HomeMy WebLinkAboutRes 2018-03-417 SIA Anna Land DevelopmentCITY OF ANNA, TEXAS
RESOLUTION NO.,-�01$ - 03 , q I rI
A RESOLUTION OF THE CITY OF ANNA, TEXAS APPROVING A SUBDIVISION IMPROVEMENT
AGREEMENT WITH ANNA LAND DEVELOPMENT, A TEXAS GENERAL PARTNERSHIP.
WHEREAS, Anna Land Development, A Texas general partnership (The Owners) owns and desires
to develop a parcel of property composed of approximately 55.008 acres of land located entirely
within the corporate limits of the City of Anna, Texas (the City); and,
WHEREAS, the Owner has agreed to escrow roadway facilities funds in connection with
development of the property; and,
WHEREAS the Owner has requested roadway impact fee credits for the escrowing of funds for
roadway facilities;
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. Approval of Subdivision Improvement Agreement
The City Council hereby approves the Subdivision Improvement Agreement for Anna Land
Development, attached hereto as Exhibit 1, and ratifies and approves the City Manager's execution
of the same. 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.
to
PASSED AND APPROVED by the City Council of the City of Anna, Texas, on this 13 day of March
2018.
ATTEST: APPROVED:
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Carrie L. Smith, City Secretary Mayor, Nate Pike
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SUBDIVISION IMPROVEMENT AGREEMENT FOR ANNA 55
This Subdivision Improvement Agreement (this "Agreement") is entered into between the
City of Anna, Texas (the "City") and Anna Land Development, A Texas general
partnership, ("Owner").
WHEREAS, Owner 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 and City Regulations only to the extent that any
such agreements or City Regulations directly conflict with the terms of this Agreement;
and
WHEREAS, Owner owns and desires to develop a parcel or parcels of real property (the
"Property") in Collin County, Texas, which is composed of approximately 55.008 acres of
land 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, Owner acknowledges that the obligations undertaken under this Agreement
are primarily for the benefit of the Property; and
WHEREAS, Owner understands and acknowledges that acceptance of this Agreement
is not an exaction or a concession demanded by the City but rather is an undertaking of
Owner's voluntary design to ensure consistency, quality, and adequate infrastructure that
will benefit Owner's development of the Property;
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
Owner and the City.
SECTION 2 DEFINITIONS
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, uniform
codes, and other policies duly adopted by the City.
SUBDIVISION IMPROVEMENT AGREEMENT FOR ANNA 55 — Page 1
Development means the new development on the Property that is the subject of this
Agreement.
SECTION 3 GENERAL PROVISIONS.
(a) Public Improvements, Generally. Except as otherwise expressly provided for in this
Agreement, Owner shall provide all public improvements, including streets, water,
sewer, drainage, sidewalks, trails, street lighting, street signage, and all other public
improvements required by City Regulations to serve the Property, at no cost to the
City except as provided herein, in accordance with City Regulations, and as
approved by the City's engineer or his or her agent. Owner shall cause the
installation of such improvements within all applicable time frames in accordance
with the City Regulations unless otherwise approved herein. Owner shall provide
engineering studies, plan/profile sheets, and other construction documents at the
time of platting as required by City Regulations. Such plans shall be approved by
the City's engineer or his or her agent prior to filing of a Final Plat. Construction of
such improvements shall not be initiated until a pre -construction conference has
been held regarding the proposed construction and City has issued a written notice
to proceed.
(b) Owner's Remedy. Owner's sole remedy for nonperformance of this Agreement by
the City shall be to seek specific performance pursuant to the terms of this
Agreement.
(c) 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
Owner 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 Owner,
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 any firm or person that provides engineering
services to Owner, 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.
(d) Indemnification and Hold Harmless. OWNER COVENANTS AND AGREES TO
INDEMNIFY, HOLD HARMLESS AND DEFEND THE CITY, ITS OFFICERS,
AGENTS, SERVANTS AND EMPLOYEES, FROM AND AGAINST ANY AND ALL
CLAIMS OR SUITS FOR PROPERTY 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
SUBDIVISION IMPROVEMENT AGREEMENT FOR ANNA 55 — Page 2
OWNER, ITS AGENTS, SERVANTS, CONTRACTORS, SUBCONTRACTORS,
MATERIALMEN OR EMPLOYEES IN CONNECTION WITH THE DESIGN,
CONSTRUCTION OR INSTALLATION OF ANY PUBLIC IMPROVEMENTS,
INCLUDING BUT NOT LIMITED TO INJURY OR DAMAGE TO CITY PROPERTY.
SUCH INDEMNITY SHALL SURVIVE THE TERM OF THIS AGREEMENT.
OWNER FURTHER COVENANTS AND AGREES TO INDEMNIFY, HOLD
HARMLESS, AND DEFEND THE CITY AGAINST ANY AND ALL CLAIMS OR
SUITS 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 UPON OWNER'S
REPRESENTATIONS IN THIS AGREEMENT; (2) RELATE IN ANY MANNER OR
ARISE IN CONNECTION WITH THIS AGREEMENT OR IN CONNECTION WITH
OWNERSHIP OF THE PROPERTY; OR (3) ARISE IN ANY WAY FROM THE
CITY'S APPROVAL OF ANY TYPE OF DEVELOPMENT APPLICATION OR
SUBMISSION WITH RESPECT TO THE PROPERTY. NOTWITHSTANDING THIS
PROVISION OR ANY OTHER PROVISION OF THIS AGREEMENT, OWNER
SHALL NOT BE OBLIGATED TO INDEMNIFY, DEFEND, OR HOLD THE CITY
HARMLESS FOR THE CITY'S OWN NEGLIGENCE, GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT.
SECTION 4 ROADWAY FACILITIES
(a) Owner Obligations.
(1) Owner is responsible for funding and construction of all public improvements
required by City Regulations to serve the Property.
(2) In lieu of constructing, reconstructing, or making other improvements to Taylor
Blvd. that would otherwise be required by City Regulations in connection with
Development of the Property, Owner shall make a payment to the City in an
amount equal to $336,500 (the "Roadway Facilities Payment"). Said payment
shall be made within thirty (30) days of the City's approval of the first phase final
plat of the planned Development, or within one (1) year of the Effective Date,
whichever occurs first.
(b) City Obligations
(1) City agrees that the Roadway Facilities Payment may only be used to construct,
reconstruct, expand, modify, and maintain the roadway known as Taylor Blvd.
located between US 75 and Ferguson Parkway further described and depicted
in Exhibit B.
(2) City agrees that any portion of the Roadway Facilities Payment not expended
by September 30 in the tenth year following the Effective Date, shall be
refunded to the Owner.
SUBDIVISION IMPROVEMENT AGREEMENT FOR ANNA 55 — Page 3
(3) City agrees that the Roadway Facilities Payment shall be applied as a credit
against roadway impact fees otherwise due to the City from the Development of
the Property. The roadway impact fee credit for the Roadway Facilities
Payment shall be redeemed at the time of issuance of building permits, and
such redemption shall apply to the full amount of the roadway impact fees that
would otherwise be collected until the roadway impact fee credit authorized by
this Agreement has been exhausted.
(4) Notwithstanding Section 4(b)(3) above, the roadway impact fee credit for the
Roadway Facilities Payment shall not exceed the total amount of roadway
impact fees due from Development of the Property.
(5) Notwithstanding Section 4(b)(3) above, the roadway impact fee credit
authorized by this Agreement shall expire on September 30 in the tenth year
following the Effective Date.
(6) The City shall have the right to collect roadway impact fees due from the
Development of the Property after the credit authorized by this Agreement has
been exhausted or after the credit expires, whichever occurs first.
SECTION 5 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 the City Council has duly adopted this Agreement and
Owner has duly executed same.
SECTION 6 TERMINATION
This Agreement and all obligations of the Parties hereto, shall terminate upon full
performance of the terms of this Agreement.
SECTION 7 SUCCESSORS AND ASSIGNS
(a) All obligations and covenants of Owner under this Agreement shall constitute
covenants running with the land, and shall bind Owner and each successive owner
of all of any portion of the Property; provided, however, the terms of this Agreement
shall (i) not be binding on the owner of any residence that is purchased by such
owner from a homebuilder, and (ii) be subordinate to the lien of (and shall not be
binding on) any mortgagee who finances or refinances residences constructed on
the Property.
(b) Without limiting the generality of the foregoing and except as otherwise provided in
this paragraph, Owner has the right (from time to time upon delivery of 14 days'
prior written notice 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
SUBDIVISION IMPROVEMENT AGREEMENT FOR ANNA 55 — Page 4
of the Property or that is an entity that is controlled by or under common control with
Owner. Further, 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. 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
7(b) 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 be binding on the Parties. If a Party refuses to mediate, then
the decision of the Party willing to mediate shall be binding.
(c) 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. Further, 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 8 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
SUBDIVISION IMPROVEMENT AGREEMENT FOR ANNA 55 — Page 5
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
P.O. Box 776
111 N. Powell Parkway
Anna, TX 75409
If to Owner: Anna Land Development. GP
c/o John P. Brennan
17330 Preston Road, Suite 200-D
Dallas, TX 75252
(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 the City and Owner 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.
(g) Consideration. This Agreement is executed by the Parties hereto without coercion
or duress and for substantial consideration, the sufficiency of which is hereby
acknowledged.
(h) Waiver. Waiver by either Party or any breach of this Agreement, or the failure of
either 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 this 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
SUBDIVISION IMPROVEMENT AGREEMENT FOR ANNA 55 — Page 6
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
City and Owner and is not intended to and shall not confer any rights or benefits on
any third party not a signatory hereto.
(k) Binding Effect. This Agreement shall bind and inure to the benefit of the City and
Owner and to any successor owner/developer of the Property, may be recorded in
the Collin County property records, and runs with the land.
(1) Counterparts. This Agreement may be executed in a number of identical
counterparts, each of which shall be deemed an original for all purposes.
[SIGNATURES PAGES FOLLOW, REMAINDER OF THIS PAGE INTENTIONALLY
LEFT BLANK]
SUBDIVISION IMPROVEMENT AGREEMENT FOR ANNA 55 — Page 7
OWNER
ANNA LAND DEVELOPMENT,
A Texas general partnership
IN WITNESS WHEREOF:
STATE OF TEXAS §
COUNTY OF §
Before me, the undersigned notary public, on the day of ,
2018, 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 or she executed the same in his or her capacity as of Anna
Land Development, a Texas general partnership on behalf of said general partnership.
Notary Public, State of Texas
SUBDIVISION IMPROVEMENT AGREEMENT FOR ANNA 55 — Page 8
CITY OF ANNA
1-72
By:
Bill Shipp, Interim City Ma r
IN WITNESS WHEREOF:
STATE OF TEXAS §
COUNTY OF §
Before me, the undersigned notary public, on the day of
2018, personally appeared Bill Shipp, 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 City Manager of the City of Anna, Texas,
a
y Nota Public, State'of Texas
�„`: CABBIE L. SMITH Notary
'{{ Notar Public, state of Texas
My commission Expires
' January 27, 2019
SUBDIVISION IMPROVEMENT AGREEMENT FOR ANNA 55 — Page 9
01WRAT1401-
Exhibit A — The Property (legal description and drawing)
Exhibit B — Taylor Blvd.
SUBDIVISION IMPROVEMENT AGREEMENT FOR ANNA 55 — Page 10
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