08 Plat approval, variance, easement acceptance and subdivision improvementsCITY COUNCIL AGENDA ITEM BRIEFING SHEET
Submittal Date:
Originating Department:
Presented By:
Agenda Item No.:
3-4-09
Engineering 41
Shawn Napier, P.E.
Council Date:
City Engineer /
g.
3-9-09
Director of Public Works
RECOMMENDED MOTION:
Move to approve a request for a curb and gutter variance, acceptance of a subdivision improvement
agreement, and acceptance of an off-site utility easement and the Final Plat of Lots 1-8, Block A, Pecan
Place.
POLICY ISSUE(S):
Plat approval, variance, easement acceptance and subdivision improvements
BACKGROUND:
This is the final plat of 2.41 acres of land located on the east side of the 4000 Block of Pine Mill Road
(outside of the Loop). Wayne Brown has submitted a variance on construction of curb and gutter along
Pine Mill Road. The Thoroughfare Plan calls for Pine Mill Road to be a collector level street with 39-
feet of pavement and 60-feet of Right-of-Way. An off-utility easement is necessary because water and
sewer lines must be extended from existing lines in easements to the proposed final plat property. This
easement will connect the final plat property to the existing easements.
Mr. Brown is proposing to build multi-family housing in this addition.
BOARD/COMMISSION RECOMMENDATION:
The Commission recotnmended approval of the final plat subject to City Engineer's
recommendations by a vote of 5-0.
EXHIBITS:
Memo, final plat, variance request, easement, subdivision agreement and aerial
ACTION:
BUDGET INFO:
N/A
❑ Financial Report Z Minute Order
Expense
$
❑
Department Report ❑ Resolution
Budgeted Amt.
$
❑
Presentation ❑ Ordinance
y'I'D Actual
$
❑ Public Hearing ❑ Other
Acct. Name
Acct. Number
FISCAL NOTES:
REVIEWED AND APPROVED BY:
Z Administration Z City Clerk ❑ Community Development ❑ EMS/IT ❑ Finance ❑ Fire
❑ Municipal Court Z Legal ❑ Library ❑ Police Z Eng./Public Works ❑ Utilities
City of Paris
Revised 2/04/08
- OU0045
UTILITY EASEMENT
STATE OF TEXAS §
COUNTY OF LAMAR §
KNOW ALL MEN BY THESE PRESENTS:
That Brownstone Properties, LP of Lamar County, Texas, (hereinafter referred to as
GRANTOR) for and in consideration of the sum of TEN DOLLARS ($10.00) cash, and other
good and valuable consideration, to us in hand paid by the CITY OF PARIS, Texas, the receipt
and sufficiency of which is hereby acknowledged, do hereby give, grant and convey unto the
said CITY OF PARIS, TEXAS a home rule municipal corporation (hereinafter referred to as
GRANTEE) a perpetual utility easement described as follows:
SITUATED within the corporate limits of the City of Paris, County of
Lamar and State of Texas, a part of the Enoch Crow Survey, Abstract No.208,
also being part of a 0.491 acre tract of land conveyed to Brownstone Properties,
LP by deed recorded as Lamar County Document Number 064801-2008, and
being more particularly described by metes and bounds in Exhibit "A" attached
hereto and made a part hereof by reference ("Premises").
TO HAVE AND TO HOLD the above property unto the GRANTEE for the purposes
aforesaid, with the right and privilege at any and all times to enter said Premises, or any part
thereof, and construct, reconstruct, relocate, inspect, and maintain any and all utilities
(including, but not limited to water, sewer, drainage) and placed or to be placed therein
(hereinafter "Facilities"); provided that Grantee will, after doing any work in connection with
the construction, reconstruction, relocation, inspection, or maintenance of said utility
facilities, restore the surface as close to the condition in which said surface was found when
such work was undertaken, insofar as permitted under the plans, standards, and specifications
approved for projects to be located within the herein described easement, and that in the use
of said rights and privileges herein granted, the GRANTEE will not create a nuisance or do any
act that will be detrimental to said Premises; and provided further, that the GRANTOR shall
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not erect or place any building, fence, tree or other permanent structure on the
above-described perpetual easement and shall not otherwise use the above-described
Premises in a way that will interfere with the construction, maintenance, repair, inspection, or
operation of the Facilities placed therein.
GRANTOR does hereby bind itself, it's heirs, executors and administrators, to warrant
and forever defend, all and singular, said premises unto the GRANTEE against every person
whomsoever lawfully claiming or to claim the same or any part thereof.
WITNESS our hands this~
~ day of March, 2009.
~ v✓
D. Wayne B wn
Brownstone Properties, LP
STATE OF TEXAS §
COUNTY OF LAMAR §
BEFORE ME, the undersigned authority, on this day personally appeared D. Wayne
Brown, known to me to be the persons whose names are subscribed to the foregoing
instrument, and acknowledged to me that they executed the same for the purposes and
consideration therein expressed.
4k
GIVEN UNDER MY HAND AND SEAL OF OFFICE thisC2L~ day of March, 2009.
JANICE ELLIS '
NOTARY PUBLIC
STATE OF TEXAS
My Commission Expires 01 tary Public, State of Texas
RETURN T0:
City Attorney
City of Paris
P. O. Box 9037
Paris, TX 75461-9037
LA s a
Field Notes
Utility Easement
Situated within the Corporate Limits of the City of Paris, Lamar County, Texas, a
part of the Enoch Crow Survey, Abstract 208, also being a part of an 8.541 acre tract of
land conveyed to Brownstone Properties LP by deed recorded as Lamar County
Document #064801-2008, and being further described as follows:
Beginning at a set iron pin loca.ted South a distance of 140.00 feet from the
Northeast corner of said Brownstone tract, said point also being in the West Line of a
tract of land conveyed to Craig Skidmore by deed recorded in Volume 1389, Page 213, of
the Lamar County Official Public Records;
Thence North 88° 16' 24" West a distance of 394.87 feet to an iron pin set for
corner;
Thence South a distance of 280.00 feet to an iron pin set for corner;
Thence North 88° 16' 24" West a distance of 173.84 feet to a point for corner.
Thence North 06° 55' 14" East a distance of 75.28 feet to a point for corner;
Thence North 88° 16' 24" West a distance of 15.06 feet to an iron pin set for
corner in the East Boundary Line of Pine Mill Road;
Thence South 06° 55' 14" West with said East Boundary Line a distance of
125.48 feet to a point for corner;
Thence South 88° 16' 24" East a distance of 209.96 feet to a point for corner;
Thence North a distance of 315.02 feet to a point for corner;
Thence South 88° 16' 24" East a distance of 379.87 feet to a point for corner in
the East Line of the Brownstone tract and in the West Line of the above-referenced
Skidmore tract;
Thence North with said common line a distance of 15.01 feet to the place of
beginning, and containing 0.491 acre of land.
I, R. Brandon Chaney, Registered Professional Land Surveyor No. 4057, State of Texas
state that the above Plat and Field Notes depict and re resent an actual Survey made onr the ground under my supervision and finished in~ d t~ Gl'~ 2009.
v
R. Brandon Chaney R.P.L,. No. 4057
,
Exhibit "q"
45 C.
MEMORANDUM
TO: Mayor and City Council
Planning and Zo ing Commission
FROM: Shawn Napier, :
City Engineer tor of Public Works
DATE: December 31, 2008
SUBJECT: Pecan Place Preliminary Plat
I have reviewed the final plat of the above referenced addition. It appears that the final plat
complies with the City of Paris subdivision regulations with the following exceptions.
1. Submit a corrected preliminary plat with all of the requested corrections.
2. Submit the offsite utility easements (legal description and drawings), these must be
approved concuxrently with the final plat.
3. The guarantee of construction form must be completed and approved concurrently with
the final plat.
4. The field notes have an error in that one call includes the five (5) foot Right-of-Way
(ROW) dedication and the other call does not.
5. Replace the points on lot 6 with a curve and set iron rods instead of points, also change
the field notes to include the curve.
6. Remove the "Point=Unmonumented Cor." from the legend, every corner in a subdivision
shall have a set monument.
7. The plat for Windsor Estates shows a wider ROW than what is shown. Please submit the
survey information that shows monuments in the properties on the other side of Pine Mill
Road.
8. Continue the 10-foot utility easement along the entire frontage of Pine Mill Road. Lots
2-5 show a 25-foot access and utility easement, this should be a 25-foot building line and
a 10-foot utility easement.
9. Add a 10-foot utility easement between lots 4 and 5 from Pine Mill Road to Lot 10.
10. The pre-development vs. post-development runoff calculations presented show an
increase of 4 cfs (cubic feet per second), please show how this additional flow will be
mitigated. State law does not allow for any increased runoff to an adjoining neighbor.
I recommend approval of the final plat upon submission of a corrected mylar copy with
signatures of the surveyor and owners prior to noon on March 9, 2009. If the corrected plat is
not submitted by this time the plat will be denied.
cc: Kevin Carruth, City Manager
Brandon Chaney, P.E., R.P.L.S., Chaney Engineering Inc.
Wayne Brown
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Chaney Engineering, Inc.
Consultants, Engineers, P/anners, Surveyors
Paris, Texas 75460
Tei. 903-784-6393
FAX 903-783-9629
722 S. E. 19th St.
Feb. 17, 2009
City of Paris
City Hall
Paris, TX
Attn: Shawn Napier, P.E.
City Engineer
Final Plat
Lots 1-8, Block A
Pecan Place
Dear Shawn,
This letter is to request a variance for curb and gutter for the subject plat as it is
impractical to construct in the ditch section road at this time.
Please contact me if additional information needed.
Sincerely,
Chaney
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R. Brandon Chaney,
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Contract No.
SUBDIVISION IMPROVEMENT AGREEMENT
THIS AGREEMENT is made and entered into as of the day of ,
2009, by and between the City of Paris, Texas, a Home Rule Municipal Corporation
(the "City") and Brownstone Properties, LP, 3749 Lamar Ave., Paris, Texas 75462,
(the "Developer"). This AGREEMENT to be effective , 2009.
WHEREAS, Developer has made application to the City for preliminary and final
plat approval for a proposed Subdivision in the City of Paris called the Pecan Place
Subdivision located at Pine Mill Road in the City of Paris, Lamar County,
Texas (called "Subdivision"); and
WHEREAS, among other reasons, the parties have entered into this Agreement
for the purpose of eliminating and avoiding the harmful effects of premature subdivision
which leaves property undeveloped and unproductive, and to ensure the completion of
public improvements regardless of whether Developer improves or sells any lots within
the Subdivision; and
WHEREAS, the benefits of this Agreement inure solely to the City and the
Developer, not to any third parties such as lot purchasers, subcontractors, laborers, and
suppliers.
NOW, THEREFORE, for and in consideration of the mutual covenants contained
herein and other good and valuable consideration, including without limitation the
approval by the City of the preliminary and final plats for the Subdivision, the receipt
and sufficiency of which is hereby acknowledged, the parties agree as follows:
ARTICLE I. OBLIGATION TO COMPLETE
PUBLIC IMPROVEMENTS
1.01. Public Improvements
This Agreement calls for the completion by Developer of certain public
improvements required by the City of Paris' Subdivision Ordinance associated with the
Subdivision to be constructed herein. The Public improvements for this Subdivision are
further described in Exhibit "A" attached hereto and incorporated herein by reference.
SUBDIVISION IMPROVEMENT AGREEMENT PAGE 1
IDDRAFor
,4 SC
1.02. Duty to Construct
Developer shall construct or cause to be constructed the Public Improvements in
accordance with the City's Standard Specifications for Public Works Construction,
which are made a part hereof by reference ("Standard Specifications"), and Developer's
Engineering Plans approved by the City on , which are made a part
hereof by reference ("Engineering Plans"). Time is of the essence in this Agreement,
and Developer shall commence construction of the Public Improvements no later than
, and shall complete the construction of the Public Improvements
on or before even if Developer is unable to sell any lots in the
Subdivision or begin construction of the private improvements. The completion date
may only be extended by the mutual agreement of the parties hereto.
1.03 Rough Proportionality
Developer agrees that the Public Improvements to be constructed in accordance
with this Agreement substantially advances a legitimate governmental interest in
providing necessary water, sewer and drainage connections and improvements and
access to public right-of-way. Developer also agrees that Developer's share of the cost
of the Public Improvements to be constructed under this Agreement is a fair and
equitable requirement and is roughly proportional to the impact that Developer's
Subdivision will have on the City's roadways and other infrastructure.
ARTICLE II. WARRANTIES
2.01. Warranty Against Defects
Developer expressly warrants that the Public Improvements shall be constructed
in substantial compliance with the Standard Specifications and Engineering Plans and
free from all defects. Developer shall indemnify the City from all expenses and liability
incurred by the City as result of present or latent defects in the constructed Public
Improvements. This warranty and indemnity shall extend for a period of one (1) year
from and after the date of the City Engineer's written acceptance of the Public
Improvements, or if such Public Improvements are accepted separately, one (1) year
after acceptance of the dedication of the last completed Public Improvement.
2.02. Remedy of Defects
Developer shall remedy, repair or replace any and all defects in the Public
Improvements within twenty (20) days of written notice to Developer from the City that
the defect exists. If the defect is of the type that will require additional time in which to
remedy, the Developer shall specify in writing to the City within said twenty (20) day
period the particular reasons why such repairs cannot be completed in said finrenty (20)
day period. If, in the City's reasonable opinion, such reasons for delay are justified, the
City may grant the Developer additional time. However, in any such event the
SUBDIVISION IMPROVEMENT AGREEMENT PAGE 2
. . . + w•,tw
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Developer must commence the repair work within said twenty (20) day period and
continue diligently to complete the repair work. If the City grants additional time, such
extension shall be in writing and shall be for a specified period of time which shall be
reasonable considering all circumstances.
2.03. Failure of Developer to Remedy Defect
If the Developer fails to meet its warranty obligation, it shall be considered in
default of this Agreement and the City, at its option, may:
(a) Contract with another party to do the repair work;
(b) Complete the repair work with its own crews;
(c) Contract with another party for the repair work and immediately draw
down on the letter of credit or cash escrow for the amount of such repair work;
(d) Complete the repair work with its own crews, and immediately draw down
on the letter of credit or cash escrow for such costs; or
(e) In the case where the security is a perFormance or maintenance bond,
require that the Surety complete the repair work.
In any cases where the City decides to complete the Public Improvements with
its own crews or contract with another party to complete any such work, the City shall
do so in a reasonable manner.
Additionally, the Developer shall be liable to the City for full reimbursement of all
costs and expenses incurred by the City as a result of completing the repair work if
such costs were not reimbursed by drawing down on the letter of credit or cash escrow
or if, in the case of a performance or maintenance bond, the Surety fails to complete
the repair work.
In a case where the security is a performance or maintenance bond, if the Surety
fails to remedy the defect within thirty (30) days written notice from the City, then the
City will be entitled to complete the repair work in accordance with Subsections (a) and
(b) above and in such event the Surety, Principal and Developer shall be liable to the
City for the actual costs to repair such defects.
ARTICLE III. SECURITY
3.01. Forms of Security
In order to guarantee completion of the Public Improvements and the faithful
performance of this Agreement, Developer shall furnish the City financial security for
SUBDIVISION IMPROVEMENT AGREEMENT
PAGE 3
S ~
completion and warranty of the Public Improvements, as described herein, in the form
of a cash deposit, letter of credit or performance and payment bond as provided below:
(a) A performance bond and a payment bond from the Contractor perForming
the work in the amount one hundred and thirteen percent (113%) of the estimated cost
to complete the Public Improvements and insuring the completion of the Public
Improvements and payment of all subcontractors and materials providers. The bonds
shall be in a form and substance acceptable to the City Attorney of the City of Paris
(hereinafter, collectively called the "Bonds"). The Bonds shall be signed by a corporate
Surety or Sureties authorized to do business in the State of Texas, and shall be signed
by the Contractor performing the work as principal. The City shall be named as a co-
beneficiary in the Bonds. A power of attorney shall be attached to the Bonds
evidencing that the agent signing the Bonds has authority to sign the Bonds on behalf
of the Surety. The Bonds shall additionally insure that the Public Improvements shall
be free of defects for the period of warranty set forth in Article II of this Agreement; or
(b) An irrevocable letter of credit in the sum of one hundred and thirteen
percent (113%) of the cost estimated to complete the Public Improvements and in a
form and substance acceptable to the City Attorney of the City of Paris. The Letter of
Credit shall be issued by a local national bank approved in advance by the City, which
approval shall not be unreasonably withheld. The Letter of Credit shall be payable at
sight to the City upon presentation of the City's written statement stating that Developer
is in default of this Agreement or that the City is otherwise entitled to draw down on the
Letter of Credit. Such certificate shall be conclusive to allow the City to draw the
proceeds of the Letter of Credit. In no event shall the City be required to prove to the
issuer that the Developer is actually in default or to specify specific grounds of default in
order to draw proceeds of the Letter of Credit. The Letter of Credit is intended to be
security for the faithful completion of the Public Improvements and to ensure against
defects for the warranty period specified in Article II of this Agreement; or
(c) A cash deposit in an amount equal to one hundred and thirteen percent
(113%) of the estimated cost to complete the Public Improvements ("Cash Escrow").
The Cash Escrow shall serve as financial security (in lieu of a Letter of Credit) for the
faithful completion of the Public Improvements and to ensure against defects for the
warranty period specified in Article II of this Agreement.
3.02. Duration of and Reductions of Letter of Credit or Cash Deposit
(a) The Letter of Credit shall be issued for a period of at least one (1) year. If
the Public Improvements have not been accepted by the City within thirty (30) days of
the expiration date of the Letter of Credit, and Developer has not provided a new Letter
of Credit for an additional period of at least one (1) year, (identical in amount unless the
Letter of Credit was previously reduced in amount pursuant to Section 3.02(c)) and in
all other respects to the original Letter of Credit (unless the City Attorney or his/her
designee approves in writing any changes to the new Letter of Credit), which approval
SUBDIVISION IMPROVEMENT AGREEMENT
PAGE 4
LAS -Y
is not unreasonably withheld, then the City shall be entitled to immediately draw down
the proceeds of the original Letter of Credit (or previously reduced Letter of Credit).
This provision shall not be construed to require that the City accept the new Letter of
Credit if Developer is in default and the City has elected to draw down from the
proceeds of the original Letter of Credit (or previously reduced Letter of Credit).
(b) Within ten (10) days following the City's issuance of written acceptance of
the Public Improvements, the Developer shall deliver to the City another Letter of Credit
equal in amount to fifteen percent (15%) of the original Letter of Credit, unless the City
Attorney or his/her designee approves in writing changes to this Letter of Credit, which
approval is not unreasonably withheld. This Letter of Credit shall be for a period of one
(1) year and shall be security to insure against defects during the warranty period
specified in Article II of this Agreement. However, if this Letter of Credit is not delivered
to the City at least thirty (30) days before the expiration of the original Letter of Credit
(or the additional new Letter of Credit as described above), then the City shall be
entitled to draw down on fifteen percent (15%) of the proceeds of such existing Letter of
Credit. The letter of credit shall be held by the City and used as security against
defects during the warranty period. In lieu of the Letter of Credit provided for in this
subparagraph (b), the City Engineer may accept a Maintenance Bond as provided for in
subparagraph (d) of this Section 3.02.
(c) From time to time as portions of the Public Improvements are completed
in accordance with the Standard Specifications and the Engineering Plans, the
Developer may make application to the City Engineer to reduce the amount of the
original Letter of Credit or Cash Escrow. If the City Engineer is satisfied that such
portion of the completed Public Improvements has been substantially completed in
accordance with the Standard Specifications and Engineering Plans, he/she may (but is
not required to) cause the amount of the Letter of Credit or Cash Escrow to be reduced
by such amount that he/she in his/her reasonable discretion deems is appropriate so
that the remaining amount of the Letter of Credit or Cash Escrow adequately ensures
the completion of the remaining Public Improvements. If the City Engineer has
approved the reduction and the issuing bank will not reduce the Letter of Credit without
issuing a new Letter of Credit, the City will accept a new Letter of Credit for such
reduced amount, if it substantially conforms with the provisions of this Article III. The
decision of the City Engineer to reduce the amount of the Letter of Credit or Cash
Escrow shall in no way be construed as an acceptance by the City of the completed
Public Improvements.
(d) When Cash Escrow is used as the security, all accrued interest shall
become a part of the Cash Escrow and shall be used as security for the completion of
the Public Improvements. The term "Cash Escrow" used in this Agreement includes
accrued interest. After final acceptance of the Public Improvements by the City, the
Cash Escrow shall be reduced to fifteen percent (15%) of the original Cash Escrow
amount. The remaining fifteen percent (15%) Cash Escrow shall be retained by City for
a period of one (1) year after acceptance of the Public Improvements as security to
SUBDIVISION IMPROVEMENT AGREEMENT
PAGE 5
45 K.
ensure against defects during the warranty period specified in Article II of this
Agreement. In lieu of the retention of the fifteen percent (15%) Cash Escrow or fifteen
percent (15%) Letter of Credit provided for in paragraph 3.02(b) of this Agreement, the
City Engineer may accept a maintenance bond in the same amount from the Contractor
actually performing the work. Such maintenance bond shall be in a form and substance
acceptable to the City Attorney of the City of Paris. At such time as the remaining Cash
Escrow is refunded to the Developer, such refund shall include accrued interest, at
whatever interest rate City received for said deposit, less administrative fees as
provided for in this Agreement. In the event that the cash flow is refunded within six (6)
months of deposit, only the principal will be refunded.
ARTICLE IV. DEDICATION AND ACCEPTANCE
4.01. City Inspection
During the construction of the Public Improvements the City will periodically
inspect the Public Improvements for compliance with this Agreement, the Standard
Specifications and the Engineering Plans. Upon completion of the Public
Improvements, the City Engineer shall make a final inspection of the Public
Improvements.
4.02. Public Improvements to be Constructed on Public Property; Good Title
Public Improvements shall be constructed wholly within property dedicated to the
public in fee simple absolute or within easements conveyed to the public. All
dedications shall be made complete prior to final acceptance of the Public
Improvements by the City. At the option of the City, the City may require that the
Developer convey by warranty deed, fee simple title or by easement the real property
upon which the Public Improvements are located. In addition, the City may require, at
its option, that Developer provide at Developer's cost title insurance in an amount equal
to the cost of the Public Improvements or such other evidence of title acceptable to the
City Attorney or his/her designee, indicating that the City will be receiving good and
indefeasible fee simple title free and clear of all liens, encumbrances and restrictions.
4.03. Final Acceptance
Once the Public Improvements are completed and have been inspected and
approved by the City Engineer and found to be in substantial compliance with the
Standard Specifications and Engineering Plans, the City Engineer shall issue his/her
letter of acceptance which shall evidence the City's acceptance of ownership and
maintenance of the Public Improvements and the real property associated therewith. In
no event shall the City be required to accept separate Public Improvements at different
times. However, nothing shall preclude the City from doing so if, in the reasonable
opinion of the City Engineer, it is beneficial and feasible for the City to do so.
SUBDIVISION IMPROVEMENT AGREEMENT
PAGE 6
~-AJ
ARTICLE V. DEFAULT AND REMEDIES
5.01. Events of Default
The following shall be considered as events of default:
(a) The Developer has failed to commence construction of the Public
Improvements by the date specified in Section 1.02 of this Agreement.
(b) The Developer has failed to substantially complete construction of the
Public Improvements in accordance with the Standard Specifications and Engineering
Plans by the completion date specified in Section 1.02 of this Agreement.
(c) The Developer has been declared insolvent.
(d) The filing of a voluntary or involuntary petition in bankruptcy by or against
the Developer.
(e) The commencement of a foreclosure proceeding of a note, deed of trust
or other lien against the Subdivision, or the conveyance of the Subdivision property in
lieu of foreclosure.
(f) The Developer's failure to cure a defect within the cure period provided in
Section 2.02 of this Agreement.
(g) The failure of the contractor and any subcontractor who actually performs
construction work on the Public Improvements to maintain insurance as required by
Section 7.02 of this Agreement.
(h) The failure of Developer to substantially comply with any other covenant
or promise contained in this Agreement.
5.02. Specific Remedies
(a) In the event of default by Developer, after notice and applicable time
period, the City shall be entitled to draw down on the proceeds of the Letter of Credit
when a Letter of Credit has been issued as security, use the Cash Escrow when it has
been deposited with the City, and to require that the Surety remedy the default when a
performance or maintenance bond has been issued. Notwithstanding the foregoing, in
the event of default, the damages that the City is entitled to recover from developer
shall not be limited to the amount of the Letter of Credit, Cash Escrow and Performance
Bond, but shall be based upon the actual costs reasonably incurred in completing the
Oversize Improvements or to cure defects within the warranty period.
SUBDIVISION IMPROVEMENT AGREEMENT
PAGE 7
4s t Y \
(b) In the event the City files an action to enforce the terms of this
Agreement, including without limitation, a court action or claim in bankruptcy court, the
City will be entitled to its actual court costs and reasonable attorneys' fees.
5.03. Performance Bond Surety
In the case where a performance or maintenance bond is the security, the City
shall give the Surety thirty (30) days written notice to commence work to complete the
Public Improvements or correct a defect if within the warranty period. If the Surety has
not commenced work within said thirty (30) day period, the City shall be entitled to
complete the work or repair the defect by contract or by its own forces in compliance
with Section 2.03 of this Agreement. In such event, the City shall be entitled to
reimbursement from the Developer and Surety, jointly and severally, for the actual costs
of completion.
5.04. Remedies Cumulative
The remedies of the City provided in this Agreement shall be construed to be
cumulative and nonexclusive. The City shall also be entitled to exercise all other rights
and remedies that are available at law and in equity. Specifically the right to draw down
on the proceeds of the Letter of Credit, or Cash Escrow or to require the Surety to
complete the work or repair the defect are in addition to and not in lieu of the City's
other rights and remedies.
ARTICLE VI. INDEMNIFICATION AND INSURANCE
6.01. Indemnity
The Developer and its Sureties shall indemnify, defend, and hold the City, its
officers, agents and employees harmless from all suits, actions or claims of any
character, name and description brought for or on account of any injuries, including
death or damages received or sustained by any person or property on account of or
arising out of the construction of the Public Improvements or defects existing within the
warranty period; or on account of or arising out of the operations of the Developer, its
contractor, agents or employees or the contractor's subcontractors, agents or
employees; or on account of any negligent act or omission of the Developer, its
contractor, agents or employees or the contractor's subcontractors, agents or
employees related to or arising from the construction or warranty repair of the Public
Improvements described herein.
6.02. Insurance
Developer shall be responsible for insuring that all contractors or subcontractors
performing any portion of the work to construct or complete the Public Improvements
have the appropriate amount and type of commercial general liability, auto liability and
SUBDIVISION IMPROVEMENT AGREEMENT
PAGE 8
tA S tx!
state workers compensation coverage to cover the Indemnity Clause contained herein.
Appropriate Certificates of Insurance evidencing that all contractors and subcontractors
working on the Public Improvements have appropriate insurance coverage shall be filed
with the City Engineer prior to commencing work on the Public Improvements.
ARTICLE VII. MISCELLANEOUS
7.01. Assignment
This Agreement may not be assigned without the express written consent of the
City. However, the City shall consent to such an assignment if all of the following
conditions are satisfied:
(a) Developer is not in default;
(b) The assignment is to a new owner and developer of the Property;
(c) Developer provides the City with written evidence satisfactory to the City
Attorney or his/her designee that the new owner is the record owner of the Property;
(d) Developer executes a proper assignment of this Subdivision
Improvements Agreement in form and substance acceptable to the City Attorney.
Under the Assignment, the new owner shall assume and agree to perform all
obligations of the Developer under this agreement; and
(e) The new owner delivers to the City the financial security required by this
Agreement.
The City Manager, shall be authorized to approve any such assignment on
behalf of the City.
7.02. Entire Agreement
This Agreement contains the entire agreement between the City and the
Developer, and cannot be varied except by written agreement executed by the parties
hereto.
7.03. Time is of the Essence
Time is of the essence in this Agreement.
7.04. Notice
Any notice to be given or to be served upon a party hereto in connection with this
Agreement must be in writing and may be given by certified or registered mail and shall
SUBDIVISION IMPROVEMENT AGREEMENT
PAG E 9
4,-A5 C)
be deemed to have been given and received when a certified or registered letter
containing such notice, properly addressed with postage prepaid, is deposited in the
United States mail, it shall be deemed to have been given and delivered to and
received by the party (or such party's agent or representative) to whom it is addressed.
Such notice shall be given to the parties hereto at the address set forth under their
respective signatures below. In case of the Surety, notice shall be given to the Surety
at the address set forth in the Performance Bond. Any party hereto, including the
Surety on the Performance Bond, may, at any time by giving ten (10) days written
notice to the other parties, designate any other address in substitution of the foregoing
address to which such notice shall be given.
7.05. Nonwaiver
No waiver of the City's rights under this Agreement shall be deemed to have
been made unless expressed in writing and signed by an authorized representative of
the City. No delay or omission in the exercise of any right or remedy accruing to the
City upon a breach of this Agreement by the Developer or its Sureties will impair its right
or remedy or be construed as a waiver for any such breach theretofore or thereafter
occurring. The waiver by the City of any breach of any term, covenant or conditions
shall not be deemed to be a waiver of any other or subsequent breach of this same or
any other term, covenant or condition herein contained.
7.06. No Vested Rights
Nothing in this Agreement shall be implied to vest any rights in the Developer
except as are provided by statute, ordinance or as expressly provided in this
Agreement.
7.07. Recitals and Headings
Recitals contained at the beginning of this Agreement shall be construed as a
part of this Agreement. However, headings used throughout this Agreement have been
used for administrative convenience only and do not constitute matter to be considered
in interpreting this Agreement.
7.08 Successors and Assigns, Covenants with the Land, and Subordination by
Lienholders
This Agreement shall be binding upon the successors and assigns of the
Developer and shall be covenants running with the land described herein as the
Property and be binding upon all future owners of the Property. This Agreement or a
memorandum thereof, may be recorded in the Land Records of the county in which the
Property is located. Existing or future lienholders may be required to subordinate their
liens to the covenants contained in this Agreement.
SUBDIVISION IMPROVEMENT AGREEMENT
PAGE 10
4S r
7.09. Venue
This Agreement shall be construed under and in accordance with the laws of the
State of Texas and is fully performable in Lamar County, Texas. Exclusive venue shall
be in Lamar County, Texas.
7.10. Severability
In case any one or more of the provisions contained in this Agreement shall be
for any reason held invalid, illegal or unenforceable in any respect, such invalidity,
illegality or un-enforceability shall not affect any other provision hereof, and this
Agreement shall be construed as if such invalid, illegal or unenforceable provision had
never been contained herein.
7.11. No Waiver of Governmental Immunity
Nothing contained in this Agreement shall be construed as a waiver of the City's
governmental immunity.
7.12. Developer's Authority
The Developer represents and warrants to the City that it has full power and
authority to enter into and fulfill the obligations of this Agreement.
EXECUTED as of the date first above written.
CITY OF PARIS, TEXAS
A Home Rule Municipal Corporation
By:
Name:
Title:
Address
Kevin Carruth
City Manager
135 1St St. SE
PO Box 9037
Paris, Texas 75461-9037
APPROVED AS TO FORM:
W. Kent Mcllyar, CITY ATTORNEY
SUBDIVISION IMPROVEMENT AGREEMENT
PAGE 11
L~ S ~
Brownstone Properties, LP
By:
Name:
Title:
Address: 3749 Lamar Ave.
Paris, TX. 75462
SUBDIVISION IMPROVEMENT AGREEMENT PAGE 12
~5 V,
ACKNOWLEDGMENTS
STATE OF TEXAS §
§
COUNTY OF LAMAR §
This instrument was acknowledged before me on the day of
, 2009, by Kevin Carruth, City Manager of the City of Paris, Texas, a
Home Rule Municipal Corporation, on behalf of said municipal corporation.
Notary Public in and for the State of Texas
AN D
STATE OF TEXAS §
§
COUNTY OF §
This instrument was acknowledged before me on the day of
, , by , of
, a Texas corporation, on behalf of said corporation.
Notary Public, State of Texas
OR
STATE OF §
§
COUNTY OF §
This instrument was acknowledged before me on th
by
Partner of a
on behalf of said partnership.
e day of
, General
limited partnership,
Notary Public, State of Texas
SUBDIVISION IMPROVEMENT AGREEMENT
PAGE 13
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EXHIBIT "A"
PUBLIC IMPROVEMENTS
SUBDIVISION IMPROVEMENT AGREEMENT
PAGE 1
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