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HomeMy WebLinkAboutRes 2012-12-13 Dev Agrmt with Anna 31 Retail.pdfCITY OF ANNA, TEXAS RESOLUTION NO. 2012-12-13 A RESOLUTION OF THE CITY OF ANNA, TEXAS APPROVING A DEVELOPMENT AGREEMENT BETWEEN THE CITY OF ANNA, TEXAS AND ANNA 31 RETAIL LP WHEREAS, the City of Anna, Texas (the "City") and Anna Retail LP desire to enter into a Development Agreement related to the construction of a median opening on FM 455 (the "Agreement"); and WHEREAS, the City Council of the City of Anna, Texas (the "City Council") finds that approval of the Agreement is in the best interests 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. 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 18th day of December, 2012. APPROVED: ATTEST: A-0&— 14-leyL�- — John trent Mayor Pro Tem Nat a Wilkison, City Secretary //tf f A! 1111I1i1t�� RES. 2012-12-13 Develop Agreement w/Anna 31 Retail PAGE 1 OF 1 12-18-12 DEVELOPMENT AGREEMENT This Development Agreement (this "Agreement") is entered into between the City of Anna, Texas (the "City") and Anna 31 Retail, LP ("Owner"). 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 is the sole owner of 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 Texas Department of Transportation ("TxDOT") plans to reconstruct and widen FM 455 between U.S. 75 and S.H. 5 (the "Project"); and WHEREAS, as part of the Project, TxDOT will construct a raised median between the east and west bound traffic lanes; and WHEREAS, the Owner desires to fund one-half of the cost required to construct a left turn lane and median opening adjacent to the Owner's property as shown on the attached EXHIBIT B (the "Median Opening"); and WHEREAS, TxDOT has agreed to construct the Median Opening as part of the Project if the City pays for full cost of the Median Opening as required in the Advance Funding Agreement attached hereto as EXHIBIT C; and WHEREAS, the Owner understands and acknowledges that the City will approve the Advance Funding Agreement only if Owner and/or the owner(s) of the property described as Lot 2R -D and Lot 2R -C in the Anna Retail Addition located in the Thomas Ratton Survey, Abstract No. 782, City of Anna, Collin County, Texas, first agree in writing in a form acceptable to the City to fund the City's full financial obligations for the Median Opening at Station 19+50 under the Advance Funding Agreement; 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 and warranties by the Owner to the City: Section 2. Owner's Obligations. The Owner shall pay the City an amount equal to one-half of the City's total financial obligation, as outlined in the Advance Funding Agreement, for the construction of a median opening at Station 19+50 as described in the Advance Funding Agreement and as shown on Exhibit B. The Owner's obligations to make payments under this Agreement shall not arise unless and until the City Council approves the Advance Funding Agreement or an agreement, substantially similar in form, that provides for the construction of a median opening Station 19+50, Section 3. Timing of Payments. The Owner shall make any payments required under this Agreement within 30 days from the date the City sends written notice to the Owner that payments are due. Said written notice shall occur no sooner than 40 days prior to the date payments by the City are due and payable to TxDOT under the Advance Funding Agreement. Section 4. City's Obligations. The City's duties and obligations under this Agreement are limited to the City's duties and obligations under the Advance Funding Agreement as related to the Median Opening as shown on the attached Exhibit B, or an agreement, substantially similar in form, that provides for the construction of a median opening at Station 19+50. 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. The failure of any person or entity—other than the Owner—who owns any interest in the Property shall not prevent or delay this Agreement from becoming effective. 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 OR ENTITY 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 a court of competent jurisdiction 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. 2 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 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 to the extent assigned to the Assignee and agrees that Owner shall be released from subsequently performing such assigned obligations and from any liability that results from the Assignee's failure to perform the assigned obligations; provided, however, that: (1) Section 7 of this Agreement shall survive any such assignment, and (2) 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, and 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: Anna 31 Retail, LP A Texas limited partnership By: DEC Properties, L.L.C. a Texas limited liabilitv i City of Anna By: Philip Sanders, City Manager t5y: r Address: 111 N. Powell Parkway l5avi'd E. CI ssen Anna, TX 75409 Sole Manager Attn: City Manager Telephone: (972) 924-3325 Address: (8400 Westchester Facsimile: (972) 924-2620 Suite 300 (Dallas, Texas 75225 Telephone: (214-361-8300 Facsimile: (214-361-1155 Email: (decinv@swbell.net With a copy to: Clark McCoy Wolfe, Tidwell & McCoy, LLP 2591 Dallas Parkway, Ste. 205 Frisco, TX 75034 Telephone: (972) 712-3530 Facsimile: (972) 712-3540 4 IN WITNESS WHEREOF: STATE OF TEXAS'' § COUNTY OF wo 4S § }' F 4 KYM6 y JANE OCNACHIE Notery Public, State of Texas My Commission Expires `. November 22, 2015 Before me, the undersigned notary public, on the day of ,2012, personally appeared David E. Claassen, 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 sole manager of DEC Properties, L.L.C. a Texas limited liability company, general partner of Anna 31 Retail, LP, a Texas limited partnership. 5 i I j fit 0; ti a» us y�o rrI gCCCC� I �CQ 1 1 r 101'/JYTE 1.OPtN i i.1 till !11:11 Jill III M 1181HX3 yr a �� - �'�• ��� R� Ca N dfl ilk I' i ig a I I I TI i 1 tit Jim I F, I j fit 11 C rrI gCCCC� I �CQ 1 1 r 101'/JYTE 1.OPtN i i.1 till !11:11 Jill III F, fit C Qell f ` yet M 1181HX3 F, J (n �w 'w �v AT L_ EXHIBIT B EXHIBIT C CSJ #: 0816-04-044 District #: 18 -Dallas Code Chaa 64 #: 01300 Project: FM 455 Limits: From US 75 northbound Frontage Road to SH 5 STATE OF TEXAS § COUNTY OF TRAVIS § ADVANCE FUNDING AGREEMENT FOR VOLUNTARY LOCAL GOVERNMENT CONTRIBUTIONS TO TRANSPORTATION IMPROVEMENT PROJECTS WITH NO REQUIRED MATCH ON -SYSTEM THIS AGREEMENT is made by and between the State of Texas, acting by and through the Texas Department of Transportation, called the "State", and the City of Anna, acting by and through its duly authorized officials, called the "Local Government." WITNESSETH WHEREAS, Transportation Code, Chapters 201, 221, 227, and 361, authorize the State to lay out, construct, maintain, and operate a system of streets, roads, and highways that comprise the State Highway System; and, WHEREAS, Government Code, Chapter 791, and Transportation Code, §201.209 and Chapter 221, authorize the State to contract with municipalities and political subdivisions; and, WHEREAS, Commission Minute Order Numbers 112844 and 113074 authorize the State to undertake and complete a highway improvement generally described as widening existing facility to a 4 -lane urban divided, ultimate 6 -lane facility on FM 455 from US 75 northbound Frontage Road to SH 5; and, WHEREAS, the Local Government has requested that the State allow the Local Government to participate in said improvement by funding that portion of the improvement described as the construction of three median openings, (1) at Sta.19+50; (2) at Sta. 67+75; and, (3) 106+50 on FM 455 from US 75 northbound Frontage Road to SH 5, called the "Project"; and, WHEREAS, the State has determined that such participation is in the best interest of the citizens of the State; NOW, THEREFORE, in consideration of the premises and of the mutual covenants and agreements of the parties hereto, to be by them respectively kept and performed as hereinafter set forth, the State and the Local Government do agree as follows: AGREEMENT 1. Time Period Covered This agreement becomes effective when signed by the last party whose signing makes the agreement fully executed, and the State and the Local Government will consider it to be in full force and effect until the Project described in this agreement has been completed and accepted by all parties or unless terminated, as provided for by this agreement. AFA-AFA VOITIP Page 1 of 5 Revised 04/01/11 CSJ #: 0816-04-044 District #:18 -Dallas Code Chart 64 #; 01300 Project: FM 455 Limits: From US 75 northbound Frontage Road to SH 5 2. Project Funding and Work Responsibilities A. The State will authorize the performance of only those Project items of work which the Local Government has requested and has agreed to pay for as described in Attachment A, Payment Provision and Work Responsibilities which is attached to and made a part of this contract. In addition to identifying those items of work paid for by payments to the State, Attachment A, Payment Provision and Work Responsibilities, also specifies those Project items of work that are the responsibility of the Local Government and will be carried out and completed by the Local Government, at no cost to the State. B. At least sixty (60) days prior to the date set for receipt of the construction bids, the Local Government shall remit its remaining financial share for the State's estimated construction oversight and construction costs. C. In the event that the State determines that additional funding by the Local Government is required at any time during the Project, the State will notify the Local Government in writing. The Local Government shall make payment to the State within thirty (30) days from receipt of the State's written notification. D. Whenever funds are paid by the Local Government to the State under this agreement, the Local Government shall remit a check or warrant made payable to the "Texas Department of Transportation Trust Fund." The check or warrant shall be deposited by the State in an escrow account to be managed by the State. Funds in the escrow account may only be applied by the State to the Project. If, after final Project accounting, excess funds remain in the escrow account, those funds may be applied by the State to the Local Government's contractual obligations to the State under another advance funding agreement with approval by appropriate personnel of the Local Government. 3. Right of Access If the Local Government is the owner of any part of the Project site, the Local Government shall permit the State or its authorized representative access to the site to perform any activities required to execute the work. 4. Adjustments Outside the Project Site The Local Government will provide for all necessary right of way and utility adjustments needed for performance of the work on sites not owned or to be acquired by the State. 5. Responsibilities of the Parties The State and the Local Government agree that neither party is an agent, servant, or employee of the other party and each party agrees it is responsible for its individual acts and deeds as well as the acts and deeds of its contractors, employees, representatives, and agents. 6. Document and Information Exchange The Local Government agrees to electronically deliver to the State all general notes, specifications, contract provision requirements and related documentation in a Microsoft® Word or similar document. If requested by the State, the Local Government will use the State's document template. The Local Government shall also provide a detailed construction time estimate including types of activities and month in the format required by the State. This requirement applies whether the local government creates the documents with its own forces or by hiring a consultant or professional provider. At the request of the State, the Local AFA-AFA VOITIP Page 2 of 5 Revised 04/01/11 CSJ #: 0816-04-044 District #: 18 -Dallas Code Chart 64 #: 01300 Project: FM 455 Limits: From US 75 northbound Frontage Road to SH 5 Government shall submit any information required by the State in the format directed by the State. 7. Interest The State will not pay interest on funds provided by the Local Government. Funds provided by the Local Government will be deposited into, and retained in, the State Treasury. 8. Inspection and Conduct of Work Unless otherwise specifically stated in Attachment A, Payment Provision and Work Responsibilities, to this contract, the State will supervise and inspect all work performed hereunder and provide such engineering inspection and testing services as may be required to ensure that the Project is accomplished in accordance with the approved plans and specifications. All correspondence and instructions to the contractor performing the work will be the sole responsibility of the State. Unless otherwise specifically stated in Attachment A to this contract, all work will be performed in accordance with the Standard Specifications for Construction and Maintenance of Highways, Streets, and Bridges adopted by the State and incorporated in this agreement by reference, or special specifications approved by the State. 9. Increased Costs A. In the event it is determined that the funding provided by the Local Government will be insufficient to cover the State's cost for performance of the Local Government's requested work, the Local Government will pay to the State the additional funds necessary to cover the anticipated additional cost. The State shall send the Local Government a written notification stating the amount of additional funding needed and stating the reasons for the needed additional funds. The Local Government shall pay the funds to the State within thirty (30) days of the written notification, unless otherwise agreed to by all parties to this agreement. If the Local Government cannot pay the additional funds, this contract shall be mutually terminated in accordance with Article 11 — Termination. If this is a fixed price agreement as specified in Attachment A, Payment Provision and Work Responsibilities, this provision shall only apply in the event changed site conditions are discovered or as mutually agreed upon by the State and the Local Government. B. If any existing or future local ordinances, commissioners court orders, rules, policies, or other directives, including but not limited to outdoor advertising billboards and storm water drainage facility requirements, are more restrictive than State or Federal Regulations, or if any other locally proposed changes, including but not limited to plats or replats, result in increased costs, then any increased costs associated with the ordinances or changes will be paid by the Local Government. The cost of providing right of way acquired by the State shall mean the total expenses in acquiring the property Interests either through negotiations or eminent domain proceedings, including but not limited to expenses related to relocation, removal, and adjustment of eligible utilities. 10. Maintenance Upon completion of the Project, the State will assume responsibility for the maintenance of the completed Project unless otherwise specified in Attachment A to this agreement. AFA-AFA_VoITIP Page 3 of 5 Revised 04/01/11 CSJ M 0816-04-044 District #:18 -Dallas Code Chart 64 #: 01300 Project: FM 455 Limits: From US 75 northbound Frontage Road to SH 5 11. Termination A. This agreement may be terminated in the following manner: 1. By mutual written agreement and consent of both parties; 2. By either party upon the failure of the other party to fulfill the obligations set forth in this agreement; or 3. By the State if it determines that the performance of the Project is not in the best interest of the State. B. If the agreement is terminated in accordance with the above provisions, the Local Government will be responsible for the payment of Project costs incurred by the State on behalf of the Local Government up to the time of termination. C. Upon completion of the Project, the State will perform an audit of the Project costs. Any funds due to the Local Government, the State, or the Federal Government will be promptly paid by the owing party. 12. Notices All notices to either party by the other required under this agreement shall be delivered personally or sent by certified or U.S. mail, postage prepaid or sent by electronic mail, (electronic notice being permitted to the extent permitted by law but only after a separate written consent of the parties), addressed to such party at the following addresses: Local Government: State: City Manager Director of Contract Services City of Anna Texas Department of Transportation 101 North Powell Parkway 125 E. 11 h Street Anna, Texas 75409 Austin, Texas 78701 All notices shall be deemed given on the date so delivered or so deposited in the mail, unless otherwise provided in this agreement. Either party may change the above address by sending written notice of the change to the other party. Either party may request in writing that such notices shall be delivered personally or by certified U.S. mail and such request shall be honored and carried out by the other party. 13. Sole Agreement In the event the terms of the agreement are in conflict with the provisions of any other existing agreements between the Local Government and the State, the latest agreement shall take precedence over the other agreements in matters related to the Project. 14. Successors and Assigns The State and the Local Government each binds itself, its successors, executors, assigns, and administrators to the other party to this agreement and to the successors, executors, assigns, and administrators of such other party in respect to all covenants of this agreement. 15. Amendments By mutual written consent of the parties, this agreement may be amended prior to its expiration. AFA-AFA_VoITIP Page 4 of 5 Revised 04/01/11 CSJ #: 0816-04-044 District #: 18 -Dallas Code Chart 64 M 01300 Project: FM 455 Limits: From US 75 northbound Frontage Road to SH 5 16. State Auditor The state auditor may conduct an audit or investigation of any entity receiving funds from the State directly under the contract or indirectly through a subcontract under the contract. Acceptance of funds directly under the contract or indirectly through a subcontract under this contract acts as acceptance of the authority of the state auditor, under the direction of the legislative audit committee, to conduct an audit or investigation in connection with those funds. An entity that is the subject of an audit or investigation must provide the state auditor with access to any information the state auditor considers relevant to the investigation or audit. 17. Insurance If this agreement authorizes the Local Government or its contractor to perform any work on State right of way, before beginning work the entity performing the.work shall provide the State with a fully executed copy of the State's Form 1560 Certificate of Insurance verifying the existence of coverage in the amounts and types specified on the Certificate of Insurance for all persons and entities working on State right of way. This coverage shall be maintained until all work on the State right of way is complete. If coverage is not maintained, all work on State right of way shall cease immediately and the State may recover damages and all costs of completing the work. 18. Signatory Warranty Each signatory warrants that the signatory has necessary authority to execute this agreement on behalf of the entity represented. THIS AGREEMENT IS EXECUTED by the State and the Local Government in duplicate. THE LOCAL GOVERNMENT -- CITY OF ANNA :AF Phillip Sanders City Manager Date: THE STATE OF TEXAS as Regional Director Date: AFA-AFA VOITIP Page 5 of 5 Revised 04/01!11 CSJ #: 0816-04-044 District #: 18 -Dallas Code Chart 64 #: 01300 Project: FM 455 Limits: From US 75 northbound Frontage Road to SH 5 ATTACHMENT A PAYMENT PROVISION AND WORK RESPONSIBILITIES The Local Government will pay 100% of the cost for the construction of three median openings, (1) at Sta.19+50; (2) at Sta. 67+75; and, (3) 106+50 on FM 455 from US 75 northbound Frontage Road to SH 5 in the City of Anna. The Local Government's estimated cost for this improvement is 237 881.59 including all construction items and direct state costs. The State has estimated the Project cost to be as follows: Description Total Estimate Federal Participation State Participation Local Participation Cost Construction (by State) Station 19+50 Station 67+75 $81,772.15 $67,748.84 0% $0 0% $0 100% $81,772.15 Station 1_06+50 $52. 141.94 0% $0 0%° $0 0% $0 100% $67,748.84 _ Total Construction _ $201 662.93 _ 0% --- $0 100% _ $52141.94 Direct State Cost -CST 0 $0 $201 662.93 .69% Station 19+50 Station 67+75 $8,741.44 t7,242.35 0% $0 0% $0 100% $8,741.44 Station 106+50 _ __ _-- - -- --- -- $5,57_3.97 0% $0 0% $0 0% 0% $0 100% $7,242.35 ��_ Total Direct State Cost $21,557.76 0% -----_ t0 ___ 0% $0 100% _ $5,573.97 Direct State Cost-CST(„7a 7.27% $0 100% $21,557.76 Station 19+50 Station 67+75 $5,944.84 0% $0 0% $0 100% $5,944.84 _Station _106_+50 14,925.34 $3,790.72 0% $0 0%_ 0% $Q 100% $4,925.34 Total Indirect State Cost ` _ $14,660.90790:72 _$0 Q% TOTAL $237,881.59$0$14,660.90 $0 $237,881.59 Estimated Total Local Government Participation (100%) a 9E.081.59 Estimated Total Payment by the Local Government to the State on full execution of this Agreement = $237.881.59 This Is an estimate. The final amount of the Local Government participation will be based on actual costs. AFA-AFA VoITIP Page 1 of 1 Attachment A