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HomeMy WebLinkAboutRes 2020-09-797 Sidewalk Cost Sharing Agreement for Public Sidewalk on Dumas Drive and Elam DriveCITY OF ANNA, TEXAS A RESOLUTION OF THE CITY OF ANNA, TEXAS APPROVING AND AUTHORIZING A SIDEWALK COST SHARING AGREEMENT FOR PUBLIC SIDEWALK ON DUMAS DRIVE AND ELAM DRIVE BY AND BETWEEN THE CITY OF ANNA AND NORTHPOINTE CROSSING HOMEOWNERS ASSOCIATION, INCORPORATED, AS SHOWN IN EXHIBIT "A" ATTACHED HERETO, AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, there is a segment of public sidewalk in Phase 1 North of Northpointe Crossing Subdivision on Dumas Drive and on Elam Drive which was not constructed with the public improvements by the original developer; and WHERAS, Phase 1 North of Northpointe Crossing Subdivision is built -out and the original development company is no longer involved in Northpointe Crossing or any development projects in the City of Anna; and WHEREAS, the City of Anna finds it in the best interest of the public to ensure adequate sidewalks along public rights -of -way for pedestrian mobility; and WHEREAS, the HOA is the sole owner of Lot 29, Block A of Phase 1 of the Neighborhood (the "HOA Property"); and WHEREAS, the HOA desires the construction of a four -foot wide concrete sidewalk on and near the HOA Property extending approximately 565 linear feet (the "Sidewalk Project"); and WHEREAS, the Sidewalk Project is intended to connect two existing sidewalk segments that run along and near the intersection of Elam Drive and Dumas Drive 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 Sidewalk Project is $12,000.00 (the "Estimated Cost"); and WHEREAS, the City of Anna's portion of the funding is estimated to total $6,000 and will come from the Public Works Street Division's annual operating budget for sidewalk construction; 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 Sidewalk Project in accordance with the terms of this Agreement. 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 Funding. That the City Manager is hereby authorized to fund the improvements as described in the Subdivision Improvement Agreement attached hereto as Exhibit "A.' PASSED AND APPROVED by the City Council of the City of Anna, Texas on this 22"d day of September 2020. ATTEST: ,,,, orAlVv Ol Q 2 U ICE City Secretary, Carrie L. Smith APPROVED: Mayor, Nate Pike Pr A10"r or� A SIDEWALK COST -SHARING AGREEMENT This Sidewalk Cost -Sharing Agreement (this "Agreement"), dated as of the 22nd day of September, 2020 ("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 developing subdivision known as Northpointe Crossing (the "Neighborhood"); and WHEREAS, the HOA is the sole owner of Lot 29, Block A of Phase 1 of the Neighborhood (the "HOA Property"); and WHEREAS, the HOA desires the construction of a four -foot wide concrete sidewalk on and near the HOA Property extending approximately 5651inear feet (the "Sidewalk Project"); and WHEREAS, the Sidewalk Project is intended to connect two existing sidewalk segments that run along and near the intersection of Elam Drive and Dumas Drive 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 Sidewalk Project is $12,000.00 (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 Sidewalk 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 Sidewalk Project. The Sidewalk Project shall be constructed in accordance with all applicable City regulations. 2. Before design and construction of the Sidewalk Project commences, the HOA shall dedicate to the City any necessary easements) to allow for construction the Sidewalk Project, permanent maintenance of the completed sidewalk, and public access over and on the completed sidewalk. The HOA will further grant temporary workspace or easements across the HOA Property as may be required to construct the Sidewalk Project. 1 3. The City and the HOA will share equally in the cost of the Sidewalk Project. The HOA will deposit with the City the cash sum of $6,000.00, which is 50% of the Estimated Cost. Said deposit must be made before commencement of the design and construction of the Sidewalk Project. The City agrees to use said deposited funds solely for the costs of the design and construction of the Sidewalk Project. The City shall have no obligations under this Agreement until said cash deposit has been received by the City. 4. The City shall commence construction of the Sidewalk Project within 30 days after the date that the HOA makes the deposit referenced above. The City shall complete Sidewalk Project within 30 days after the deadline to commence construction. 5. Upon completion of the Sidewalk Project the City shall provide the HOA with evidence of the actual cost paid by the City for the design and construction of the Sidewalk Project (the "Actual Cost"). If the Actual Cost exceeds the Estimated Cost, the HOA shall pay the City the cash sum that is equal to SO% 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. 6. Upon completion of the Sidewalk Project, the City will permanently maintain the completed sidewalk in a manner similar to the other public sidewalks in the Neighborhood. The City shall not maintain nor be responsible in any manner for operation or maintenance of any portion of the HOA Property other than the completed sidewalk. 7. 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. 8. 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. 9. 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 2 this Agreement, shall not in any way affect, limit or waive such party's right thereafter to enforce and compel strict compliance. 10. 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. 11. 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. 12. The Agreement shall be construed in accordance with Texas law without regard to its conflict of laws provisions. 13. Venue for any action arising hereunder shall be in Collin County, Texas. 14. 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 111 N. Powell P1cwy 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: Sonia M. Lopez Principal Management Group of Texas 12700 Park Central Drive, Suite 600 Dallas, TX 75251 15. 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. 16. 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 recitals as part of the consideration for entering into this Agreement and, but for the recitals, would not have entered into this Agreement. 17. This Agreement maybe 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. 18. 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. 19. The parties agree that they have not waived any respective sovereign immunity by entering into and performing their respective obligations under this Agreement. 20. This Agreement is not assignable. 21. 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. 22. 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. 23. 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. CITY OF NI` By: Ji Proc , Ci anager STl��'OF TEXAS COUNTY OF COLLIN Before me, the undersigned authority, on this day personally appeared Jim Proce 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 day of 2020. u „ � My Commission Expires; Notary Public in and for the State of Texas 5 NORTHPOINTE CROSSING HOMEOWNERS' ASSOCIATION, INC. By: Kelly Patterson -Herndon, its President STATE OF TEXAS COUNTY OF COLLIN Before me, the undersigned authority, on this day personally appeared Kelly Patterson -Herndon, known to me to be one of the persons whose names are subscribed to the foregoing instrument; she acknowledged to me that she is the duly authorized representative of and for Northpointe Crossing Homeowners' Association, Inc., a Texas nonprofit corporation, and she 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 , 2020. Notary Public in and for the State of Texas My Commission Expires: COLLIN COUNTY, TEXAS By: Date: STATE OF TEXAS COUNTY OF Before me, the undersigned authority, on this day personally appeared known to me to be one of the persons whose names are subscribed to the foregoing instrument; he acknowledged to me that the is the duly authorized representative of and for the COLLIN COUNTY, 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 day of . 2020. My Commission Expires: Notary Public in and for the State of Texas 7 NORTH TEXAS MUNICIPAL WATER DISTRICT, A Texas political subdivision By: Date: STATE OF TEXAS COUNTY OF Before me, the undersigned authority, on this day personally appeared Thomas W. Kula, 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 NORTH TEXAS MUNICIPAL WATER DISTRICT, 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 day of , 2020. Notary Public in and for the State of Texas My Commission Expires: Exhibit A Northpointe Crossing Sidewalk Improvements I low \\\' A IVI 4 0 E t _ i t� ¢� .Nul � _ iA. ce. \. ev ppp to�.lQ44 K-y L4 9 Proposed 565 LF of new 4' sidewalk