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HomeMy WebLinkAbout09-14-89-7 - Resolution - 09/14/1989RESOLUTION NO. 9-14-89-7 A RESOLUTION AUTHORIZING THE MAYOR TO EXECUTE A DEVEL- OPMENT AGREEMENT WITH RICKY MILLER, PAUL WINSTON, AND M.L. (RED) CASHION FOR THE CORRECTION OF DAMAGE TO THE WOLF PEN CREEK FLOODPLAIN AND THE COMPLIANCE WITH THE DRAINAGE ORDINANCE AND THE WOLF PEN CREEK CORRIDOR PLAN WHEREAS, Sneakers has constructed a restaurant at 504 Harvey Road in College Station, Texas; WHEREAS, the City requires compliance with its building codes for the construction of structures within the City limits; WHEREAS, as a condition of the provision of electric, water, and sewer service, the City of College Station requires compliance with the City of College Station Drainage Ordinance and with the City of College Station Wolf Pen Creek Master Plan, as adopted by the City Council; WHEREAS, the parties Ricky Miller, Paul Winston, and M.L. Cashion have applied for a building permit and as a part of that process submitted a drainage development application; WHEREAS, the parties failed to comply with the develop- ment permit terms; WHEREAS, the parties have dumped concrete and other construction debris in the floodway and floodplain; WHEREAS, the parties have presented a bond guaranteeing that the improvements will be made; 007437 NOW THEREFORE, BE IT RESOLVED that the Mayor of the City of College Station is hereby authorized to execute and ratify the development agreement attached hereto. PASSED and APPROVED this 1989. 14th day of September , ATTEST: C ~ty Se~_~ry APPROVED: 0074:58 DEVELOPMENT AGREEMENT THIS AGREEMENT is entered into by and between Ricky Miller, Inc. doing business as Sneakers Restaurant (hereinafter re- ferred to as SNEAKERS), Paul Winston, Contractor doing busi- ness as and Contract Interiors, Inc.,and Rafter B. Ventures by and through its managing partner, M.L. (Red) Cashion, (hereinafter referred to as VENTURE), and the City of College Station, a Texas Municipal Home Rule Corporation (hereinafter referred to as CITY). WHEREAS, SNEAKERS has constructed a restaurant at 504 Harvey Road located within the city limits of the City of College Station; WHEREAS, SNEAKERS has leased the real property at 504 Harvey Road from VENTURE; said property being more particularly a 1.50 acre tract of land lying and being situated in the Morgan Rector League, Abstract No. 46, College Station, Brazos County and being comprised of a called .888 acre tract conveyed from Shelley J. Cashion, et al, to Rafter B Ventures as described by deed recorded in Volume 531 Page 22 of the Deed Records of Brazos County , Texas and the called .572 acre remainder of the same 1.46 acre tract conveyed from William R. Miller as described by deeds recorded in Volume 253 Page 474 and Volume 253 Page 477 of the Deed Records of Brazos County Texas and said 1.5 acre tract being more particularly described as follows: BEGINNING at a 1/2" iron rod set marking the north corner of said 1.50 acre tract and the west corner of a 7.108 acre tract conveyed from May- field-Wilkerson-Jefferson Partnership #3 to Al- lied Bank-Austin as described by deed recorded in Volume 1027 Page 304 of the Official Records of Brazos County, Texas and lying in the southeast right-of-way line in Highway 30. A 1" diameter iron rod found marking the west corner of Wood- stock, Section One as shown by plat recorded in Volume 436, Page 481 of the Deed Records of Brazos County, Texas, bears N 45 36' 00" E at a distance of 911.46 feet; THENCE S 45 23' 18" E with the southwest line of said 7. 108 acre tract at a distance of 323.61 feet pass a 1/2" iron rod set for a reference monument, continuing for a total distance of 373.61 feet to a point for corner in the center- line of Wolfpen Creek; 00743 THENCE with the centerline of Wolfpen Creek for the following calls: N 85 S 63 S 78 S 83 08'47" W 41.04 feet 34' 19" W 50.64 feet 13' 52" W 54.63 feet 43' 50" W 57.31 feet THENCE S 32 32' 07" W for a distance of 39.42 feet with said creek centerline to a point for corner and being in the northeast line of that same 12.18 acre tract conveyed from Debra E. La- cour McLaughlin, et al to Lacour Investments, as described in Volume 398, Page 768 of the Deed Records of Brazos County, Texas; THENCE N 52 05' 00" W with the southwest line of said called 1.46 acre tract and said 12.18 acre tract, at a distance of 50.00 feet pass a 1/2" iron rod set for a reference monument, continuing for a total distance of 273. 19 feet to a 1/2" iron rod set for corner, and lying in the south- east right-of-way line of Highway 30; THENCE N 45 36' 00" E for a distance of 228.00 feet with said right-of-way line to the PLACE OF BEGINNING and containing 1.5 acres of land, more or less. WHEREAS, CITY requires compliance with its building codes for the construction of structures within the city limits; WHEREAS, CITY furnishes electric, water and sewer utility service within the city limits pursuant to its certificate of convenience and necessity; WHEREAS, as a condition of the provision of electric, water and sewer service, CITY requires the installation of drainage facilities in compliance with the City of College Station Drainage ordinance and with the City of College Station Wolf Pen Creek, both as approved by the City Council of the City of College Station for the purpose of providing, protecting and maintaining drainage to the property and other adjacent properties impacted by the development; WHEREAS, VENTURE and SNEAKERS have applied for a building permit and as a part of the permit process submitted a de- velopment permit application as required by the drainage or- dinance; WHEREAS, CITY approved the drainage development permit ap- plication as submitted; 007440 WHEREAS, INTERIORS has failed to construct the drainage im- provements as depicted by VENTURE and SNEAKERS on the pro- ject diagram in the development application; WHEREAS, INTERIORS has dumped concrete and other construc- tion debris in the floodway of the premises in contravention of the drainage ordinance and the development permit; WHEREAS, INTERIORS has completed all other construction nec- essary in order to receive a certificate of occupancy; WHEREAS, SNEAKERS and VENTURE have indicated to CITY that they intend to construct the drainage improvements as re- quired by the city of College Station; WHEREAS, SNEAKERS, INTERIORS and VENTURE request that a tem- porary certificate of occupancy be granted to SNEAKERS dur- ing the pendency of the construction of the drainage im- provements as required by the development permit; WHEREAS, CITY policy requires the withholding of the cer- tificate of occupancy until all requirements have been met, including the construction of drainage improvements pursuant to the issued drainage permit; and WHEREAS, CITY policy requires that utility service not be provided until a certificate of occupancy is granted; NOW THEREFORE, for and in consideration of the recitations listed above and the covenants and agreements provided below the parties agree as follows: 1. This agreement shall be subject to subsequent rati- fication by the City Council at the meeting of September 14, 1989. In the event that this agreement is not ratified by the City Council of the City of College Station it is under- stood by and between the parties that this agreement will not be effective and all utility service to the premises will be terminated immediately until all conditions of the building permit are complied with in accordance with the codes, ordinances and policies of the City of College Station. 2. Upon the execution of this agreement, subject to the provisions of section i herein, SNEAKERS is allowed to utilize the property provisionally under a temporary cer- tificate of occupancy for a period of thirty days from the date of approval of this agreement. It is further under- stood by and between the parties that VENTURE, SNEAKERS and INTERIORS will provide a bond, valid for a period of forty- five (45) days from the date of the execution of this agree- ment, in the amount of $30,000 pursuant to the Engineer's Estimate in the amount of $29,925.00 attached hereto as Ex- hibit A, which bond is provided herein as a guarantee to se- 007441 cure the construction of the drainage improvements as dic- tated by the development permit. 3. In the event that the drainage improvements are not completed in compliance with the permit on or before the thirtieth day after the execution of this agreement then CITY shall be entitled to draw against the bond in the full amount. If CITY draws the funds secured by the bond based upon the failure to construct the improvements then CITY may construct and/or complete the drainage improvements at its discretion. Any other party may upon its own initiative construct and complete the drainage improvements in compli- ance with the permit however, the funds drawn by the bond shall be nonrefundable. 4. In the event that the drainages improvements are not completed in accordance with the development permit thirty days from the execution of this agreement then CITY shall revoke the temporary certificate of occupancy and no certificate of occupancy shall be granted until all CITY codes, ordinances and policies are complied with. 5. It is further agreed that water, sewer and electric utility service shall be provided to the premises under the temporary certificate of occupancy. In the event that CITY revokes the temporary certificate of occupancy, CITY shall cease providing water, sewer and electric utility service to the premises. Until the drainage improvements are completed in compliance with the drainage development permit, none of the parties, INTERIORS, SNEAKERS or VENTURE, shall be enti- tled to receive utility service at the premises. 6. The parties agree that in the event SNEAKERS, does not cease utilizing the property at the location upon the revocation of the temporary certificate of occupancy then this agreement along with an affidavit from the City Man- ager, stating that the easement has not been granted, shall be sufficient evidence and a confession of judgment at an injunction hearing. 7. In the event that SNEAKERS and VENTURE do not com- plete construction of the drainage improvements and do not cease utilizing the property on or before the thirtieth day after the execution of this agreement the parties hereby recognize and understands that for each day on which the premises are utilized, they shall be subject to a criminal penalty not to exceed Two Hundred Dollars ($200.00) per day. 8. The parties hereby agree that upon execution of this agreement they shall provide proof of authorization to sign, which proof shall be attached hereto and incorporated as Exhibits B and C. 007442 9. It is understood that this agreement shall be gov- erned by, and construed and enforced in accordance with, and subject to, the laws of the State of Texas. The parties further agree that venue shall lie in a court of competent jurisdiction in Brazos County, Texas. 10. The parties agree that they have read the terms of this agreement and familiarized themselves with the require- ments hereunder and agree that they understand their rights and responsibilities hereunder. 11. It is understood and agreed that this agreement shall be binding upon and shall inure to the benefit of the parties and their respective heirs, representatives, succes- sors, and assigns. 12. It is understood that this agreement contains the entire agreement between the parties and supercedes any and all prior agreements, arrangements, or understandings be- tween the parties relating to the subject matter. No oral understandings, statements, promises or inducements contrary to the terms of this agreement exist. This agreement cannot be changed or terminated orally. 13. This agreement shall be filed of record in the Official Records of Brazos County, Texas. IN WITNESS WHEREOF, the parties have executed this agreement on the 30th day of August, 1989. Rafter B Ven ur -- ~.~.~ ~R~d') C~shion, partner Ricky Miller, Inc. BY:~'~ Richard A. Miller Contras9 Interio~ au1' Winston, President CITY OF COLLEGE STATION 007443 ACKNOWLEDGMENT STATE OF TEXAS ) ) COUNTY OF BRAZOS ) BEFORE ME, the undersigned Notary Public in and for said County and State, on this day personally appeared M.L. (Red) Cashion, Managing Partner of Rafter B Venture known to me as the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he has executed the same for the purposes and consideration therein expressed. GIVEN under my hand and seal of office, this the 3i5. day of August, 1989. Notary Public in and for the State of Texas ACKNOWLEDGMENT STATE OF TEXAS ) ) COUNTY OF BRAZOS ) BEFORE ME, the undersigned Notary Public in and for said County and State, on this day personally appeared Richard A. Miller, President of Ricky Miller, Inc. known to me as the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he has executed the same for the purposes and consideration therein expressed. my hand and seal of office, this the ~ GIVEN under day of August, 1989. N~t~r~C~li~ in and for the State of~/Texas 007444 ACKNOWLEDGMENT STATE OF TEXAS ) ) COUNTY OF BRAZOS ) BEFORE ME, the undersigned Notary Public in and for said County and State, on this day personally appeared Paul Winston, owner of Contract Interiorsknown to me as the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he has executed the same for the purposes and consideration therein expressed. GIVEN under my hand and seal of office, this the day of August, 1989. ACKNOWLEDGMENT STATE OF TEXAS ) ) COUNTY OF BRAZOS ) BEFORE ME, the undersigned Notary Public in and for said County and State, on this day personally appeared Larry Ringer, Mayor of the'~ity of College Station, Texas known to me as the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he has executed the same for the purposes and consideration therein expressed. GIVEN under my hand and seal of office, this the ~) day of September, 1989. CONNIE HOOKS MY COMMISS,ON EXPIRES 2/~g/90 BRAZOS COUN'TY, TX. Notary Publi"cVz~-~nd for the State of Texas 007445 EXHIBIT "A" ENGINEER' S ESTIMATE DRAINAGE IMPROVEMENTS TO "SNEAKERS" August 30, 1989 Clearing and Grubbing Rock Gabions Rock Lined Flumes Lump Sum 400.00 215 CY @ $135.00/CY 29,025.00 Lump Sum 500.00 $29,925.00 This estimate was based on contractor recommendation from J. T. Dunkin and Associates who did original Wolf Pen Creek Corridor Study. I hereby certify that this Engineer's Estimate for drainage improvements to "Sneaker's", located in the Morgan Rector League, Abstract No. 46, College Station, Brazos County, Texas was prepared .qnder my supervision. Registered Professional Engineer State of Texas Number 60873 000494-E.01-35 (1750) 007446 SURETY BOND Number OB22034 KNOW ALL MEN BY THESE PRESENTS, that Ricky Miller, Inc. dba Sneakers , as Principal, and Amtex Insurance Company , as Surety, are held and firmly bound unto City of College Station, TX , as 0b]igee, for the sum of Thirty Thousand and No/100 ($3o,ooo.oo ) for the payment whereof we bind ourselve, our successors and assigns, jointly and severally by these presents. WHEREAS, the said Principal has entered into a contractual agreement, with the Obligee and the Principal has agreed to construct specified drainage improvements as set forth in said agreement. NOW, THEREFORE, if said Principal performs its obligations in a satisfactory manner, then this bond shall be void, otherwise to remain in full force and effect. Provided, however, that the Surety may terminate its liability at any time upon giving a minimum of thirty (30) days notice by registered mail addressed to City of College Station, TX and Ricky Miller, Inc. dba Sneakers stating when Surety's liability shall end from further liability upon said bond. Unless otherwise terminated as provided herein this bond shall expire on the 14th day of October, 1989. IN WITNESS HEREOF, the parties have hereunto signed this bond, this the 30th day of August , 19~9 Ricky Miller, Inc. dba Sneakers (/~rinc!pal)-, Amtex Insurance Company (Surety) (Attorney in Facti Frances Barnum 00744/