HomeMy WebLinkAboutC2018-241 - 2/20/2018 - NA Dc).=-4a-- 20181:10919--)
DEFERMENT AGREEMENT
STATE OF TEXAS §
COUNTY OF NUECES §
This deferment agreement ("Agreement") is entered into between the City of
Corpus Christi ("City"), a Texas home-rule municipality, and Boat Storage — Vista, LLC
(the "Developer"), in order to defer the completion of certain required public
improvements prior to recording the final plat of Waldron Road Subdivision, Block 1, Lot
2, Corpus Christi, Nueces County, Texas (the "Plat"). A copy of the Plat is attached and
incorporated by reference into this Agreement as Exhibit 1.
WHEREAS, the Developers are obligated under Section 8.1 of the Unified
Development Code ("UDC") to construct the required public improvements before the
final Plat is endorsed by the City's City Engineer or Development Services Engineer, as
applicable ("City Engineer");
WHEREAS, the Developers are seeking to delay the construction of the required
public improvements ("Deferred Improvements") shown in Exhibit 2, which exhibit is
attached and incorporated by reference into this Agreement, and to have the Plat filed
immediately with the County Clerk of Nueces County, Texas;
WHEREAS, in order to have the Plat filed prior to completion of the Deferred
Improvements, the Developers agree to deposit with the City a form of pre-approved
financial security authorized by Section 3.30.1 of the UDC in the amount of one hundred
and eighty seven thousand and one hundred and seventy one dollars, ($187,171),
representing 110% of the estimated cost of constructing the Deferred Improvements as
shown in the cost estimate, which cost estimate is attached and incorporated by
reference into this Agreement as Exhibit 3;
WHEREAS, by signing this Agreement, the Developers represent that water and
wastewater services are currently available to serve the subdivision;
WHEREAS, by signing this Agreement, the Developers represent that they have
completed all other subdivision and platting requirements under the UDC including
required park dedications;
WHEREAS, by signing this Agreement, the Developers represent that they have
executed all park deferment agreements, maintenance agreements, and all special
covenants required under the UDC, in accordance with the UDC;
WHEREAS, the Developers are entering into this Agreement pursuant to Section
8.1.10 of the UDC in order to defer construction and record the final Plat.
2018-2.11
2/29/18
Boat Storage Vista LLC
INDEXED
NOW, THEREFORE, for the consideration set forth in this Agreement, the City and
Developers agree as follows:
1. The preamble to this Agreement is substantive content in this Agreement and
upon which all parties to this Agreement have relied and will continue to rely
during the term of this Agreement.
2. In consideration of the Developers' request to enter into this Agreement and the
posting of approved financial security, and in consideration of Developers
representations in the preamble to this Agreement, the City agrees to waive the
requirement that construction of the Deferred Improvements be completed before
the final Plat is endorsed by the City Engineer and filed for record with the
County Clerk of Nueces County, and City further agrees to allow the Developers
to delay construction of the Deferred Improvements up to the expiration of the
time period stated in paragraph 26 of this Agreement.
3. As a condition precedent to the City's obligations under this Agreement, the
Developers must deposit with the City one hundred and eighty seven thousand
and one hundred and seventy one dollars, ($187,171), as a form of financial
security authorized in Section 3.30.1 of the UDC, upon execution of this
Agreement. The financial security must provide for 110% of the estimated cost
of constructing the required Deferred Improvements, as those costs are shown in
Exhibit 3.
4. If a letter of credit is utilized as financial security under this Agreement, the
content of the irrevocable letter of credit must be pre-approved by the City's
Director of Financial Services ("Finance Director') and City Attorney, be issued
by a banking institution having a local branch office within the State of Texas
(Corpus Christi location preferred), be valid for a period of twelve (12) months
from the date of issuance or longer, such date being the same as the date of this
Agreement, and containing the terms of Exhibit 4.
5. If the form of financial security is a letter of credit, the Developers must ensure
that the letter of credit is kept valid at all times. The letter of credit must be
renewed by the Developers before expiration under the terms outlined in Exhibit
4. If timely renewal is not received by the City under those terms, or cash in lieu
thereof is not deposited as financial security with the City, the City may, after
---- --thirty (30) days prior written notice to the Developers, call (redeem) the letter of
credit for failure to timely renew. If the letter of credit is called for failure to timely
renew, the funds will be held in an account as if cash had been posted by the
Developers for this Agreement in lieu of the letter of credit. The City shall not be
liable for interest on any letter of credit so called nor shall the City be liable to the
Developers for the accrual or payment of interest on any type of financial security
posted by the Developers pursuant to this Agreement.
6. In accordance with the provisions set out in Section 3.30.1 of the UDC, as it may
be amended, the City may accept other types of financial guarantees for
deferment agreements subject to the approval of the Finance Director and the
City Attorney. In the event the Developers desire to use, and the City agrees to
accept, an alternate form of financial guarantee other than a cash deposit or an
irrevocable letter of credit as security for this Agreement, such other security-
specific financial guarantee's terms and conditions pertaining to issuance,
redemption, restrictions, limitations, and must be made subject to this Agreement
shall be as further set out in the addendum attached to this Agreement, the
content of which is incorporated by reference into this Agreement as "Addendum
A." The parties agree that, should there be, by the attachment and incorporation
of Addendum A to this Agreement, any conflict in the terms, conditions, or
requirements stated in this Agreement (including its exhibits) and Addendum A,
the provisions of Addendum A take precedence and prevail over conflicting terms
in the Agreement and its exhibits. All other provisions in the Agreement (and its
exhibits) not in conflict with Addendum A control otherwise by agreement of the
parties.
7. Unless otherwise stated in this Agreement, any notice required or permitted to be
given by either party shall be in writing and must be given by personal delivery,
fax, or certified mail, return receipt requested, postage prepaid, and notice is
deemed sufficiently given if addressed to the appropriate party at the address
shown for the party in the signature block of this Agreement or faxed to the fax
phone number shown in the signature block for the party. Any party may, by
notice to the other in accordance with the provisions of this paragraph, specify a
different address or addressee for notice purposes.
8. Time is of the essence in the performance of this Agreement.
9. Detailed construction drawings must be provided by the Developers and
approved by the City's Departments of Development Services and Engineering
prior to the start of construction of the Deferred Improvements.
10. The Developers shall construct the Deferred Improvements in accordance with
the City's engineering standards in effect at the time of construction and in
accordance with the construction drawings approved by the City departments
pursuant to the paragraph above.
11. Upon completion of the Deferred Improvements by the Developers as verified by
the Assistant City Manager and Director of Development Services and within the
time period stated in paragraph 26 of this Agreement, acceptance of the Deferred
Improvements by the City Engineer, and compliance by the Developers with the
remaining terms of the Agreement, the City Engineer shall:
a. Immediately release the Developers from the need to maintain the letter of
credit by mailing a release letter to Developers at the address shown above
Developers' signature lines in this Agreement; or
b. Return to the Developers within sixty (60) days of the completion of the
construction of the Deferred Improvements and settlement of the actual
construction costs, or within sixty (60) days of acceptance of the Deferred
Improvements by the City, whichever is later, any balance remaining of all
monies received by the City from the Developers.
12. If the Developers have not begun construction of the Deferred Improvements at
least thirty (30) days prior to the date stated in paragraph 26 of this Agreement,
the Developers agree that the City, after notice in writing to the Developers, may
accelerate payment or performance or require additional financial security when
the City deems itself at risk as to the prospect of performance or payment based
on a demonstrated reasonable basis. In addition, if the Developers default and
fail to deposit any increased security after notice and an opportunity to cure, the
City may transfer the cash funds received or call (redeem) the letter of credit and
transfer the funds (if the financial security provided was in the form of a letter of
credit) to the appropriate City account, and the City may begin completion of the
construction of the Deferred Improvements. If City constructs all or any part of
the required Deferred Improvements, the Developers shall reimburse the City for
any additional costs related to completion of the Deferred Improvements within
thirty (30) days after the City completes the required Deferred Improvements and
invoices the Developers if the funds on account prove inadequate for the City to
complete the Deferred Improvements.
13. In accordance with Section 8.1.10.B of the UDC, an increase in financial security
from the Developers may be required on an annual basis if the City deems itself,
in the sole discretion of the City, insecure as to the prospect of payment or
performance on a demonstrated reasonable basis or it reasonably determines
that the financial security does not provide for 110% coverage of the estimated
construction costs.
14. The City and Developers agree that, if the Developers formally vacate the current
Plat with approval of the Planning Commission prior to the deadline for
completion of construction of the Deferred Improvements, any money received
by the City from the Developers remaining on deposit will be released and
immediately returned to the Developers.
15. If Developers default in any of their covenants or obligations under this
Agreement[excluding failure to timely renew a letter of credit, post additional
security, or as may be made applicable by Addendum A, for which the default
provisions are separately addressed in this document], the City Engineer shall
send written notice to the Developers [(and may send notice to the Developers'
project engineer ("Project Engineer"), if such address is known by the City] by
certified mail, return receipt requested, advising the Developers of the default
and giving the Developers thirty (30) days from date of receipt of the notice letter
to cure the default. If the Developers fail to cure the default after receipt of notice
and opportunity to cure, the City Engineer may transfer any funds received to the
appropriate fund of the City in order to complete the Deferred Improvements. In
the event there are any funds received by the City from the Developers
remaining after the City has completed construction of the Deferred
Improvements, the excess funds will be refunded to the Developers within sixty
(60) days of the completion of construction of the Deferred Improvements and
settlement of the actual construction costs.
16. The City reserves the right not to issue certificates of occupancy for all or any
portion of the real property that is the subject of the Plat until the Deferred
Improvements are constructed, installed in working order, and accepted by the
City Engineer in accordance with the provisions of this Agreement.
17. No party may assign this Agreement or any rights under this Agreement without
the prior written approval of the other party and by amendment to this
Agreement.
18. By execution of this Agreement, the Developers covenant to construct the
Deferred Improvements required by this Agreement, and this covenant shall be a
covenant running with the land. The City, at the Developers' expense, shall file
for record this Agreement in the official public records of Nueces County.
19. With the exception of Addendum A made applicable pursuant to paragraph 6, no
changes or modifications to this Agreement may be made, nor any provisions
waived, unless the change or modification is made in writing and signed by
persons authorized to sign agreements on behalf of each party.
20. If, for any reason, any section, paragraph, subdivision, clause, provision, phrase,
or word of this Agreement or the application thereof to any person or circum-
stance is, to any extent, held illegal, invalid, or unenforceable under present or
future law or by a final judgment of a court of competent jurisdiction, then the
remainder of this Agreement, or the application of said term or provision to
persons or circumstances other than those as to which it is held illegal, invalid, or
unenforceable, will not be affected thereby, for it is the definite intent of the
parties to this Agreement that every section, paragraph, subdivision, clause,
provision, phrase, or word of this Agreement be given full force and effect for its
purpose.
21. The Developers shall, in compliance with Section 2-349 of the City's Code of
Ordinances, complete the City's Disclosure of Interests form, which is attached to
this Agreement as Exhibit 5, the contents of which, as a completed form, are
incorporated in this Agreement by reference as if fully set out here in its entirety.
22. The Developers shall comply with all federal, State, and local laws, regulations,
and rules applicable to performance of this Agreement.
23. This Agreement shall be construed under and in accordance with the laws of the
State of Texas, and all obligations of the parties created pursuant to this
Agreement are performable in Nueces County, Texas. Venue for all actions
arising from or pursuant to this Agreement shall be brought in Nueces County,
Texas.
24. Strict performance of the provisions of this Agreement by the Developers is
required by the City as a condition of this Agreement. The Developers
specifically acknowledge and agree that failure by the Developers to adhere or
comply with any term, condition, or requirement of this Agreement constitutes a
default of this Agreement.
25. All signatories to this Agreement warrant and guarantee that they have the
authority to act on behalf of the person or entity represented and make this
Agreement binding and enforceable by their signature.
26. This Agreement is to be executed in One Original, of which constitutes an
original document. This Agreement becomes effective and is binding upon and
inures to the benefit of the City and Developers and their successors and assigns
from and after the date the Agreement has been executed by all signatories.
This Agreement terminates 12 months from the date executed by the last party
signing this Agreement.
(EXECUTION PAGES FOLLOW)
4.4
EXECUTED IN ONE ORIGINAL and made effective this 2° day of
Frtt.,46v . 208 .
CITY OF CORPUS CHRISTI
P. O. Box 9277
Corpus Christi, TX 78469-9277
(361) 826-3240 Office
(361)
826-4428 Fax
Signature
Printed Name: AJ'•...*+ T. szeen
Title: Assistant City Manager, or Designee
THE STATE OF TEXAS § NOTARY PUBLIC
U
F;..•'
§ State of Texas
COUNTY OF NUECES § r> Comm.Exp.12-02-2019
This instrument was acknowledged before me on TOMS 0 cuf�t. 2-0 20j1�by
,l'� � L\ C QY\ , Ins\m Dtr44bcet- tak e)
for the City of Corpus Christi, Texas.
Notary Public's Signature
APPROVED AS A STANDARD FORM LEGAL DOCUMENT: Fe(,,„-✓ 26 , 20 17.
CITY ATTORNEY
Signature
Printed Name: 01"Ck
Title: Assistant City Attorney
•
DEVELOPERS:
Boat Storag -Vista, LLC
549 P.O. B•x
Rexbur., ID 3440
801- •-0 17 p
/.141GuilA
' .ture
Printed Name: a-t1%o Al (_) 1-‘,S c e\J
Title:
Date: fi /ZO/C-
STATE
OF re S §
COUNTY OF (ikXata.rn.8uv'- §
This instrument was acknowledged before me on euan , 20 1.0, by
a , Manager, of Boat Storage - Vista, LLC a Texas L.L.C., on behalf of
said corporation.
00\4-0/141A-37- AS), 5)-1•Ac A""""2, ROXANNE GONZAIES
Notary Public's Signature
? ' <,,Notary Public, State of Texas
=a•. ° Comm. Expires 04-29-2020
%.,F;:tso" Notary ID 130642376
Attached and incorporated by reference into this Agreement:
Exhibit 1 - Plat (1 pages)
Exhibit 2 - Required Public Improvements (2 pages)
Exhibit 3-Cost Estimate (1 pages)
Exhibit 4—Copy of Financial Security
Exhibit 5- Disclosure of Interests (1 pages)
Addendum A - If applicable pursuant to paragraph 6
•
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T Pages 9
03/01/2018 4:22PM
Official Records of
NUECES COUNTY
KARA SANDS
COUNTY CLERK
Fees $43.00
An provision herein which restricts the Sale,
Rental or use of the described
REAL PROPERTY because of Race, Color,
Religion, Sex, Handicap, Familial Status, or
National Origin is invalid and unenforceable
under FEDERAL LAW, 3/12/89.
STATE OF TEXAS
COUNTY OF NUECES
I hereby certify that this instrument was FILED
in file number sequence on the date and at the
time stamped herein by me, and was duly RECORDED
in the Official Public Records of
Nueces Counts, Texas
KARA SANDS
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