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HomeMy WebLinkAboutResolution No. 2014-023CITY OF THE COLONY, TEXAS RESOLUTION NO. 2014- Q,� A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS, APPROVING A DEVELOPMENT AGREEMENT WITH MERITAGE HOMES OF TEXAS, LLC FOR THE DEVELOPMENT OF APPROXIMATELY 90.58 ACRES OF LAND FOR THE PURPOSE OF DEVELOPING APPROXIMATELY 202 SINGLE-FAMILY RESIDENCES IN AN AREA TO BE KNOWN AS "AUSTIN WATERS EAST"; AUTHORIZING THE CITY MANAGER TO EXECUTE THE AGREEMENT; PROVIDING AN EFFECTIVE DATE WHEREAS, the Developer desires to construct, operate and maintain a development to be known as AUSTIN WATERS EAST; and, WHEREAS, the City and Developer have agreed that certain conditions shall be embodied into a Development Agreement as set forth in the attached Exhibit A. WHEREAS, the City Council has determined it to be in the City's best interest to approve the Development Agreement with MERTIAGE HOMES, LLC, and authorize the city manager to execute the agreement. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS: Section 1. That the City Council of the City of The Colony, Texas hereby approves the Development Agreement with MERITAGE HOMES, LLC. Section 2. That the city manager is authorized to execute said Agreement. Section 3. That this resolution shall take effect immediately from and after its passage. PASSED AND APPROVED by the City Council of the City of The Colony, Texas, this 21 ST day of April, 2014. U ?JMcCoU ry, Mayor ATTESP) �y of .?. Oj� LA'A,�.-L kjV� Lu.: -It 1. Christie Wilson, TRMC, City Secretary ..� r: TE X P� APPROVED AS TO FORM: 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 ( b'r day of , 2014, by and between the City of The Colony, Texas, a Texas home -rule (hereinafter referred to as the "City") and Meritage Homes of Texas, LLC, an Arizona limited liability company (hereinafter referred to as the "Developer"), as follows: WITNESSETH: WHEREAS, Developer is purchasing and expects to be the owner of approximately 90.58 acres of real property within the City, and located within the B. Schoonover Survey, Abstract No. 1208, the S. Evans Survey, Abstract No. 397, and the S. Brown Survey, Abstract No. 111, City of The Colony, Denton County, Texas, as described and/or depicted in Exhibit of this Agreement, which is attached hereto and incorporated herein for all purposes (hereinafter referred to as the "Property"); and WHEREAS, Developer is developing the Property to be known as Austin Waters East consisting of approximately 202 single-family residential structures; and WHEREAS, the City has requested and the Developer has agreed that certain conditions shall be embodied into a Development Agreement, executed, and filed in the Deed Records of Denton County, becoming effective upon the terms and conditions set forth in this Agreement; 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. FINDINGS INCORPORATED. 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 as defined herein. This Agreement shall remain in full force and effect from the Effective Date until the Developer and the City have completed their respective obligations hereunder or has been earlier terminated by the one or both of the parties. SECTION 3. DEFINITIONS. The following words shall have the following meanings when used in this Agreement. (a) Agreement. The word "Agreement" means this Development Agreement, together with all exhibits and schedules attached to this Development Agreement from time to time, if any. (b) City. The word "City" means 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. (c) City Engineer. The words "City Engineer" mean the City of The Colony City Engineer or designee. (d) Commencement of Construction. The words "Commencement of Construction" mean the grading and/or preparation of the Property for construction. (e) Completion of Construction. The words "Completion of Construction" mean: (i) substantially completed in accordance with the approved plans; and, (ii) the Development has been accepted by the City. (f) Developer. The word "Developer" means Meritage Homes of Texas, LLC, an Arizona limited liability company, its successors and assigns, whose address for purposes of this Agreement is 909 Hidden Ridge, Suite 400, Irving, Texas 75038. (g) Development. The word "Development" has the same meaning as described in Section 4(a) of this Agreement. (h) Effective Date. The words "Effective Date" mean the date of the latter to execute this Agreement by and between the City and the Developer, which shall occur after the Developer has closed on the Property. (i) Event of Bankruptcy or Insolvency. The words "Event of Bankruptcy or Insolvency" 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. Page 2 of 10 Development Agreement City of The Colony, Texas — Meritage Homes of Texas, LLC 412212014 8:28:35 AM41�� (j) Expiration Date. The words "Expiration Date" mean the earlier of the date on which the parties have performed their respective obligations or upon completion of the Development. (k) Property. The word "Property" means the approximately 90.58 acres out of the B. Schoonover Survey, Abstract No. 1208, the S. Evans Survey, Abstract No. 397, and the S. Brown Survey, Abstract No. 111, City of The Colony, Denton County, Texas, as described and/or depicted in Exhibit A of this Agreement, which is attached hereto and incorporated herein for all purposes. (1) Term. The word "Term" means the term of this Agreement as specified in Section 2 of this Agreement. SECTION 4. AFFIRMATIVE COVENANTS OF DEVELOPER. Developer covenants and agrees with the City that, while this Agreement is in effect, it shall comply with the following terms and conditions: (a) Development. Developer covenants and agrees to construct on the Property the Austin Waters East, which consists of a residential development containing single-family residential structures, landscaping, a private amenity center, neighborhood park, and open space for residential use, and other accessory land uses. The Developer agrees to construct by December 31, 2018, a minimum of 190 single-family residential structures on the Property, as well as, an additional eight (8) lots for development by a homeowner's association or homeowner's associations for the Property. Said single- family residential structures shall have a minimum sale price of $350,000.00. Developer covenants and agrees to commence construction of the Development within one hundred twenty (120) days of the Effective Date of this Agreement, and Completion of Construction of the Development shall occur by December 31, 2018. (b) Platting, Zoning and Building Permits. All Property shall be platted, zoned, and developed in accordance with the City's Subdivision Ordinance, the City's Comprehensive Zoning Ordinance, applicable building codes and all other relevant ordinances as adopted by the City, and as amended from time to time. (c) Private Amenity Center. Developer covenants and agrees to construct or cause to be constructed on the Property for the use and benefit of persons residing on the Property by December 31, 2018, a private amenity center which includes a swimming pool and cabana. (d) Neighborhood Park. Developer covenants and agrees to construct or cause to be constructed on the Property for the use and benefit of persons residing on the Property by December 31, 2018, a neighborhood park. Page 3of10 Development Agreement City of The Colony, Texas — Meritage Homes of Texas, LLC 412212 01 4 8:28:35 A -A14, 9044 424943 -PM (e) Open Space. Developer covenants and agrees there will contain approximately forty- five (45) acres of open space within the Property, in and along the creek located on the western boundary of the Property. A portion of the Open Space will include a Private Amenity Center and a Neighborhood Park. (f) Performance. Developer agrees to perform and comply with all terms, conditions, and provisions set forth in this Agreement and in all other instruments and agreements by and between Developer and the City. SECTION 5. AFFIRMATIVE COVENANTS OF THE CITY. City covenants and agrees with the Developer that, while this Agreement is in effect, it shall comply with the following terms and conditions: (a) Waiver of Fees. The City covenants and agrees to waive for the Developer building permit fees, water meters and tap fees, sanitary sewer tap fees, and building plan review fees for a maximum of 230 single-family residential structures to be constructed on the Property, and submitted to the City by December 31, 2018. (b) Performance. City agrees to perform and comply with all terms, conditions, and provisions set forth in this Agreement and in all other instruments and agreements by and between the Developer and the City. SECTION 6. TERMINATION. This Agreement shall terminate upon any one or more of the following: (a) by written agreement of the parties; (b) the Expiration Date; (c) by either party in the event the other party breaches or defaults on any of the terms or conditions of this Agreement and such breach is not cured within thirty (30) days after written notice thereof is provided to the breaching or defaulting party, or if such breach or default cannot reasonably be cured within such thirty (30) day period, if such party does not commence to cure such breach or default within such thirty (30) period and thereafter diligently pursue the curing thereof to completion; (d) upon completion of the Affirmative Covenants as specified in Sections 4 and 5 of this Agreement; (e) by the City, if the Developer suffers an Event of Bankruptcy or Insolvency; (f) by the City, if the Developer fails to maintain material compliance with the City's development regulations and other applicable ordinances that apply to the Property or the Development during construction; or (g) by either party, if any subsequent Federal or State legislation or any decision of a court of competent jurisdiction declares or renders this Agreement invalid, illegal or unenforceable. Page 4 of 10 Development Agreement City of The Colony, Texas — Meritage Homes of Texas, LLC 412212014 8:28:35 AA1141912014 j249.-33 na,r 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 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 is assignable upon the following conditions: i. the assignment of the Agreement must be evidenced by a recordable document. The recordable document referred to in this paragraph is subject to the reasonable approval of City; ii. at the time of any assignment, Developer must give the assignee written notice that any and all obligations, covenants and/or conditions contained in the Agreement will be assumed solely and completely by the assignee. The notice provided pursuant to this paragraph is subject to the reasonable approval of City; iii. Developer will file any approved, executed assignment in the Land Records of Denton County, Texas; and iv. Developer shall provide City with the name, address, phone number, fax number and the name of a contact person for the assignee. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective officers, directors, partners, employees, representatives, agents, vendors, grantees and/or trustees, heirs, executors, administrators, legal representatives, successors and assigns, as authorized herein. (d) Attorney's Fees. In the event any person initiates or defends any legal action or proceeding to enforce or interpret any of the terms of this Agreement, the prevailing party in any such action or proceeding shall be entitled to recover its reasonable costs and attorney's fees (including its reasonable costs and attorney's 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 Page 5 of 10 Development Agreement City of The Colony, Texas — Meritage Homes of Texas, LLC 4/22/2014 8:28:35 AM4/-9,401 4 "T�33;4 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 deed records of Denton County, Texas. (i) 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, or court injunction, 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) 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: Meritage Homes of Texas, LLC 909 Hidden Ridge Parkway, Suite 400 Irving, Texas 75038 Attn: Stephanie Maclean Telephone: (972) 580-6351 Facsimile: (972) 580-6488 E-mail: stephanie.macleanL&meritagehomes.com Page 6 of 10 Development Agreement City of The Colony, Texas — Meritage Homes of Texas, LLC 4122120148:28:35AMe19nn» ». �n.aapr� with a copy to: Meritage Homes Corporation 17851 North 85th Street, Suite 300 Scottsdale, Arizona 85255 Attn: Jennifer Lee Telephone: (480) 515-8041 Facsimile: (480) 375-2905 E-mail: jennifer.leegmeritagehomes.com 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 E-mail: tpowell(c),thecolonytx.gov With a copy to: Brown & Hofmeister, LLP 740 East Campbell Road, Suite 800 Richardson, Texas 75081 Attn: Jeff Moore Telephone: (214) 747-6100 Facsimile: (214) 747-6111 E-mail: imooreL&bhlaw.net (1) 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. (m) Time is of the Essence. Time is of the essence in the performance of this Agreement. (n) Undocumented Workers. Developer certifies that Developer does not and will not knowingly employ an undocumented worker in accordance with Chapter 2264 of the Texas Government Code, as amended. If during the Term of this Agreement, Developer is convicted of a violation under 8 U.S.C. § 1324a(f), Developer shall repay the amount of the public subsidy provided under this Agreement plus interest, at the rate of six percent (6%), not later than the 120th day after the date the City notifies Developer of the violation. [The Remainder of this Page Intentionally Left Blank] Page 7 of 10 Development Agreement City of The Colony, Texas — Meritage Homes of Texas, LLC 412212014 8:28:35 AM419190 44 2. 9.43 DW 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 B. C. Powell City Manager Date Executed: '4+ STATE OF TEXAS § COUNTY OF DENTON § This instrument was acknowledged before me on the 2 day of , 2014, by Troy C. Powell, City Manager of the City of The Colony, Texas, j Texas home -rule municipality, on behalf of said municipality. Notary Public, State of Texas My Commission Expires: gjC=NEUM Page 8 of 10 Development Agreement City of The Colony, Texas — Meritage Homes of Texas, LLC 412212014 8:28:35 AMe91201e » 4n43 Dae DEVELOPER: MERITAGE HOMES OF TEXAS, LLC, an Arizona limited liability company Stephanie Maclean Division President Date Executed: � — � 3 —1 `I STATE OF COUNTY OF10 fl Ire This instrument was acknowledged before me on the 1' 2014, by Stephanie Maclean, Division President of Homes of Texas, LLC, an Arizona limited liability company, on behalf of said company Notary Public, State of Texas My Commission Expires: Development Agreement City of The Colony, Texas — Meritage Homes of Texas, LLC 41231201410:06:53AM419A��.-�n.zz Dry day of Meritage LAVONDA 1, HIGH Notary Public, State of Texas My Commission Expires December 28, 2016 Page 9of10 Exhibit A Legal Description and/or Depiction of Property Page 10 of 10 Development Agreement City of The Colony, Texas — Meritage Homes of Texas, LLC 4/22/2014 8:28:35 AM4 J12V 2: i n, z z p la a ones HUNISIC .° y�oEigm z¢5e a � ids g Iloilo p s $ 0 3 1Hg gill. 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