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HomeMy WebLinkAboutRes 2016-05-172 Anna Town Square SIA 5th Amendment (2)CITY OF ANNA, TEXAS RESOLUTION No.do \lo -05 -1112'. (Anna Town Square SIA 5th Amendment) 1/15 A RESOLUTION OF THE CITY OF ANNA, TEXAS APPROVING THE FIFTH AGREEMENT AMENDING THE SUBDIVISION IMPROVEMENT AGREEMENT FOR ANNA TOWN SQUARE WHEREAS, the City of Anna, Texas (the "City") and Anna Crossing Phase llA, Ltd., ("Owner"), desire to enter into a Fifth Agreement Amending the Subdivision Improvement Agreement for a 634 acre tract of land commonly referred to as Anna Town Square; and WHEREAS, the City Council of the City of Anna, Texas ("City Council") finds that approval of this Agreement will benefit the City and 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 above are incorporated herein as if set forth in full for all purposes. Section 2. Approval of Amendment. The City Council of the City of Anna, Texas hereby approves the Fifth Agreement Amending Subdivision Improvement Agreement attached hereto as Exhibit 1, and authorizes, ratifies and approves the City Manager's execution of same. The City Manager is hereby authorized to execute all documents and to take all other actions necessary to finalize, act under, and enforce this Agreement. CITY OF ANNA, TEXAS RESOLUTION No.cQbUo .. 05'~l1°' PAGE 1OF1 / FIFTH AGREEMENT AMENDING SUBDIVISION IMPROVEMENT AGREEMENT This Fifth Agreement Amending Subdivision Improvement Agreement (this "Fifth Amendment") is entered into between and among the City of Anna, Texas (the "City") and Anna Crossing AMC, Ltd., ("Payee") as follows: WHEREAS, Owner and Payee are sometimes collectively referenced in this Fifth Amendment as the "Parties"; and WHEREAS, on March 20, 2014, Parties previously entered into a Subdivision Improvement Agreement ("SIA") related to the Development of the Property; and WHEREAS, on September 11, 2014, the Parties entered into a First Agreement Amending Subdivision Improvement Agreement; and, WHEREAS, on November 13, 2014, the Parties entered into a Second Agreement Amending Subdivision Improvement Agreement; and, WHEREAS, on April 22, 2015, the Parties entered into a Third Agreement Amending Subdivision Improvement Agreement; and, WHEREAS, on September 14, 2015, the Parties entered into a Fourth Agreement Amending Subdivision Improvement Agreement; and, WHEREAS, the City and Payee now desire to amend the SIA to address responsibility for certain payments due to the North Collin Special Utility District; and WHEREAS, the capitalized terms used in this Fifth Amendment are as defined in the SIA unless expressly set forth to the contrary herein; and WHEREAS, it is the Parties' mutual intent that this Fifth Amendment shall govern only the subject matter specifically set forth herein and 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 Fifth Amendment; 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 Fifth Amendment and said recitals constitute representations by Payee and the City. FIFTH AGREEMENT AMENDING SUBDIVISION IMPROVEMENT AGREEMENT Page I 1 SECTION 2 RESPONSIBILITY FOR CCN PAYMENTS Payee agrees to make payments to the City equal to $200 per acre for each acre that is: 1. Contained within each final plat located within the Property, and 2. Located within the North Collin Special Utility District CCN 11035 shown on Exhibit 1 attached to this Fifth Amendment. Said payments to City shall be made within sixty (60) days of City approval of a final plat. It is the Parties intent that the payments by Payee to the City described in this Fifth Amendment will be equal to the payments required by the City under Section 2.09 of the Settlement Agreement attached hereto as Exhibit 2. SECTION 3 CONFLICTS AND EFFECTIVE DATE To the extent of any conflict between this Fifth Amendment and the SIA, this Fifth Amendment shall govern. The Effective Date of this Fifth Amendment is the date that the last of the Parties' signatures to this Fifth Amendment is fully and properly affixed to this Fifth Amendment 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 Fifth Amendment and Payee has duly executed same. [SIGNATURES PAGES FOLLOW, REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK] FIFTH AGREEMENT AMENDING SUBDIVISION IMPROVEMENT AGREEMENT Page I 2 PAYEE ANNA CROSSING AMC, LTD. By: ANNA CR~J Sl ~o/M(C.GP By: ~~ Richard M. Skorb IN WITNESS WHEREOF: STATE OF TEXAS COUNTY OF ;t:/:?MS § § § Before me, the undersigned notary public, on th .&,qay of . ~ , 2016, personally appeared Richard M. Skorburg, known to me (or proved to me) tObeth ~rson whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same in his capacity as President of Anna Crossing AMC GP Corporation, in its capacity as general partner for Anna Crossing AMC, Ltd. NANCY KAY WALTZ Notary ID# 125880572 My Commission Expires October 18, 2018 FIFTH AGREEMENT AMENDING SUBDIVISION IMPROVEMENT AGREEMENT Page I 3 CITY OF ANNA STATE OF TEXAS n ~ l a • COUNTY OF ~'- § § § Before me, the undersigned notary public, on the \~ day of i}\Q...u / , 2016, personally appeared Philip Sanders, known to me (or proved to me) to be the perso ~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. Notary Public, State of Texas ,,,uu1111 ,--~~~~.' f'.".t;'-. CARRIE L. SMITH t'i~i"~ Notary Public. State of Texas -.."1.f~,-~$ My Commission Expires ~,,,;r,:~~;~~~,~ January 27. 2019 FIFTH AGREEMENT AMENDING SUBDIVISION IMPROVEMENT AGREEMENT Page I 4 tl·••LE0Y ~>1v ·_ ~CEQ---~a~~'-h~--°'~-,~~s~~~~~~-~~d~64~:-~ .• , Projectpath: c:\glslprojects\applications\35284-s.apr E t - h i h 1 · + t W a t e r C C N S s e r v i c e A r e a s E 2 J 1 2 9 7 6 - , C I T Y O F A t - J N A . . . . . . . . . . . ~ 1 0 1 8 2 - S O U T H G R A Y S O N W S C ~ 1 0 1 5 0 - M A R I L E E S U D . - 0 1 0 1 8 4 , V E R O N A W S C t : Z J 1 0 1 9 4 - C I T Y O F M G K I N N E Y . 0 0 1 1 0 1 4 - W E S T M I N S T E R W S C ~ 1 1 0 3 5 - N O R T H C O L L I N W S C . . . E : L ' . J " 1 1 4 8 2 ' " C I T Y ' O F M E L I S S A . . ~ 1 2 3 3 0 - W E S T O N W S C F a c i l i t i e s O n l y W a t e r C C N S e r v i c e A r e a s . · · N 1 1 0 1 4 - W E S T M I N S T E R W S C . 1 i n c h = 4 , 0 0 0 f e e t Settlement Agreement fhe parties ('"Parties··) to this Settlement .-\gm.::ment are the Cities of \kKinney r·~fcKinney ··). \fdissa ('·\feli ss a··), ~md Anna ("A.nnci.') (collectively ··Cities"). and North Collin Water Supply Corporation ('·North Collin"). Recitals l.01. The Parties are inrnlvcd in the following proceedings !10\V pending before the State Office of Administrative Hearings c·SOAH''): SOAH Docht Nos. 582-02-1652. 582-03- 1820, 582-03-1821 , and 582-03-1824: TCEQ Docket Nos. 2001-1300-UCR. 2001-0813-UC R. 2002-1278-UCR, and 2002-1281-UCR; styled Applications of rhe Cities of.\JcKinney. :'v/dissa . and Anna and ;vorth Collin iVuter Supplv C01poratio11 to Amend Water CCV Xos. l 0 J 9../.. I J -182. l J9 .-:-6, 11035 and SeH'a CCV So. 20898 and of the City of JJelissa to Obtain a Sew er cc;v in Collin County ('·SOAH Proceeding .. ). 1.02. In addition. Melissa. McKinney. and North Collin are parties to Civil Action No . .+:02-CV-345; styled Ciry c?/J/elissa. Ti:xus . and City o(.\kKinney. Ti!xas v. North Collin Water Supp(v Corporation and United States D eparrment of Agric ulture . ncnv pending in the Un ited States District Court for the Eastern District of Texas (""Federal Civil Action"). 1.03. The Parties acknowledge that the SOAH Proceeding and Federal Civil Action listed above (collectively "Litigation'') reflect bona fide disputes and controversies between the Parties. The SOAH Proceeding regards the provision of \Vat er and se\ver service to customers in certain areas of Collin County. Texas. and involves the authority to provide that service under each Party's Certificate of Convenience and Necl:.'ssity ("CCN''). issued by the Te:<::1s Commission on Em·ironmental Quality ('"TCEQ .. ) or predecessor agency. The Federal Civil ,--\ction regards whe1her North Colli1f is eligible to obtain a loan and grant ("Loan") totaling $2.270.000 from the L'nited States D~partment l)f Agriculture ("t'SDA") to fund impro\·e mcnts : to '.'forth Collin's s ystem. ; 1.0...f. The Parties Jcs ire to d\·o id rhe Currher anno; anc..-:. cos r. dt~la;. and unccrtJinty I asso ciatr.:::d \\ ith the Lit ig::i tion JnJ ha \~ .tCCLlrding!y ..:ntered in t 1 ..1 letter agreement dutcJ October ' ~6. :200...f to fully s ettle the Litigation. :rhe Pnrties no'v desire to funhcr e\ iJence that se rtl .emenr ' hv c~\ccurinl! this Settkment . \~n.:emt.:r~l. Therefo re. in 1m kr to fulh and lina !h compm mi se ;..ind -._ -! . . . I settle all claims then h;n e b1.?en or could h~n c been assencd. and all applications regarding \\:.lter and SC\\"i.::r sen ice that hm e been subrnitkd . in the Litigarilm -as \Ve!! as all other matters in controversy between them -the Parties hereby enter into this Scttkmcnt ,\.greement. Terms of Agreement In full consickrntion of the rnutunl promises and agreements contained in this Settlement A.greement. including the Recitals set forth above, the Parties agree as follows: 2.0 l. Cpon approval of this Sdtlement Agreement by all Parties, North Collin will transfer to the Cities, for single certification in the Cities· CCNs, certain territory \Vithin North Collin· s current CCN area that is in side the city limits or ETJ of the Cities and that the Cities desire to start serving immediately or are already serving ('·Initial Territory''). The Initial Territory consists of 1, 933 acres to be transferred to Melissa and 265 acres to be transferred to McKinney, which is identified on the three maps attached to this Settlement Agreement as Area A. If any portion of the Initial Territory includes existing customers or facilities of North Collin that North Collin and the applicable City agree should be served or purchased by the City. the City will pay North Collin f(.)r those customers or facilities in an amount to be mutually agreeJ on. subject to USDA approval. 2.02. All remaining v.mer CCN territory of North Collin that is located '.vithin the city limits or ETJ of the Cities and is not part of the Initial Territory. as well as all territory adjacent to the city limits or ETJ of one of the Cities (collectively .. Remaining Territory··). will be geographically certificated to North Collin and the applicable City for single cenification by customer class. as follmvs: (a) North Collin's CCN vviH be amended to reflect that it will have the right and duty to serve . pursuant to its tari.tI to the exclusion of the Cities. all new customers in the Remaining Territory except those \vho: (i) are located within the c.:ity limits of one of the Cities as no\v or hereafter existing; (ii) request sanitary sewe r sen ice and are located in a subJivision containing lots of less than one acre: or I iii l request sanitary sewer sen ice and an.:: non-residential tr~cts: and Page 2 r)f.., tb) each Cit: ·s water CC>i will be amcndt.·d to rdkct that it has the right and dut;, l\J serw. pursuant to its ordinances . to the exclusion of '.'forth Collin. all nc\\ customers in its rcspectin: portions of the Remaining Territory \\ho: (i) arc located \\ithin the cit: limits of the applicabk City as IlO\V or hereafter existing: (ii) request s:initary sc\vcr service and are locakd in a subdivision containing lots of les s than one acre: or (iii) request sanitary sewer service and arc non-residential tracts. (c) North Collin \vii! remain singly certificakd within the corporak limits of the To\\11 of New Hope and that part ofNorrh Collin·s CCN that lies within the corporate limits and ETJ of the City of \\:eston as reflected on the maps attached hereto as the .. Nev\ Hope. \Vcston Areas."' In the event that either Weston or New Hope should disannex any territory that is within North Collin's singly certificated area or disincorporate, then such territory will become a part of the Remaining Territory. The Remaining Territory is identified on the three maps attached to this Settlement Agreement as Area B. 2 .03. Territory that is currently not certificated to <my Party but fr.Jr \vhich certification has been requested by both North Collin <md one of the Cities in the SOAH Proceeding ('"Request ed Territory") will be certificated on the same basis as the Remaining Territory and is identified on the maps attached IO this Settlement Agreement as Area C. '.:2.04 . Neither North Collin nor the Cities will be permitted to take over water service to any customers, either existing at the time the Settlement Agreement is approved or acquired as provided herein. or to take over any facilities of the other provider in the Initial Territory, Remaining Tcnitory, or the Requested Territory without the WT1tren agreement of both providers. Any transfer of North Collin customers or facilities must comply with applicable regulations of the lfSD:\. if any. Page 3 of ·1 1.05. fmmedintdy upon apprcl\cil of this Settlement :.\gn:cment by all Panies. the Parties \\ill withdra\\-oppos ition to each Party's CC\i application consistent \virh this Settlement Agreement. withdra\\ opposititrn to .~nna·s and \klissa·s sn\er CCN applicarions. and joint!) file a motion to request that the A.drninistrali vc Law Judge issue a Proposal for Decision recommending Commission approval of this 1.\greement pursuant to Sections 13.2..J.8 and 13.:255 l f the Texas \Vatcr Code and the issuance of amended CCNs consistent herewith or, in the alternative. requesting that the A.dministrative Lnv Judge remand the CCN Applications in the SO.AH Proceeding to the TCEQ's Executive Director. The Parties agree to request that this Settlement Agreement be incorporated into the Parties' water CCNs and issue amended CCNs to reflect the certificated areas and the custome r classes that the Parties are entitled to serve. The Cities and North Collin \Vil! take all acts necessary to expedite the TCEQ's approval of the CCNs contemplated in this Settlement Agreement. including, but not limited to, preparation of a proposed agreed final order for submission to the Commissioners for approval under Water Code §§ 13.2.+8 and 13.255, and preparation of maps. fom1s, or other necessary documents. All Parties hereto wai ve their rights to fi le a Motion for Reconsideration or a Motion for Rehearing from any order entered by the TCEQ consistent with this Sdtlement Agreement. 2.06. Within ten (l 0) business days of issuance of a final order by the TCEQ transferring the Initial Territory to the appropriate Cities and appro\ing the Settlement Agreement, the Cities will \.Vithdraw their opposition to North Collin obtaining the loan and grant from the USDA and all Part ies to this Settlement Agreement \.vill jointly move to dismiss the Federal Civil Action and to release to McKinney and Melissa the $10,000 cash bond deposited by McKinney a.nd :Vldissa with the United States District Court in connection vvith tht: kmporary restraining order and temporary injunction issued by the United States District Court. 2.07. The Cities \vill place into escroi,,-v at a bank mutually agreeable to the Pa1iics. v ... irhin 10 days after approval of this Sdtkment Agreement by all Panies. the sums to be paid by each Cit: for settlement and acquisition of fnitial Ten-itory as set fonh in paragraph 2.08 be!O\\. The escrowed funds shall be released from escro\\ and paid to ~orth Collin upon TCEQ's is suance of the umendcd CC'.'is and .:i linal l)rder transferring the Initial Territory to the c1ppropriatc Ciiy. 2.08. The ~1mount to be placed in e~crow b;.· each City. along \\ith the price !Or foture purchas e llf any Remaining Terri tor;·. is ,ts fvl!O\\ s: P'3ge 4 d <I \[elissa -S 196.650. \\ ith a pnce of $:200 per acre frir future purchase of any Rem:.iining Ten-itory: \kKinney -Sl 13.250. \\ith a price of Sl25 per acre for future purchase of an y Remaining Territory: and Anna -S 100.000. ''ith a price of S200 per acre for future purchase of any Remaining Territory. 2.09. Each City will pay North Collin the amount specified in Section 2.08 for each acre and partial acre contained \vithin each plat or tract within 60 days of approving a final plat within the Remaining Territory or providing service for non-residential tracts that do not require plat ;:ipprO\ al vvithin the Remaining Territory. No payment will be made to North Collin for service by the Cities to areas located \vithin the Requested Territory. 2.10. This agreement is solely for the benefit of the parties hereto. There arc no third party beneficiaries of this agreement. 2. J l. The Parties hereby forever release. acquit, and discharge each other and their respective officers. agents, attorneys. employees. successors . assigns, and representatives from any and all claims. demands . ch;:irges. costs of court. attorney· s tees, causes of action , liability, or damages of \vhatever nature. on any legal theory. knovm or unknown. past, present. or future. that have been or could have been asserted in the Litigation. other than claims for breach of the provisions of this Settlement Agreement. 2. 12. In executing this Settlement Agreement the Parties acknowledge that they are not relying on any statement or representation of any other Party regarding the matters in dispute. The Parties are relying on their own judgment and are represented by attorneys in this matter. 2.13. This Settlement Agreement is a compromise of doubtful and disputed claims. Nothing in this Settlement Agreement is an admission of liability by any Party. and nothing in this Scttkment 1\grccment may be !ntcq1reted as on admission of liability. Each Party to this Settlement Agreement expressly denil.!s liability to every other Pa.rt; LO this Settlement A.greemcnt. 2.1-+. This Settlement .\greement is made in accordance \\ith th<.! la\\S of the State: o f r \.!XJS. T he' Parties J gree that this Scttk·m<.:nt '\greement is gon:rned by, ,md \.vilJ be construed Jnd enforcl.'d in acc o rdance \vith Texas Lrn. Exclusi,·e ,·enul.! for any la\\SUit related in an: \\ay to this S ettlement .\gr~'.emcm is in C1)!lin C u unty. T ~·xa s : h u,,c,·cr. if ihe !<.!\\s uit im u hes the P:ige 5 o f \) enforcement by the TCEQ of any t)bligations under the Parties· rcspectiYe CCNs issued by the TCEQ. \ enuc is in Tra\ is County . T :.:xas to the extent required b) law. 2.15 . This Settlement Agreement is binding on and inures to the benefit of the P:.irties and their respecti\·e aJministrators. legal repn::sentatives. officers . agents. employees. successors. and assigns. Any reference to l'SD:\ contained in this Settl:.:ment Agreement shall not be applicable unless USDA becomes a lender of North Collin. 2.16. This Settlement Agreement contains the entire agreement bet\vecn the Parties. [t supersedes any and al! prior agreements. arrangements. or understandings between the Parties on all subjects in any way related to the transactions or occurrences described in the Litigation or in this Settlement Agreement. No oral understandings, statements, promises, or inducements contrary to or consistent with the terms of this Settlement Agreement exist. This Settlement A.greement is not subject to any oral modification, \Vaiver, or addition, and any modification, \Vaiver, or addition must be made in \.\Ti ting and signed by all Parties. For the purpose of notice, the addresses and fa,\: numbers of the Parties are as follows: North Collin General Manager North Collin Water Supply Corporation .2225 Hvvy. 121 North Melissa. Texas 75454 Fax no . 972-837-2930 \Vith copy to : John Rapier Rapier & Wilson, P.C. l 03 'vV. rvkDerrnort Allen, Texas 75013 Skip Newsom Fishc::r & Nevvsom. P.C. 3 724 Jefferson Street Suite 210 Austin. Texas 78731 ,V[elissa City :-\.dministrator Cit\ •)f .\!dissa P3ge 6 cf •J P.O. Box 409 \ le!issa. Texas 75454 Fax no . 972 -837-4 .52 4 With copy to: Larry Boyd Abernathy . Roeder. Boyd & Jop iin . P .C. 1700 Redbud . Suite 300 McKinney, Texas 75069 Fax no. (214) 544-4040 Ron Freeman freeman & CL)rbell. LLP 8500 Bluffstone Cove Suite B-104 Austin, Texas 78759 McKinney City Manager City of l'vkK inney P.O . Box 5 l 7 McKinney, Texas 75070 Fax no. 972-542 -0436 Anna City Administ rator City o f Anna 120 \Vest Fourth Street Anna. Texas 75409 Fax no. 972-924-2620 With copy to: Arturo D . Rodriguez. Jr. Russell. ?vioorman & Rodriguez. LL.P. 10:2 \V. :Vforrow, Suite I 03 Georgetown. Texas 78626 Fax No. (51 :::'.) 930-7742 Any Party clwnging its :.iddn:ss or fax number. fo r pu rposes of notice under this Senkment .\greement. must gi\e all nther Panies ill kas r 15 Ja: s notice ,)f the change. $.~_ttlement Agreement .2. l 7. This Scttkment .\.greement may be executed m rnultipk counterparts. each uf '"hich shall be deerneJ an o riginal for all purposes. 2.18. This Settkment Agreement has been prepared and drafted by the joint efforts of the respeeti \'e attorneys for each of the Parties and thus shall not be construed against any pru1y by reason of who prepared or drafo:d it. .2.19. If after the date nf its approval, any provision of this Settlement Agreement is held to be illeg::il. inv::ilid. or unenforceable under present or future laws effective during the term of this Settlement Agreernent, such provision(s) shall be fully severnble. 2 .20. The Parties agree to cooperate fully and execute any and all supplementary documents anu to take all additional actions that may be necessary or appropriate to give full force and effect to the terms and intent of this Settlement Agreement. 2.11. This Settlement Agreement, including the sums to be escrowed and paid um:ler par::igraphs 2.07 and 2.08. contains the entire agreement of the Parties with respect to payments required to fully settle the Litigation and any other disputes between the Parties and completely replaces and supercedes the October 26. 2004. letter agreement among the parties. Each Party shall therefore be responsible for and pay its own legal costs and expenses. including without limitation attorney's fees, expert witness fees. and professional sen:1ces foes. incurred in connection with the Litigation or this Settlement Agreement. 2.22. This Settlement Agreement is effective upon approval by the city council of each City and the board of directors of North Collin. ?3ge 3 Jf 'I -Approved: North Collin Water Supply Corporntion By City of McKinney fl/' ' /~-)' . ' {I '> r. ,,. , ;· ( '-. . / By . · "" .!1 «...(...(;~'r!'·:-.-_··_.., ____ _ J \ / Date __/ ,? ~ · > P · · ( I "'/ l ' . L• / -., OSJtJOil -'/" ! </ Vf"'::;':.. ·~ City of Melissa B I ~~.LC.:=::::: Position --~Of' City of Anna Position /-' ;.t'fj 'c /-" Settlement Agreement Date __l!!:}_<AC\joy_ Date , Filed and Recorded Official Public Records Stacey Kemp 1 County Clerk Collin County , TEX~S 05/25/2016 12:25:09 PM $82.00 SCRPELR 20160525000642910 Page 9of9 STACEY KEMP COUNTY CLERK Cashier Customer SCAPE LA CITY OF ANNA PO BOX 776 ANNA , TX 75409 COLLIN COUNTY, TEXAS STACEY KEMP · 2300 Bloomdale Rd, Suite 2104 McKinney, TX 75071 Phone: 972-548-4185 Receipt for Services Batch# 1358811 Date: 05 /25 /2016 Time: 12:25 :09PM Date Instrument No Document Type Transaction Type GF Number Pg/Amt 5/25/2016 12:25:09PM 20160525000642910 RL RL Fee Total: CREDIT 100138472300 Payment Total: Total: 15 82.00 82.00 82.00 82.00 Page I of 1