HomeMy WebLinkAboutResolution No. 2012-076
CITY OF THE COLONY, TEXAS
RESOLUTION NO. 2012- a`' I't-
A RESOLUTION OF THE CITY OF THE COLONY, TEXAS,
APPROVING THE DEVELOPMENT AGREEMENT BY AND BETWEEN
THE CITY OF THE COLONY AND THE RESIDENCES OF AUSTIN
RANCH, NO. 6 LTD.; AUTHORIZING THE CITY MANAGER TO
EXECUTE THE AGREEMENT; PROVIDING AN EFFECTIVE DATE.
WHEREAS, the City has previously entered into Development Agreements concerning
the development of the master-planned, multiuse project known as "Austin Ranch" located in The Colony; and
WHEREAS, the City Council has determined it is in the best interest of the City to enter
into the development agreement, which is attached hereto and incorporated herein as Exhibit
"A," with The Residences of Austin Ranch, No. 6 LTD.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF THE COLONY, TEXAS:
Section 1. The Development Agreement, which is attached and incorporated hereto as
Exhibit "A," having been reviewed by the City Council of the City of The Colony, Texas, and
found to be acceptable and in the best interest of the City and its citizens, be, and the same is
hereby, in all things approved, and the City Manager is hereby authorized to execute the
Agreement on behalf of the City of The Colony, Texas.
Section 2. That this Resolution shall take effect immediately from and after its adoption
and it is so resolved.
PASSED, APPROVED AND EFFECTIVE this 16th day of October, 2012.
APPROVE
By: G '0 Z~ J E McCO RY, MAYOR
ATTE
By: I TIE WILSON, CITY SECRETARY
APPROVED AS TO FORM:
By:
JEFF MOORE, CITY ATTORNEY
AFTER RECORDING, RETURN TO:
City of The Colony
6800 Main Street
The Colony, Texas 75056
Attn: City Manager's Office
DEVELOPMENT AGREEMENT
This DEVELOPMENT AGREEMENT (hereinafter referred to as the "Agreement") is
made and entered into this day of ~C, {Lra U UA: 2012, by and between the
k
CITY OF THE COLONY, TEXAS, a Texas home-rule municipality (hereinafter referred to as
the "City'"), and THE RESIDENCES OF AUSTIN RANCH NO. 6, LTD., a Texas limited
partnership (hereinafter referred to as the "Developer") as follows:
WITNESSETH:
WHEREAS, Developer is the owner of land, currently consisting of Lots 6, 7, 8, 9X, and
10X, of Block A of the Parks of Austin Ranch Addition, located in John B. Martin Survey,
Abstract No. 827, City of The Colony, and the Town of Hebron, Denton County, Texas, as
generally depicted in Exhibit A of this Agreement, which is attached hereto and incorporated
herein for all purposes (hereinafter referred to as the "Existing Plat"); and
WHEREAS, the Developer is proposing to replat said land into Lots 7R, 8R, 10X-R,
1 1X, 12, and 13, of Block A of the Parks of Austin Ranch Addition, located in John B. Martin
Survey, Abstract No. 827, City of The Colony, and the Town of Hebron, Denton County, Texas,
as generally depicted in Exhibit B of this Agreement, which is attached hereto and incorporated
herein for all purposes (hereinafter refer-red to as the "Proposed Replay"); and
WHEREAS, the Property is generally located north of Windhaven Parkway, east of
Arbor Hills Way, south McKamy Trail, in the City of The Colony, Texas; and
NOW, THEREFORE, for and in consideration of the foregoing premises and other
good and valuable consideration, the receipt and adequacy of which are hereby acknowledged,
City and Developer covenant and agree as follows:
SECTION 1. INCORPORATION OF PREMISES.
The above and foregoing recitals are true and correct and are incorporated herein and
made a part hereof for all purposes.
SECTION 2. TERM.
This Agreement shall be effective as of the Effective Date of this Agreement, and shall
continue thereafter until August 31, 2014 (the "Expiration Date"), unless terminated sooner
under the provisions hereof.
SECTION 3. DEFINITIONS.
Wherever used in this Agreement, the following terms shall have the meanings ascribed
to them:
"Affiliates" shall mean means any person or entity which, directly or indirectly, through
one or more intermediaries, Controls, is Controlled by, or is under common Control with the
party in question.
" Agreeniew " shall mean this Development Agreement.
"City " shall mean the City of The Colony, Texas, a Texas home-rule municipality whose
address for purposes of this Agreement is 6800 Main Street, The Colony, Texas 75056.
"Control" means, directly or indirectly, the power to direct or cause the direction of the
management or policies of the controlled entity.
"Developer" shall mean The Residences of Austin Ranch No. 6, Ltd., a Texas limited
partnership or its affiliates, whose address for purposes of this Agreement is 1722 Routh Street,
Suite 1313, Dallas, Texas 75201.
"Effective Date " shall mean the last date of execution hereof.
"Event of Bankruptcy or Insolh,ency" shall mean the dissolution or termination of a
party's existence as a going business, insolvency, appointment of a receiver for any part of such
party's property where such appointment is not terminated within ninety (90) days after such
appointment is initially made, any general assignment for the benefit of creditors, or the
commencement of any proceeding under any bankruptcy or insolvency laws by or against such
party where such proceeding is not dismissed within ninety (90) days after the filing thereof.
"Existing Plat" shall mean Lots 6, 7, 8, 9X, and 10X, of Block A of the Parks of Austin
Ranch Addition, located in John B. Martin Survey, Abstract No. 827, City of The Colony, and
the Town of Hebron, Denton County, Texas, as generally depicted in Exhibit A of this
Agreement, which is attached hereto and incorporated herein for all purposes.
"Expiration Date " shall mean the expiration date for the Term of this Agreement, as
provided in Section 2 of this Agreement.
"Proposed Replat" shall mean the approximately 21.499 acres of land, consisting of Lots
7R, 8R, I OX-R, 11 X, 12, and 13, Block A of the Parks of Austin Ranch Addition, located in
John B. Martin Survey, Abstract No. 827, City of The Colony and the Town of Hebron, Denton
County, Texas, as generally depicted in Exhibit B of this Agreement, which is attached hereto
and incorporated herein for all purposes.
Development Agreement
City of The Colony The Residences ofAustin Ranch No. 6, Ltd. Page 2 of 10
10/15/2012 8:16:40 AM
SECTION 4. AFFIRMATIVE OBLIGATIONS.
City and Developer covenant and agree with the other party that, while this Agreement is
in effect, it shall comply with the following terms and conditions:
(a) Proposed Replat. The Developer covenants and agrees to file a plat application with the
City by December 1, 2012, containing the Proposed Replat. The parties to this
Agreement agree that the City is not contracting for, or promising to, approve the
Proposed Replat, and that the City retains its complete lawful discretion to approve or
deny the Proposed Replat based on the level of discretion provided the City by law for
the particular decision under consideration, including Section 212.005 of the Texas Local
Government Code. Nothing in this Agreement is or should be considered or construed as
contract zoning or the bargaining away of the City's governmental discretion.
(b) New Replat. The Developer- covenants and agrees to file a plat application with the City
by December 31, 2013, containing Lots 6, 7R,8R,10X-R, 11X, 12 and 13, Block A. The
parties to this Agreement agree that the City is not contracting for, or promising to,
approve the New Replat, and that the City retains its complete lawful discretion to
approve or deny the New Replat based on the level of discretion provided the City by law
for the particular decision under consideration, including Section 212.005 of the Texas
Local Government Code. Nothing in this Agreement is or should be considered or
construed as contract zoning or the bargaining away of the City's govermlental
discretion.
(c) Conveyance of Easements. The Developer covenants and agrees to convey such
drainage, wastewater, and water easements located on the Property as deemed necessary
by the City. The Developer covenants and agrees to execute and file with Denton County
Real Property Records said easements prior to filing the plat application with the City
containing the New Replat, as specified in Section 4(b) of this Agreement. Said
easements shall provide that the facilities constructed within said easements shall be
perpetually maintained by the property owner.
(d) Performance. City and Developer agrees to perform and comply with all terms,
conditions, and provisions set forth in this Agreement and in all other instruments and
agreements between Developer and City.
SECTION 5. EVENTS OF DEFAULT.
Each of the following shall constitute an Event of Default under this Agreement
(a) Proposed Replat. The failure of the Developer to file a plat application with the City
containing the Proposed Replat consistent with Section 4(a) of this Agreement is an
Event of Default.
Developinent Agreeni.ent
City of The Colony - The Residences ofAustin Ranch No. 6, Ltd. Page 3 of 10
10/15/2012 8:16:40 AM
(b) New Replat. The failure of the Developer to file a plat application with the City
containing the New Replat consistent with Section 4(b) of this Agreement is an Event of
Default.
(c) Conveyance of Easements. The failure of Developer to execute and file said easements
consistent with Section 4(c) of this Agreement is an Event of Default.
(d) False Statements. Any warranty, representation, or statement made or furnished to the
City by or on behalf of Developer under this Agreement or the related documents that is
false or misleading in any material respect, either now or at the time made or furnished is
an Event of Default.
(e) Insolvency. Developer's insolvency, appointment of receiver for any part of Developer's
property, any assignment for the benefit of creditors of Developer, any type of creditor
workout for Developer, or the commencement of any proceeding under any bankruptcy
or insolvency laws by or against Developer is an Event of Default.
(f) Other Defaults. The failure of Developer or the City to comply with or to perform any
other term, obligation, covenant or condition contained in this Agreement or in any of the
related documents, or failure of Developer or the City to comply with or to perform any
other term, obligation, covenant or condition contained in any other agreement between
the City and Developer is an Event of Default.
SECTION 6. EFFECT OF AN EVENT OF DEFAULT.
In the event of default under Section 5 of this Agreement, the non-defaulting party shall
give written notice to the other party of any default, and the defaulting party shall have thirty
(30) days to cure said default. Should said default remain uncured as of the last day of the
applicable cure period, and the non-defaulting party is not otherwise in default, the non-
defaulting party shall have the right to terminate this Agreement, enforce specific performance as
appropriate, or maintain a cause of action for damages caused by the event(s) of default.
SECTION 7. MISCELLANEOUS PROVISIONS.
The following miscellaneous provisions are a part of this Agreement:
(a) Amendments. This Agreement constitutes the entire understanding and agreement of the
parties as to the matters set forth in this Agreement. No alteration of or amendment to
this Agreement shall be effective unless given in writing and signed by the party or
parties sought to be charged or bound by the alteration or amendment.
(b) Applicable Law and Venue. This Agreement shall be governed by and construed in
accordance with the laws of the State of Texas, and all obligations of the parties created
Development Agreement
00, of The Colony - The Residences ofAustin Ranch No. 6, Ltd. Page 4 of 10
10/15/2012 8:16:40 AM
hereunder are performable in Denton County, Texas. Venue for any action arising under
this Agreement shall lie in the state district courts of Denton County, Texas.
(c) Assignment. This Agreement may not be assigned without the express written consent
of the other party.
(d) Attorneys' Fees. In the event any person initiates or defends any legal action or
proceeding to enforce or interpret any of the terins of this Agreement, the prevailing party
in any such action or proceeding shall be entitled to recover its reasonable costs and
attorneys' fees (including its reasonable costs and attorneys' fees on any appeal).
(e) Binding Obligation. This Agreement shall become a binding obligation on the
signatories upon execution by all signatories hereto. City warrants and represents that the
individual executing this Agreement on behalf of City has full authority to execute this
Agreement and bind City to the same. Developer warrants and represents that the
individual executing this Agreement on Developer's behalf has full authority to execute
this Agreement and bind it to the same.
(f) Caption Headings. Caption headings in this Agreement are for convenience purposes
only and are not to be used to interpret or define the provisions of the Agreement.
(g) Counterparts. This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original and all of which shall constitute one and the same
document.
(h) File in Deed Records. This Agreement shall be filed in the real property records of
Denton County, Texas.
W Force Majeure. It is expressly understood and agreed by the parties to this Agreement
that if the performance of any obligations hereunder is delayed by reason of war, civil
commotion, acts of God, inclement weather, fire or other casualty, strikes, riots, shortages
of labor or materials, terrorist acts or activities, court injunction or any other causes of
any kind which are beyond control of such party, the party so obligated or permitted shall
be excused from doing or performing the same during such period of delay, so that the
time period applicable to such obligation or requirement shall be extended for a period of
time equal to the period such party was delayed.
(j) Mediation. In the event of any disagreement or conflict concerning the interpretation of
this Agreement, and such disagreement cannot be resolved by the signatories hereto, the
signatories agree to submit such disagreement to mediation.
(k) Notices. Any notice or other communication required or permitted by this Agreement
(hereinafter referred to as the "Notice") is effective when in writing and (i) personally
delivered either by facsimile (with electronic information and a mailed copy to follow)
Development Agreement
City ofThe Colony- The Residences ofAustin Ranch No. 6, Ltd. Page 5 of 10
10/15/2012 8:16:40 AM
or by hand or (ii) three (3) days after notice is deposited with the U.S. Postal Service,
postage prepaid, certified with return receipt requested, and addressed as follows:
if to Developer: The Residences of Austin Ranch No. 6, Ltd.
1722 Routh Street, Suite 1313
Dallas, Texas 75201
Attn:
Telephone: (214) 270-0986
Facsimile:
if to City: The City of The Colony
6800 Main Street
The Colony, Texas 75056
Attn: Troy C. Powell, City Manager
Facsimile: 972-624-3102
(1) Ordinance Applicability. The signatories hereto shall be subject to all ordinances of the
City, whether now existing or in the future arising. This Agreement shall confer no vested
rights on the Property unless specifically enumerated herein.
(m) Severability. The provisions of this Agreement are severable. If any paragraph, section,
subdivision, sentence, clause, or phrase of this Agreement is for any reason held by a
court of competent jurisdiction to be contrary to law or contrary to any rule or regulation
have the force and effect of the law, the remaining portions of the Agreement shall be
enforced as if the invalid provision had never been included.
(n) Sovereign Immunity. No party hereto waives any statutory or common law right to
sovereign immunity by virtue of its execution hereof.
(o) Time is of the Essence. Time is of the essence in the performance of this Agreement.
[The Remainder of this Page Intentionally Left Blank]
Development Agreement
City of The Colony - The Residences ofAustin Ranch No. 6, Ltd. Page 6 of 10
10/15/2012 8:16:40 AM
IN WITNESS WHEREOF, the parties hereto have caused this document to be executed
as of the date first above written.
THE CITY:
THE CITY OF THE COLONY, TEXAS,
a Texas home-rule municipality
By
Name: Tro owell
Title: y Manager
Date Executed:
STATE OF TEXAS §
COUNTY OF DENTON §
This instrument was acknowledged before me on the ( day of
is 2012, by Troy C. Powell, City Manager of the City of The Colony,
Texas, a Texas home-rule municipality, on behalf of the City of The Colony, Texas.
"I - ~J
Notary Public, State of Texas
My Commission Expires:
UU CN Henderson
to-01 •~pi4
Development Agreement
City of The Colony - The Residences ofAustin Ranch No. 6, Ltd. Page 7 of 10
10/15/2012 8:16:40 AM
DEVELOPER:
THE RESIDENCES OF AUSTIN RANCH NO.
6, LTD., a Texas limited partnership
By: 42BCO, INC; a Texas corporationyits General Partner
By:
Natne: ` Kenneth D. Mabry
Title: Senior Vice President
Date Executed:
STATE OF TEXAS §
COUNTY OF
This instrument was acknowledged before me on the day of
October 20129 by Kenneth D. Mabry 9 Senior Vice President of
The Residences of Austin Ranch No. 6, Ltd., a Texas limited partnership, on behalf of said
partnership.
Notary Pub: ic, State of Texas
My Commission Expires:
ao~rnr nit
TATIANA D BELL
My Commission Expires
May 27, 2015
Ark ~ i[A
Developmel7t Agreement
Cite of The Colony - The Residences ofAustin Ranch No. 6, Ltd. Page 8 of 10
10¢ 15/2012 8:16:40 AM
Exhibit A
Existing Plat
Or)
z) Eg
toll p l fF>! FBI@ tb 41S:t'GSl{.I t ~4
0 >s!
r~"~4d~`i "3n .~lL ~~s~ 1 s
~ SSS4 ti kkk
I ~7~tS, !l4tsvk,a v : tsili' e ~F~r; G Qrik o } !s%
i
f I7 a ~I{ 4~; 1f t ^~It, t i Cp !k it i C r rpF FI f °IE t ' 7
} rte - ~ `y~` tli ! i ! ! I A h k k ik 3 If i YID Fl l .
~ ~ gg G 2 M 2 If A ~ F7. ~ ill f ~ + `yr~e
gyy44 +'l
l!! 1, J y" P 3 k !
gl 41, r l f l~ S 5 t{ Y t f p l, 1
~
IF I AVM 3IHYJ I
~i94 X41
rv, .
1 11 s 6e! f
1 J I ~ r ala
oil
I -il-1. _ Ilt:l f Y,Wrwwcxs.,K ' ! S
1141,
~ t !i ~ ~ ~ :1 a p
i 4 - 1i f11 . f v ~1~
i
I `AVM S,Vi YOP!! yr__ ~
~ ~j ; r ~t it " ~sf II ~';gr; 9 I~a• t{ I
~ i lr7Nl ~~se~ t z?:8 ~ ~~>}fir !'I ~ ~ R
€3§it
l~9tgk1 ri[k?sa 8P, till,' F
§ a -5 6 I yr, t11 F i g't `~1
Ili sr [[-1"• a=4 as t~8 x
Development Agreement
City of The Colony The Residences ofAustin Ranch No. 6, Ltd. Page 9 of 10
10/15/2012 8:16:40 AM
Exhibit B
Proposed Replat
77-
:Awl i,
f r t ~j M ~ Ic wqMM s x q~A, lf° F
Alin
~ AMd~Y16D
ILL
E y ~ m tr ~ ~ yl(11 J K~
8 a 9 4F" tle999" ) 3 d d~~5 Iii
i " s A a5 , d : a le ICI ;
tj7
Id#A. - ~ I _ gl1~11~~ 1 C~~# l I ~ I Id ~ u
I AI ~ ~ I: ~~A I I
l4ld
FK[
g dA ;
s' 'Stf ~{!eF~~ej fs {e 'ss
til;?ald lg ~i {a
IN
J
Dev=elopment Agreement
City of The Colony - The Residences ofAustin Ranch No. 6, Ltd. Page 10 of 10
10/15/2012 8:16:40 AM