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HomeMy WebLinkAboutRes 2012-11-06 Landscape Agreement with Oncor Electric Delivery CompanyCITY OF ANNA, TEXAS RESOLUTION NO. 2012-11-06 A RESOLUTION OF THE CITY OF ANNA, TEXAS APPROVING A LANDSCAPE AGREEMENT BETWEEN THE CITY OF ANNA, TEXAS AND ONCOR ELECTRIC DELIVERY COMPANY WHEREAS, the City of Anna, Texas (the "City") and Oncor Electric Delivery Company desire to enter into a Landscape Agreement (the "Agreement"); and WHEREAS, the City Council of the City of Anna, Texas find that approval of the Agreement is in the best interest of the citizens of Anna; NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ANNA, TEXAS THAT: Section 1. Recitals Incorporated The recitals set forth above are incorporated herein for all purposes as if set forth in full. Section 2. Approval of Agreement The City Council hereby approves the Development Agreement attached hereto as Exhibit 1, and authorizes, ratifies and approves the City Manager's execution of same subject to final legal approval by the City Attorney. The City Manager is hereby authorized to execute all documents and to take all other actions necessary to finalize, act under, and enforce the Agreement. PASSED AND APPROVED by the City Council of the City of Anna, Texas on this 27th day of November, 2012. wl John Mayor Pro Tem . n, City Secretary RES. 2012-11-06 Oncor Landscape Agreement PAGE 1 OF 1 11-27-12 LANDSCAPING AGREEMENT This Landscaping Agreement (this "Agreement") is entered into between the City of Anna, Texas (the "City") and Oncor Electric Delivery Company LLC ("Owner"). The term "Owner" includes all owners of the Property, and each of the owners of the Property are jointly and severally bound to the obligations of the "Owner" under this Agreement. WHEREAS, Owner and the City are sometimes collectively referenced in this Agreement as the "Parties"; and WHEREAS, it is the Parties mutual intent that this Agreement shall govern only the subject matter specifically set forth herein and that this Agreement shall supersede any other agreement between the Parties and the City's ordinances and other regulations only to the extent that any such agreements, ordinances or regulations directly conflict with the terms of this Agreement; and WHEREAS, the Owner owns a parcel or parcels of real property (the "Property") in Collin County, Texas, which is located entirely within the corporate limits of the City of Anna and is more particularly and separately or jointly described in the attached EXHIBIT A; and, WHEREAS, the Owner plans to construct an electrical substation on the Property (the "Project"); and, WHEREAS, the Owner represents that the Project cannot meet certain Landscape Regulations outlined in Part Ill -E of the Anna City Code of Ordinances and requests that the City waive said Landscape Regulations; NOW, THEREFORE, in consideration of the mutual covenants contained herein, the Parties agree as follows: Section 1. Recitals Incorporated. The recitals set forth above are incorporated herein as if set forth in full to further describe the Parties' intent under this Agreement and said recitals constitute representations by the Owner: Section 2. Owner's Obligations. In lieu of the Project's compliance with all current and future landscape regulations outlined in the Anna City Code of Ordinances (with the exception of landscaping shown on the Project site plan attached hereto as Exhibit B), the Owner shall pay the City the sum of $6,800 (six thousand and eight hundred dollars) payable to the City's Park Trust. Section 3. Timing of Payments. The Owner shall make any payments required under this Agreement within 30 days of the Effective Date. Section 4. City's Obligations. The City .hereby agrees to exempt the Project from compliance with all current and future landscape regulations outlined in the Anna City Code of Ordinances, with the exception of landscaping shown on the Project site plan attached hereto as Exhibit B. Section 6. Effective Date. The effective date of this Agreement is the date that the last of the Parties' signatures to this Agreement is fully and properly affixed to this Agreement and acknowledged by a notary public. The City's duties and obligations hereunder shall not arise unless and until the City Council has duly adopted this Agreement and the Owner has duly executed same. Section 7. THE OWNER COVENANTS AND AGREES, JOINTLY AND SEVERALLY, TO INDEMNIFY, HOLD HARMLESS, AND DEFEND THE CITY AGAINST ANY AND ALL LEGAL CLAIMS, BY ANY PERSON CLAIMING AN OWNERSHIP INTEREST IN THE PROPERTY WHO HAS NOT SIGNED THIS AGREEMENT AND WHICH CLAIMS (1) ARISE IN ANY WAY FROM THE CITY'S RELIANCE ON THIS AGREEMENT, AND (2) RELATE IN ANY MANNER OR ARISE IN CONNECTION WITH THIS AGREEMENT. Section 8. This Agreement may be enforced by the City by any proceeding at law or in equity. Failure to do so shall not be deemed a waiver to enforce the provisions of this Agreement thereafter. The Owner's sole remedy for nonperformance by the City shall be to seek specific performance of the terms of this Agreement. This Agreement does not waive any rights or immunities otherwise existing under law unless expressly set forth herein and the Parties understand and agree that this Agreement is not one for the provision of goods or services to the City by the Owner or any other person. Section 9. Exclusive jurisdiction, forum and venue for any dispute arising out of this Agreement shall be in Collin County, Texas. Section 10. Notwithstanding any other provision of this Agreement, Owner and its successors or assigns must comply with all applicable statutes or regulations of the United States and the State of Texas, as well as any City ordinances in effect on the Effective Date and not in conflict with this Agreement, and any rules implementing such statutes or regulations. Section 11: Assignment by Owner. (a) Except as otherwise provided in this paragraph, Owner has the right (from time to time upon delivery of two weeks' prior written note to the City) to assign this Agreement, in whole or in part, and including any obligation, right, title, or interest of Owner under this Agreement, to any person or entity (an "Assignee") that is or will become an owner of any portion of the Property or that is an entity that is controlled by or under common control with Owner. Notwithstanding the foregoing, Owner shall not assign this Agreement, in whole or in part, to an Assignee if the City, after action by the City Council (which action shall be considered by the City in good faith based upon financial and performance criteria, and which action shall not be. unreasonably withheld, conditioned or delayed), notifies Owner within 14 days of receipt of the written notice required by this Section 10(a) that such Assignee fails to satisfy the City's financial and performance criteria. If the City provides such notice to Owner then the Parties, within 14 days of such notice, shall mediate the dispute. The mediator shall be mutually agreed-upon; and the cost of such mediator shall be paid equally by the Parties. The mediator's determination shall not be binding on the Parties. If a Party refuses to mediate, then the decision of the Party willing to mediate shall be binding. (b) Each assignment shall be in writing executed by Owner and the Assignee and shall obligate the Assignee to be bound by this Agreement to the extent this Agreement applies or relates to the obligations, rights, title, or interests being assigned. From and after such assignment, the City agrees to look solely to the Assignee for the performance of all obligations assigned to the Assignee and agrees that Owner shall be released from subsequently performing the assigned obligations and from any liability that results from the Assignee's failure to perform the assigned obligations; provided, however, Owner shall not be released until the City receives an executed copy of such assignment. No assignment by Owner shall release Owner from any liability that resulted from an act or omission by Owner that occurred prior to the effective date of the assignment unless the City approves the release in writing. Owner shall maintain written records of all assignments made by Owner to Assignees, including a copy of each executed assignment and the Assignee's Notice information as required by this Agreement, and, upon written request from any Party or Assignee, shall provide a copy of such records to the requesting person or entity. Section 12. This Agreement is for the sole and exclusive benefit of the City and the Owner and is not intended to and shall not confer any rights or benefits on any third party not a signatory hereto. Section 13. This Agreement may be separately executed in individual counterparts and, upon execution, shall constitute one and same instrument. Section 14. All notices, demands or other communications required or provided hereunder shall be in writing and shall be deemed to have been given on the earlier to occur of actual receipt or three (3) days after the same are deposited in the United States mail, certified or registered, postage prepaid, return receipt requested, addressed to the parties at the addresses set forth below or at such other addresses as such parties may designate by notice to the other parties. 3 SIGNATURES: Oncor Electric delivery Company LLC, A Delaware limited liability company By: Jill Alvarez, Attorney-in-fact Address: 115 W. 7" St. Fort Worth, TX 75201 Telephone: (number) Facsimile: (number) Email: (e-mail) IN WITNESS WHEREOF: STATE OF TEXAS § COUNTY OF TARRANT § Address: 111 N. Powell Parkway Anna, TX 75409 Attn: City Manager Telephone: (972) 924-3325 Facsimile: (972) 924-2620 With a copy to: Clark McCory Wolfe, Tidwell & McCoy, LLP 2591 Dallas Parkway, Ste. 205 Frisco, TX 75034 Telephone: (972) 712-3530 Facsimile: (972) 712-3540 Before me, the undersigned notary public, on the day of ,2012, personally appeared Jill Alvarez, known to me (or proved to me) to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that she executed the same in her capacity as Attorney-in-fact of Oncor Electric Delivery Company LLC, a Delaware limited liability company. Notary Public, State of Texas 0 STATE OF TEXAS § COUNTY OF Before me, the undersigned nota D da of ,2013, g notary public, on the �_ y X personally appeared Philip Sanders, known to me (or proved to me) to ffe the person whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same in his capacity as City Manager of the City of Anna and on behalf of the City of Anna. {SAV *6w Natha J WilkisonMyCommission Ex ires-7)-'11/13/2013'� Vj s N ary Public, tate of Texas 5 `SF- fib' � I of �s` �d� $� SII` baa #1. ' i �� $y3�$as 41 gria lig ¢s 1811 '.e 3A s ak 5 "ksz7a.` TU a"4�da fit' IE �Ci Z a##93'3-�j`o`� 1141 JET I i g AptP911 s3� �� •�� % & gra ga a IN,,]" 3 YF is n �'11o�a�yF - 8 1" - �k 8�``•EY1li �•s lid A#p;( RgA¢ 7�'4,��• 'ld�%�g F 12 as F� q.E 8 �$ H . 1 IRS i a x t �15biNOW ko �f _:lfY:�S_� k 3tj x St+3�• i�J.., r_�.., � •i ,IC'htA'1 �-.i2.16'_o�t- . 'i ..i Tyr . i �� � \ `� R' • p A t, • p -.:?•a x �: is Igo im ------------------ --------------------- ---------------------------- — ---------------------- — ------- ---------- ------------- --------------------------- svx31'AmnOD NJ -1103 Noavisens ml *H,o Iw;OgifMw. on I =[=IIVH mill ANVdNO:D A83A1130 m 'Lu HIM 2 OIU-LO313 UOONO r I If I I'D UNE —=Hs f I 10 1 !'Aa A ,1 January 10, 2013 Oncor Electric delivery Company LLC Attn: Jill Alvarez, Attorney-in-fact 115 W 7t" St. Fort Worth, TX 75201 Re: Landscape Agreement Dear Ms. Alvarez: Enclosed are two (2) signed Original Landscape Agreements Upon completion please return a fully executed copy of the Landscape Agreement to Natha Wilkison, City Secretary, for the City of Anna's files. Should you have any questions, please feel free to contact me at (972) 924-3325, ext. 207. Sincerely, Natha Wilkison City Secretary City of Anna encl.