23-R-01 Homestead Agreements Unit 9 and Unit 11RESOLUTION NO.23-R-01
A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF
SCHERTZ, TEXAS AUTHORIZING AGREEMENTS WITH I
LF- N-T OWNER, LP FOR SUBDIVISION IMPROVE
MENTAGREEMENTS FOR HOMESTEAD UNIT 9
AND UNIT 11, AN AMENDED ROADWAY CAPI
TAL RECOVERY OFFSET AGREEMENT AND
REIMBURSEMENT AGREEMENT FOR CONST
RUCTION OF PUBLIC IMPROVEMENTS IN THE
CITY OF SCHERTZ, TEXAS, AND RELATED MATTERS IN
CONNECTION THEREWITH
WHEREAS, the Landowner desires to defer certain dedication and public
improvements obligations for Homestead Units 9 and 11; 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, Developer intends to develop public roadways that are system facilities; and
WHEREAS, in accordance with Ordinance 18-M-13 Roadway Capital Recovery Fees, the
City shall offset the reasonable value of system facilities through an offset agreement; and
WHEREAS, there is a lack of sewer service to serve an area of northern Schertz near
the intersection of IH-35 and Schwab road; and
WHEREAS, the sewer forcemain improvements offsite sewer improvements are needed to
provide adequate sewer service to these areas and there is limited space to provide this public
infrastructure; and
WHEREAS, the Developer of the Homestead Subdivision agrees to construct sewer
infrastructure of which the capacity is more than is required by the Homestead property; and
WHEREAS, there is a benefit to oversizing sewer infrastructure to serve other properties, and
WHEREAS, the developer has agreed to upsize certain a waterline in various phases of
the Homestead development; and
WHEREAS, the City Council finds that it is in the best interest of the City to enter into the
Agreement with Developer for acquisition of the easement necessary for the construction of
Public Improvement in order to provide the infrastructure to serve other properties outside the
boundary of the proposed Homestead Subdivision plat.
NOW THEREFORE, BE IT RESOLVED, THAT THE CITY COUNCIL OF THE CITY
OF SCHERTZ, TEXAS THAT:
Section 1. The City Council hereby authorizes the City Manager to execute the
agreements generally in the form attached subject to approval of minor changes approved by the City
Attorney as shown on Exhibit "A".
Section 2. The recitals contained in the preamble hereof are hereby found to be true,
and such recitals are hereby made a part of this Resolution for all purposes and are adopted as a
part of the judgment and findings of the City Council.
Section 3. All resolutions, or parts thereof, which are in conflict or inconsistent with
any provision of this Resolution are hereby repealed to the extent of such conflict, and the
provisions of this Resolution shall be and remain controlling as to the matters resolved herein.
Section 4. This Resolution shall be construed and enforced in accordance with the laws
of the State of Texas and the United States of America.
Section 5. If any provision of this Resolution or the application thereof to any person
or circumstance shall be held to be invalid, the remainder of this Resolution and the application
of such provision to other persons and circumstances shall nevertheless be valid, and the City
Council hereby declares that this Resolution would have been enacted without such invalid
provision.
Section 6. It is officially found, determined, and declared that the meeting at which
this Resolution is adopted was open to the public and public notice of the time, place, and subject
matter of the public business to be considered at such meeting, including this Resolution, was
given, all as required by Chapter 551, Texas Government Code, as amended.
Section 7. This Resolution shall be in force and effect from and after its final
passage, and it is so resolved.
PASSED AND ADOPTED, this 71h day of March, 2023.
CITY OF C TZ, TEXAS
R. h Gu ' ez, Mayor
A S:
r�
Sheila Edmondson, City Secretary
Exhibit A
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 GUADALUPE §
IMPROVEMENT AGREEMENT
HOMESTEAD PHASE SUBDIVISION- UNIT 9— PUBLIC IMPROVEMENTS
This IMPROVEMENT AGREEMENT (the "Agreement") is by and between ILF
N-T Owner, LP (the "Owner"), and the CITY OF SCHERTZ, a Texas municipal
corporation (the "City") and is effective upon the execution of this Agreement by the
Owner and the City (the "Effective Date"); and
WHEREAS, the Owner is the owner of that certain real property located in the City
of Schertz, Guadalupe County, Texas, more specifically described on Exhibit "A",
attached hereto and made a part hereof for all purposes (the "Pro e " or "Homestead
Subdivision Unit 9"); and
WHEREAS, the Owner seeks to develop a residential subdivision on the Property
(the "Subdivision") that requires the construction of certain public improvements: and
WHEREAS, this Agreement is made solely with respect to the final plat of
Homestead Subdivision Unit 9 which was approved by the City of Schertz Planning and
Zoning Commission on February 9, 2022; and
WHEREAS, pursuant to Section 21.4.15(C.) (2.) and (F.) (1) of the City's Unified
Development Code, the obligation to construct the public improvements that serve the
Subdivision may be deferred if an Improvement Agreement is executed and if sufficient
surety is provided to secure the obligation to construct the public improvements; and
WHEREAS, the Owner seeks to defer the construction of the public improvements
to a future date, not to exceed three years (3 years), after the recording of the final plat for
Homestead Subdivision Unit 9 (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 reciprocal good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged and stipulated by the Parties, the Owner and the City agree as
follows:
Homestead Subdivision Improvement Agreement Unit 9 1 312023
1. Ownership of the Property. The Owner hereby represents and warrants that,
as of the Effective Date, it has not conveyed, assigned, or transferred all or any portion of
its interest in the Property to any other person or entity (any such person or entity referred
to herein as "Purchaser"), nor is it a party to any contract or other understanding to do so
that is not subject to this Agreement with the exception of contracts for the sales of lots in
ordinary course and dedications of utility and public improvements (unrelated to this
Agreement) in the ordinary course of business.
2. Construction of Improvements: 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, a roadway
segment improvements more particularly shown on Exhibit `B" and in the
"Construction Plans" approved March 11, 2022 and that are included as part
of the application for final plat approval for the subdivision titled
Homestead Subdivision Unit 9 (such improvements shall be referred to
herein as the "Improvements").
b) The Improvements shall be built and completed in accordance with City
design standards within three years (3 years) after the Final Plat
Recordation.
c) The cost of the uncompleted Improvements for Homestead Subdivision
Unit 9 is estimated to be One -Hundred and Ninety -Four Thousand, Six -
Hundred and Sixteen and Ten Cents ($194,616.10), (the "Cost Estimate"),
as more particularly shown on Exhibit "C" attached hereto and made a part
hereof for all purposes. The Owner and the City agree that the amount of
the Cost Estimate set forth herein is a commercially reasonable estimate of
the cost of the Improvements.
d) In lieu of the Owner's obligation to construct, or cause to be constructed,
the 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 "D" (the "Surety") in an amount
equal to 125% of the Cost Estimate amount Two -Hundred and Fom,-
Three Thousand, Two -Hundred and Seventv Dollars and 13 Cents
(243,070.13), (the "Improvement Funds").
e) Owner agrees within three years (3 years) of the Final Plat Recordation to
complete the construction of the 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. For the
purpose of clarification, and in no way limiting Owner's obligations under
Homestead Subdivision Improvement Agreement Unit 9 1 31 2023
Section 21.4.15, the Parties agree that full completion of construction of the
Improvements shall not occur until the City accepts the Improvements in
the manner prescribed in Section 21.4.15. D., and Owner provides a
warranty bond which may name the contractor as the principal (to expire
twenty-four (24) months following such acceptance) which shall be exactly
twenty percent (20%) of the total cost of construction of all the
Improvements.
f) In the event Owner fails to fully complete construction of the Improvements
within three years (3 years) subject to subsection h) below, of the Final Plat
Recordation 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 the 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.
g) 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.
h) If Owner can document an inability to complete these improvements within
the three (3) year timeframe due to causes beyond Owner's control, City
will in good faith consider an extension.
3. Approval of Agreement. The City has approved the execution and delivery
of this Agreement pursuant to Section 21.4.15(C.)(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.
4. 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.
5. 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.
Homestead Subdivision Improvement Agreement Unit 9 1 31 2023
6. Counterparts. 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.
7. 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
Owner and 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.
8. 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:
ILF N-T Owner, LP
500 Boylston Street
Boston, MA 02116
Attention: Jesse Baker
If to the City:
CITY OF SCHERTZ
1400 Schertz Parkway
Schertz, Texas 78154
Attention: City Manager
With copy to:
Denton Navarro Rocha Bernal & Zech, P.C.
2517 N. Main Avenue
San Antonio, Texas 78212
Attention: T. Daniel Santee
9. Legal 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
Homestead Subdivision Improvement Agreement Unit 9 1 31 2023
any section. This Agreement will not be construed more or less favorably between the
parties by reason of authorship or origin of language.
10. 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.
11. 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.
12. 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 consent by suit by any party.
[ Signatures and acknowledgments on the following pages]
Homestead Subdivision Improvement Agreement Unit 9 1 312023
Signature Page to
Improvement A reement
ILF N-T Owner, LP,
a Delaware limited partnership
By: ILF N-T GP, LLC,
a Delaware limited liability company,
its General Partner
By: ILF N-T Holdings, LLC,
a Delaware limited liability company,
its Sole Member
By: FCA Nor -Tex, LLC
a Delaware limited liability company,
its Administrative Member
By:
Name:
Title: Authorized Signatory
Homestead Subdivision Improvement Agreement Unit 9 1 31 2023
Sienature Paee to
Improvement Agreement
This 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
M.
Name: Steven Williams, its City Manager
Date:
THE STATE OF TEXAS §
COUNTY OF GUADALUPE §
This instrument was acknowledged before me on the day of , 2023 by
Steven Williams, 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:
Homestead Subdivision Improvement Agreement Unit 9 1 312023
EXHIBIT "A"
The Property
Approved Final Plat Exhibit
and
Legal Metes and Bounds
[ See attached]
Homestead Subdivision Improvement Agreement Unit 9 1 312023
SCC[�HIE R TZCOMMUNITY
OPPORTUNITY
PLANNING & COMMUNITY
DEVELOPMENT
February 11, 2022
EXHIBIT "A"
ILF N-T Owner, LP via email:
600 Boylston Street, Suite 2010
Boston, Massachusetts, 02116
RE: PC2022-008 Homestead Unit 9
Dear Property Owner,
The City of Schertr funning and Zoning Commission met on February 9, 2022 and has approved your
application for the Homestead Unit 9 Final Plat.
Please provide the Planning office with the following to record your plat in Guadalupe County:
1. 1 CD with pdf. and AutoCAD drawings
2. 1 Set of 18" by 24" paper set for City
3. Original certified tax cedificate(s)
4. Tax receipt(s)A check made payable to "Guadalupe County Clerk". Please use the following fee
schedule from Guadalupe County to calculate the totat amount to be listed on the check:
a. $121.00 for the first plat page
b. $100.00 for each additional plat page
c. $4.00 for each tax certificate for the property (Please note that the tax certificates
provided should encompass the full acreage that is Included within the final exhibit)
—Please note that f( a personal check is provided, the date of birth and the driver's license
number di be needed —
Please be aware that roadway Impact fees may be collected at time of new construction building
pemrit.
The tree affidavit submitted Indicates that no protected or heritage trees will be disturbed or removed,
thus no fees are due.
This proposed development requires inslatlal'wn of public infrastructure improvements, please review the
Unified Development Code, Sec. 24.4.15 Public Infrastructure Improvements Construction Plans and
Community Facilities Agreements as it relates to performance and maintenance bond requirements.
The approval for the final plat shall remain in effect for a period of 2 years after the date the application was
approved. If the final plat is not recorded within the two (2) year period, the final plat shall expire.
If you should have any questions or concerns, pease feel free to contact me at 210-619-1782,
Sincerely,
Megan Harrison
Planner
cc: Behdad Zabrooni, MAonelNfheeler, Inc., via email ktbdadatilt
1490 sewn Paxway edwn, Texas 78154 210.619.1000
Homestead Subdivision Improvement Agreement Unit 9 1 31 2023
EXHIBIT A'
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Homestead Subdivision Improvement Agreement Unit 9 1 312023
EXHIBIT "A"
Page I of 6
Homestead Subdivision Unit
16.70 Acres
DESCRIPTION OF A 16.70 ACRE TRACT, PREPARED BY DELTA SURVEY GROUP
INC., IN JANUARY 2021, LOCATED IN THE P. SAN MIGUEL SURVEY NO. 256,
ABSTRACT NO. 227, GUADALUPE COUNTY, TEXAS, BEING A PORTION OF THE
REMAINDER OF A CALLED 522.18 ACRE TRACT CONVEYED TOO ILF N-T
OWNER, LP., AND DESCRIBED IN DOCUMENT NUMBER 2014022581, OFFICIAL
PUBLIC RECORDS, GUADALUPE COUNTY, TEXAS, SAID 16.70 ACRE TRACT, AS
SHOWN ON ACCOMMNG SKETCH, BEING MORE PARTICULARLY DESCRIBED
BY METES AND BOUNDS AS FOLLOWS:
COMMENCING at a %z inch iron rod with "KFW ' cap found for the northwest corner of said
remainder tract, same being in the east line of The Links at Scenic Hills Unit 1, a subdivision of
record in Volume 7, Page 369, Official Public Records, Guadalupe County, Texas, and also
being the southwest corner of a called 23.76 acre tract conveyed to Board of Trustees of the
Shertz-Cibolo-Universal City Independent School District described in Volume 4176, Page 283,
Official Public Records, Guadalupe County, Texas, for the POINT OF COMMENCEMENT,
from which a '/z inch iron rod with "KFW" cap found in the north line of said remainder tract,
same being the south line of said 23.76 acre tract, bears N79° 12'55"E, a distance of 596.06 feet;
THENCE crossing said remainder tract, S50°55'53"E, a distance of 1170.48 feet to a calculated
point for the POINT OF BEGINNING;
THENCE continuing to cross said remainder tract, the following fifty-eight (58) courses and
distances:
I N25° 18'06"E, a distance of 50.00 feet to a calculated point,
2. N26°38'38"E, a distance of 157.34 feet to a calculated point,
3. N26°43'24"E, a distance of 39.72 feet to a calculated point,
4, N28"1 TO 1 "E, a distance of 39.73 feet to a calculated point,
5 N30°13'20"E, a distance of 41.09 feet to a calculated point,
6. N329 6'42"E, a distance of 41.09 feet to a calculated point,
7. N34020'04"E, a distance of 41.09 feet to a calculated point,
8. N36°23'25"E, a distance of 41.09 feet to a calculated point,
9. N38'26'47"E, a distance of 41.09 feet to a calculated point,
10. N40°30'09"E, a distance of 41,09 feet to a calculated point,
11. N42°3738"E, a distance of 43.83 feet to a calculated point,
12. N44'49'13"E, a distance of 43.83 feet to a calculated point,
13. N47°00'48"E, a distance of 43.83 feel to a calculated point,
14. N49°12'24"E, a distance of 43.83 feet to a calculated point,
15, NS 1°23'59"E, a distance of 43.83 feet to a calculated point,
16. N53"35'34"E, a distance of 43.83 feet to a calculated point,
17, N55°53'56"E, a distance of48.33 feet to a calculated point,
18, N58" 19'03"E, a distance of 49.33 feet to a calculated point,
19. with the arc of a curve to the right an arc distance of 106.04 feet, through a central angle
of 01°36'26, having a radius of 3780.00 feet, and whose chord bears S28°16'39"E, a
distance of 106.04 feet to a calculated point,
20. with the arc of a curve to the right an arc distance of 22.50 feet, through a central angle of
Homestead Subdivision Improvement Agreement Unit 9 1 312023
Page 2 of 6
Homestead Subdivision Unit 9
16.70 Acres
85°57'05", having a radius of 15.00 feet, and whose chord bears S 15°30'07"W, a distance
of 20.45 feet to a calculated point,
21. with the are of a curve to the left an arc distance of 27,99 feet, through a central angle of
01 °33'52", having a radius of 1025.00 feet, and whose chord bears S57°41'43"W, a
distance of 27.99 feet to a calculated point,
22. S33°05' 1 YE, a distance of 50.00 feet to a calculated point,
23, with the arc of a curve to the right an arc distance of 20.00 feet, through a central angle of
01910'31", having a radius of 975.00 feet, and whose chord bears N57°30'03"E, a
distance of 20.00 feet to a calculated point,
24. with the arc of a curve to the right an arc distance of 25.04 feet, through a central angle of
95°39'35", having a radius of 15.00 feet, and whose chord bears S74°04'54"E, a distance
of 22.23 feet to a calculated point,
25. with the are of a curve to the right an arc distance of 20.33 feet, through a central angle of
00°18'30", having a radius of 3780.00 feet, and whose chord bears S26°05'52"E, a
distance of 20.33 feet to a calculated point,
26, N64°03'23"E, a distance of 50.00 feet to a calculated point,
27. with the arc of a curve to the left an are distance of 15.00 feet, through a central angle of
00°13'28", having a radius of 3830.00 feet, and whose chord bears N26°03'21"W, a
distance of 15.00 feet to a calculated point,
28. N63°05'02"E, a distance of 120,01 feet to a calculated point,
29. with the are of a curve to the right an arc distance of 703.75 feet, through a central angle
of 10°12'29", having a radius of 3950.00 feet, and whose chord bears S21°05'12"E, a
distance of 702.82 feet to a calculated point,
30. with the are of a curve to the right an arc distance of 58.33 feet, through a central angle of
07°10'04", having a radius of 466.25 feet, and whose chord bears S12°23'56"E, a distance
of 58.29 feet to a calculated point,
31. S08°48'53"E, a distance of 100,03 feet to a calculated point,
32. with the are of a curve to the left an are distance of 116,27 feet, through a central angle of
40°07'68", having a radius of 166.00 feet, and whose chord bears S34°37'30"W, a
distance of 113.91 feet to a calculated point,
33, $72645'04"W, a distance of4.34 feet to a calculated point,
34, S17°14'56"E, a distance of31.00 feet to a calculated point,
35, S72045'04"W, a distance of 34.96 feet to a calculated point,
36. S 12"56'39"E, a distance of 85,61 feet to a calculated point,
37. S81°20'42"W, a distance of 62,56 feet to a calculated point,
38, with the arc of a curve to the leA an arc distance of 103.77 feet, through a central angle of
12017'03", having a radius of 484.00 feet, and whose chord bears S75°12'11"W, a
distance of 103.57 feet to a calculated point,
39. with the arc of a curve to the left an arc distance of 207.75 feet, through a central angle of
I r52'54", having a radius of 665.67 feet, and whose chord bears S60°06'24"W, a
distance of 206.91 feet to a calculated point,
40, N38°50'19"W, a distance of 70.00 feet to a calculated point,
41. with the arc of a curve to the right an arc distance of 16.82 feet, through a central angle of
01°18'41", having a radius of 735.00 feet, and whose chord bears N51°49'01"E, a
distance of 16.82 feet to a calculated point,
42. with the arc of a curve to the lets an arc distance of 38.64 feet, through a central angle of
Homestead Subdivision Improvement Agreement Unit 9 1 31 2023
Page 3 of 6
Homestead Subdivision Unit 9
16.70 Acres
88°33'05", having a radius of 25.00 feet, and whose chord bears N08°I 1'49"E, a distance
of 34.91 feet to a calculated point,
43. N36°04'43"W, a distance of 80.33 feet to a calculated point,
44, with the arc of a curve to the left an arc distance of 23.69 feet, through a central angle of
90°29'33", having a radius of 15.00 feet, and whose chord bears N81° 19'30"W, a distance
of 21.30 feet to a calculated point,
45. with the arc of a curve to the left an arc distance of 49.25 feet, through a central angle of
03°18'02", having a radius of 855.00 feet, and whose chord bears S51°4642"W, a
distance of 49.25 Feet to a calculated point,
46, N38°22'08"W, a distance of 175.85 feel to a calculated point,
47. N56`2747"E, a distance of 36.22 feet to a calculated point,
48. N19°40'53"W, a distance of255.72 feet to a calculated point,
49. N30° 11'26"W, a distance of 201.18 feet to a calculated point,
50. S26038'38"W, a distance of 162.57 feet to a calculated point,
51. with the are of a curve to the lets an arc distance of 23.58 feet, through a central angle of
90*03'11", having a radius of 15.00 feet, and whose chord bears S18°22'58"E, a distance
of 21.22 feet to a calculated point,
52. with the are of a curve to the right an arc distance of 12.00 feet, through a central angle of
05°30'08", having a radius of 125.00 feet, and whose chord bears $60°39'29"E, a distance
of 12.00 feet to a calculated point,
53. S32'05'36"W, a distance of 50.00 feet to a calculated point,
54. with the arc of a curve to the left an arc distance of 27.60 feet, through a central angle of
105°25'51", lowing a radius of 15.00 feet, and whose chord bears S69°22'40"W, a
distance of 23.87 feet to a calculated point,
55, N73°20'15"W, a distance of 50.00 feet to a calculated point,
56. with the arc of a curve to the right an arc distance of 12.15 feet, through a central angle of
01°32'50", having a radius of 450.00 feet, and whose chord bears N17°26'09"E, a
distance of 12.15 feet to a calculated point,
57. with the arc of a curve to the left an arc distance of 21.71 feet, through a central angle of
82*54'29", having a radius of 15.00 feet, and whose chord bears N23°14'40"W, a distance
of 19.86 feet to a calculated point, and
Homestead Subdivision Improvement Agreement Unit 9 1 31 2023
Page 4 of 6
Homestead Subdivision Unit 9
16.70 Acres
58. N64°41'54"W, a distance of 108.54 feet to the POINT OF BEGINNING and containing
16.70 acres of land, more or less.
BEARING BASIS: Texas State Plane Coordinate System, South Central Zone, NAD83/COBS
6-3-21
Date
Jol F1It,
m-'1rpr�:?1,
Re isterssional land Surveyor rk E
No, 505f Texas ��
r E tsos� �4r
Delta Survey Uroup, Ine. �s_ iau'0 bpi
8213 Brodie Lane, Suite 102
Austin-, Texas 78745
TBPI S Finn No. I OfW700
Homestead Subdivision Improvement Agreement Unit 9 1 312023
0' 300' 600' 900,
GRAPHIC SCALE
1"=soD'
23.76 AC RFS
BOARD OF TRUSTEES OF IHE
SHERTZ•CIBILO-UNIW ASAL
�7
CITY INDEPE NDENT SCHOOL
DISTRICT
VOL. 4176, M. 283
n', x
Y30�'
OYR.G.C.TX.
P.00.
P SAN MIGUEL SURVEY NO. 256
GUADALUPE COUNTY, TEXAS
JUNE 2021
5OF6
,I
REMAINDER OF 522.1E ACRES
B.F N-TOUWEK LP
DOC. NO.2014022591
O.P.R.G.C.TX.
1670 ACRES
REMAINDER OF 522.18 AC fWS
ILFNTOWNER,LP
P.O,D,
[: C.
WC. NO, 2014022581
O.P.R.O.C.TX.
REMAINDFROF 522.18 ACRES
1LF N-T O WNF.R, LP
DOC. NO.201402258!
O,P.R.G.CSX.
LEGEND
+0 J4 INCH IRON ROD WCIH "KFW` CAP FOUND
O.P,R.T.C.TX, OFF'ICIALPLfB13CRECORDS,GUADAL4IPEC(RfNTY,TEXAS
P.O.B. POINT OF BEGINNING
P.O.C. POINT OF COMMENCEMENT
POINTS ARE CALCULATFD UNI ESS OTHFRWISE NOTED
BEARING BASIS: TTXAS STATF. PLANE COORDINATE SYSTEM,
SOUTH CENTRAL ZONE, NAD831CORS
AIL
SEE PAGE 6 OF 6 FOR LINE AND CURVE TABLES
•SKETCII TO ACCOMPANY FIELD NOTES -
Homestead Subdivision Improvement Agreement Unit 9 1 31 2023
P. SAN MIGUEL SURVEY NO.256
GUADALUPE COUNTY, TEXAS
JUNE 2021
6OF6
LINE AND CURVE TABLES
CURVE
RADIUS
ARC
CHORD
BEARING
DELTA
Cl
3750.00'
1
106.04-
106.04'
S28°16'39"E
1"3626"
6
15.00'
22.50'
20A5'
SIS'30'07'W
85'57'05"
C3
1025.W
27.99'
27,99'
S57'41'43'W
1'33'52"
C4
975.00'
20,00'
20,00,
N57°IO'O3"E
1110'31"
C5
15.00'
25.04'
2223'
S74'04'54"E
95°03S"
C6
3780A0
20,33'
20.33'
S24 M2"E
0'I00"
C7
3830.00'
MOO,
15.00'
N26°03'21"W
W13'28"
C8
3950.00'
_
703.75'
702,82'
S21'05'12"E
10,1229"
C9
466.25'
58,33'
1 5827
S12°2356"E
T'1004"
CIO
166.00
116.27
113,91'
S34'3T30"W
_
40'07'58"
ell
454.00'
103.77
103,57'
S75'12'11"W
12717'03"
C12
665.6T
207.75'
206.91'
SGO'Ob'24"W
17`52'54"
CI3
735.00'
MST
16.82'
N51"-0701"E
1'IS'41"
C14
2$.00'
38.64'
34.91'
88133'OS"
C15
15.00'
23.69'
21.30'
_NOS'II'49"E
118199'30"W
90'29'33"
CI6
855.00'
49.25'
49.25'
S51-46-42"W _
" 3'18V2"
CI7
15.00'
23.56'
21.22'
SI8°22'38"E
9W'03'ii"
CIS
125,W
12.00'
12.00'
SW'39'9"E
5^3008'
C19
15.00'
27.60'
23,87'
S69'22'40"W
105'25'51"
L20
450.W
12,15'
12.15'
NI7'2 OYT
1132'SO"
82'54'29"
C21
15.00'
21.71'
19.86'
N23'14'40"W
Homestead Subdivision Improvement Agreement Unit 9 1 31 2023
EXHIBIT "B"
The Improvements
[ See attached]
Homestead Subdivision Improvement Agreement Unit 9 1 31 2023
Homestead Subdivision Improvement Agreement Unit 9 1 31 2023
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HOMESTEAD SUMVISM UNTS 5 & 9
SCIIERTZ. TFXM TREFT PLANS PROFILE -
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EXHIBIT "C"
The Cost Estimate
Homestead Subdivision Improvement Agreement Unit 9 1 31 2023
[See attached]
Homestead Subdivision Improvement Agreement Unit 9 1 31 2023
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Homestead Subdivision Improvement Agreement Unit 9 1 312023
EXHIBIT "D"
The Surety
See attached]
Homestead Subdivision Improvement Agreement Unit 9 1 31 2023
Summary report:
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84
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 GUADALUPE §
IMPROVEMENT AGREEMENT
HOMESTEAD PHASE SUBDIVISION- UNIT I I— PUBLIC IMPROVEMENTS
This IMPROVEMENT AGREEMENT (the "AgreemenY') is by and between ILF N-T
Owner, LP (the "Owner'), and the CITY OF SCHERTZ, a Texas municipal corporation (the
"Ciff") and is effective upon the execution of this Agreement by the Owner and the City (the
"Effective Date"); and
WHEREAS, the Owner is the owner of that certain real property located in the City of
Schertz, Guadalupe County, Texas, more specifically described on Exhibit "A", attached hereto
and made a part hereof for all purposes (the "Pro e " or "Homestead Subdivision Unit I 1"); and
WHEREAS, the Owner seeks to develop a residential subdivision on the Property (the
"Subdivision") that requires the construction of certain public improvements: and
WHEREAS, this Agreement is made solely with respect to the final plat of Homestead
Subdivision Unit 11 which was approved by the City of Schertz Planning and Zoning Commission
on M, 2022; and Commented [All: TBD - still going through plan check
will need to update once approved
WHEREAS, pursuant to Section 21.4.15(C.) (2.) and (F.) (1) of the City's Unified
Development Code, the obligation to construct the public improvements that serve the Subdivision
may be deferred if an Improvement Agreement is executed and if sufficient surety is provided to
secure the obligation to construct the public improvements; and
WHEREAS, the Owner seeks to defer the construction of the public improvements to a
future date, not to exceed three years (3 years), after the recording of the final plat for Homestead
Subdivision Unit 11 (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
reciprocal good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged and stipulated by the Parties, the Owner and the City agree as follows:
1. Ownership of the Property. The Owner hereby represents and warrants that, as of
the Effective Date, it has not conveyed, assigned, or transferred all or any portion of its interest in
the Property to any other person or entity (any such person or entity referred to herein as
"Purchaser"), nor is it a party to any contract or other understanding to do so that is not subject to
Homestead Subdivision Improvement Agreement Unit 111312023
this Agreement with the exception of contracts for the sales of lots in ordinary course and
dedications of utility and public improvements (unrelated to this Agreement) in the ordinary course
of business.
2. Construction of Improvements, 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, a roadway segment improvements
more particularly shown on Exhibit "B" and in the "Construction Plans" approved
I insert date approved] and that are included as part of the application for final plat
approval for the subdivision titled Homestead Subdivision Unit 11 (such
improvements shall be referred to herein as the "Improvements").
b) The Improvements shall be built and completed in accordance with City design
standards within three years (3 years) after the Final Plat Recordation.
c) The cost of the uncompleted Improvements for Homestead Subdivision Unit 11 is
estimated to be Three Hundred and Twenty -One Thousand Nine Hundred Eighty -
Four Dollars and Ninety Cents ($321,984.90), (the "Cost Estimate"), as more
particularly shown on Exhibit "C" attached hereto and made a part hereof for all
purposes. The Owner and the City agree that the amount of the Cost Estimate set
forth herein is a commercially reasonable estimate of the cost of the Improvements.
d) In lieu of the Owner's obligation to construct, or cause to be constructed, the
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 "D" (the "Sure ") in an amount equal to 125% of the Cost
Estimate amount Four Hundred and Two Thousand Four Hundred and Eighty
One Dollars and Twenty Five Cents ($402,481.25). (the "Improvement Funds").
e) Owner agrees within three years (3 years) of the Final Plat Recordation to complete
the construction of the 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. 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 Improvements shall not occur until the City accepts the
Improvements in the manner prescribed in Section 21.4.15. D., and Owner provides
a warranty bond which may name the contractor as the principal (to expire twenty-
four (24) months following such acceptance) which shall be exactly twenty percent
(201/6) of the total cost of construction of all the Improvements.
f) In the event Owner fails to fully complete construction of the Improvements within
three years (3 years) subject to subsection h) below, of the Final Plat Recordation
Homestead Subdivision Improvement Agreement Unit 111312023
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
the 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.
g) 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.
h) If Owner can document an inability to complete these improvements within the
three (3) year timeframe due to causes beyond Owner's control, City will in good
faith consider an extension.
3. Approval of Agreement. The City has approved the execution and delivery of this
Agreement pursuant to Section 21.4.15(C.) (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.
4. 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.
5. 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.
6. Counterparts. 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.
7. 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 Owner and
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.
Homestead Subdivision Improvement Agreement Unit 111312023
8. 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:
ILF N-T Owner, LP
500 Boylston Street
STE 2010
Boston, MA 02116
Attention: Jesse R. Baker
If to the Cia:
CITY OF SCHERTZ
1400 Schertz Parkway
Schertz, Texas 78154
Attention: City Manager
With cony to:
Denton Navarro Rocha Bernal & Zech, P.C.
2517 N. Main Avenue
San Antonio, Texas 78212
Attention: T. Daniel Santee
9. Legal 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.
10. 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.
Homestead Subdivision Improvement Agreement Unit 111312023
11. 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.
12. Choice of LaNy. 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 consent
by suit by any party.
[ Signatures and acknowledgments on the following pages ]
Homestead Subdivision Improvement Agreement Unit 111312023
Si -nature Pa�e to
Improvement &� reement
ILF N-T Owner, LP,
a Delaware limited partnership
By: ILF N-T GP, LLC,
a Delaware limited liability company,
its General Partner
By: ILF N-T Holdings, LLC,
a Delaware limited liability company,
its Sole Member
By: FCA Nor -Tex, LLC
a Delaware limited liability company,
its Administrative Member
BY:
Name: Jesse R. Baker
Title: Authorized Signatory
Homestead Subdivision Improvement Agreement Unit 111312023
Sig -nature Page to
Improvement Agreement
This 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: Steven Williams, its City Manager
Date:
THE STATE OF TEXAS §
COUNTY OF GUADALUPE §
This instrument was acknowledged before me on the day of , 2023 by Steven
Williams, 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:
Homestead Subdivision Improvement Agreement Unit 111312023
EXHIBIT "A"
The Property
Approved Final Plat Exhibit
and
Legal Metes and Bounds
See attached]
Homestead Subdivision Improvement Agreement Unit 111312023
EXHIBIT "B"
The Improvements
(See attached]
Homestead Subdivision Improvement Agreement Unit 111312023
EXHIBIT "C"
The Cost Estimate
See attached]
Homestead Subdivision Improvement Agreement Unit 111312023
EXHIBIT "D"
The Surety
[See attached]
Homestead Subdivision Improvement Agreement Unit 111312023
THE STATE OF TEXAS §
0
GUADALUPE COUNTY §
2023 AMENDED AND RESTATED HOMESTEAD
ROADWAY CAPITAL RECOVERY OFFSET AGREEMENT
This agreement ("AGREEMENT") is made by and between the City of Schertz, (hereinafter
"CITY") a Texas Home Rule municipality and ILF N-T Owner LP (hereinafter
"DEVELOPER") a Limited Partnership created under the laws of Texas, collectively, the
"PARTIES".
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 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, CITY and DEVELOPER entered into the initial Roadway Impact Fee Offset
Agreement dated December 19, 2019 (the "Prior Agreement'); and,
WHEREAS, the City Council of the City of Schertz authorized the City Manager to enter into the
First Amendment to the Roadway Capital Recovery Offset Agreement Between the City of Schertz
and ILF N-T Owner, LP 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 it incurred, but this agreement
was never executed; and,
WHEREAS, CITY and DEVELOPER desire to amend and restate the Prior Agreement as a result
of an additional section of Sundown Parkway which is designated as Project Number 24 of the
Schertz Roadway Capital Recovery Offset Agreement 1 31 2023
Final 2022 Roadway Impact Fee Program Amendment Technical Memorandum, adopted on April
5, 2022 per Resolution 22-R-24.
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.
PROJECT DESCRIPTION
A. Project. The project is The Homestead master planned community.
B. Location. The project is located at the southwest corner of IH-35 and Schwab Road,
as more precisely described in Exhibit "A".
Article II.
ROADWAY CAPITAL RECOVERY FEES
A. Roadway Capital Recovery Fees. The Roadway Capital Recovery Fees for the project are
currently assessed at $1,647.53 or $1,614.54 per service unit based on the plat filing date.
Article III.
CAPITAL IMPROVEMENT PLAN IMPROVEMENTS MADE BY DEVELOPER
A. Rough Proportionality. 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").
Article IV.
ROADWAY CAPITAL RECOVERY FEE OFFSET CREDIT
A. Roadway Capital Recovery Fee Offset Credit Calculation.
i. The total number of service unit equivalents of capacity supplied by the system
facilities contributed by the DEVELOPER is estimated to be 2.272 service units.
Schertz Roadway Capital Recovery Offset Agreement 1 312023
ii. The Roadway Capital Recovery Fee Offset Credits that the DEVELOPER shall receive
may be used to offset the roadway impact fees due in Units IA, 113, 2, 3A, 313, 3C, 4,
5, 6, 7A, 713, 8, 9, 10, 11, 13 and 18. The City shall assign Credits to the unit when a
final plat is filed in accordance with this AGREEMENT.
iii. The estimated number of single-family homes within the development is approximately
749 and the number of multi -family units is up to 211.
iv. Given that the estimated number of service units being supplied by the system facilities
contributed by the DEVELOPER is roughly equal to the number of vehicle miles being
added to the system by the residential units within the project, the CITY and the
DEVELOPER agree that no roadway impact fees shall be due from the development
within the Project and no excess offsets shall be reimbursed by the CITY.
Article V.
MISCELLANEOUS
The following miscellaneous provisions are made part of this AGREEMENT:
1. CITY and DEVELOPER acknowledge that the Prior Agreement is hereby replaced
in its entirety by this Agreement.
2. 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.
3. 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.
4. Applicable 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 Guadalupe County, Texas. Venue
for any action arising under this AGREEMENT shall lie in the state district courts
of Guadalupe County, Texas.
Schertz Roadway Capital Recovery Offset Agreement 131 2023
5. Assignment. The DEVELOPER may assign this AGREEMENT with the CITY's
consent (such consent 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.
6. Binding 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.
7. Counterparts. 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.
8. Construction. The PARTIES acknowledge that the PARTIES 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.
9. 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.
10. 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.
11. Execution of AGREEMENT.
a) City Council has authorized the City Manager to execute this
AGREEMENT on behalf of the CITY, as evidenced by Resolution 23-R-
01, dated February 14, 2023.
Schertz Roadway Capital Recovery Offset Agreement 1 31 2023
b) Jesse R. Baker and Thomas C. Tischer are authorized to execute this
AGREEMENT on its behalf, as evidenced by Company Resolution, dated
May 18, 2015, and attached hereto as Attached hereto as Exhibit `B".
12. Exhibits and Attachments. All Exhibits and Attachments referenced in this
AGREEMENT are attached hereto and incorporated herein for all purposes.
13. Force Majeure. 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 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 party was delayed.
14. 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.
15. 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.
16. Immunities and defenses.
a) 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.
b) 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.
Schertz Roadway Capital Recovery Offset Agreement 1 312023
17. 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.
18. 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: ILF N-T Owner, LP
Attn: Legal Dept.
500 Boylston Street
Boston, MA 02116
legal(%freeholdcm.com
and
Matt D. Matthews
8601 Ranch Road 2222
Building 1, Suite 260
Austin, TX 78730
mdm@freeholdcommunitites.com
WITH COPY TO LEGAL COUNSEL:
Tony Corbett
McLean & Howard L.L.P.
Barton Oaks Plaza, Building II
901 South MoPac Expy, Suite 225
Austin, TX 78746
tcorbett(&mcleanhowardlaw.com
City: City Manager
City of Schertz
1400 Schertz Parkway
Schertz, TX 78154
Phone: (210) 619-1000
Fax: (210) 619-1029
Schertz Roadway Capital Recovery Offset Agreement 1 31 2023
WITH COPY TO: Denton Navarro Rocha Bernal & Zech
A Professional Corporation
Attn. T. Daniel Santee
2517 N. Main Avenue
San Antonio, Texas 78212
Phone: (210) 227-3243
Fax: (210) 225-4481
19. Ordinance Applicability. The signatories hereto shall be subject to all ordinances
of the CITY, 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 unless
specifically enumerated herein.
20. Severability. 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.
21. 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.
[Page Ends Here — Signature Pages Follow]
Schertz Roadway Capital Recovery Offset Agreement 1 312023
EXECUTED in duplicate originals to be effective as of the date of the last signature below.
DEVELOPER:
ILF N-T OWNER, LP,
a Delaware limited partnership
By: ILF N-T GP, LLC,
a Delaware limited liability company,
its General Partner
By: ILF N-T Holdings, LLC,
a Delaware limited liability company,
its Sole Member
By: FCA Nor -Tex, LLC,
a Delaware limited lability company,
its Administrative Member
LN
Name:
Title: Authorized Signatory
Date:
Commonwealth of Massachusetts
County of Suffolk
Before me, the undersigned authority, on this day personally appeared , known
to me to be the Authorized Signatory of FCA Nor -Tex, LLC, Administrative Member of ILF N-T
Holdings, LLC, Sole Member of ILF N-T GP, LLC, General Partner of ILF N-T Owner, LP on
behalf of said limited partnership and acknowledged to me that he executed the same for the
purposes and consideration therein expressed, in the capacity therein stated.
(Personalized Seal) Notary Public's Signature
Schertz Roadway Capital Recovery Offset Agreement 1 31 2023
Signature Page to
2023 AMENDED AND RESTATED ROADWAY CAPITAL RECOVERY OFFSET AGREEMENT
This Community Facilities Agreement has been executed by the parties as of the dates of the
Acknowledgments to be effective as of the Effective Date.
Cam:
CITY OF SCHERTZ,
a Texas municipal corporation
By:
Name: Steven Williams, its City Manager
THE STATE OF TEXAS §
COUNTY OF GUADALUPE §
This instrument was acknowledged before me on the day of _, 2023 by Steven Williams,
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:
Schertz Roadway Capital Recovery Offset Agreement 1 31 2023
Exhibit "A"
The Project
Schertz Roadway Capital Recovery Offset Agreement 1 312023
Exhibit "B"
Company Resolution
Schertz Roadway Capital Recovery Offset Agreement 1 31 2023
REIMBURSEMENT AGREEMENT WITH DEVELOPER FOR
CONSTRUCTION OF PUBLIC IMPROVEMENT
THE STATE OF TEXAS §
§ KNOW ALL PERSONS BY THESE PRESENTS:
COUNTY OF GUADALUPE §
This Development Agreement (the "Agreement") is by and between the City of Schertz, a
Texas municipal corporation (the "City"), and ILF N-T, LP., owner and developer of certain
hereinafter described property located within the City (the "Developer"), all collectively
referred to as "Parties", and is effective upon the execution of this Agreement by the Developer
and the City (the "Effective Date").
WHEREAS, Developer wishes to develop certain property (the "Property") located within
the City limits, which is approximately 74.78 acres of land, Unit 3B being a 15.29 acres tract of
land in the City of Schertz, Comal & Guadalupe County, Texas out of the J.F. Zapeda Survey
No. 257, Abstract 685, The J.F. Zapeda Survey NO. 257, Abstract 471, and the P. San Miguel
Survey No. 256, Abstract 227 and being out of a 522.18 acres tract of land; Unit 5 being 32.89
acres out of the J.F. Zepeda Survey Number 257, Abstract 471, Guadalupe County, Texas, being
a remainder of a called 522.18 acres; and Unit 7A being a 26.60 acre tract of land, being out of
the Pedro San Miguel Survey No. 256, Abstract 227, C.M. Gahagan Survey No. 258, Abstract
142 and State Survey, Abstract Tate2 of Guadalupe County and a 522.18 acre tract of land
conveyed to ILF N-T Owner, LP of Record in Document Number 201406044206, official public
records of Comal County, Texas.
WHEREAS, the Property is the subject of the applications for Subdivision Plat
establishing Homestead Unit 313, Homestead Unit 5 and Homestead Unit 7A; and
WHEREAS, during the development planning stage for the Property, the Developer submitted
to the City a request that the City participate in the completion of the Improvements,
which will benefit portions of the City beyond the Homestead Unit 313, Homestead Unit 5 and
Homestead Unit 7A Subdivisions; and
WHEREAS, Developer has requested that it be allowed to construct all Improvements to
serve the Property and share the costs with the City; and
WHEREAS, Developer has constructed certain Improvements and commenced construction of
the remainder of the Improvement; 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, Section 212.071, et. seq. of the Texas Local Government Code limits the
participation by the municipality at a level not to exceed 30 percent of the total contract
price.
NOW THEREFORE, for and in consideration of the premises and mutual obligations,
covenants, and benefits hereinafter set forth, the Parties agree as follows:
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 each person, firm, corporation, partnership,
association, or other entity awarded a contract by Developer for the construction and
installation of the Improvements (or portion thereof).
1.3. "Improvements" shall mean the improvements described on Exhibit "A"
1.4. "City's Participation Costs" shall mean costs associated with the construction
of the Improvements, as designated on Exhibit "C" as City of Schertz responsibility.
ARTICLE II — Construction of Improvements.
2.1. Acquisition of Easements. Developer has acquired and dedicated all necessary
utility easements as illustrated in Exhibit `B" attached hereto at the Developer's sole
expense the City has approved and accepted the same and there shall be no
participation by the City in any related easement acquisition costs. Easements were
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 for units 313, 5 and 7A
as approved by the City Engineer on 12/05/2018, 1/25/2022 and 4/01/2020,
respectively, as illustrated in Exhibit "A" attached hereto. No change in the shall
be made by Developer without the prior written consent of the City Engineer, which
consent shall be unreasonably conditioned, withheld or delayed. The entire cost of the
construction of the Improvements shall be the responsibility and obligation of
Developer, except as herein provided.
2.3. 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 in accordance with the
approved plans and specifications if required per Local Government Code Sec. 212
Subchapter C. The contract may be awarded via one or more contracts to either to the
lowest responsible bidder(s) or to the bidder(s) who provides goods and services at the
best value for the municipality. The City Engineer shall review all bid documents,
contract documents, and costs estimates. 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, and any other parties under contract with the Developer
in connection with the construction of the Improvements.
2.4. Performance, Payment and Warranty Bonds. Developer's Contractor shall
post within 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 public improvements
for a period of two (2) years following acceptance by the City of all Improvments. A
warranty bond shall be provided in the amount of 20% of the costs of the
Improvements for such period.
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 named 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 approved by
City prior to it being incurred. Developer shall maintain the accounting of the
Improvements for a period of two years from the date of acceptance by the City,
and the City may inspect the Developer's books and records related to the
Improvements at any time with reasonable notice.
2.8. 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 performance of this Agreement by Developer or Developer's agents,
representatives, employees, contractors, or subcontractors.
ARTICLE III — Obligations and Payments.
3.1. Developer Obligations. The City agrees that the Developer has dedicated to the
City all necessary easements as illustrated on Exhibit `B" either by the final plat of
Homestead Unit 313, Homestead Unit 5 and Homestead Unit 7A or by separate
instrument.
3.2. City Obligations. The City agrees to pay to Developer City's Participation
Costs which shall equate to the actual costs for the City's responsibility at as
illustrated on Exhibit "C". Notwithstanding any provision of this Agreement to
contrary, City's Obligation shall only be for the reimbursement of costs incurred
by Developer and shall not in any event exceed SEVEN -HUNDRED SEVENTY-
SEVEN THOUSAND ONE -HUNDRED DOLLARS AND FIFTY-FIVE CENTS
($777,100.55) (hereinafter the "City's Share").
3.3. Payment Procedures. City shall deliver to Developer full payment of the
City's Share as provided in this this section.
3.2.1 Submittal and review. Developer shall submit and the City Engineer
shall review documentation, as may be reasonably required by City
Engineer, showing final, actual construction costs paid by the Developer.
3.2.2 Upon the City Engineer's review and approval of the documents,
a final inspection on the Improvements shall be conducted, noting any
required corrections or repairs. Once corrections or repairs are made and
deemed acceptable, the City will accept the Improvements.
3.2.3 Developer shall submit and the City Engineer shall review
documentation dedicating all required utility easements listed in Exhibit `B" to
the extend not recorded. If not recoded as of the date hereof, utility easements
shall be considered dedicated upon appropriate approval, execution, and
recordation of any documents establishing the easements with the Guadalupe
County Clerk's office. Developer shall be responsible for any associated
recording fees.
3.2.4 Within 30 days of both the acceptance of the Improvements and the
dedication of all necessary utility easements, the City will pay to Developer
the City's Participation Costs (Exhibit "C"). The $321,544.76 to be paid by
the City for the oversize of the offsite sewer force main includes the ONE
HUNDRED TWENTY-FIVE THOUSAND SIX HUNDRED FIFTY-FIVE
DOLLARS AND 30 CENTS ($125,655.30) that the City is already obligated
to contribute per the existing Subdivision Improvement Agreement that is
attached as Exhibit "D".
Article IV — Assignment, Modification and Waiver.
4. L 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: ILF N-T Owner, LP
500 Boylston Street
Boston, MA 02116
Attention: Matt Matthews
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]
Si nature Page to
Aereement with Develmier for Construction of Public Iwrovement
ILF N-T Owner, LP,
a Delaware limited partnership
By: ILF N-T GP, LLC,
a Delaware limited liability company,
its General Partner
By: ILF N-T Holdings, LLC,
a Delaware limited liability company,
its Sole Member
By: FCA Nor -Tex, LLC
a Delaware limited liability company,
its Administrative Member
By:
Name:
Title: Authorized Signatory
Si,==nature Paee to
Agreement with Develoi)er for Construction of Public Imyrovement
This Community Facilities Agreement has been executed by the parties as of the dates
of the Acknowledgments to be effective as of the Effective Date.
Cam:
CITY OF SCHERTZ,
a Texas municipal corporation
By:
Name
THE STATE OF TEXAS
COUNTY OF GUADALUPE
Steve Williams, its City Manager
This instrument was acknowledged before me on the day of , 2023 by Steve
Williams, 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
EXHIBIT B
NECESSARY EASEMENTS
Ex. Al. Michael Scott Turner — 0.239 Acre
Ex. A2. Michael Scott Turner - 0.005 Acre
Ex. A3. Schertz Commercial Park, L.P. — 0.572 Acre
Ex. A4. Schertz Commercial Park, L.P.—0.062, 0.120 & 0,024 Acre
Ex. A5. Schertz Commercial Park, L.P. — 0.10 Acre
Ex. A6. Nolley Caribbean - 0.517 Acre
Ex. A7. Nolley Caribbean — 0.013 Acre
Ex. A8. Nolley Caribbean - 0.111 Acre
EXHIBIT C
CITY'S PARTICIPATION COSTS
Exhibit C
City's Participation Costs for Water Line Upsizing
1. $19,560.00 - Upsizing of the waterline in Unit 7A from 8" to 12" in Homestead Parkway
2. $101,970.00 - Upsizing of the waterline in Unit 7A from 8" to 12" in Schwab Road and
Archer Pass
3. $41,800.79 - Upsizing of the waterline in Unit 313 from 8" to 12" in Winkler Trail
4. $292,225.00 - Providing a 12" water line in Unit 5 within the GVSUD CCN connecting
Fred Couples way to Homestead Parkway
$455,555.79 Sub Total
City's Participation Costs for Phase 2 Offsite Sewer Forcemain Improvements
(per agreement City's participation share is 21% to be capped at $348,966.64).
1. $223,975.65 — 21% of $1,066,550.70 for
construction 2. $39,970.94 — 21% of $190,337.81
for engineering
3. $57,598.17 —21% of appraised value of easements
$321,544.76 Sub Total
$777,100.55 Total City's Participation Costs
EXHIBIT D
EXISTING SUBDIVISION IMPROVEMENT AGREEMENT