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HomeMy WebLinkAboutRes 2025-01-1721 Drainage Improvement Cost Sharing Agreement with The Northpointe Crossing HOACITY OF ANNA, TEXAS RESOLUTION NO. Z o Z `) < - � � ' , A RESOLUTION OF THE CITY OF ANNA, TEXAS AUTHORIZING THE CITY MANAGER TO EXECUTE A DRAINAGE IMPROVEMENT COST SHARING AGREEMENT BETWEEN THE CITY OF ANNA AND THE NORTHPOINTE CROSSING HOMEOWNER'S ASSOCIATION, SUBJECT TO APPROVAL AS TO LEGAL FORM BY THE CITY ATTORNEY, WITH AN EFFECTIVE DATE. WHEREAS, the Northpointe Crossing neighborhood is a single family residential neighborhood located in the City of Anna, Texas; and, WHEREAS, the Northpointe Crossing Homeowner's Association is the owner of real property known as Lot 1: Common Area, and Lot 29, Block A, of Northpointe Crossing Phase 1 Subdivision, and; WHEREAS, the Northpoint Crossing Homeowner's Association desires to improve the drainage conditions and remedy erosion along an existing drainage channel located on and across Lot 1: Common Area, and Lot 29, Block A, of Northpointe Crossing Phase 1 Subdivision, and; WHEREAS, the existing drainage channel is located in a drainage easement as shown on the final plat for the subdivision recorded in the Official Records of Collin County, Texas, File Number 20061208010005330, and; WHEREAS, the City and the Homeowner's Association desire to enter into an agreement to share in the cost of the design and construction of the improvements for public benefit, and; WHEREAS, the Drainage Improvement Cost -Sharing Agreement identifies the responsibilities, terms, and conditions of both parties, and is attached hereto as Exhibit "A," 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 Agreement and Funding. The City Council of the City of Anna, Texas, authorizes the City Manager to execute the attached Drainage Improvement Cost -Sharing Agreement, subject to approval as to legal form by the City Attorney. The City Council of the City of Anna, Texas, authorizes the City Manager to prepare a budget amendment to provide up to $100,000 in project funding from the Stormwater Utility Fund, said budget amendment to be brought forth for future City Council approval within 90 days of the execution of the agreement. PASSED AND APPROVED by the City Council of the City of Anna, Texas on this day of January 2025. ATTEST: * �h\ APPROVED: City Secretary, Carrie Land To s ,, Mayor, Pete Cain Exhibit A (following Page) DRAINAGE IMPROVEMENT COST -SHARING AGREEMENT This Drainage Improvement Cost -Sharing Agreement (this "Agreement"), dated as of the day of , 2025 ("Effective Date"), is made and entered into by and between the City of Anna, Texas, a home -rule municipality (the "City") and Northpointe Crossing Homeowners' Association, Inc., a Texas nonprofit corporation (the "HOA"). WHEREAS, the HOA is the homeowners association for the developed subdivision known as Northpointe Crossing (the "Neighborhood"); and WHEREAS, the HOA is the sole owner of Lot 1: COMMON AREA, and Lot 29, Block A of Northpointe Crossing Phase 1 (the "HOA Property"); and WHEREAS, the HOA desires to improve the drainage conditions and remedy erosion along the existing drainage channel located on the HOA Property (the "Drainage Project"); and WHEREAS, the Drainage Project is intended to improve drainage conditions and protect the slide slopes of the existing drainage channel in specific locations as depicted in Exhibit A, attached to this Agreement and incorporated herein by reference; and WHEREAS, the City has estimated that the cost of construction of the Drainage Project is $200,000 (the "Estimated Cost"); and WHEREAS, the HOA and the City desire to enter into this Agreement to share in the cost of said construction in order to facilitate and accelerate the construction of the Drainage Project in accordance with the terms of this Agreement; NOW, THEREFORE, for and in consideration of the covenants and conditions contained in this Agreement, the City and the HOA agree as follows: 1. The City shall manage all aspects of the design and construction of the Drainage Project. The Drainage Project shall be constructed in accordance with all applicable City regulations. 2. Before design and construction of the Drainage Project commences, the HOA shall provide to the City any necessary temporary construction easements and rights of entry to allow for construction of the Drainage Project. The HOA will further grant temporary workspace or laydown areas on and across the HOA Property as may be required to construct the Drainage Project. 3. Before design and construction of the Drainage Project commences, the City shall seek to obtain any necessary temporary construction 1 easements and/or rights of entry on single family residential properties adjacent to the Drainage Project, to allow for construction of the Drainage Project. The Parties agree that the City shall not be obligated to pay for such temporary access easements and/or rights of entry, as the Drainage Project is specifically intended to provide benefit to the adjacent single family residential properties and the Neighborhood. Should the City be unable to obtain the temporary construction easements and rights of entry on single family properties adjacent to the Drainage Project, both Parties agree that the construction scope shall be modified to remove such portions of the project which require said temporary construction easements and/or rights of entry. 4. The City and the HOA hereby acknowledge that while there are numerous existing private fences located along the limits of the Drainage Project, it shall be considered a Force Majeure event to the extent that any existing fence falls, is damaged, or otherwise made inoperable by weather conditions, natural decay, or acts of others during the time period between commencement and completion of construction. The City will be responsible for the replacement, repair, and/or removal of any existing fences located adjacent to the Drainage Project which were specifically damaged by the direct actions of construction workers or City staff during the construction process. Should said replacement, repair, and/or removal of any fence be necessary during the construction process, the City shall complete said replacements, repairs, and removals in such a way as to meet the pre - construction conditions of the fence. 5. The City and the HOA will share in the cost of the Drainage Project. The HOA will deposit with the City the cash sum of $100,000, which is 50% of the Estimated Cost. Said deposit must be made before commencement of the design and construction of the Drainage Project. The City agrees to use said deposited funds solely for the costs of the design and construction of the Drainage Project. The City shall have no obligations under this Agreement until said cash deposit has been received by the City. 6. The City shall commence construction of the Drainage Project within 120 days after the date that the HOA makes the deposit referenced above. The City shall complete the Drainage Project within 180 days after the deadline to commence construction. 7. Upon completion of the Drainage Project the City shall provide the HOA with evidence of the actual cost paid by the City for the design and construction of the Drainage Project (the "Actual Cost"). If the Actual Cost exceeds the Estimated Cost, the HOA shall pay the City the cash E sum that is equal to 50% of the amount of the Actual Cost that exceed the Estimated Cost and such payment shall be due within 30 days of the City providing the HOA with proof of the Actual Cost. If the Actual Cost is less than the Estimated Cost, the City shall pay the HOA the cash sum that is equal to 50% of the amount of Estimated Cost that exceed the Actual Cost and such payment shall be due within 30 days of the City providing the HOA with proof of the Actual Cost. 8. Upon completion of the Drainage Project, the HOA will permanently maintain the completed Drainage System in a manner similar to the other public Drainage Systems on HOA-owned property in the Neighborhood, in compliance with City of Anna Code of Ordinances. The City shall not maintain nor be responsible in any manner for operation or maintenance of any portion of the HOA Property. 9. This Agreement is intended solely for the benefit of the parties hereto and does not confer any rights on any person or entity not a party to this Agreement, nor does it create any third -party beneficiaries to this Agreement. 10. Any agreement, notice, correspondence, information and/or other documentation required and/or referred to in this Agreement shall be in writing. This Agreement may not be amended and/or modified except on written consent of the party thereto. Except as expressly set forth herein, this agreement does not commit the parties to any future obligations. 11. Waiver by either party of any breech of this Agreement affecting such party, or the failure of either party to enforce any of the provisions of this Agreement, shall not in any way affect, limit or waive such party's right thereafter to enforce and compel strict compliance. 12. No party shall be in default under this Agreement until written notice of the default has been given to the defaulting party (which notice shall describe in reasonable detail the nature of the default) and the defaulting party has been given thirty (30) calendar days to cure said default. If a party is in default under the Agreement, the non -defaulting party may, as its sole remedy, seek specific performance. 13. This Agreement constitutes the entire agreement between the parties and supersedes all prior agreements, whether oral or written, covering the same subject matter. This Agreement may not be modified or amended except in writing mutually agreed to and accepted by the parties. 9 14. The Agreement shall be construed in accordance with Texas law without regard to its conflict of laws and provisions. 15. Venue for any action arising hereunder shall be in Collin County, Texas. 16. Any notice or other communication required by this Agreement to be given, provided, or delivered shall be in writing addressed as set forth below. Notices shall be considered given or provided for purposes of this Agreement: (a) if by Certified Mail, five (5) business days after deposited with the U.S. Postal Service, Certified Mail, Return Receipt Requested; or (b) if by private delivery service (e.g. FedEx or UPS), on the date delivered to the notice address as evidenced by a receipt signed by any person at the notice address. If intended for City: City of Anna Attention: City Manager 120 W. V, Street Anna, TX 75409 With a copy to: Wolfe, Tidwell & McCoy, LLP Attention: Clark McCoy 2591 Dallas Pkwy, Ste 300 Frisco, TX 75034 If intended for the HOA: 17. Each party has the right to change, from time to time, its notice addresses by giving at least ten (10) business day's written notice to the other party. If any time period provided in this Agreement ends on a Saturday, Sunday, or legal holiday, the period shall be extended to the first business day following such Sunday, Saturday, or legal holiday. 18. The recitals contained in this Agreement: (a) are true and correct as of the Effective Date; (b) form the basis upon which the parties negotiated and entered into this Agreement; and (c) reflect the final intent of the parties with regard to the subject matter of this Agreement. If it becomes necessary to interpret any provision of this Agreement, the intent of the parties, as evidenced by the recitals, shall be given full effect. The parties have relied, to their material detriment, upon the 4 recitals as part of the consideration for entering into this Agreement and, but for the recitals, would not have entered into this Agreement. 19. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and constitute one and the same instrument. A facsimile signature will also be deemed to constitute an original if properly executed. 20. The individuals executing this Agreement on behalf of the respective parties below represent to each other that all appropriate and necessary action has been taken to authorize the individual who is executing this Agreement to do so for and on behalf of the party for which his signature appears, that there are no other parties or entities required to execute this Agreement in order for the same to be an authorized and binding agreement on the party for whom the individual is signing this Agreement and that each individual affixing his signature hereto is authorized to do so, and such authorization is valid and effective on the date of this Agreement. 21. The parties agree that they have not waived any respective sovereign immunity by entering into and performing their respective obligations under this Agreement. 22. This Agreement is not assignable. 23. Each signatory represents this Agreement has been read by the party for which this Agreement is executed and that such party has had the opportunity to confer with its counsel. 24. In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision thereof, and this Agreement shall be construed as is such invalid, illegal, or unenforceability provision had never been contained herein. 25. This Agreement shall be deemed 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 either party shall not apply. IN WITNESS WHEREOF, the parties have executed this Agreement and caused this Agreement to be effective on the Effective Date. 5 CITY OF ANNA, TEXAS By: Ryan Knderson, City Manager STATE OF TEXAS COUNTY OF COLLIN Before me, the undersigned authority, on this day personally appeared Ryan Henderson known to me to be one of the persons whose names are subscribed to the foregoing instrument; he acknowledged to me that he is the duly authorized representative of and for the CITY OF ANNA, TEXAS, a Texas political subdivision, and he executed the said instrument for the purposes and consideration therein expressed and in the capacity therein stated. Given under my hand and seal of office this Jf tr,day of'-' c" A a r.—!E�— 2025. Notary Public in and for the State of Texas My Commission Expires: "vv''% GRACE KARINA M. DEROSA t, Notary Public, State of Texas Comm. Expires 12-16-2028 Notary ID 135204375 2 NORTHPOINTE CROSSING HOMEOWNERS' ASSOCIATION, INC. By: Robert Sell, its President STATE OF TEXAS COUNTY OF COLLIN Before me, the undersigned authority, on this day personally appeared Robert Sell, known to me to be one of the persons whose names are subscribed to the foregoing instrument; he acknowledged to me that he is the duly authorized representative of and for Northpointe Crossing Homeowners' Association, Inc., a Texas nonprofit corporation, and he executed the said instrument for the purposes and consideration therein expressed and in the capacity therein stated. Given under my hand and seal of office this day of , 2025. My Commission Expires: 7 Notary Public in and for the State of Texas Exhibit A - Final Plat 9819 FA 13 F-f Exhibit B - Project Location Map ea � �• -ram � 44 l7rninr�t l — T_'= l7 I A .__ 9mm..`E S� Gys'A r7 >T,u . A '" Exhibit C - Concept Design 10 Exhibit D - Cost Estimate 11