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HomeMy WebLinkAboutRes 2023-12-1581 Impact Fee Reimbursement Agreement- Bluestone Partners, LLC- Public Roadway & Water ImprovementsCITY OF ANNA, TEXAS RESOLUTION NO. aO ot3 - (a -15 51 A RESOLUTION OF THE CITY OF ANNA, TEXAS AUTHORIZING THE CITY MANAGER TO EXECUTE AN IMPACT FEE REIMBURSEMENT AGREEMENT WITH BLUESTONE PARTNERS, LLC, FOR THE DESIGN AND CONSTRUCTION OF PUBLIC ROADWAY AND WATER SYSTEM IMPROVEMENTS, IN A FORM APPROVED BY THE CITY ATTORNEY; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, Buddy Hayes Boulevard south of FM 455 is shown in the Master Thoroughfare Plan and the 10-year Capital Improvement Plan for the City of Anna, Texas; and, WHEREAS, a 12-inch water main along Buddy Hayes Boulevard south of FM 455 is shown in the Water Master Plan and the 10-year Capital Improvement Plan for the City of Anna, Texas; and, WHEREAS, the City has identified the projects as critical infrastructure projects for the City; and, WHEREAS, Bluestone Partners, LLC, agrees to construct the projects in accordance with the City master plans subject to the reimbursement of roadway impact fees and water impact fees in accordance with State Law; and, NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ANNA, TEXAS THAT: Section 1. Recitals Incorporated The recitals above are incorporated herein as if set forth in full for all purposes. Section 2. Authorization of Payment and Funding. That the City Council of the City of Anna hereby authorizes the City Manager to execute the Impact Fee Reimbursement Agreement. That funding for the reimbursement shall come from Roadway Impact Fees and Water Impact Fees. PASSED,AND APPROVED by the City Council of the City of Anna, Texas on this day of k2p C,` 2023. 1 ATTEST: City Secretary, Carrie Land 1913 Nate Pike 3 Exhibit A (see attached Impact Fee Reimbursement Agreement) Roadway Impact Fee Reimbursement Agreement – Page 1 ROADWAY AND WATER IMPACT FEE REIMBURSEMENT AGREEMENT This Impact Fee Reimbursement Agreement (this "Agreement") is entered into by and between the City of Anna, Texas (the "City") and Bluestone Partners, LLC, a Texas Corporation (the “Developer”). WHEREAS, Developer and the City are sometimes collectively referenced in this Agreement as the "Parties," or, each individually, as "Party"; 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 previous agreement between the Parties regarding the subject matter hereof; and WHEREAS, Developer desires to develop certain real property in Collin County, Texas, composed of approximately 2.131 acres of land out of the Thomas Rattan Survey located entirely within the City of Anna, more particularly described in the attached Exhibit A (the "Property"); and 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 Parties. SECTION 2 DEFINITIONS City Approval Date has the meaning ascribed to that term in Section 3(a). City Code means the Anna City Code of Ordinances. City Manager means the current or acting City Manager of the City of Anna or a person designated to act on behalf of the City Manager with respect to this Agreement if the designation is in writing and signed by the current or acting City Manager. City Regulations mean City Code provisions, ordinances, design standards, and uniform codes, duly adopted by the City. Collected Roadway Impact Fees shall have the meaning ascribed to that term in Section 4(b)(1). Collected Water Impact Fees shall have the meaning ascribed to that term in Section 5(b)(1). Developer’s Design and Construction Cost, with respect to the Roadway Project and the Water Project, means: the dollar amount actually paid by or on behalf of Developer for the engineering, design, land surveying, and construction of the Roadway Project and the design and construction upsize cost from an 8-inch water main to a 12-inch water main for the Water Project, which shall Impact Fee Reimbursement Agreement- Page 2 generally include but not be limited to the items listed in the cost breakdown attached hereto as Exhibit D. City inspection fees shall not be included in Developer’s Design and Construction Cost. Final Roadway Reimbursement Amount, with respect to the Roadway Project, means a dollar amount equal to the lesser of the Developer’s Design and Construction Cost or the total amount of Roadway Impact Fees collected from the development of the property by the City. Final Water Reimbursement Amount, with respect to the Water Project, means a dollar amount equal to the lesser of the Developer’s Design and Construction Cost of the Water Improvements or the total amount of Water Impact Fees collected from the development of the property by the City. Reimbursement has the meaning ascribed to that term in Section 4(b)(1) and Section 5(b)(1), respectively. Reimbursement Area has the meaning of being the subject property and all adjacent real properties as shown in Exhibit E (highlighted in red), from which roadway impact fees received by the City shall be reimbursed to Developer until the total reimbursement defined in Section 4(b)(1) and Section 5(b)(1) have been met. Roadway Improvements means design, surveying, testing, right of way preparation, paving excavation, construction of concrete paving, storm drainage, curbs, signage, roadway transitions, turn lanes, pavement markings, sidewalks, irrigation, landscaping, lighting and any other improvements necessary for a complete roadway system for the Roadway Project in accordance with the City of Anna Engineering Design Standards. Roadway Project means the design and construction of approximately 436 linear feet of Buddy Hayes Boulevard and connecting driveway approaches from White Street to a point approximately 436 feet south of White Street; said project being more particularly depicted and described as the Roadway Improvement in Exhibit B, attached hereto, and in accordance with construction plan(s) approved by the City. Water Improvements means the upsize cost for the design, surveying, testing, and installation of approximately 420 feet of a 12-inch PVC water main instead of an 8-inch PVC water main, including valves, hydrants, appurtenances, and connection to the existing City public water system, along the eastern side of Buddy Hayes Boulevard in accordance with the City of Anna Engineering Design Standards, and any other improvements necessary for a complete public water system for the Water Project. Water Project means the design and construction of the Water Improvements generally described and depicted in Exhibit C, attached hereto, and in accordance with construction plan(s) approved by the City. Impact Fee Reimbursement Agreement- Page 3 SECTION 3 GENERAL PROVISIONS (a) Documentation of Actual Amount Paid. Once Developer fully completes the Roadway Project and the Water Project, Developer shall provide the City Manager with documentation reasonably acceptable to the City Manager evidencing Developer’s Design and Construction Cost. The City Manager shall review the documentation provided and shall approve or deny Developer’s Design Cost within fifteen (15) business days of receipt thereof (which approvals shall not be unreasonably withheld). If the City Manager takes no action within such fifteen (15) day period, the documentation and Developer’s Design Cost shall be deemed approved. Upon approval (or deemed approval) of Developer’s Design Cost, the City shall issue a written acceptance letter to Developer, which shall signify final acceptance by the City of the Roadway Project and the Water Project (referred to as the "City Acceptance Date"). (b) Approval of Plats/Plans. Approval by the City, the City's engineer or other City employee or representative of any plans, designs or specifications submitted by Developer pursuant to this Agreement or pursuant to City Regulations shall not constitute or be deemed to be a release of the responsibility and liability of Developer, its engineer, employees, officers or agents for the accuracy and competency of their design and specifications. Further, any such approvals shall not be deemed to be an assumption of such responsibility and liability by the City for any defect in the design and specifications prepared by Developer's engineer, its officers, agents, servants or employees, it being the intent of the Parties that approval by the City's engineer signifies the City's approval on only the general design concept of the improvements to be constructed and that the design plans and specifications meet the requirements of the City Regulations. (c) Insurance. Developer or its contractor(s) shall acquire and maintain, during the period of time when the Roadway Project is under design: (a) workers compensation insurance in the amount required by law; and (b) commercial general liability insurance including personal injury liability, premises operations liability, and contractual liability, covering, but not limited to, the liability assumed under any indemnification provisions of this Agreement, with limits of liability for bodily injury, death and property damage of not less than $1,000,000.00. Such insurance shall also cover any and all claims which might arise out of the Roadway Project design contracts, whether by Developer, a contractor, subcontractor, engineer, materialman, or otherwise. Coverage must be on a "per occurrence" basis. All such insurance shall: (i) be issued by a carrier which is rated "A-1" or better by A.M. Best's Key Rating Guide and licensed to do business in the State of Texas; and (ii) name the City as an additional insured and contain a waiver of subrogation endorsement in favor of the City. Upon the execution of design contracts, Developer shall provide to the City certificates of insurance evidencing such insurance coverage together with the declaration of such policies, along with the endorsement naming the City as an additional insured. Each such policy shall provide that, at least 30 days prior to the cancellation, non-renewal or modification of the same, the City shall receive written notice of such cancellation, non-renewal or modification. (d) Indemnification and Hold Harmless. DEVELOPER COVENANTS AND AGREES TO INDEMNIFY AND DOES HEREBY INDEMNIFY, HOLD HARMLESS AND DEFEND THE CITY, ITS OFFICERS, AGENTS, SERVANTS AND EMPLOYEES, FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR PROPERTY Impact Fee Reimbursement Agreement- Page 4 DAMAGE OR LOSS AND/OR PERSONAL INJURY, INCLUDING, WITHOUT LIMITATION, DEATH, TO ANY AND ALL PERSONS, OF WHATSOEVER KIND OR CHARACTER, WHETHER REAL OR ASSERTED (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES AND RELATED EXPENSES, EXPERT WITNESS FEES AND RELATED EXPENSES AND OTHER CONSULTANT FEES AND RELATED EXPENSES) ARISING OUT OF OR IN CONNECTION WITH, DIRECTLY OR INDIRECTLY, THE NEGLIGENT OR OTHERWISE WRONGFUL ACTS OR OMISSIONS OF DEVELOPER, ITS AGENTS, SERVANTS, CONTRACTORS, SUBCONTRACTORS, MATERIAL MEN OR EMPLOYEES IN CONNECTION WITH THE DESIGN OF THE ROADWAY PROJECT, INCLUDING BUT NOT LIMITED TO INJURY OR DAMAGE TO CITY PROPERTY. SUCH INDEMNITY SHALL SURVIVE THE TERM OF THIS AGREEMENT. IF THE ROADWAY PROJECT IS CONSTRUCTED BY DEVELOPER AT NO TIME SHALL THE CITY HAVE ANY CONTROL OVER OR CHARGE OF THE DESIGN OF THE ROADWAY PROJECT BY DEVELOPER AND THE SUBJECT OF THIS AGREEMENT, NOR THE MEANS, METHODS, TECHNIQUES, SEQUENCES OR PROCEDURES UTILIZED FOR SAID DESIGN. THIS AGREEMENT DOES NOT CREATE A JOINT ENTERPRISE BETWEEN THE CITY AND DEVELOPER. DEVELOPER FURTHER COVENANTS AND AGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND THE CITY AGAINST ANY AND ALL CLAIMS OR SUITS, BY ANY PERSON CLAIMING AN INTEREST IN THE PROPERTY WHO HAS NOT SIGNED THIS AGREEMENT AND WHICH CLAIMS: (1) ARISE IN ANY WAY FROM THE CITY'S RELIANCE UPON DEVELOPER'S REPRESENTATIONS IN THIS AGREEMENT; OR (2) RELATE IN ANY MANNER OR ARISE IN CONNECTION WITH THIS AGREEMENT OR IN CONNECTION WITH DEVELOPER’S OBLIGATIONS UNDER THIS AGREEMENT. NOTWITHSTANDING THIS PROVISION OR ANY OTHER PROVISION OF THIS AGREEMENT, DEVELOPER SHALL NOT BE OBLIGATED TO INDEMNIFY, DEFEND, OR HOLD THE CITY HARMLESS FOR THE CITY'S OWN NEGLIGENCE, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, THIS INDEMNIFICATION AND HOLD HARMLESS PROVISION SHALL ONLY APPLY TO DEVELOPER IF DEVELOPER CONSTRUCTS THE ROADWAY PROJECT. SECTION 4 ROADWAY PROJECT (a) Developer Obligations. As a condition to receipt of the impact fee reimbursement set forth herein, Developer agrees to design and construct the Roadway Improvements. Developer agrees to commence design within 60 days of execution of this agreement. (b) City Obligations (1) In accordance with City Regulations and state law, the City shall provide the Roadway Impact Fee Reimbursement to Developer in an estimated reimbursement cost of seven hundred one thousand nine hundred twenty-six dollars seventy-one cents ($701,926.71) Impact Fee Reimbursement Agreement- Page 5 until the Final Reimbursement Amount for engineering design and construction has been paid in full. (2) Notwithstanding Section 4(b)(1) above, the Reimbursement authorized by this Agreement shall expire on December 31 in the tenth year after the City Approval Date. SECTION 5 WATER PROJECT (a) Developer Obligations. As a condition to receipt of the impact fee reimbursement set forth herein, Developer agrees to design and construct the Water Improvements. Developer agrees to commence design within 60 days of execution of this agreement. (b) City Obligations (1) In accordance with City Regulations and state law, the City shall provide the Water Impact Fee Reimbursement to Developer in an estimated reimbursement cost of thirty thousand forty-nine dollars ($30,049.00) for the upsize cost from an 8-inch water main to a 12-inch water main, until the Final Reimbursement Amount for the design and construction of the Water Improvements has been paid in full. (2) Notwithstanding Section 5(b)(1) above, the Reimbursement authorized by this Agreement shall expire on December 31 in the tenth year after the City Approval Date. 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 public notary. The City's duties and obligations hereunder shall not arise unless and until all Parties have duly executed this Agreement. SECTION 7 TERMINATION This Agreement and all obligations of the Parties hereto, shall terminate upon full performance of the terms of this Agreement. SECTION 8 SUCCESSORS AND ASSIGNS (a) All obligations and covenants under this Agreement shall bind Developer and its successors and assigns. (b) Except for future owners of all or a portion of the Property, this Agreement shall not be assignable by Developer without the prior written consent of the City. SECTION 9 MISCELLANEOUS PROVISIONS (a) Authority to execute contract. The undersigned officers and/or agents of the Parties hereto are the properly authorized officials and have the necessary authority to execute this Impact Fee Reimbursement Agreement- Page 6 SECTION 9 MISCELLANEOUS PROVISIONS (a) Authority to execute contract. The undersigned officers and/or agents of the Parties hereto are the properly authorized officials and have the necessary authority to execute this Agreement on behalf of the Parties hereto, and each Party hereby certifies to the other that any necessary resolutions or other act extending such authority have been duly passed and are now in full force and effect. (b) Notice. 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 given by hand delivery or 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 written notice to the other Parties in accordance with this notice provision. If to the City: City of Anna Attn: City Manager 120 W. Seventh Street Anna, TX 75409 If to Developer: Bluestone Partners, LLC Attn: Kyle Boothe 4708 North FM 1417 Sherman, TX 75092 (c) Complete Agreement. This Agreement embodies the entire Agreement between the Parties and cannot be varied or terminated except as set forth in this Agreement, or by written agreement of all Parties expressly amending the terms of this Agreement. (d) Applicable Law and Venue. This Agreement shall be performable and all compensation payable in Collin County, Texas. Venue and exclusive jurisdiction under this Agreement lies in a court of competent jurisdiction in Collin County, Texas. (e) Severability. If any clause, paragraph, section or portion of this Agreement shall be found to be illegal, unlawful, unconstitutional or void for any reason, the balance of the Agreement shall remain in full force and effect and the unlawful provision shall be replaced with a provision as similar in terms and effect to such unlawful provision as may be valid, legal and enforceable. (f) Representation. Each signatory representing this Agreement has been read by the party for which this Agreement is executed and that such Party has had an opportunity to confer with its counsel. Impact Fee Reimbursement Agreement- Page 7 (h) Waiver. Waiver by any Party or any breach of this Agreement, or the failure of any Party to enforce any of the provisions of this Agreement, at any time shall not in any way affect, limit or waive such Party's right thereafter to enforce and compel strict compliance of the Agreement. (i) Miscellaneous Drafting Provisions. This Agreement was drafted equally by the Parties hereto. The language of all parts of this Agreement shall be construed as a whole according to its fair meaning, and any presumption or principle that the language herein is to be construed against any Party shall not apply. Headings in this Agreement are for the convenience of the Parties and are not intended to be used in construing this document. (j) No Other Beneficiaries. This Agreement is for the sole and exclusive benefit of the Parties hereto and is not intended to and shall not confer any rights or benefits on any third party not a signatory hereto. (k) Counterparts. This Agreement may be executed in a number of identical counterparts, each of which shall be deemed an original for all purposes. (l) No Waiver of Development Ordinances. No waiver of any provision of this Agreement will be deemed to constitute a waiver of any other provision or any other agreement among the Parties. No waiver of any provision of this Agreement will be deemed to constitute a continuing waiver unless expressly provided for by written amendment to this Agreement; nor will the waiver of any default under this Agreement be deemed a waiver of any subsequent defaults of the same type. Nothing herein shall waive any obligations of Developer under applicable City Regulations. [SIGNATURE PAGES FOLLOW, REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK] CITY OF ANNA By: yan Henderson, City Manager IN WITNESS WHEREOF: STATE OF TEXAS COUNTY OF COLLIN Before me the undersigned notary public, on the I day of Deumlo2023, personally appeared known to me (or proved to me) to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same in his capacity as I-a4erim City Manager of the City of Anna, Texas. JEOVANNA RUBIO �n=Notary Public, State of Texas comm. Expires 10-03-2026 Notary ID 133995676 C:2t�aPublic, State of Texas Impact Fee Reimbursement Agreement — Signature Page Impact Fee Reimbursement Agreement – Signature Page ATTACHMENTS Exhibit A - The Property (legal description and drawing) Exhibit B - Roadway Project Exhibit C – Water Project Exhibit D – Cost Estimate (including design and construction) Exhibit E – Reimbursement Area Impact Fee Reimbursement Agreement – Exhibit A EXHIBIT A The Property Impact Fee Reimbursement Agreement – Exhibit B EXHIBIT B The Road Project Impact Fee Reimbursement Agreement – Exhibit C EXHIBIT C Water Project Impact Fee Reimbursement Agreement – Exhibit E EXHIBIT D Breakdown of Costs Impact Fee Reimbursement Agreement – Exhibit E EXHIBIT E Reimbursement Area