22-R-123 Subdivision Improvement Agreeemnt -1518 ApartmentsRESOLUTION NO. 22-R-123
A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS
AUTHORIZING A SUBDIVISION IMPROVEMENT AGREEMENT WITH SCHERTZ
1518 APARTMENTS, LTD. AND OTHER MATTERS IN CONNECTION THEREWITH
WHEREAS, the Landowner desires to defer certain dedication and improvement obligation for
FM 1518 Schertz Multifamily Apartments; 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 in process of making certain sewer improvements associated
with the Woman Hollering Creek Sewer Line; and
WHEREAS, the developer is obligated to make certain improvements, 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 a Subdivision
Improvement Agreement for the FM 1518 Schertz Multifamily Project generally as attached in
Exhibit "A ".
Section 2. The recitals contained in the preamble hereof are hereby found to be true, and
such recitals are hereby made a part of this Resolution for all purposes and are adopted as a part
of the judgment and findings of the 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provision of this Resolution are hereby repealed to the extent of such conflict, and the provisions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 25th day of October, 2022.
Ralph u errez, yor
ATTEST:
' J. f
Sheila Edmondson, Ix erim City Secretary
i
t �
1
,
Exhibit "A"
Subdivision Improvement Agreement FM
1518 Schertz Multifamily Apartments
After Recording Please Return To:
City of Schertz
1400 Schertz Parkway
Schertz, Texas 78154
Attention: City Manager
STATE OF TEXAS
KNOW ALL PERSONS BY THESE PRESENTS:
COUNTY OF BEXAR
SUBDIVISION IMPROVEMENT AGREEMENT
NRP GROUP FM 1518 APARTMENTS
This SUBDIVISION IMPROVEMENT AGREEMENT (the "Agreement ") is by and
between 1518 Apartments Ltd., a Texas limited partnership (the "Developer "), and the CITY OF
SCHERTZ, a Texas municipal corporation (the "Ciff" ), and is acknowledged by Karen L. Dahle
( "Owner ") and the Schertz Housing Authority Public Facilities Corporation ( "SHA PFC "), and is
effective upon the execution of this Agreement by all parties (the "Effective Date ").
WHEREAS, Karen L. Dahle 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 "Property"); and
WHEREAS, the Schertz Housing Authority Pubic Facility Corporation is under contract
to purchase the Property and will partner with Developer on the development of a multi - family
apartment complex (the "Project "); and
WHEREAS, the Project requires the construction of certain public improvements in
conjunction with the platting of the Property (the "Subdivision ") such as the sanitary sewer
extension and others with the development of the Project such as a deceleration lane; and
WHEREAS, this Agreement is solely with respect to the final plat of Subdivision, the
preliminary plat for which has been submitted to the City for approval, and which the parties
anticipate being approved by the City of Schertz Planning and Zoning Commission, a copy of such
proposed preliminary plat being attached hereto as Exhibit "B ", and incorporated herein by
reference; and
WHEREAS, certain utility and other public improvements (collectively, the
"Im �r} ovements ") necessary to provide services to the Subdivision are not yet complete and will
be constructed at a future time, as set forth hereinafter, but which will be after the recording of the
final plat for the Subdivision; and
WHEREAS, the Improvements to be constructed are more specifically identified in Section
2 (a) below; and
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; and
WHEREAS, the Developer 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 Subdivision (the "Final Plat
Recordation ") pursuant to this Agreement and Section 21.4.15 of the City's Unified Development
Code; and
WHEREAS, the City is currently constructing sewer improvements more specifically
identified in Section 2(b) that the Developer is planning to tie into; and
WHEREAS, if necessary the Developer is requesting to be able to obtain a certificate of
occupancy for the Project prior to completion of the sanitary sewer improvements outlined in
Section 2, through the use a licensed contractor to "pump and haul" the wastewater from the
Project.
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 Developer and the City agree as follows:
1. Development of the Property. Karen L. Dahle hereby represents and warrants that,
as of the Effective Date, she is the owner of the Property. SHA PFC it is under contract to purchase
the Property, and it will be developed in partnership with Developer. Karen L. Dahle, SHA PFC
and Developer understand that this agreement is for the benefit of Developer and the SHA PFC,
and does not extend to other parties, unless provided for otherwise herein.
2. Scope of Improvements. The public Improvements addressed and contemplated by
this Agreement to be completed subsequent to Final Plat Recordation include (i) Improvements to
be undertaken by the owner on its own behalf, and (ii) improvements being undertaken by the City
on behalf of the City.
(a) The Improvements to be completed by the Developer are those
improvements identified on construction plans which are to be approved by the City
and are more specifically identified as FM 1518 Multifamily Apartments
Construction Plan Improvements prepared by Moy Tarin Ramirez Engineers, LLC.
(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 Hollerini,_Creek Wastewater Lines" (herein
so called) prepared by Cobb Findley.
3. Construction of Improvements: Covenants. The Developer and the City covenant
and agree to the following:
(a) The Developer is obligated by Section 21.12.10 of the City's Unified
Development Code to construct, or cause to be constructed, all Improvements
shown on the FM 1518 Multifamily Apartments Construction Plan Improvements
referenced in Section 2(a) which must be approved and will be included as part of
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the application for plat approval for the subdivision titled FM 1518 Multifamily
Apartments Plat.
(b) Section 21.12.10 of the City's Unified Development Code requires the
completion of the Woman Hollering Creek Wastewater Lines more 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 is
required in order for the Developer to complete the FM 1518 Multifamily
Apartments Construction Plan Improvements.
(d) The City has undertaken the construction 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 FM 1518 Multifamily Apartments Construction Plan Improvements
shall be built and completed in accordance with City design standards by Developer
within twelve months (12 months) of filing the plat of the Subdivision in the Bexar
County Real Property Records.
(f) The cost of the FM 1518 Multifamily Apartments Construction Plan
Improvements is estimated to be COST and NO /100 ($XXX,000.00) (the "Cost
Estimate - Improvements "). The Developer and the City agree that the amount of the
Cost Estimate - Improvements set forth herein is a commercially reasonable estimate
of the cost of the FM 1518 Multifamily Apartments Construction Plan
Improvements.
(g) In lieu of the (i) Developer's obligation to construct, or cause to be
constructed, the FM 1518 Multifamily Apartments Construction Plan
Improvements at or before the Final Plat Recordation, Developer 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
120% of the Cost Estimate - Improvements (the "Improvement 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 agrees to not withhold a Certificate of Occupancy for the FM 1518
multi- family apartment complex until construction of the FM 1518 Multi - Family
Apartments Construction Plan Improvements and the Woman Hollering Creek
Wastewater Lines if the Developer utilizes a licensed contractor to "pump and haul"
the wastewater until completion of the FM 1518 Multi- Family Apartments
Construction Plan Improvements and the Woman Hollering Creek Wastewater.
(i) For the purpose of clarification, and in no way limiting Developer's
obligations under Section 21.4.15, the Parties agree that full completion of
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construction of the FM 1518 Multi- Family Apartments 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.
0) In the event Developer fails to fully complete construction of the FM 1518
Apartments Construction Plan Improvements as required per 3 (e), the City may
declare this Agreement to be in default and at the City's sole discretion:
(i) require that all FM 1518 Multifamily Apartments Construction Plan
Improvements as required per 3 (e) be installed by Developer
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 FM 1518 Multifamily Apartments Construction Plan
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 FM 1518 Multifamily Apartments Construction
Plan 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 FM 1518 Multifamily Apartments
Construction Plan Improvements.
(k) Within 30 days of the City's acceptance of the FM 1518 Apartments
Improvements, the City shall release the Surety to Developer and the Parties shall
have no further obligation to each other under this Agreement.
4. Wastewater Pump and Haul. The City and Developer have entered into the
Wastewater Pump and Haul Agreement for the FM 1518 Apartments attached hereto as Exhibit
«D99
5. Approval of Ai >,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
Developer represents and warrants that it has taken all necessary action to authorize its execution
and delivery of this Agreement.
6. 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.
7. Binding 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. Any Owner obligations, benefits, or requirements
of this Agreement shall automatically be assigned to subsequent owners of the Property following
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conveyance. As of the Effective Date, the subsequent Owner is anticipated to be the Schertz
Housing Authority Public Facilities Corporation.
8. Counterparts. arts. 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.
9. Integration. 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 Developer
and the City. The Developer and the City each agrees that there are no oral agreements,
understandings, representations or warranties which are not expressly set forth herein.
10. Notices. Any notice or communication required or permitted hereunder shall be
deemed to be delivered three (3) days after such notice is deposited in the United States mail,
postage fully prepaid, registered or certified mail return receipt requested, and addressed to the
intended recipient at the address shown herein. Any address 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:
Karen L. Dahle
9120 E. FM 1518 N
Schertz, TX 78154
Schertz Housin-= Authority Public Facilities Corporation
If to the Develo
1518 Apartments Ltd.
c/o The NRP Group
200 Concord Plaza Drive, Suite 900
San Antonio, Texas 78216
Attn: Jason Arechiga
With copv to:
Killen, Griffin & Farrimond
10101 Reunion Place, Suite 250
San Antonio, Texas 78216
Attn: Ashley Farrimond
If to the Citv:
CITY OF SCHERTZ
1400 Schertz Parkway
Schertz, Texas 78154
Attention: City Manager
With copy to:
Denton Navarro Rocha Bernal Hyde & Zech, P.C.
2517 N. Main Avenue
San Antonio, Texas 78212
Attention: T. Daniel Santee
11. 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.
12. Recitals: Exhibits. Any recitals in this Agreement are represented by the parties
hereto to be accurate, constitute a part of the parties' substantive agreement, and are fully
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_
13. 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.
14. Choice of Law. This Agreement will be construed under the laws of the State of
Texas without regard to choice -of -law rules of any jurisdiction. Venue shall be in the State District
Courts of Guadalupe County, Texas with respect to any lawsuit arising out of or construing the
terms and provisions of this Agreement. No provision of this Agreement shall constitute a consent
by suit by any party.
[Signatures and acknowledgments on the following pages]
D
SilInature Pate to
Subdivision Improvement 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:
Karen L. Dahle
Date:
THE STATE OF TEXAS
COUNTY OF BEXAR
This instrument was acknowledged before me on the day of October, 2022 by Karen L.
Dahle.
(SEAL)
11
Notary Public in and for
The State of Texas
My Commission Expires: __
Sik nature Page to
Subdivision Improvement 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.
Schertz Housing Authority Public Facilities
Corporation
By:
Name:
Title:
Date:
THE STATE OF TEXAS §
COUNTY OF §
This instrument was acknowledged before me on the day of 2022 by
Schertz Housing Authority Public Facilities
Corporation.
(SEAL)
Notary Public in and for
The State of Texas
My Commission Expires:
Sit,ynature Pale to
Subdivision Improvement 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.
Developer;
1518 Apartments Ltd.
a Texas limited liability partnership
By:
Name:
Title:
Date:
THE STATE OF TEXAS
COUNTY OF BEXAR
This instrument was acknowledged before me on the day of October, 2022 by
1518 Apartments Ltd., a Texas limited liability
partnership.
(SEAL)
0
Notary Public in and for
The State of Texas
My Commission Expires:
Signature Page to
Subdivision Improvement 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.
Cam:
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 October, 2022 by Mark Browne,
City Manager of the City of Schertz, Texas, a Texas municipal corporation, on behalf of said City.
(SEAL)
10
Notary Public in and for
The State of Texas
My Commission Expires:
EXHIBIT "A"
Legal Description - The Property
I Plat Namel
[See attached]
EXHIBIT "B"
Submitted Preliminary Plat
[Plat Name]
[ See attached]
EXHIBIT "C"
Improvement Funds Surety
IRREVOCABLE STANDBY LETTER OF CREDIT NO.
Date:
Beneficiary: City of Schertz
1400 Schertz Parkway, Building #1
Schertz,Texas78154
Attn: City Manager
Applicant: 1518 Apartments Ltd.
c/o The NRP Group
200 Concord Plaza Drive, Suite 900
San Antonio, Texas 78216
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 ( Thousand Hundred and No/ 100 United States
Dollars) ( "Stated Amount ") available by draft(s) drawn on us at sight, marked "Drawn under Irrevocable
Standby Letter of Credit No. 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) 1518 Apartments Ltd. (hereinafter
"Applicant ") has provided security for the Subdivision Improvement Agreement for The Crossvine, Module
3A, Unit 1 as entered into by and between 1518 Apartments Ltd. and the City of Schertz, Texas, a Texas
Municipal Corporation (hereinafter the "Agreement "); 2) 1518 Apartments 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 1 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 linsert amounts under Bank Irrevocable Standby Letter of Credit
No.
2. This original Letter of Credit and any amendments thereto (if any).
Special Conditions:
I . 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 from 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 of the Applicant.
We hereby engage with you that documents drawn under and in compliance with the to lns 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.
Bank
Name:
Title:
EXHIBIT "D"
Wastewater Pump and Haul Aureement for the FM 1518 Apartments