D. Assii- ;nment. The Developer may assign this Agreement with the City's consent (such consent
Page 8 of 16
Schertz Roadway Capital Recovery Offset Agreement
not to be unreasonably conditioned, withheld or delayed, but in no event shall the offsets
provided for in the Agreement be transferred to any development not subject to the plat
associated with such offsets.
E. Bindine Obligation. This Agreement shall become a binding obligation on the signatories upon
execution by all signatories hereto. The City warrants and represents that the individual
executing this Agreement on behalf of the City has full authority to execute this Agreement
and bind the City to the same. Developer warrants and represents that the individual executing
this Agreement on its behalf has full authority to execute this Agreement and bind it to the
same.
F. Counter parts. This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original and all of which shall constitute one and the same document.
G. Construction. The Parties acknowledge that the Parries and their counsel have reviewed and
revised the Agreement and that the normal rule of construction to the effect that any
ambiguities are to be resolved against the drafting party shall not be employed in the
interpretation of the Agreement.
H. Enforcement. The City Attorney or his or her designee may enforce all legal rights and
obligations under this Agreement without further authorization. Developer shall provide to the
City Attorney all documents and records that the City Attorney requests to assist in determining
Developer's compliance with this Agreement.
I. Entire Agreement. This Agreement constitutes the entire agreement between the Parties with
respect to the subject matter covered in this Agreement . There is no other collateral oral or
written agreement between the Parties that, in any manner, relates to the subject matter of this
Agreement, except as provided for in any Exhibits attached hereto or duly approved
amendments to this Agreement, as approved by the City Council of the City of Schertz, Texas.
J. Execution of A reement- Authorii % . City Council has authorized the City Manager to execute
this Agreement on behalf of the City, as evidenced by Resolution dated
Bradley Bechtol and Bradford. Pittenger are authorized to execute this Agreement on its behalf,
as evidenced by Resolutions of Developer provided to and approved by the City.
K. Exhibits and Attachments. All Exhibits and Attachments referenced in this Agreement are
attached hereto and incorporated herein for all purposes.
L. Force Ma'eure. It is expressly understood and agreed by the parties to this Agreement that if
the performance of any obligations hereunder is delayed by reason of war, civil commotion,
acts of God, inclement weather, fire or other casualty, or court injunction, inability to obtain
labor or materials or reasonable substitutes therefore, governmental restrictions, governmental
regulations, governmental controls, governmental action, delay in issuance of permits or
approvals (including, without limitation, fire marshal approvals), enemy or hostile
governmental action, civil commotion, fire or other casualty, and other causes beyond the
reasonable control of the obligated party and delays caused by the other party, the party so
Page 9 of 16
Schertz Roadway Capital Recovery Offset Agreement
obligated or permitted shall be excused from doing or performing the same during such period
of delay, so that the time period applicable to such obligation or requirement shall be extended
for a period of time equal to the period such parry was delayed.
M. Gender. The gender of the wording throughout this Agreement shall always be interpreted to
mean either sex, and where the context requires, the plural of any word shall include the
singular.
N. Governmental Records. All invoices, records and other documents required for submission to
the City pursuant to the terms of this Agreement are Governmental Records for the purposes
of Texas Penal Code Section 37.10.
O. Immunities and Defenses.
i. By entering into this Agreement, the Parties do not waive, and shall not be deemed to have
waived, any rights, immunities, or defenses either may have, including the defense of
parties, and nothing contained herein shall ever be construed as a waiver of sovereign,
statutory or official immunity by the City with such rights being expressly reserved to the
fullest extent authorized by law and to the same extent which existed prior to the execution
hereof.
ii. No employee of City, or any councilmember or agent of City, shall be personally
responsible for any liability arising under or growing out of this Agreement.
P Mutual Assistance. City and Developer will do all things reasonably necessary or appropriate
to carry out the terms and provisions of this Agreement and to aid and assist each other in
carrying out such terms and provisions.
Q. Notices. Any notice, statement and/or communication required and/or permitted to be
delivered hereunder shall be in writing and shall be mailed by first -class mail, postage prepaid,
or delivered by hand, by messenger, by facsimile, or by reputable overnight carrier, and shall
be deemed delivered when received at the addresses of the Parties set forth below, or at such
other address furnished in writing to the other Parties thereto:
DEVELOPER: Schertz 1518, LTD.
Attn: Bradley Bechtol
2402 South 2nd Street
Austin, Texas 78704
bradley@primaryfonnllc.com
WITH COPY TO: Bradford L. Pittenger
Round One Capital
9525 N. Capital of Texas Hwy., #123
Austin, Texas 78759
brad@roundonecapital.com
CITY: City Manager
Page 10 of 16
Schertz Roadway Capital Recovery Offset Agreement
City of Schertz
1400 Schertz Parkway
Schertz, TX 78154
Phone: (210)619 -1000
Fax: (210)619 -1029
WITH COPY TO: Denton Navarro Rocha Bernal & Zech
A Professional Corporation
Ann. T. Daniel Santee
2517 N. Main Avenue
San Antonio, Texas 78212
Phone: (210) 227 -3243
Fax: (210) 225 -4481
R. Ordinance A plicabilit, . The signatories hereto shall be subject to all ordinances of the City
except as they may be amended, modified, or limited by the PDD, whether now existing or in
the future arising provided however no ordinance shall reduce or diminish the contractual
obligations contained herein. This Agreement shall confer no vested rights on the Project or
Developer unless specifically enumerated herein.
S. Satisfaction of Obligations. The parties acknowledge and agree that the undertaking of the
obligation to construct the Improvements shall constitute the extent of all obligations of
Developer for the construction of Lower Seguin Road, or any drainage facilities or utility
infrastructure associated with Lower Seguin Road. Upon the acceptance of the Improvements,
Developer shall be deemed to have fulfilled all obligations and shall have no further
responsibility or liability for the construction of any Improvements, including additional
improvements to the intersection of Lower Seguin and FM1518.
T. Severabili __ . In the event any provision of this Agreement is illegal, invalid, or unenforceable
under the present or future laws, then, and in that event, it is the intention of the Parties hereto
that the remainder of this Agreement shall not be affected thereby, and it is also the intention
of the Parties to this Agreement that in lieu of each clause or provision that is found to be
illegal, invalid, or unenforceable a provision be added to this Agreement which is legal, valid
and enforceability and is a similar in terms as possible to the provision found to be illegal,
invalid or unenforceable.
U. Survival of Covenants. Any of the representations, warranties, covenants, and obligations of
the Parties, as well as any rights and benefits of the Parties, pertaining to a period of time
following the termination of this Agreement shall survive termination.
V. Time is of the Essence. Time is of the essence of this Agreement and all obligations of all
parties hereunder shall be promptly performed and no obligation, decision, process, or approval
shall be unduly delayed or hindered.
EXECUTED in duplicate originals to be effective as of the date of the last signature below.
Page 11 of 16
Schertz Roadway Capital Recovery Offset Agreement
DEVELOPER:
SCHERTZ 1518, LTD., a Texas limited partnership
BY: MTR - Schertz 1518 Management Company, LLC, a Texas limited liability company
Bradley Bechtol, Manager
Date:
THE STATE OF TEXAS §
COUNTY OF TRAVIS §
This instrument was acknowledged before me on the day of , 2022 by Bradley
Bechtol, Manager of MTR - Schertz 1518 Management Company, LLC, a Texas limited liability
company, general partner of Schertz 1518, Ltd., a Texas limited partnership, on behalf of such
entities, for the purposes herein expressed.
(SEAL)
Notary Public in and for The State of Texas
My Commission Expires:
Page 12 of 16
Schertz Roadway Capital Recovery Offset Agreement
CITY:
CITY OF SCHERTZ, TEXAS,
By:
Name:
Date:
ATTEST:
THE STATE OF TEXAS
COUNTY OF BEXAR
APPROVED AS TO FORM:
This instrument was acknowledged before me on the day of , 2022 by
City Manager of Schertz, Texas, for the purposes herein expressed.
(SEAL)
Notary Public in and for The State of Texas
My Commission Expires:
Page 13 of 16
Schertz Roadway Capital Recovery offset Agreement
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