Loading...
HomeMy WebLinkAboutResolution No. 2014-089CITY OF THE COLONY, TEXAS RESOLUTION NO. 11DJ01 =U t _412413 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 OOPS Land, LTD., a Texas limited partnership (hereinafter referred to as the "Developer"),. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL 01 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 16 1h day of December, 2014. McCour�y, Mayor of The Colony, T q15 Christie Wilson, City Secretary Z xt RFORM: wI e, X JW Moore, lVity Attorney City of The Colony 6800 Main Street The Colony, Texas 75056 Attn: City Manager's Office THIS DEVELOPMENT AGREEMENT (hereina er referred to as the "Agreement") 4) 11 AE , is made and entered into this 60" day of�A "1114r,'�2014, by and between the CITY OF THE COLONY, TEXAS, a Texas home -rule municipality (hereinafter referred to as the "City") and OOPS LAND, LTD., a Texas limited partnership (hereinafter referred to as the "Developer"), as follows: WITNESSETH: WHEREAS, Developer is the owner of approximately 7.361 acres of land located within the City of The Colony, Denton County, Texas, as more particularly described in Exhibit A, which is attached hereto and incorporated herein by reference for all purposes allowed by law (hereinafter referred to as the "Property"); and WHEREAS, the Property is generally located south of Plano Parkway in the City of The Colony, Texas. 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 date of execution of this Agreement by the last of the Parties to do so ("Effective Date"). This Agreement shall remain in full force and effect from the Effective Date, and until completion of the Development as defined in Section 4(a) of this Agreement, unless earlier terminated by the mutual agreement of all of the Parties in writing ("Term"); provided, however that the provisions described in Section. 6 of this Agreement shall expressly survive the Expiration Date without limitation. Section 3. Definitions. Wherever used in this Agreement, the following terms shall have the meanings ascribed to them: "4f ,filiales" shall mean 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. After Recording, Return document to: Attn: City Secretary 6800 Main Street The Colony, TX 75056 "Agreement" 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. "City Delay Day" shall mean any delay to Completion of Construction caused by (i) City's failure to act or respond within a reasonable time period or (ii) other delays caused by City that delay the Completion of Construction. "City Engineer" shall mean the City of The Colony City Engineer or designee, "Commencement of Construction " shall mean the grading and/or preparation of the Property for construction. "Completion of Construction - shall mean: (i) substantially completed in accordance with the approved plans; and (ii) a Certificate of Occupancy for the Development has been issued by the City. "Control" means, directly or indirectly, the power to direct or cause the direction of the management or policies of the controlled entity. "Developer" shall Billingsley Development Corporation, a Texas corporation, or its affiliates, as agent for Owner, whose address for purposes of this Agreement is 1722 Routh Street, Suite 1313, Dallas, Texas 75201. "Development" shall have the same meaning as described in Section 4(a) of this Agreement. "Effective Date " shall mean the last date of execution hereof. "Event of Bankruptcy or Insolvency" 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. "Expiration Date" shall mean the earlier of the date on which the parties have performed their respective obligations or upon completion of the Development (which such date shall be extended for any Force Majeure Delay or City Delay Day). "Impositions" shall mean all taxes, assessments, use and occupancy taxes, charges, excises, license and permit fees and other charges whether general or special, ordinary or extraordinary, foreseen or unforeseen, which are or may be assessed, charged, levied, or imposed Page 2 of 12 Development Agreement Ch, of The Colony, Texas — by any public or governmental authority on the Developer or either of them with respect to the Property or any property or any business owned by the Developer within the City. "Property" shall mean the approximately 7.361 acres of land comprising a portion of the Planned Development -22 District, Ordinance Number 08-1772, as approved by the City Council of the city of 'The Colony, Texas, on January 5, 2009, as generally described and/or depicted in Exhibit A, which is attached hereto and incorporated herein for all purposes. Section 4. Affirmative Obligations. City and Developer agree as follows: (a) The Development. The Developer covenants and agrees to construct on the _ Property a lift station and force main as generally depicted in Exhibit B of this Agreement, which is attached hereto and incorporated herein for all purposes (hereinafter referred to as the "'Temporary Lift Station"). Said Temporary Lift Station shall be privately owned and maintained by the Developer. Developer covenants and agrees that no other lots within the Austin Ranch subdivision will use this temporary lift station and that no other temporary lift stations will be constructed in lieu of constructing a gravity sewer trunk line whichshall convey wastewater south to the existing Austin Ranch Lift Station south of Windhaven Drive. The private lift station, force main, and associated gravity sewer to be constructed on the Property shall be designed, constructed, and operated in accordance with TCEQ requirements for municipal facilities. Developer covenants and agrees to commence construction of the Development within ninety (90) days of the Effective Date of this Agreement, and Completion of Construction of the Development shall occur within thirty-six months (3 6) of the Effective Date of this Agreement. (b) PlattingZoning 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 tirne. (c) Public Improvements. All public improvements constructed on the Property shall be designed and constructed in accordance with the then current standards, specifications and procedures as adopted by the City. All engineering studies and construction plans shall be submitted to the City Engineer for review and approval at the time of platting or at such other time as may be deemed appropriate by the City Engineer, but in any case prior to commencement of any construction. Such plans shall be subject to approval by the City Engineer or his agent prior to approval of any building permit. Section 5. 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 Page 3 of 12 Development Agreeinent City of The Colony, Texas (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 Obligations as specified in Section 4 of this Agreement; (e) by the City, if the Developer suffers an Event of Bankruptcy or Insolvency; 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. Section 6. Survival. Notwithstanding anything in this Agreement to the contrary: Sections 7(b), 7(d), 76), 7(k), 7(p), 7(q), 7(r), and 8 shall survive any termination or expiration of this Agreement without limitation. 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 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 terms 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 Page 4 of 12 Development Agreement City of'The Colony, Texas — this Agreement and bind it to the same. (t) Caption Headings. s. 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; provided, that this Agreement shall be released of record at the request of either party hereto at any time after the various fees and contributions discussed herein above have been paid and all obligations required to be performed under this Agreement have been performed in a good and workmanlike manner. (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, 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 (each a "F"orce Majeure Delay") the party so obligated or permitted shall be excused from doing or performing the sarne 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. (p) 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: OOPS Land, Ltd. c/o Billingsley Development Corporation 1722 Routh Street Suite 1313 Dallas, Texas 75201 Attn: Lucito Pena, President — Development Facsimile: 214-270-0999 Page 5 of 12 Development Agreement Citi, oJ'The Colony, Texas 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. (p) 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 eight percent (8%), not later than the 120th day after the date the City notifies Developer of the violation. (q) Extension for Non -Business Days. If any notice period or due date contained in this Agreement falls on a Saturday, Sunday or other day on which the federally chartered banks in City of the Colony, Texas, are officially closed for the receipt of deposits, then such notice or due date shall be deemed timely if given on the first day following such Saturday, Sunday or other day on which the federally chartered banks in City of the Colony, Texas, are officially closed for deposits. (r) No Consequential or Punitive Damages. The parties hereto agree that neither party shall be entitled to recover from the other party nor any of its agents, employees, officers, partners, shareholders or affiliates any indirect, special, consequential or punitive damages that either party may incur as a result of a default under this Agreement or other action by the other party, its agents, employees, officers, partners, shareholders or affiliates. (s) Limitation of Liability. Neither Developer nor its successors or permitted assigns nor their respective members, partners, venturers, employees, shareholders, affiliates, Page 6 of 12 Development Agreement City qf'The Colony, Texas — officers, directors, agents, representatives, agents, advisors, or consultants shall have any personal liability for its or their failure to perform any covenant, terra or condition of this Agreement, it being expressly agreed that any judgment recovered against Developer shall be satisfied only out of, and the sole and exclusive recourse of City as a result of such default shall be against, the right, title and interest of Developer in and to the Property.. [The Remainder of this Page intentionally Left Blank] Page i of 1.2 Development Agreement City of The Colony, Texas -- IN WITNESS WHEREOF, the parties hereto have caused this document to be executed as of the date first above written. THE CITY OF THE COLONY, TEXAS, a Texas home -rule municipality By: Name: Tfoy C. Powell Title: City Manager Date Executed: i6. STATE OF TEXAS § COUNTY OF DENTON § This instrument was acknowledged before me on day of the 1-- - _0 . �.A.K­A A f 2011f, by Troy C. Powell, City Manager of the City of The Colony, Texas, a Texas home%ulc municipality, on behalf of the City of The Colony, Texas. 41 C2) A My Commission Expires: -N'otaryi�u@i�" State o.f'T6xas_-..-) ElizabethSar ffle 2 My Commi,ssion ExExams02117/ 015 Page 8 of 1.2 Development Agreement City, of The Colony, Texas - OOPS LAND, LTD., a Texas limited liability company By: Billingsley 380 North GP, L.L.C., aTexas limited liability company, its general partner 'Kenneth D. Mabry Manager Date Executed: STATE OF TEXAS § COUNTY OF DALLAS § This intrument was acknowledged before me on the JY le -7� day of 2014, by Kenneth D. Mabry, Manager of Billingsley 380 North GP,, L.L.C.,_a Texas limited liability company, limited partnership, on behalf of said limited NCONNIE D. CLARK Notary Public State of Tc.s Cant' m, EYPIrm 11/20/2016 i My Commission Expires: Development Agreement City of The Colony, 7 �oxas — the general partner of liab'l' y company and I ublic, State of Texas Ltd., a Texas hip. Page 9 of 12 ExhibitA Legal Description and. or Depiction of Property Page 10 of 12 Development Agreement City of The Colony, Texas — Development.4gree),nent City of The Colony, Texas — 4 4- iA NI Development.4gree),nent City of The Colony, Texas — 4- 409 NI Development.4gree),nent City of The Colony, Texas — Page I I of 12 4- 409 Page I I of 12 Exhibit B Depiction of the Site Plan with Lift Station Development Agreement City of`The Colony, Texas Page 12 of 12 Depiction of the Site Plan with Lift Station MAW 'P6,vol N 4 II r N �h �1a N w .1©T 18 1. 11111C11 A �w�n1uay,� wV1aw ? C&P EXHIBIT "B" FM orao.nM�owoa �Yce ADUN �a�.wllm� aln�m,>w F�F2CE't MAIN F NN CITY OF TWE C01.0NY, 7FXA5 SITE PLAIN Page 11 of 11 Development Agreement City of The Colony, Texas — Old Oak Fond Temporary Lift Statim & Sanitary Seager Line PLANO PARKWAY 1 N j ' I I I I I N N MAW 'P6,vol N 4 II r N �h �1a N w .1©T 18 1. 11111C11 A �w�n1uay,� wV1aw ? C&P EXHIBIT "B" FM orao.nM�owoa �Yce ADUN �a�.wllm� aln�m,>w F�F2CE't MAIN F NN CITY OF TWE C01.0NY, 7FXA5 SITE PLAIN Page 11 of 11 Development Agreement City of The Colony, Texas — Old Oak Fond Temporary Lift Statim & Sanitary Seager Line Denton County Juli Luke County Clerk Denton, TX 76202 Instrument Number: 2015-16068 As Recorded On: February 18, 2015 Agreement Parties: THE CITY OF THE COLONY Billable Pages: 14 TO Number of Pages: 14 Comment: ( Parties listed above are for Clerks reference only ) ** THIS IS NOT A BILL ** Agreement 78.100 Total Recordiing: 78.00 DO NOT REMOVE. THIS PAGE IS PART OF THE INSTRUMENT Any provision herein which restricts the Sale, Rental or use of the described REAL PROPERTY because of color or rare is invalid and unenforceable under federal law. File Information: Document Number: 2015-16068 Receipt Number: 1254191 Recorded DateMme: February 18, 2015 10:24:05A User/ Station: S Parr - Cash Station 3 Record and Return To: CITY OF THE COLONY 6800 MAIN ST THE COLONY TX 75056 THE STATE OF TEXAS COUNTY OF DENTON Ar t I hereby certify that this instrument was HLED In the File Number sequence on the datelti rn a , printed heron, and was duly RECORDED in the Official Records of Denton County, Texas. Juli Luke 4 County Clerk ...... Denton County, Texas