HomeMy WebLinkAboutC2020-259 - 7/15/2020 - NADEFERMENT AGREEMENT
STATE OF TEXAS
COUNTY OF NUECES
This deferment agreement ("Agreement") is entered into between the City of
Corpus Christi ("City"). a Texas home -rule municipality, and Avanti Legacy Bayside,
LP ("Developer"), a Texas Limited Partnership, in order to defer the completion of
certain required public improvements prior to recording the final plat of Avanti
Legacy Bayside, Lot 1, Block 1 (the "Plat"). A copy of the Plat is attached and
incorporated by reference into this Agreement as Exhibit 1. The owners of the
affected real property subject to the Plat and benefitted by this Agreement, to wit:
the Developer, acting as agent on the owners' behalf, enters into this Agreement
with the City to defer construction of the required public improvements.
WHEREAS, the Developer is obligated under Section 8.1.10 of the Unified
Development Code ("UDC") to construct not less than seventy-five percent (75%) of the
required public improvements before the final Plat is endorsed by the City's City
Engineer or Development Services Engineer, as applicable ("City Engineer"):
WHEREAS, the Developer is seeking to delay the construction of the required
public improvements ("Deferred Improvements") shown in Exhibit 2, which exhibit is
attached and incorporated by reference into this Agreement, and to have the Plat filed
immediately with the County Clerk of Nueces County, Texas;
WHEREAS, in order to have the Plat filed prior to completion of the Deferred
Improvements, the Developer agrees to deposit with the City a form of pre -approved
financial security authorized by Section 3.30.1 of the UDC in the amount of One
Hundred Fifty Seven Thousand Seven Hundred Eighty Dollars and Seventy Cents
($157,780.70), representing 110% of the estimated cost of constructing the Deferred
Improvements as shown in the cost estimate, which cost estimate is attached and
incorporated by reference into this Agreement as Exhibit 3;
WHEREAS, water and sewer service are available to serve the subdivision, and
the Developer has completed all other subdivision requirements, park dedications, park
deferment agreements, maintenance agreements, and all special covenants;
WHEREAS, the Assistant City Manager and City Attorney have both approved
this transaction; and
WHEREAS, the Developer is entering into this Agreement pursuant to Section
8.1.10 of the UDC in order to defer construction and record the final Plat.
Standard Form Deferment Agreement 3/2013
Page 1 of 9
SCANNED
NOW, THEREFORE, for the consideration set forth in this Agreement, the City and
Developer agree as follows:
1. The preamble to this Agreement is included as substantive content in this
instrument and upon which both parties to this Agreement have relied and will
continue to rely during the term of this Agreement.
2. In consideration of the Developer's request to enter into this Agreement and the
posting of approved financial security, the City agrees to waive the requirement
that construction of the Deferred Improvements be at least 75% completed
before the final Plat is endorsed by the City Engineer and filed for record with the
County Clerk of Nueces County, and City further agrees to allow the Developer
to delay construction of the Deferred Improvements up to the expiration of the
time period stated in paragraph 26 of this Agreement.
3. As a condition of this Agreement, the Developer agrees to deposit with the City
One Hundred Fifty Seven Thousand Seven Hundred Eighty Dollars and Seventy
Cents ($157,780.70), as a form of financial security authorized in Section 3.30.1
of the UDC, upon execution of this Agreement or before the filing of the
Plat. The financial security must provide for 110% of the estimated cost of
constructing the required Deferred Improvements, as those costs are shown
in Exhibit 3. The Developer acknowledges and specifically agrees that, in the
event the financial security required by this Agreement has not been deposited
with the City before the filing of the Plat in the official public records of Nueces
County, this Agreement is NULL AND VOID WITHOUT ANY NOTICE OR
FURTHER ACTION REQUIRED BY EITHER PARTY.
4. If a letter of credit is utilized as financial security under this Agreement, the
content of the irrevocable letter of credit must be pre -approved by the City's
Director of Financial Services ("Finance Director") and City Attorney, be issued
by a banking institution having a local branch office within the State of Texas
(Corpus Christi location preferred), be valid for a period of twelve (12) months
from the date of issuance or longer, and require, as sole documentation for
payment, a statement in writing from the City's Assistant City Manager setting
forth (i) the circumstances of default giving rise to the draft or (ii) the Developer's
failure to furnish proof of renewal not less than thirty (30) days prior to the
expiration of the then current letter of credit [see the paragraph below regarding
renewal], and accompanied by a properly drawn draft not to exceed the face
value of the letter of credit.
5. If the form of financial security is a letter of credit, the Developer must ensure that
the letter of credit is kept valid at all times. The letter of credit must be renewed
by the Developer before expiration, and proof of such renewal must be received
by the City at least thirty (30) days prior to the expiration of the then current letter
of credit. If timely renewal is not received by the City, or cash in lieu thereof is
not deposited as financial security with the City, the City may, after ten (10) days
Standard Form Deferment Agreement 3/2013
Page 2 of 9
prior written notice to the Developer, call (redeem) the letter of credit for failure to
timely renew. If the letter of credit is called for failure to timely renew, the funds
will be held in an account as if cash had been posted by the Developer for this
Agreement in lieu of the letter of credit. The City shall not be liable for interest on
any letter of credit so called nor shall the City be liable to the Developer for the
accrual or payment of interest on any type of financial security posted by the
Developer pursuant to this Agreement.
6. In accordance with the provisions set out in Section 3.30.1 of the UDC, as it may
be amended, the City may accept other types of financial guarantees for
deferment agreements subject to the approval of the Finance Director and the
City Attorney. In the event the Developer desires to use and the City agrees to
accept an alternate form of financial guarantee other than a cash deposit or an
irrevocable letter of credit as security for this Agreement, such other security -
specific financial guarantee's terms and conditions pertaining to issuance,
redemption, restrictions, limitations, and use as made be made subject to this
Agreement shall be as further set out in an addendum to this Agreement. which
addendum is to be attached to this Agreement and the content incorporated by
reference into this Agreement as "Addendum A." The parties agree that, should
there be, by the attachment and incorporation of Addendum A to this Agreement,
any conflict in the terms, conditions, or requirements stated in this Agreement
(including its exhibits) and Addendum A, the provisions of Addendum A take
precedence over conflicting terms in the Agreement and its exhibits. All other
provisions in the Agreement (and its exhibits) not in conflict with Addendum A
control otherwise by agreement of the parties.
7 Unless otherwise stated in this Agreement, any notice required or permitted to be
given by either party shall be in writing and must be given by personal delivery,
fax, or certified mail, return receipt requested, postage prepaid, and notice is
deemed sufficiently given if addressed to the appropriate party at the address
shown for the party in the signature block of this Agreement or faxed to the fax
phone number shown in the signature block for the party. Any party may, by
notice to the other in accordance with the provisions of this paragraph, specify a
different address or addressee for notice purposes.
8. Time is of the essence in the performance of this Agreement.
Detailed construction drawings must be provided by the Developer and approved
by the City's Departments of Development Services and Engineering prior to the
start of construction of the Deferred Improvements.
10. The Developer shall construct the Deferred Improvements in accordance with the
City's engineering standards in effect at the time of construction and in
accordance with the construction drawings approved by the City departments
pursuant to the paragraph above.
Standard Form Deferment Agreement 3/2013
Page 3 of 9
11. Upon completion of the Deferred Improvements by the Developer as verified by
the Assistant City Manager and Director of Development Services and within the
time period stated in paragraph 26 of this Agreement, acceptance of the Deferred
Improvements by the City Engineer, and compliance by the Developer with the
remaining terms of the Agreement, the City Engineer shall:
a. Immediately release the Developer from the obligations to construct the
Deferred Improvements by mailing a release letter to Developer at the
address shown above Developer's signature line in this Agreement.
b. Return to the Developer within sixty (60) days of the completion of the
construction of the Deferred Improvements and settlement of the actual
construction costs, or within sixty (60) days of acceptance of the Deferred
Improvements by the City, whichever is later, any balance remaining of all
monies received by the City from the Developer.
12. If the Developer has not begun construction of the Deferred Improvements at
least thirty (30) days prior to the date stated in paragraph 26 of this Agreement,
the Developer agrees that the City, after notice in writing to the Developer, may
accelerate payment or performance or require additional financial security when
the City deems itself at risk as to the prospect of performance or payment based
on a demonstrated reasonable basis. In addition, if the Developer defaults and
fails to deposit any increased security after notice and an opportunity to cure, the
City may transfer the cash funds received or call (redeem) the letter of credit and
transfer the funds (if the financial security provided was in the form of a letter of
credit) to the appropriate City account, and the City may begin completion of the
construction of the Deferred Improvements. If City constructs all or any part of
the required Deferred Improvements, the Developer shall reimburse the City for
any additional costs related to completion of the Deferred Improvements within
thirty (30) days after the City completes the required Deferred Improvements and
invoices the Developer if the funds on account prove inadequate for the City to
complete the Deferred Improvements.
13. In accordance with Section 8.1.10.B of the UDC, an increase in financial security
from the Developer may be required on an annual basis if the City deems itself,
in the sole discretion of the City, insecure as to the prospect of payment or
performance on a demonstrated reasonable basis or it reasonably determines
that the financial security does not provide for 110% coverage of the estimated
construction costs.
14. The City and Developer agree that, if the Developer formally vacates the current
Plat with approval of the Planning Commission prior to the deadline for
completion of construction of the Deferred Improvements, any money received
by the City from the Developer remaining on deposit will be released and
immediately returned to the Developer.
Standard Form Deferment Agreement 3/2013
Page 4 of 9
15. If Developer defaults in any of its covenants or obligations under this Agreement
excluding, however, if applicable, failure to timely renew a letter of credit. post
additional security, or as may be made applicable by Addendum A, for which
the default provisions are separately addressed in this document, the City
Engineer shall send written notice to the Developer (and may send notice to
the Developer's project engineer ("Project Engineer"), if such address is known
by the City by certified mail, return receipt requested, advising the Developer
of the default and giving the Developer thirty (30) days from date of receipt of
the notice letter to cure the default. If the Developer fails to cure the default
after receipt of notice and opportunity to cure, the City Engineer may
transfer any funds received to the appropriate fund of the City in order to
complete the Deferred Improvements. In the event there are any funds received
by the City from the Developer remaining after the City has completed
construction of the Deferred Improvements, the excess funds will be
refunded to the Developer within sixty (60) days of the completion of
construction of the Deferred Improvements and settlement of the actual
construction costs.
16. The City reserves the right not to issue certificates of occupancy for all or any
portion of the real property that is the subject of the Plat until the Deferred
Improvements are constructed, installed in working order, and accepted by the
City Engineer in accordance with the provisions of this Agreement.
17. No party may assign this Agreement or any rights under this Agreement without
the prior written approval of the other party and by amendment to this
Agreement.
18. By execution of this Agreement, the Developer covenants to construct the
Deferred Improvements required by this Agreement, and this covenant shall be a
covenant running with the land. The City, at the Developer's expense, shall file
for record this Agreement in the official public records of Nueces County.
19. With the exception of Addendum A made applicable pursuant to paragraph 6, no
changes or modifications to this Agreement may be made, nor any provisions
waived, unless the change or modification is made in writing and signed by
persons authorized to sign agreements on behalf of each party.
20. If, for any reason, any section, paragraph, subdivision, clause, provision, phrase,
or word of this Agreement or the application thereof to any person or circum-
stance is, to any extent, held illegal, invalid, or unenforceable under present or
future law or by a final judgment of a court of competent jurisdiction. then the
remainder of this Agreement, or the application of said term or provision to
persons or circumstances other than those as to which it is held illegal. invalid, or
unenforceable, will not be affected thereby, for it is the definite intent of the
parties to this Agreement that every section, paragraph, subdivision, clause,
provision, phrase, or word of this Agreement be given full force and effect for its
purpose.
Standard Form Deferment Agreement 3/2013
Page 5 of 9
21. The Developer shall, in compliance with Section 2-349 of the City's Code
of Ordinances, complete the City's Disclosure of Interests form. which is
attached to this Agreement as Exhibit 4, the contents of which, as a
completed form, are incorporated in this Agreement by reference as if fully set
out here in its entirety.
22. The Developer shall comply with all federal, State, and local laws,
regulations, and rules applicable to performance of this Agreement.
23. This Agreement shall be construed under and in accordance with the laws of
the State of Texas, and all obligations of the parties created pursuant to this
Agreement are performable in Nueces County, Texas. Venue for all
actions arising from or pursuant to this Agreement shall be brought in
Nueces County. Texas.
24. Strict performance of the provisions of this Agreement by the Developer is
required by the City as a condition of this Agreement. The Developer specifically
acknowledges and agrees that failure by the Developer to adhere or comply
with any term, condition, or requirement of this Agreement constitutes a default
of this Agreement.
25. All signatories to this Agreement warrant and guarantee that they have
the authority to act on behalf of the person or entity represented and
make this Agreement binding and enforceable by their signature.
26. This Agreement executed in one original document. This Agreement becomes
effective and is binding upon and inures to the benefit of the City and Developer
and their successors and assigns from and after the date the Agreement has
been executed by all signatories. This Agreement terminates 12 months from
the date executed by the last party signing this Agreement.
(Signature pages follow)
Standard Form Deferment Agreement 3/2013
Page 6 of 9
EXECUTED IN ONE ORIGINAL this l' day of , 2020.
CITY OF CORPUS CHRISTI
P. O. Box 9277
Corpus Christi, TX 78469-9277
(361) 826-3240 Office
(361) 826.44 Fax
i
AirerW
Signatur
Al Ray and I I
Director Development Services
APPROVED AS A STANDARD FORM LEGAL DOCUMENT: )1^1yv 2020.
CITY ATTORNEY
Signature
Buck Brice
Assistant City Attorney
Standard Form Deferment Agreement 3/2013
Page 7 of 9
DEVELOPER
Avanti Legacy Bayside, LP
8500 Shoal Creek Blvd
Building 4, Suite 208
Austin Texas, 78757
AVANTI LEGACY BAYSIDE, LP.
A Texas limited partnership
By: Avanti Legacy Bayside GP, LLC.
A Texas limited liability company
Its general partner
By: H4 Development, Inc.
a Texas Corporation
Its sole member
By: Enrique Flores IV, President
I C,
Enrique Flores IV
Date:
0-7 - 07 - L�z�
Standard Form Deferment Agreement 3/2013
Page 8 of 9
STATE OF 1.Q )(a -S
§
COUNTY OF
This instrument was acknowledged before me on J \ , 2020, by
Enrique Flores IV, President, of H4 Development Inc, Texas Corporation. Sole
member of Avanti Legacy Bayside GP, LLC a Texas limited liability company. General
partner of Avanti Legacy Bayside, LP a Texas, Limited Partnership, on behalf of said
partnership.
(liadO7
Notary s Public'Signature
Attached and incorporated by reference into this Agreement:
Exhibit 1 — Plat (5 Pages)
Exhibit 2 — Required Public Improvements (4 Pages)
Exhibit 3 — Cost Estimate (1 Page)
Exhibit 4 — Disclosure of Interests (2 Pages)
Addendum A — N/A
Standard Form Deferment Agreement 3/2013
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Carney Engineering, PLLC 2/18/2020 Page 1
Avanti Bayside Apartments 18 -Feb -20
Corpus Christi, Texas
PUBLIC IMPROVEMENTS COST ESTIMATE
WATER SERVICE
8"x12" Tapping sleeve and valve
Tie Into Existing Waterline
8" C-900 PVC/DI
6" C-900 PVC/DI
4" C-900 PVC/DI
3" C-900 PVC/DI
2" C-900 PVC/DI
Fire Hydrant Assembly
Domestic water meter
RPZ BFP With Enclosure
Irrigation meter
8" Gate valve
6" Gate valve
4" Gate valve
Tees
Bend
Directional Bore and Encasement Pipe
Subtotal
SANITARY SEWER
Cleanout
Manholes
4" Force Main
6" PVC-SDR26
8" PVC-SDR26
12" DIP
Open Cut and Repair Pavement
Notice: The engineer's cost estimate is provided as information
only and shall not constitute actual construction cost Actual
project costs will bo determined by hard bidding of project
Engineer will not be liable for any increase in project costs.
Quantity Unit Unit Cost Total
1 Each
2
2,206
65
Each
LF
LF
$2,500.00
$1,000.00
$2,500.00
$2,000.00.
$27.00
$59,562.00
$24.00
51,560.00
LF
$20.00
$0.00
LF
$14.00
LF
510.00
50.00
4
Each
Each
54,500.00
$4,000.00
518,000.00
$4,000.00
1
1
Each
$4,000.00
54,000.00
Each
2
Each
Each
Each
52,500.00
5900.00
` $750.00
5300.00
$2,500.00
$1,800.00
50.00
$0.00
4
8
80
Each
Each
LF
$350.00
$325.00
5200.00
$1,400.00
$2,600.00
$16,000.00
$115,922.00
Subtotal $27,515.
SUB TOTAL
10% CONTENGENCY
5143,437.00
$14,343.70
'*
T. CRAIG CARNEY
•(t. 5 5 71 4 i
1' </CE NS�� •' � '�
2/18/2020 Page 1
Exhibit 3
Each
$250.00 $0.00
2
Each
$4,000.00
$8,000.00
LF
$24.00
$0.00
LF
524.00
527.00
— _ _50.00
$12,015.00
445
LF
LF
$40.00
50.00
1
LS
$7,500.00
$7,500.00
Subtotal $27,515.
SUB TOTAL
10% CONTENGENCY
5143,437.00
$14,343.70
'*
T. CRAIG CARNEY
•(t. 5 5 71 4 i
1' </CE NS�� •' � '�
2/18/2020 Page 1
Exhibit 3
City of
Corpus
Christi
DISCLOSURE OF INTERESTS
City of Corpus Christi, Texas
Department of Development Services
P.O. Dox 9277
Corpus Christi, Texas 78469-9277
(361)826-3240
Located at: 2406 Leopard Street
(Comer of Leopard St. and Port Ave.)
City of Corpus Christi Ordinance 17112, as amended, requires all persons or firms seeking to do business with the
City to provide the following information. Every question must be answered. If the question is not applicable,
answer with "NA".
NAME: Avanti Legacy Bayside, LP
STREET
8500 Shoal Creek Blvd, Bldg 4, Ste 208
CITY: Austin
ZIP: 78757
FIRM is: ❑ Corporation ❑■ Partnership ❑ Sole Owner ❑ Association ❑ Other
DISCLOSURE QUESTIONS
If additional space is necessary, please use the reverse side of this page or attach separate sheet.
1. State the names of each "employee" of the City of Corpus Christi having an "ownership interest"
constituting 3% or more of the ownership in the above named "firm".
Name Job Title and City Department (if known)
N/A
2. State the names of each "official" of the City of Corpus Christi having an "ownership interest"
constituting 3% or more of the ownership in the above named "firm".
Name Title
N/A
3. State the names of each "board member" of the City of Corpus Christi having an "ownership interest"
constituting 3% or more of the ownership in the above named "firm".
Name Board, Commission, or Committee
N/A
4. State the names of each employee or officer of a "consultant" for the City of Corpus Christi who worked
on any matter related to the subject of this contract and has an "ownership interest" constituting 3% or
more of the ownership in the above named "firm".
Name Consultant
N/A
CERTIFICATE
I certify that all information provided is true and correct as of the date of this statement, that I have not knowingly
withheld disclosure of any information requested; and that supplemental statements will be promptly submitted to
the City of Corpus Christi, Texas as changes occur.
Certifying Person: Enrique Flores Title: Authorized Representative
(Print)
Signature of Certifying Person: 1(111 Date:
K: DEVELOPMENTSVCSSHAREDsLA.ND DEVELOPMENTORDINANCE ADMLNISIRA[ION-APPLICATION FORMSFORMS AS PER LEGAL 20121DISCL
STATEMENT 1.27.12. DOC
Exhibit 4
DEFINITIONS
a. "Board Member". A member of any board, commission or committee appointed by the City Council of the City of
Corpus Christi, Texas.
b. "Employee". Any person employed by the City of Corpus Christi, Texas, either on a full or part time basis, but
not as an independent contractor.
c. "Firm". Any entity operated for economic gain, whether professional, industrial or commercial and whether
established to produce or deal with a product or service, including but not limited to, entities operated in the form
of sole proprietorship, as self-employed person, partnership, corporation, joint stock company, joint venture,
receivership or trust and entities which, for purposes of taxation, are treated as non-profit organizations.
d. "Official'. The Mayor, members of the City Council, City Manager, Deputy City Manager, Assistant City
Managers, Department and Division Heads and Municipal Court Judges of the City of Corpus Christi, Texas.
e. "Ownership Interest". Legal or equitable interest, whether actually or constructively held, in a firm, including
when such interest is held through an agent, trust, estate or holding entity. "Constructively held" refers to
holding or control established through voting trusts, proxies or special terms of venture or partnership
agreements.
f. "Consultant". Any person or firm, such as engineers and architects, hired by the City of Corpus Christi for the
purpose of professional consultation and recommendation.
KADEVELOPME`TSVCS\SNARED\LAND DEVELOPMENT \ORDINANCE ADMINISTRATION\APPLICATION FORMS\FORMS AS PER LEGAL\2012\DISCLOSURE OF LNTERESTS
STATEMET T 1.27.12. DOC
Nueces County
Kara Sands
Nueces County Clerk
'VG 50 2020-2020029842"
Instrument Number: 2020029842
Official Public Records
AGREEMENT
Recorded On: July 15, 2020 02:20 PM Number of Pages: 22
" Examined and Charged as Follows: "
Total Recording: $91.00
STATE OF TEXAS
Nueces County
I hereby certify that this Instrument was filed in the File Number sequence on the date/time
printed hereon, and was duly recorded in the Official Records of Nueces County, Texas
Kara Sands
Nueces County Clerk
Nueces County, TX
kciA6k--,30-Aico
*********** THIS PAGE IS PART OF THE INSTRUMENT'`**********
Any provision herein which restricts the Sale, Rental or use of the described REAL PROPERTY
because of color or race is invalid and unenforceable under federal law.
File Information: Record and Return To:
Document Number: 2020029842 DEVELOPMENT SERVICES CITY OF CC
Receipt Number: 20200715000139 2406 LEOPARD STREET
Recorded Date/Time: July 15, 2020 02:20 PM
User: Sylvia C CORPUS CHRISTI TX 78408
Station: CLERK04