HomeMy WebLinkAboutResolution No. 00-24 ORIGINAL
CITY OF THE COLONY, TEXAS
RESOLUTION NO. oo--,3 ~
A RESOLUTION OF THE CITY OF THE COLONY, TEXAS,
AUTHORIZING THE MAYOR PRO-TEM TO EXECUTE A DEVELOPER'S
AGREEMENT BETWEEN THE CITY AND WYNNWOOD PENINSULA,
LTD., A TEXAS LIMITED PARTNERSHIP; AND PROVIDING AN
EFFECTIVE DATE.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF THE COLONY, TEXAS:
Section 1. That the Mayor Pro-Tem of the City of The Colony is hereby authorized to
execute a Developer's Agreement with Wynnwood Peninsula, Ltd., A Texas Limited
Partnership.
Section 2. That a true and correct copy of the Developer's Agreement is attached
hereto as Exhibit A and incorporated herein.
Section 3. That this resolution shall become effective from and after its date of
passage in accordance with law.
PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF THE
COLONY, TEXAS, ON THIS ~ ~ D DAY OF JULY, 2000.
~t °orf~T~ony, T~xas -
ATTE~S-~: /'
City Secretary
City of The Colony, Texas
APPROVED AS TO FORM:
C ityATo~ Z. ~
City of The Colony, Texas
CITY OF THE COLONY
P:~DOCXRESOLUTION RE DEV AGR. DOC.DOC
CITY OF THE COLONY
DEVELOPER'S AGREEMENT
PREAMBLE
The governing body of the City conducted a hearing on the advisability of disannexing
the area described by metes and bounds, attached hereto as Exhibit "B," on July 3, 2000.
RECITALS
WHEREAS, this Agreement is made and entered into as of July 3, 2000, by and among
the City of The Colony, a home rule city and political subdivision of the State of Texas,
organized pursuant to Article XI, Section 5 of the Constitution of the State of Texas (the "City"),
and Wynnwood Peninsula, Ltd., a Texas Limited Partnership ("Wynnwood"); and
WHEREAS, Wynnwood owns tracts of Land comprised of approximately 605.795 acres
as more particularly described in Exhibit "B" (the "Property") and located in the limits of the
City of The Colony, Texas; and
WHEREAS, The City represents, covenants, and wan'ants as follows:
(a) The City is a duly formed and validly existing home rule city and political
subdivision of the State of Texas organized pursuant to Article XI, Section 5 of the Constitution
of the State of Texas and is govemed by laws of the State of Texas.
(b) The City is authorized to enter into this Agreement and the transactions
contemplated hereby; and to carry out its obligations under this Agreement.
(c) The officers of the City executing this Agreement have been duly
authorized to execute and deliver this Agreement.
(d) The Project will assist the City in furnishing water, sewer, drainage and
other public improvements to territory within the jurisdiction of the City; and
WHEREAS, Wynnwood represents, covenants and warrants as follows:
(a) DCDD No. 5, once its creation is confirmed, will be a political subdivision
of the State of Texas, created and organized pursuant to Chapter 383 of the Texas Local
Govemment Code and the Constitution of the State of Texas and duly organized, validly existing
and in good standing under the laws of the State of Texas, attached hereto as Exhibit "A".
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DCDD No. 5 will be duly qualified to transact business in the State of Texas and in every
jurisdiction in which the nature of its activities requires it to be so qualified; will have full and
complete power to the relevant rights and obligations set forth in this Agreement, to enter into
and carry out the transactions contemplated hereby, and to carry out its obligations under this
Agreement; and has duly authorized the execution and delivery of this Agreement.
(b) Neither the execution and delivery of this Agreement nor the fulfillment of
or compliance with the terms and conditions hereof nor the consummation of the transactions
contemplated hereby conflicts with or results in a breach of the terms, conditions or provisions of
any restriction or any agreement or instrument to which DCDD No. 5 is now a party or by which
DCDD No. 5 or its project is bound, or constitutes a default under any of the foregoing, or results
in the creation or imposition of any lien, charge or encumbrance whatsoever upon any of the
project or assets of DCDD No. 5.
NOW THEREFORE, Wynnwood and the City agree as follows:
DEFINITIONS
(i) "Parties" shall mean the City of The Colony and Wynnwood Peninsula, Ltd., a
Texas Limited Partnership.
(ii) "Developer" shall mean Wynnwood Peninsula, Ltd., a Texas Limited
Partnership.
(iii) "Property" shall mean the area of land as described in Exhibit "B," attached.
(iv) "DCDD No. 5" shall mean Denton County Development District No. 5.
TERMS OF AGREEMENT
1. Disannexation. City shall disannex the Property fi.om the boundary of the City
on July 3, 2000, as described in Exhibit "C".
2. Annexation of the Property by the City. The City agrees that, prior to the
disannexation in paragraph 1 above, Wynnwood and/or the residents thereof shall request the
City to re-annex the Property. If the request of re-annexation has not been received by July 3,
2000, this Agreement is null and void. The City also shall reserve the fight to initiate
involuntary annexation proceeding, it being understood that there will be no re-annexation until
the confirmation election for DCDD No.5 has been conducted and canvassed.
3. Public Improvement Generally. Except as otherwise provided for herein,
construction of all public improvements, including but not limited to all streets and roads
(including any bridge or overpass), utilities, drainage, sidewalks, street lighting, street signage,
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and all other improvements required by the City's subdivision ordinance and all other applicable
regulations or laws (together, the "Subdivision Regulations"), shall be provided in accordance
with the Subdivision Regulations at no cost to the City and shall be subject to routine review by
the City Engineer, or his agent, to evaluate conformance with the construction plans and the City
standards and specifications. However, such review and evaluation shall not relieve the
Developer, its engineer or agent, of its obligations for the design, construction and maintenance
of the improvements as set out in this Agreement and other relevant ordinances of the City. Any
modification, review or evaluation by the City Engineer shall substantially conform to accepted
engineering practices. Upon completion of construction of public improvements as required by
this Agreement and as required by the Subdivision Regulations, the Developer shall deliver to
the City a reproducible copy of as-built construction plans of the public improvements
constructed or engineered by the Developer.
4. Required Plans and Specifications. The Developer's engineer shall develop
detailed plans and specifications for the construction of the required public infrastructure for
approval by the City. The public infrastructure includes all facilities mentioned in this
Agreement to be installed as part of the Project in conformance with City and State Department
of Highways and Public Transportation approvals and permits.
5. Developer's Expense. Developer and/or its assignees shall provide and
construct, at no cost or expense to the City, any and all water lines, sewer lines, and/or water
towers as needed to provide water and sewer service to the Property.
6. Franchises. The City consents to the power of DCDD No. 5 to grant and collect
fees for certain franchises for electric, telephone, gas, and other services. Language shall be
included in the franchise grants so that the franchises shall not be diminished in the event of
annexation, that the fees paid by the franchisees shall be no less than the fees paid by similar
franchisees to the City, and that the obligations of the franchisees with regard to the use of the
right of way shall be no less onerous than the requirements imposed upon similar franchisees by
the City. The term of the Franchise Agreements shall not exceed the year 2010, unless approved
by the City Council, which approval will not be unreasonably withheld.
7. Building Permits and Other Fees. The City will allow the Developer to retain
all fees associated with building permits, construction inspections and facility impact pertaining
to development on the Property for a period of ten (10) years from the date of this Agreement.
8. Developer's Responsibilities. Developer agrees to purchase and/or construct the
following items:
(i) Fire and police substation, not to exceed $1,000,000;
(ii) Purchase two fire trucks, not to exceed a total cost of $420,000; and
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(iii) Purchase one ambulance, not to exceed $75,000.
(iv) The Developer shall pay the City on an annual basis the sum of monies equal to
.11 per $100.00 valuation, as determined by the Denton County Appraisal District, of the
Property as developed.
9. Equipment Purchased by Developer. The Parties agree that the fire track
purchase shall be of an appropriate size to be able to serve mid-rise buildings of approximately
fifty (50) feet in height. Furthermore, the Parties agree that the above items (listed in No. 8) will
be purchased/constructed by the Developer upon completion of the hotel/motel conference
center, or upon the determination by the City Planner that the number of dwelling units within
the Property is greater than 1500 units, or whichever occurs first.
10. Land Lease. Furthermore, the Parties agree that on the Property shall be a site
consisting of 1.0 acre on which the above fire station and police substation shall be constructed
and which shall be free from all liens and encumbrances thereon. The location shall be mutually
agreeable to the City and the Developer. Upon the completion of the fire and police substation,
the Parties further agree that the City and the Developer shall enter into a lease for the Land. The
term of the lease shall be for fifty (50) years at a cost of one dollar ($1.00) per year.
11. The City's Responsibilities:
(i) The City will grant to the Developer a 100% tax abatement, attached hereto as
Exhibit D, for ten (10) years fi'om the date of the first tax abatement proceeding on ad valorem
tax on the Property located within Wynnwood; and
(ii) The City will permit the Developer to retain all monies collected as part of the
hotel occupancy tax, pursuant to the Tex. Tax Code Ann § 352.107 up until the dissolution of
DCDD No. 5.
(iii) The terms of the Tax Abatement shall be pursuant to Exhibit "D," attached.
12. Registered Public Surveyor. It is agreed and understood by the Parties hereto
that the Developer has employed a registered public surveyor licensed to practice in the State of
Texas to prepare a final plat of the Project in accordance with the City of The Colony's
Subdivision Ordinance.
13. Licensed Civil Engineer. It is agreed and understood by the Parties hereto that
the Developer shall employ a civil engineer licensed to practice in the State of Texas for the
design and preparation of the plans and specifications for the construction of all facilities covered
by this Agreement. Unless otherwise specified herein, such plans and specifications shall be in
accordance with the City's "Design Standards and Criteria."
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14. Construction Contracts. The Developer will award its own construction
contract for the construction of all street and drainage facilities ("infrastructure"). The Developer
agrees to employ a construction contractor who is approved by the City, said contractor to meet
City and statutory requirements for being insured, licensed and bonded to perform work in public
rights-in-way and to be qualified in all respects to bid on public streets and public projects of a
similar nature. The Developer agrees to utilize contract documents approved by the City, shall
furnish to the City the required payment and performance bonds prior to the commencement of
any work hereunder, and shall furnish a policy of public liability insurance in the amounts
required by Item 1.26.1 of the City's Standard Specifications.
15. Bonds. Prior to the commencement of construction, the Developer shall present
to the City performance bond and payment bond, surety, or irrevocable letter of credit meeting
the requirements of Chapter 2253 of the Texas Government Code guaranteeing and agreeing to
pay an amount equal to 100 percent of the value, as determined by the City Engineer, of the
infrastructure construction costs of all such facilities to be constructed by the Developer. Any
surety company through which a bond is written shall be a surety company duly authorized to do
business in the State of Texas, provided that the City, through the City Attorney, shall retain the
right to reject any surety company as a surety for any work under this or any other Developer's
Agreement within the City of The Colony regardless of such Company=s authorization to do
business in Texas. Approvals by the City shall not be unreasonably withheld or delayed.
16. Performance Bonds. The performance bond(s) shall provide for payment to the
City of such amounts to the total remaining amounts required for the completion of the
infrastructure if the Developer fails to complete the work as required hereunder. The payment
bond shall be furnished solely for the protection of all claimants supplying labor and material in
the performance of the work provided for by this Agreement.
17. Maintenance Bonds. Prior to acceptance of the Subdivision, the Developer will
present to the City a maintenance bond meeting the requirements of Chapter 2253 of the Texas
Government Code guaranteeing and agreeing to pay any necessary maintenance for a period of
two years in an amount equal to 100 percent of the value of the construction costs of all the
infrastructure to be constructed by the Developer.
18. Surety Company. Any surety company through which a bond is written shall be
a surety company duly authorized to do business in the State of Texas, provided that the City,
through the City Manager, shall retain the right to reject any surety company as a surety for any
work under this or any other Agreement within the City of The Colony regardless of such
Company's authorization to do business in Texas. Approvals by the City shall not be
unreasonably withheld or delayed.
19. Vesting of Title. It is further agreed and understood by the Parties hereto that
upon acceptance by the City, title to all public infrastructure facilities and improvements shall be
vested in the City of The Colony and the Developer hereby relinquishes any right, title, or
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interest in and to said facilities or any part hereof. It is further understood and agreed that until
the City accepts such improvements, the City shall have no liability or responsibility in
connection with any such facilities. Acceptance of the facilities shall occur at such time as the
City, through its City Engineer, provides the Developer with a written acknowledgment that all
facilities are complete, have been inspected and approved and are being accepted by the City.
The Developer reserves the right to install and maintain all landscape within the right-of-way of
the Property, subject to compliance to all City Ordinances.
20. Payment Guarantee. Any guarantee of payment instrument (performance bond,
letter of credit, certificate of deposit and/or cash deposit) submitted by the Developer on a form
other than the one which has been previously approved by the City as "acceptable" shall be
submitted to the City Attorney at the Developer's expense and this Agreement shall not be
considered in effect until the City Attorney has approved the instrument. Approval by the City
shall not be unreasonably withheld or delayed. The Developer shall keep said performance and
payment bonds, letters of credit, certificates of deposit and/or cash deposits in full force and
effect until such time as the Developer has fully complied with the terms and conditions of this
Agreement, and failure to keep same in force and effect shall constitute a breach of this
Agreement. All letters of credit furnished hereunder which expire prior to the completion of
construction shall be renewed in amounts designated by the City and shall be delivered to the
City on or before the tenth (10th) banking day before the date of expiration of the then existing
letter of credit. If the Developer fails to deliver the renewed letter of credit to the City within the
time prescribed herein, such failure shall constitute a breach of this Agreement and shall be a
basis for the City to draw on all or any portion of the letter of credit. The Developer further
agrees to release and forever hold the City harmless from any losses, damages and/or expenses
incurred by the Developer for any delays due to the City's review of any guarantee of payment
instrument which is in a form other than one which has been previously approved by the City.
The City requires the Developer to have all guarantee of payment forms approved prior to the
commencement of work and construction of public infrastructure facilities.
21. Pre-Construction Conference. The Developer, Developer's contractors and City
shall hold a pre-construction conference prior to the initiation of any work. The Developer
agrees to give the City at least twenty-four (24) hours prior written notice of his/her intent to
commence construction of all public facilities, so that the City, if it so desires, may have its
representatives available to inspect the beginning and continuing progress of all work.
22. Inspection by City. The Developer agrees to notify all contractors and
subcontractors working on the project that all their work is subject to inspection by a City
Inspector at any time, and that such inspection may require a certification by the contractors and
subcontractors of the type, kind, and quality of materials used on the project.
23. Recommendations by City Engineer. Should any work or construction of
public infrastructure facilities which has not been contemplated in the current construction
documents (plans and specifications), the plat, or this Agreement become necessary, then the
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Developer shall be required to contact the City Engineer to obtain recommendations on how such
work or construction should progress. The Developer further agrees to follow all reasonable
recommendations and requirements imposed by the City Engineer in such instance.
24. Non-Conforming Improvements. The Developer agrees to stop work and
construction of improvements upon notification from the City inspector of non-conforming
improvements, including the materials used and the methods of installation. The Developer
further agrees to correct all non-conformities in accordance with the City Inspector's instructions.
25. Conveyance of Title b.y Developer. The Developer agrees not to convey title of
any lots of the project, until all construction is complete and the City has approved and accepted
the work and improvements. The Developer understands that the City will issue no building
permits for improvements on any lot until all public improvements are completed.
26. Affidavit of Paid Bills. After completion and prior to acceptance of all work, the
Developer must furnish to the City an affidavit of all bills paid.
27. New Legislation or Ordinances. Wynnwood and the City agree that unless all of
them agree, neither will pursue the passage of any legislation or changes in ordinances that would
nullify anything is this Agreement. Furthermore, all Parties agree that unless all Parties agree,
they will be bound by the laws and ordinances (including waivers mentioned in this Agreement)
in effect at the time of this Agreement. However, it is agreed that this paragraph will not apply to
changes in state or national legislation that mandate a change to this Agreement. DCDD No. 5
and/or the Developer will not petition or seek creation of one or more county development
districts in the City or the City's extraterritorial jurisdiction without the consent of the City
Council of the City of The Colony.
28. Variances from General Development Ordinances. The development of the
Property shall be governed by the current City Code of Ordinance. The City Council is not
opposed to the General Development Plan, attached herein as Exhibit "E."
29. Fire and Police Protection. The City shall provide fire, police, and emergency
medical service protection for the Property at service levels consistent with other areas within the
City.
30. Developer's Contribution. The Developer shall continue to pay the City's sales
tax and ad valorem tax on the 240-acre existing golf course and club house.
31. Cooperation. All Parties to this Agreement shall use their best efforts to enlist
the support of other governmental entities and officials to aid the development of the Property in
the manner envisioned in this Agreement. This includes but is not limited to application by the
City, if necessary, to receive a Certificate of Convenience and Necessity covering the Property.
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32. Term. This Agreement shall commence and bind the Parties on the Effective
Date and shall continue in effect until the dissolution of DCDD No. 5, unless terminated on an
earlier date pursuant to other provisions or by express written Agreement executed by the City,
the Developer, and/or DCDD No. 5.
33. Remedies. Except for remedies otherwise specified, the Parties recognize that the
only effective remedies for the obligations under this Agreement and the other agreements
contemplated are mandamus against the City or DCDD No. 5 and specific performance against
the Developer, and the Parties agree to such remedies for a breach of any agreement. However,
prior to filing suit, the Parties agree to seek an amicable resolution of any disputes and, in order
to avoid costly disputes, to abide by the following procedures:
(i) Notify the other party in writing of an alleged breach of the Agreement and
provide the other party 30 days to cure the alleged breach.
(ii) If the alleged breach is not cured, the Parties shall conduct mediation with a
mutually acceptable mediator with fees to be equally paid by the participating Parties.
(iii) If mediation does not resolve the differences between the Parties, the Parties shall
have the right to pursue the remedies permitted herein.
(iv) If necessary, the Parties may pursue the remedies specified herein in the District
Courts of Denton County.
34. Venue. Venue of any action brought hereunder shall be in Denton, Denton
County, Texas.
35. Indemnification. (a) Prior to the acceptance by the City of infrastructure
improvements constructed by Developer pursuant to this Agreement, the Developer covenants
and agrees to hereby fully indemnify, hold harmless and defend the City, its officers, agents,
servants, and employees, fi.om all claims, suits or causes of action of any nature whatsoever,
whether real or asserted, brought for or on account of any injuries or damages to persons or
property including death, resulting fi.om or in any way connected with (i) this Agreement or the
construction of the improvements or facilities described herein; or (ii) any failure to properly
safeguard the work, or on account of any act, intentional or otherwise, neglect or misconduct of
the Developer, its contractors, subcontractors, agents, servants or employees, AND
INCLUDING, BUT WITHOUT LIMITATION, ANY LOSSES, CLAIMS, ACTIONS,
DAMAGES, LIABILITIES (WHETHER JOINT OR SEVERAL), AND EXPENSES
ARISING OUT OF OR RESULTING FROM THE CONCURRENT (BUT NOT SOLE)
NEGLIGENCE, STRICT LIABILITY OR VICARIOUS LIABILITY OF ANY SUCH
INDEMNIFIED PARTY OR PARTIES, but the Developer will not be liable to any such
indemnified party or parties under the foregoing indemnification provisions to the extent that any
loss, claim, damage, liability or expense otherwise subject to indemnification hereunder is finally
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judicially determined by a court of competent jurisdiction to have resulted primarily from an
indemnified party's willful misconduct or gross negligence. The Developer further agrees that it
will not, without the prior written consent of the City and the other parties hereby indemnified,
which consent will not be unreasonably withheld, settle or compromise or consent to the entry of
any judgment, any pending or threatened claim, action, suit or proceeding in respect of which
indemnification may be sought hereunder unless such settlement, compromise or consent
includes an unconditional release of each affected indemnified party from all liability arising out
of such claim, action, suit or proceeding.
(b) Approval by the City Engineer of any plans, designs or specifications submitted
by the Developer pursuant to this Agreement shall not constitute or be deemed to be release of
the responsibility and liability of the Developer, his engineer, employees, officers or agents for
the accuracy and competency of their design and specifications prepared by the Developer's
consulting engineer, his officers, agents, servants or employees, it being the intent of the Parties
that the approval by the City Engineer signifies the City's approval on only the general design
concept of the improvements to be constructed. The Developer shall indemnify and hold
harmless the City, its officers, agents, servants and employees, from any loss, damage, liability
or expense on account of damage to Property and injuries, including death, to any and all persons
which may arise out of any defect, deficiency or negligence of the Developer's engineer's
designs and specifications incorporated into any improvements constructed in accordance
therewith, and the Developer shall defend at his own expense any suits or other proceeding
brought against the City, its officers, agents, servants or employees, or any of them, on account
thereof, to pay all expenses and satisfy all judgments which may be incurred or rendered against
them or any of them in connection herewith. All responsibility and liability for drainage to
adjacent and downstream properties from development of this Project will accrue to the
Developer.
36. Liability Insurance. The Developer agrees to furnish an owners protective
liability insurance policy naming the City of the Colony as insured for property damage and
bodily injury in the amounts required by Item 1.26.2 of the City's Standard Specifications
(NCTCOG).
37. Assignment of Contract. This contract or any part hereof or any interests herein,
shall not be assigned by the Developer without the express written consent of the City Council,
which shall not be unreasonably withheld, it being understood that certain rights and obligations
will be assigned to DCDD No. 5 as soon as possible. However, the fights and obligations
assigned by DCDD No. 5 shall not be in conflict with the existing rights and obligations to the
Parties of this Agreement.
38. Entirety of Agreement. This Agreement represents the final Agreement of the
Parties after lengthy negotiation where the Parties were represented by legal counsel. This
Agreement contains the entire understanding of the Parties with respect to the subject matter
hereof, and there are no oral understandings, statements or stipulations bearing upon the meaning
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or effect of this Agreement which have not been incorporated herein. This Agreement may only
be modified, amended, supplemented or waived by written instrument executed by the Parties.
39. Notices. Any notices required to be sent pursuant to this Agreement shall be in
writing and shall be deemed properly served (a) when delivered, if delivered by hand to the party
to whose attention it is directed; (b) upon receipt, if mailed postage prepaid, by registered or
certified United States mail, return receipt requested; or (c) upon receipt, if sent by private receipt
courier guaranteeing next day delivery, delivery charge prepaid, addressed as follows:
40. Applicable Law. The law of the State of Texas shall apply to this Agreement.
41. Severability. In the event any provision of this Agreement is illegal, invalid, or
unenforceable under present of future laws, then, and in that event, it is the intention of the
Parties hereto that the remainder of this Agreement shall not be affected thereby, and it is also the
intention of the Parties to this Agreement that in lieu of each clause or provision that is found to
be illegal, invalid, or unenforceable a provision be added to this Agreement which is legal, valid
and enforceable and is as similar in terms as possible to the provision found to be illegal, invalid
or unenforceable.
42. Amendments and Waivers. Any provision of this Agreement may be amended
or waived if such amendment or waiver is in writing and is signed by the City and the Developer.
No course of dealing on the part of the Developer or the City, nor any failure or delay by the
Developer or the City with respect to exercising any right, power or privilege of the Developer or
the City under this Agreement shall operate as a waiver thereof, except as otherwise provided in
this Section.
43. Termination. This Agreement may be terminated by the mutual agreement of the
Parties. Upon such termination, the Parties shall promptly execute and file of record in the
County Clerk Official Records of Denton County, a document confirming the termination of this
Agreement, and shall execute such other documents as may be appropriate to document such
termination.
44. Invalidity. In the event that any of the provisions contained in this Agreement
shall be held unenforceable in any respect, such unenforceability shall not affect any other
provision of this Agreement, and the Parties shall be deemed to have contracted as if said
provision had not been in the Agreement initially (or substitute correct language).
45. Exhibits: Titles of Articles, Sections and Subsections. The exhibits referenced
herein and attached to this Agreement are incorporated herein and shall be considered a part of
this Agreement for all purposes, except that in the event of any conflict between any of the
provisions of this Agreement shall prevail. All titles or headings are only for the convenience of
the Parties and shall not be construed to have any effect or meaning as to the Agreement between
the Parties hereto. Any reference herein to a Section or Subsection shall be considered a
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reference to such Section or Subsection of this Agreement unless otherwise stated. Any
reference herein to an exhibit shall be considered a reference to the applicable exhibit attached
hereto unless otherwise stated.
46. Approval by the Parties. Whenever this Agreement requires or permits action,
approval or consent to be hereafter taken or given by any of the Parties, the Parties agree that
such action, approval or consent shall not unreasonably withheld, conditioned or delayed.
47. Rights and Remedies Cumulative. The rights and remedies provided by this
Agreement are cumulative and the use of any one right or remedy by either party shall not
preclude or waive its right to use any or all other remedies. Said rights and remedies are given in
addition to any other rights the Parties may have by law, statute, ordinance, or otherwise.
48. Additional Actions. The Parties agree to take such actions, including the
execution and delivery of such documents, instruments, petitions and certifications as may be
necessary or appropriate, from time to time, to carry out the terms, provisions and intent of this
Agreement and to aid and assist each other in carrying out said terms, provisions and intent.
49. Attorney Fees. The Developer shall pay to the City any and all legal fees
incurred for all work related to the negotiations and drafting of this Agreement and all costs
associated with the establishment of DCDD No. 5.
50. Exhibits. The following exhibits are incorporated into this Agreement for all
purposes:
Exhibit "A": Commissioner's Court Order on the creation of DCDD No. 5
Exhibit "B": The metes and bounds description of the Property
Exhibit "C": Disannexation Ordinance
Exhibit "D": Tax Abatement Agreement
Exhibit "E": General Development Plan
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SIGNED AND EFFECTIVE on the date last set forth below.
DEVELOPER:/
By: _
Date:
Date:
CITY OF THE COLONY
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ORDER UPON NE..~RING AND GRANTING PETITION REQUESi-Io/~ ·
THE CREATION Oi~ DENTON COUNTY DE'V'~,I,OPMENT DISTRICT NO.~
AND APPOINTING_TEMPORARY DIRECTOR,~
The Denton County Commissioners Court (the "Court" or "Commissioners Court") met in
regular session, open to the public, at the Denton County Courthouse on The Square, 110 West
Hickory Str~et~ l)~nton, Texas, on June 27, 2000, where, upon tim roll was called of tho members of
thc Court, to-wit:
Kirk Wilson County Judge
Jeff Y,.rueger Commissioner, Precinct l
Sandy Jacobs Commissioner, Pr~inct 2
Scott Armey Commissioner, Precinct 3
Jim Carter Commissioner, Precinct 4
All Commissioners were present except
WHEREUPON, among other business conducted by the Commissioners Cour~,
introduced the Order set out below and moved its adoption, which motion
was seconded by. and aitvr a full discussion and the question being put to the
Court, said motion was carried by the following vote:
AYE ; NO .
The Order thus adopted is as follows:
There came on to be considered the petition, signed by the owner of fee simple title to all the
lands situated within the territory hereinafter described, praying for the organization and
establishment of a county development district to be known as the DENTON COUNTY
DEVELOPMENT DISTRICT NO. 5, situated wholly within Denton County (thc "County'9, which
petition has heretofore been accepted by the Commissioners Court and was set down for hearing,
and notice of said hearing was given for thc time and in the manner prescribed by law.
This Commissioners Court, having conducted said hearing and having heard the evidence,
both oral and documentary, of all persons who appeared and off~recl evidence with reference thereto,
find the following:
1. On the 23a day of November, 1999, a petition duly signed along with an affidavit
from the owners of the tee simple title to the lands, in the tearitory hereinafter described, praying for
the creation and establishment of said county development district, was presented to the
Commissioners Court; that said petition fully m~cts thc rsquimments of law relating thereto; and
that upon due consideration of said petition, the same was by proper order of the Commissioners
Court set down for hearing before this Court on February 1, 2000, at 9:00 a~m. at the Denton County
Courthouse, Denton County, Texas, such heating by proper order being continued until June 6,
2000, at 9:00 a.m. at the same place, and on that dat~ concluded
2. Notice of such hearing and of the continuation was given by the Court in the county
in which such proposed district is located by causing such notices to be published at least 30 days
prior to the date of such hearings in The Denton Record Chronicle, a newspaper of general
circulation in the area of the proposed district, and mailed to the developer who signed said petition
and the landowners of all the land in the proposed d/strict, and that satisfactory evidence of the
giving of such notices has been presented to this Court.
3. This Commissioners Court has jurisdiction to consider said petition and to enter its
order creating said district for the reasons that the same is organized under the provisions of, and
endowed with the powers granted by Article XVI, Section 59, Article 1TI, Section 52, and Article
III, Section 52.a of the Constitution of the State of Texas, and Chapter 383 of the Texas Local
Government Code, as amended (collectively, the "Act").
4. The proposed district lies within the city limits ofth~ City of The Colony, with which
the proposed district and the developer intend to contract for water and sewer services, for
deannexation and rearmexation, and other matters.
5. Alter full hearing and granting every interested person a full and complete
opportunity to present evidence, this Court affirmatively finds that the petition conforms to the
requ/rements of the Act and that organization and creation of said district, as prayed for in said
petition, is feasible and necessary to finance improvements proposed for the district which will
promote and develop new ~ud expanded business enterprises and would serve the public purpose
of am'acting visitors and tourists to the county.
IT IS THEREFORE ORDERED, AD~DGED, AND DECREED BY THE
COMlVIISSIONERS COURT OF DENTON COUNTY, TEXAS THAT:
Section 1. Said Petition be and the same is hereby granted, and Denton County
Development District No. 5 (the "District") be and the same is hereby created and organized as
prayed for in said Petition. Thc Construction Costs and Non-Construction Costs set forth in F_ndffbit
"A" to this Order shall constitute the Project within the boundaries o£Dentou County Development
District No. $, and that the Project is feasible and necessary and will serve the pubhc purpose of
attracting visitors and tourists to Denton County.
The term "visitors" shall have thc meaning assigned to it by Black's Law Dictionary_: Sixth
~, to-wit: "a person who goes or comes to a particular place." Because the Legislature found,
in Section 383.003 (b), Texas Local Government Code, that the purpose of county development
districts is to provide "...incentives for the location and development of projects that attract visitors
and tourists and that result in employrnent and economic activi .ty," the term "visitors" shall also have
the meaning assigned to "busings visitors" by Black's Law_Dictionary, ~ to-wit: "One
who is invited or permitted to enter or remain upon the premises of another for a purpose directly
2
or indirectly connected with the business dealings between them. One who comes on premises at
occupant's instance for purposes connected wi~a purpose, business or otherwise, for which occupant
uses prcmiscs."
The term "tourist" shall havc thc meaning assigned to it by Section 351.001(7), Texas Tax
Code, to-wit: "an individual who travels from the individual's rcsidcncc to a diffcrcnt municipality,
county, state or country for pleasure, recreation, education or culture."
Sectiou 2. The Distr/ct is created and organized under the terms and provisions of An'icle
XVI, Section $9, Article IH, Section 52, and Article III, Section ~2-a oft. he Constitution of thc Statc
of Texas, and Chapter 383 of the Texas Local Government Code, as amended. Thc general nature
of the work proposed to be done and the cost of the project as estimated by the petilioner is as
follows:
a. The general nature of the work proposed to be done is the enhancement of land,
buildings, equipment, facilities, and improvements within the District to promote and develop new
or expanded business enterprises which will atlract visitors and tourists to the District and result m
employment and economic activity within the District. The District may undertake the project in
conjunction with other private or public entities.
b. The cost of the project as currently estimated by the petition, er is $200,000,000~ as
set forth m Exhibit "A". This project will permit the accomplishment of thc purposes for which
Denton County Development District No. 5 is created, leach element of the construction costs of
the project will promote and develop now or expanded business enterprises and will aiuact visitors
or tourists.
Section 3. Visitors who will bc attracted to the project and create employment or
economic activity include, but are not lirnitcd to:
a. Persons who visit to purchase homes;
b. Persons who visit to play golf and purchase items relating to golf;
c. Pm'sons who visit to play golf and purchase home, s;
d. persons who visit to use the marina, and purchase items related thereto;
e. Persons who visit to shop;
f. Persons who visit friends and dine or purchase other goods and services;
g. Persons who drive through thc District on its roads and purchase goods and services
within the District or Denton County;
h. Persons who stay at thc hotel or conduct business meetings at the hotel;
i. Persons who visit to build homes;
Persons who visit to perform contracts to construct water, sewer, drainage, roads,
parks, the golf course, thc club house, the hotel and other improvements;
k. Persons who visit to operate and maintain the hotel, golf course, clubhouse, parks,
roads, drainage, sewer and water systems;
1. Persons who visit residents within the District to sell goods and services;
m. Persons who visil lo work on thc construction and sale of lots and homes, such as
3
surveyors, engineers, inspectors, carpenters, contractors, subcontractors, providers
of natural gas utilities, providers of ¢lc~'ric utilities, tekc, ommunications contractors,
architects, homebuilders, carpenters, plumbers, masons, equipmeat lessors, title
company employees, lumber yards, HVAC vendors, and those who sell and install
sprinkler systems, and other implements;
n. Persons who visit to sell or install furnishings, fixtures, equipment and appliances
to the hotel, clubhouse, shops and homes; and
o. Persons who visit thc rcstanrmts and thc other commercial cstablishmcnts within thc
District and Denton County to purchase or sell goods and services.
Section 4. Tourists who wiIl be attracted to the project will include, but are not limited
to, tourists who engage in the activities mentioned in Subsections B.a_ through 3.h. and 3.o. above.
Sccfion 5. All of the facilitics set forth in Exhibit "A" to this Order for thc storm
drainage system and erosion control, roads and streets, parks an.,4 recreation, water supply and
distribution system, and sanitary sewer collection system are public improvcmcnts to attract visitors
and tourists to Denton County, in the manner specified by Section 383.003(a), Texas Local
Oovcramcnt Code, and arc improvcmcnts rclatcd to the other clcmcnts of construction costs
idcntiflcd in Exhibit "A".
Section 6. The District shall be composed of the area situated wholly in the County
described by metes and bounds attached hereto as Bxhibit "B', which is the land included in the
P~tition less a I0 foot strip that will remain within thc City of Thc Colony.
Section 7. It appe4~ring fha the following persons are each more than 21 years o~' age,
resident citizens of the State ot' Texas, and a qualified voter within the County and are otherwise
quahficd as provided by law, thy same am hereby appointed Temporary Directors of the District to
serve until their successors are elected or appointed in accordance with law, as follows, to-wit:
Gary Bryant
David Saxc
David J. Stanwick
Kaki Lybbert
Carlos Garcia
Section 8. Denton County further assumes or agrees to assume no liability of debt or
obligations of the District at any time.
A certified copy of this Order shall be filed with the County Clerk of Demon County, Texas
and recorded by him in a book kept for that purpose.
4
PASSED, ADOPTED, ORDERED AND EFFECTIVE this 27th day of June, 2000.
Kirk Wilson,~0~aty Judge
SeffKx~cger, Commissioner, Precinct I
Sandy Jacobs, Commissioner, Pr~inct 2
Sco~t Armey, Commissioner, Precinct 3
ATTEST:
Cynthia Mitchell, County Clerk Jim Carter, Commissioner, Precinct 4
Exhibit "A"
CDD #5
Storm Drainage and Canal System $3,418,803
Entries/Landscaping/Parks $3,504,273
Wator, Sewer, Drainage and Roads within subdivision ($69,000/acre) $17,117,094
Police and Fire Substation $1,282,051
Contingencies $13,536,750
Design, Survey, Geot~hnieal, Engineering, Conservation
R.~elamation and Contract Administration $8,478,937
Golf Coume and Clubhouse $22,863,247
Marina $8,547,008
Hotel/Conference Comer $67,606,835
Construction Cost Subtotal $146,355,000
Administration, Organizational, Maintenaa~ and Operating Cost8 $2,245,000
Interest on Advances $2,500,000
Tmstee's Fees, Tmstee's Counsel Fees, Underwriter's Counsel,
Other Counsel, Misc. Closing and Issuance Costs $1,400,000
Letter of Credit Fees (3years ~1.25% based on $200,000,000) $7,500,000
Underwriter's Fee (2% based on $200,12}00,000) $4,000,000
Bond Counsel Fee (2% based on $200,000,000) $4,000,000
Capitalized Interest (2 years ~ 8% based on $200,000,000) $32,000,000
Subtotal Non-Construction Costs $53,645,000
TOTAL COSTS $200,000,000
EXHIBIT "C"
CITY OF THE COLONY, TEXAS ORDINANCE NO. 00-1208
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF THE
COLONY, TEXAS, PROVIDING FOR THE DISANNEXATION OF
PROPERTY AS DESCRIBED IN "EXHIBIT A", PROVIDING FOR
FILING WITH THE COUNTY CLERK; PROVIDING A
SEVERABILITY CLAUSE; PROVIDING FOR PUBLICATION;
PROVIDING FOR ENGROSSMENT AND ENROLLMENT; AND
PROVIDING AN EFFECTIVE DATE.
WHEREAS, said tract of land is located within the City of The Colony, Texas; and
WHEREAS, said land is currently not suitable or necessary for orderly planning and
development of the city; and
WHEREAS, after hearing the arguments for and against the same the City Council has
voted to discontinue said territory from the City. of The Colony, Texas.
NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY
OF THE COLONY, TEXAS:
Section 1. Incorporation of Premises. The above and foregoing premises are true and
correct and are incorporated herein and made a part hereof for all purposes.
Section 2. Disannexation. That the property, described in Exhibit "A" be and the same is
hereby discontinued from the City of The Colony, Denton County, Texas, and that the boundary
limits of the City of The Colony, Texas, be and the same are hereby revised to exclude the above
described territory.
Section 3. Filine. The City Secretary is hereby directed to file with the County Clerk of
Denton County, Texas, a certified copy of this Ordinance.
Section 4. Severability. If any section, article, paragraph, sentence, clause, phrase or word
in this Ordinance, or application thereof to any persons or circumstances is held invalid or
unconstitutional by a Court of competent jurisdiction, such holding shall not affect the validity of the
remaining portions of this Ordinance and the City Council hereby declares it would have passed such
remaining portions of the Ordinance despite such invalidity, which remaining portions shall remain
in full force and effect.
P:XDOCX2000 OrdXDIS-ANNEX CDD #5.doc
Section 6. Publication. The City Secretary of the City of The Colony is hereby directed to
publish in one issue of the Official newspaper of the City of The Colony, the Caption and Effective
Date Clause of this Ordinance as required by Section 52.011 of the Texas Local Government Code.
Section 7. Engrossment and Enrollment. The City Secretary of the City of The Colony is
hereby directed to engross and enroll this Ordinance by copying the Caption Clause and Effective
Date Clause in the minutes of the City Council and by filing this Ordinance in the ordinance records
of the City.
Section 8. Effective Date. This Ordinance shall take effect immediately from and after its
passage and approval, and it is so ordained.
PASSED AND APPROVED by the City Council of the City of The Colony, Texas, this the
~ day of July, 2000.
I
an Dillard, Mayor Pro-tem
ATTEST:
4TRMC, Secretary
...... ::2~.r~'~ City
APPROVED AS TO FORM:
Tiffany L.O~Ia~rtling, City Attorr~y
P:~DOC\disannex CDD #5.doc
EXHIBIT B
LEGAL DP.,SCRIPTION
598.156 ACRES AND 5.245 ACRES
TRACT A:
BEING A 605.795 ACRE TRACT OF LAND SITUATED IN THE T. LUCKETT SURVEY,
ABSTRACT NO.752, BBB & CCR SURVEY, ABSTRACT NO. 182, AND THE S. PAYTON
SURVEY, ABSTRACT NO. 1009, IN THE CITY OF THE COLONY, DENTON COUNTY,
TEXAS, AND BEING ALL OF TRACT 2, A CALLED 324.084 ACRE TRACT OF LAND
CONVEYED TO WYNNWOOD PENINSULA, LTD., BY DEED RECORDED IN COUNTY
CLERKS FILE 93-R0048821, A 56.584 ACRE TRACT OF LAND CONVEYED-TO
WYNNWOOD PENINSULA, LTD. BY DEED RECORDED IN COUNTY CLERKS FILE NO
93-R0087901, A 40.535 ACRE TRACT OF LAND CONVEYED BY DEED TO
WYNNWOOD PENINSULA, LTD. RECORDED IN COUNTY CLERKS FILE NO. 94-
R0089415, A 40.000 ACRE TRACT OF LAND CONVEYED TO WYNNWOOD
PENINSULA, LTD. BY DEED RECORDED IN COUNTY CLERKS FILE NO. 95-0076009, A
42.000 ACRE TRACT OF LAND CONVEYED TO WYNNWOOD PENINSUL,A, LTD. BY
DEED RECORDED IN COUNTY CLERKS FILE NO. 97-R0086390, AND THE
REMAINDER OF A CALLED 182.79 ACRE TRACT OF LAND CONVEYED BY DEED TO
ROBERT E. STRI~F RECORDED IN VOLUME 574, PAGE 604, REAL PROPERTY
RECORDS OF DENTON COUNTY, TEXAS. SAID 605.795 ACRE TRACT OF LAND
BEING MORE PARTICULARLY DESCRIBED BY METES AND BOUNDS AS FOLLOWS:
BEGINNING AT CORPS OF ENG~ERS (C.O.E.) MONUMENT NO. C241-2 FOUND AT
THE SOUTHWEST CORNER OF SAID 56.584 ACRE WYNNWOOD PENINSULA, LTD.
THENCE, NORTH 01 DEGREES 26 MINUTES 52 SECONDS FAST, ALONG THE WEST
LINE OF SAID 56.584 ACRE W'YNNWOOD PENINSULA, LTD. TRACT, A DISTANCE OF
1100.08 FEET TO A 3/4" IRON ROD FOUND FOR CORNER,
THENCE, NORTH 01 DEGREES 12 MINUTES 56 SECONDS EAST, CO~G
ALONG THE WEST LINE OF SAID 56.584 ACRE WYNNW~D PENINSULA, LTD.
TRACT, PASSING TH~ SOU~T CORNER OF SAID 40.535 ACR.t/TRACT OF LAND
CONVEY'ED BY DEI::.D AT 49.89 Flit/T A.ND CONTINLF~G IN ALL A TOTAL DISTANCE
OF 865.32 F~I=:T ALONG THE WEST LINE OF SAID 40.535 ACRE TRACT TO A FENCE
CORNER POST FOR THE NORTHWEST GORNER OF SAID 40,535 ACRE TRACT;
THENCE, SOUTH 89 DEGREES 27 MINUTES 31 SECONDS EAST, ALONG THE NORTH
LINE OF SAID 40.535 ACRE WYNNWOOD PENINSULA, LTD. TRACT, A DISTANCE OF
2141.85 FEET TO A 1/2" IRON ROD FOUND FOR THE NORTt/EAST CORNER OF SAID
40.535 ACRE TRACT, SAID POINT ALSO BEING THE MOST WESTERLY NORTHWEST
CORNER OF THE AFORESAID 324.084 ACRE WY'NNWOOD PENINSULA, LTD. TRACT;
THENCE, ALONG THE MONUMENT PARTITION LINE BETWEEN TRACT Al, EXHIBIT
A, AND TRACT B2, EXHIBIT B, DESCRIBF.,D IN DEED OF PARTITION, RECORDED IN
VOLUME 2163, PAGE 433, DF_~D RECORDS, DENTON COUNTY, TEXAS, AND BEING
THIg SAM~ LINE AS DESCRIBBD IN DEED OF $.~ .r[-~_ 324.08,~ ACRE W'YNN'WOOD
PENINSIJL~ LTD., TRACT; THE FOLLOWING THREE COURSES AND DISTANCES:
SOUTH 89 DEGREES 42 MINUTES 25 SECONDS EAST, A DISTANCE OF 11 13.32
FEET TO A 1/2" IRON ROD FOUND FOR CORNER;
NORTH 00 DEGREES 44 MINUTES I I SIiCONDS EAST, A DISTANCE OF 2347.37
FEET TO A 1/2" IRON ROD FOUND FOR CORNER;
NORTH 53 DEGREES 47 MINUTES 45 SECONDS EAST, A DISTANCE OF 3532.09
FEET TO A 1/2~ IRON ROD FOUND FOR CORNER 1~1 THE SOUTH ~ OF
BOYD ROAD AS DESCRIBED IN DEF23 TO TI-IE COUNTY OF DENTON
RECORDED IN VOLUME 400, PAGE 323, DEF. D RECORDS, DENTON COUNTY,
TEXAS;
TI-IENCE, SOUTH 89 DEGREES 36 MINUTES 23 SECONDS I~AST, ALONG S.4_[T~ SOUTH
LI2~ OF BOYD ROAD AND THE NORTH LINE OF SAID 324.084 ACRE TRACT, A
DISTANCE OF 1160.97 F~ET TO A 1/2" IRON ROD FOUND FOR NORTHEAST CORNER
OF SAID TRACT IN THE WEST I.ZNE OF U.S.A. TRACT G626 OF TH~ GARZA-LITTLE
ELM RESERVOIR PROJECT (NOW CALLED LAKE LEWISVILLE) CONVEYED BY
DEED RECORDED IN VOLUlVIE 381, PAGE 423, DEED RECORDS, DENTON COUNTY,
TEXAS;
THENCE, ALONG THE EAST LINE OF SAID 324.084 ACRE TRACT AND U.S.A. TRACT
NO 0-626 THE FOI.LOWINO SIX COURSES AND DISTANCES:
SOUTH 19 DEGREES 20 MINUTES 20 SECONDS EAST, PASSING C.O.E.
MONUMENT NO. 626-7 FOUND AT 27.78 FEET, AND CONTINUING rN ALL A
TOTAL DISTANCE OF 416.72 FEET TO C.O.E. MONUMENT NO. G626-6 FOUND
FOR CORNER;
SOUTH 00 DEGREES 35 MINUTES 31 ;SECONDS WEST, A DISTANCE OF 403.72
FEET TO C.O.E. MONUMENT NO. G626-5 FOUND FOR CORNER;
SOlYrtt 45 DEGREEg 48 MllqUTES 38 SECONDS WEST, A DISTANCE OF 219.95
FEET TO C.O.E. MONUMENT NO. 06264 FOUND FOR CO~
SOUTH 21 DEGREES 42 MllqUTES 53 SECONDS EAST, A DISTANCE OF 504.77
FEET TO C.O.E. MONUMENT NO. 0626-3 FOUND FOR CORNER;
SOUTH 64 DEGREES 44 M1NIJTES 03 SECONDS EAST, A DISTANCE OF 550.27
FEET TO C.O.E.' MONUMENT NO. 0626-2 FOUND FOR CORNER;
SOUTH 16 DEGREES 23 MINUTES 14 SECONDS WEST, A DISTANCE OF 516.70
FEET TO C.O.E. MONUME~ NO. ~626-1 FOUND FOR CORNER;
TI'~.NCE, SOUTI-I 88 DI~.OR.EES 52 1VfINUTES 21 ~ECO1N-DS EAST, CONTINI.J]~Q ~ONO
~ SOU~ L~ OF SA~ U.S.A. ~~ G~26, A DIST~CE OF 180.76 F~T TO
C.O.E. MOUNT NO. G627-1 FO~ FOR CO~ S~ ~ BErG ~
NORT~AST CO~ OF ~O~S~ 182.79 AC~ KOB~T E. S~ ~ ~
~ NOK~ ~ST CO~K OF U.S.A. T~ G627 CO~~D BY DEED
~CO~ ~ VOL~ 38~, PAGE 99 ~ MODreD BY Q~ ~ DEED TO E.
S~ ~ O~ ~ ~ ~CO~D ~ VOL~ ~8, PAGE 418, ~
PKOP~ ~CO~S, DENTON CO~, ~S;
T~CH~ ~ONG ~ E~T L~ OF S~ ~ ~ ~ ~ ~ST L~ OF
U.S.A. ~~ G627 ~ FOLLO~G TEN CO~ES ~ DIST~CES;
SO~ 32 DEG~ES 43 ~S 30 SECO~S EAST, A DIST~CE OF 719.98
~ET TO C.O.E. MO~~ NO. ~27-2 FO~ FOR CO~
~O~ 01 DEO~ 14 ~~ 39 SECO~S ~ST, A DIST~CE OF
FE~ TO C.O.E. MOUNT NO. G~27-3 FO~ FOR CO--R;
NOR~ 77 DEG~ES 49 ~ES 13 SECO~S ~ST, A DIST~CE OF 250.67
FEET TO C.O.E. MO~~ NO, G627~ FO~ FOR CO--R;
NOK~ 27 D~G~ES I I ~S 57 SECO~S ~ST, A DIST~CE OF 277.42
F~T TO C.O.E. MO~~ NO. G627-4A FO~ FOR CO~ AT ~E
SO~H CO~ OF A 0.23 AC~ ~ OF LA~ CO~~ FROM
KOBERT E. S~ TO U.S.A. BY DEED ~CO~ED ~ VOL~ 2457, PAGE
193, ~ PROPER~ ~O~, DENTON CO~, ~S;
NOR~ 03 DEG~ES ~ M~S 27 SECO~ ~ST, A DI~~ OF
~ TO C.O.E. MO~ NO. ~27~B FO~ FOR CO--R;
NOR~ 17 DEG~ES 12 ~~S 22 SECO~$ ~ST, A DIST~CE OF 117.41
FE~ TO C.O.E. MO~~ NO. ~627~C FO~ FOR CO~
SO~H 74 DE~ES 1~ ~ES 55 SECO~S ~T, A DIST~ OF 72.~3
FEET TO C.O.E. MO~ NO. ~27~D FO~ FOR CO~;
NORTH 27 DEGAS I I ~S 57 SECO~S ~ST, A DIe,CE OF 148.3~
~ET TO C.O.E. MOUNT NO. ~27-5 FO~ FOR CO~
SOU~ 19 DEG~ 07 ~S 15 S~CO~S ~T, A DIST~ OF ~3.35
FEET TO C.O.E. MOUNT NO. G627~ FO~ FOR CO~
SO~H 24 DEG~ES 59 ~S 0S SECO~S ~ST, A DIST~CE OF 4~.68
FEET TO C.O.E. MO~~ NO. ~27-7 FO~ FOR CO--R, S~ ~
BEING THE NORTHWEST CORNER OF A U.S.A. TRACT G628 CONVEYED BY
DEED RECORDED IN VOLUME 385, PAGE 99 AND MODIFIED BY QUIT CLAIM
DE]ED TO E. SMITH AND ORA MAE SMITH R.F-~ORDED IN VOLUM~ 468, PAO]E
418, REAL PROPERTY RECORDS, DENTON COUNTY, TEXAS;
THENCE, CONTINUING ALONG THE EAST L~ OF SAID STRIEF TRACT AND THE
WEST LINE OF SAID U.S.A. TRACT 0628 THE FOLLOWING THREE COURSES AND
DISTANCES:
SOUTH 30 DEGREES 03 MINUTES 06 SECONDS WEST, A DISTANCE OF 393.$9
FEET TO C.O.E. MONUMENT NO. 0628-2 FOUND FOR CORNER;
SOUTH 47 DEGRIEES 3! MINUTES' 21 SECONDS WEST, A DISTANCE OF
1038.81 FEET TO C.O.E. MONUMENT NO. G625-3 FOUND FOR CORNER;
SOUTH 14 DEGREES 19 MINUTES 34 SECONDS WEST, A DISTANCE OF 196.63
FEET TO C.O.E. MONUMENT NO. G625-~ FOUND FOR CORNER IN THE SOUTH
LINE OF SAYD STRIEF TRACT;
THENCE, NORTH 88 DEGREES 23 MINU'rES 26 SECONDS WEST, ALONG THE SOUTH
LINE OF SAID STRIEF TRACT A DISTANCE OF 375.97 FEET TO A 5/8" IRON ROD
WITH PLASTIC CAP STAMI~ED "CARTER & BURGESS" SET FOR CORNER;
THENCE, CONTINUING ALONG SAID SOUTH LINE AND THE NORTHWESTERLY
LINE OF U.S.A. TRACT (]628, THE FOLLOWYNG TWO COURSES AND DISTANCE:
NORTH 43 DEGREF~ 44 MINUTF~ 52 SECONDS WEST, A DISTANCE OF 148.52
F _~-I;-T TO THE REMArNs OF CO.E. MONUMENT NO. 0628-6 FOUND FOR
CORNER;
SOUTH 09 DEGREES 08 ~]lqUTES I4 SECONDS 3A~3ST, A DISTANCE OF 113.21
FEET TO A 1/2" IRON ROD FOUND FOR CORNER IN THE SOUTH LINE OF SA[I3
STRIEF TRACT;
THENCE, NORTH 88 DEOREBS 56 MINUTES 00 SECONDS WEST, CONTINUING
ALONG THE SAID SOUTH LINE OF STRIP, F TRACT, A DISTANCE OF 2.85 FEET TO A
5/8" IRON ROD WITFI PLASTIC CAP STAI~ED "CARTER & BURGESS" SET FOR
CORNER IN THE SOUTHttASTERLY LINE OF AFORESAID 324.084 ACRE WYNNWOOD
PENINSULA, LTD., TRACT AND THE NOR~STERLY LINE OF U.S,A. TRACT NO
0608 CONVEYED BY CONDEMNATION DEED RECORDED IN VOLUME 384, PAGE 162
AND MODIFIED BY QUIT CLAIM DEED TO O.N. SEAGRAVES, ET UX RECORDED IN
VOLUME 465, PAGE 694, DEED RECORDS, DENTON COUNTY, TEXAS;
THENCE, ALONG SAID SOUTHEASTERLY LINE OF 324.084 ACRE TRACT AND SAID
NORTHWESTERLY LINE OF U.S.A. TRACT G608 THE FOLLOWING SEVEN COURSES
AND DISTANCES:
SOUTH 42 DEGR~.I~.S 33 MINLFFE~ 37 SECONDS WEST, A DISTANCE OF 337.43
FEET TO C.O.E. MONUMENT NO. G608-10 FOUND FOR CORNER;
SOUTH 15 DEGREES 59 MINUTES 41 SECONDS WEST, A DISTANCE OF 199.68
FReT TO C.O.E. MONUMENT NO. G608-9 FOUND FOR CORNER;
NORTH 83 DEGREES 1t5 MINUTES 00 SECONDS WEST, A DISTANCE OF 199.79
FEET TO C.O.E. MONUMENT NO. G608-$ FOUND FOR CORNER;
SOUTH 20 DEGREES 15 M/NUTES 25 SECONDS WEST, A DISTANCE OF 230.29
FEET TO C.O.E. MONUMENT NO. G608-7 FOUND FOR CORNER;
NORTH 31 DEGP, EP~ 01 MINUTES 55 SECONDS WEST, A DISTANCE OF 559.14
FEET TO C.O.E. MONUMENT NO. G608-6 FOUND FOR CORNER;
NORTH 53 DEGREES 42 MINUTF. S 38 SECONDS WEST, A DISTANCE OF 119.89
FEET TO C.O.E. MONUME~ NO. G608-5 FOUND FOR CORNER;
SOUTH 04 DEGREES 23 MINUTES I I SECONDS WEST, A DISTANCE OF 50.81
FEET TO C.O.E. MONUMENT NO. 603-2-3 FOUND FOR CORNER, SAID POINT
BEING THE NORTH EAST CORNER OF U.S3,. TRACT NO. G603-2 CONVEYED
BY CONDEMNATION DEED RECORDED IN VOLUME 383, PAGE 30 AND
MODIFIED BY QUIT CLAIM DEED LEONARD V. GUMM, ET AL RECORDED IN
VOLUME 419, PAGE 46, DEED RECORDS, DENTON COUNTY, TEXAS;
THENCE, CONTINUING ALONG SAID SOUTHEASTERLY LINE OF 324.084 ACRE
TRACT AND THE NORTH AND W~e. ST LnxIES OF SAID U.S..A. TRACT NO. 0603-2 TITE
FOLLOWING TWO COURSES AND DISTANCES:
NORTH 68 DEGREES 44 MINUTES 45 SECONDS WEST, A DISTANCE OF 300.21
FEET TO C.O.E. MONUMENT NO. G603-2-2 FOUND FOR CORNER;
SOUTH 18 DEGREES 14 MINU~S 44 SECONDS EAST, A DISTANCE OF 850.05
FEET TO C.O.E. MONUMENT NO, G603-2-1 FOUND FOR CORNER;
THENCE, SOUTH 01 DEGREES 03 MINUTES 59 SECONDS WEST, ALONG
CONTINUI]qG ALONG THE SAID SOUTHEASTERLY LINE OF SA/D 324,084 ACRE
TRACT, A DISTANCE OF 188.40 FleET TO C.O.E. MONUMENT NO. G603-1-13 FOUND
FOR CORNER, SAID POINT BEING THE NORTHEAST CORNER OF U.S.A. TRACT NO
G603-1 CONVEYED BY CONDEMNATION DEED RECORDED IN VOLUME 383, PAGE
30 AND MODIFIED BY QUIT CLAIM DEED TO LEONARD V. GUMM, ET AL
RECORDED IN VOLUME 419, PAGE 46, DEED RECORDS, DENTON COUNTY, TEXAS:
THENCE, CONTINU~G ALONG SAID SOUTHEASTERLY LINE AND THE
NORTHWESTERLY LINE OF SAID U.S.A. TRACT NO. G603-1 THE FOLLOWING
TWELVE COURSES AND DISTANCES:
NORTH 70 DBGREBS 47 MINUTES 04 SECONDS W]BST, A DISTANCE OF 699.72
FEET IO C.O.E. MOlqlJIvlENT NO. O603-1-12 FOUND FOR CORNER;
SOUTH 20 DEGREES 17 MINUTES I I SECONDS EAST, A DISTANCE OF 775.43
FEET TO C.O.E. MONUMENT NO. G603-1-11 FOUND FOR CORNER:
SOUTH 48 DEGREES 19 MINUTES 12 SECONDS WEST, A DISTANCE OF 700.08
FF_,ET TO C.O.E. MONUMENT NO. G603-1-10 FOUND FOR CORNER;
SOUTH 89 DEOREF~ 03 MINUTES 12 SECONDS WEST, A DISTANCE OF 330.13
FEET TO C.O.E. MONUMENT NO. G003-1-9 FOUND FOR CORNER;
NORTH a2 DEGREES 06 MINUTES 31 SECONDS W'EST, A DISTANCE OF 499.78
FEET TO C.O.E. MONUMENT NO. G603-1-8 FOUND FOR CORNER;
NORTH 75 DEGREES 21 MINUTES 37 SECONDS WEST, A DISTANCE OF 399.88
FEET TO C.O,E. MONUMENT NO. G603-1-7 FOUND FOR CORNER;
SOUTH 25 DEGREES 31 MINLFFES 53 SECONDS EAST, A DISTANCE OF 460.27
FEET TO C.O.E. MONUMENT NO. G603-1-6 FOUND FOR CORNER;
SOUTH 83 DEGREES 46 MINUTES 49 SECONDS WEST, A DISTANCE OF 450.32
FEET TO C.O.E. MONUMENT NO. 13603-1-5 FOUND FOR COKNER;
NORTH 23 DEGREES 47 MINUTES 57 SECONDS BAST, A DISTANCE OF 300.02
FEET TO C.O.E. MONUMENT NO. G603-1-4 FOUND FOR CORNER;
NORTH 45 DEGREES 50 lVIJNUTES 26 SECONDS WEST, A DISTANCE OF 375.20
FEET TO C.O.E. MONUMENT NO. G603-1-3 FOUND FOR: CORNER;
NORTH 18 DEGREES 18 MINUTES 20 SECONDS WEST, A DISTANCE OF 799.87
FEET TO C.O.E. MO~ NO. G603-1-2 FOUND FOR CORN'ER;
SOUTH 06 DEGREES 02 MINUT~ 45 SECONDS WEST, A DISTANCE OF 1374.81
FEET TO C.O.E. MONUMENT NO. G603-1-1 FOUND FOR. CORNER IN THE
SOUTH LINE OF SAID 324.084 ACI~ TRACT;
THENCE, NORTH 89 DEGREF_3 19 MINUTES 24 SECONDS WEST, ALONG SAID SOUTH
LINE, PASSING C.O.E. MONUMENT NO. G607-1 AT 539.98 FILET AND CONTINUING IN
ALL A TOTAL DISTANCE OF 559.96 FEET TO A 1/2' IRON ROD FOUND FOR CORNER,
SAID POINT BEING THE SOL1THWEST CORNER OF SAID 3'24.084 ACRE WYNNWOOD
PENINSULA, LTD., TRACT;
THENCE, NORTH 01 DEGREES 01 MINUTES 30 SECONDS I~AST, ALONG THE WEST
LINE OF SAID 324.084 ACRE TRACT, PASSING A 1/2" IRON ROD FOUND AT 132.80
FEET AND CONTINUING 1N ALL A TOTAL DISTANCE OF 136.52 FEET TO A 5/8" IRON
ROD WITH PLASTIC CAP STAMPED "CARTER & BURGESS" SET FOR CORNER; SAID
CORNER BEING THE SOUTHEAST CORNER OF AFORESAID 56.584 ACRE
WYNNWOOD PENINSUI~ LTD. TRACT;
THENCE, NORTH 89 DEGREES 10 MINUTES 23 SECONDS WEST, ALONG THE SOUTH
LINE OF SAID 56.584 ACRE TRACT, A DISTANCE OF 2153.69 FEET TO THE POINT OF
BEGINNING AND CONTAINING 605.795 ACRES OF LAND, MORE OR LESS.
SAVE AND EXCEPT TRACT A:
LESS A 10 FOOT WIDE STRIP OF LAND ADJACENT AND PARALLEL TO THE
BOUNDARY OF THE ABOVE DESCRIBED PROPERTY AND BEING 7.639 ACRES OF
LAND. LF.A¥INO A NET ACREAGE OF 598.156 ACRES OF LAND.
TRACT B:
BEING A 5.707 ACRE TRACT OF LAND SITUATED IN THE BBB & CCR SURVEY,
ABSTRACT NO. 182, IN THE CITY OF THE COLONY, DENTON COUNTY, TEXAS, AND
BEING ALL OF TRACT 1, 5.704 ACRE TRACT OF LAND CONVEYED TO WYNNWOOD
PENINSULA,.LTD., BY DEED RECORDED IN COUNTY CLERKS FILE 93-ROO48821,
REAL PROPERTY RECORDS OF DENTON COUNTY, TEXAS. SAID 5.707 ACRE TRACT
OF LAND BEING MORE PARTICULARLY DESCRIBED BY METES AND BOUNDS AS
FOLLOWS:
BEGINNING AT A 5/$" IRON ROD WITH PLASTIC CAP STAMPED "CARTER &
BURGESS" SET FOR THE NORTHW]~ST CORNER OF SAID 5.707 ACRE WYNNWOOD
PENINSULA, LTD. TRACT, SAID POINT BEING IN THE OCCUP~ SOUTH LINE OF
BOYD ROAD AS CONVEYED BY DEED TO THE COUNTY OF DENTON RECORDED IN
VOLUME 400, PAGE 323, DEED RECORDS, DENTON COUNTY TEXA~, SAID CORNER
BEARS NORTH 89 DEGREES 24 MINUTES 17 SECONDS EAST 467.96 FEET FROM A
1/2" IRON ROD FOUND FOR THE NORTI~AST CORNER OF A 324.084 ACRE TRACT
OF LAND CONVEYED BY DEED TO WYNNWOOD PENINSULA, LTD. RECORDED IN
SAID COUNTY CLERKS FILE 93-R0048821, REAL PROPERTY RECORDS, DENTON
COUNTY, TEXAS;
THENCE, SOUTH 89 DEGREES 20 MINUTES 59 SECONDS EAST, ALONG SA!~ SOUTH
LINE AND ~ NORTH LINE OF SALT) 5.707 ACRE TRACT, A DISTANCE OF 390.20
FEET TO A 5/8" IRON ROD WITH PLASTIC CAP STAMPED "CARTER & BURGESS" SET
FOR CORNF~
TKENCE, SOUTI-I S9 DEGREES 12 MINUTES 44 SECONDS EAST, CONTINUING ALONG
SAID SOUTH LINE AND THE NORTH LINE OF SAID 5,707 ACRE TRACT, A DISTANCE
OF 229.80 FEET TO A FENCE CORNER POST FOR CORN~Pq
THENCE, SOUTH 08 DEGREES 02 MINUTES 19 SECONDS WEST, ALONG THE
NORTHERLY LINE OF U.S.A. TRACT G~2~ OF THE GARZA-LITTLE ELM RESERVOIR
PROJECT (NOW CALLED LAKE LEWISVILLE) CONVEYED BY DF, ED RECORDED IN
VOLUM~ 3 8 1, PAGE 423, DEED KI~CORDS, DENTON COUNTY, TEXAS; A DISTANCE
OF 497.20 FEET TO C.O.E MONUMENT NO. 626-1 0 FOUND FOR CORNER;
THENCE, SOUTH 76 DEGREES 03 MINUTES 46 SECONDS WEST, CONTINUING
ALONG SAID NORTHERLY LINE, A DISTANCE OF 309.51 TO A 5/8" IRON POD WITH
PLASTIC CAP STAMPED "CARTER & BURGESS" SET FOR CORNER 2 FEET SOUTH OF
AND 2.5 FEET WEST OF A FENCE CORNER POST; '
THENCE, NORTH 23 DEGRRRS 31 MINUTES 15 SECONDS WEST, CONTINUING
ALONG SAID NORTHERLY LINE, A DISTANCE OF 626.50 FEET TO THE POINT OF
BEGINNING AND CONTAINING §.707 ACRES OF LAND, MORE OR LESS.
SAVE AND EXCEPT TRACT B:
LESS A 10 FOOT WIDE STRIP OF LAND ADJACENT AND PARALLEL TO THE
BOUNDARY OF THE ABOV]~ DESCRIBED PROPERTY AND BEING 0.462 ACRES OF
LAND. LEAVTN'G A NET ACREAGE OF 5.245 ACRES OF LAND.
rS -r b"
STATE OF TEXAS §
COUNTY OF DENTON §
This Tax Abatement Agreement (the "Agreement") is entered into by and
between the City of The Colony, Texas (the "City"), a home rule city and municipal
corporation of Denton County, Texas, duly acting herein by and through its Mayor, and
(hereinafter referred to as "Owner"), a corporation,
acting by and through its authorized officers for the purposes and considerations stated
below.
WITNESSETH:
WHEREAS, on or about ., 2000, the City Council of the City of
The Colony, Texas, passed Ordinance No. (the "Zone"), for residential,
commercial/industrial tax abatement, as authorized by the Property Redevelopment and
Tax Abatement Act, Chapter 312 of the Texas Tax Code, as amended (the "Tax Code");
and
WHEREAS, the City has adopted guidelines and criteria for tax abatement
pursuant to Section 312.002 of the Code by passage of Resolution No. on the
__ day of ,2000, (the "Tax Abatement Guidelines") attached hereto
as Exhibit "A" and made a part hereof for all purposes; and
WHEREAS, the Tax Abatement Guidelines contain appropriate guidelines and
criteria governing tax abatement agreements to be entered into by the City as
contemplated by the Tax Code; and
WHEREAS, the City has adopted a resolution stating that it elects to be eligible to
participate in tax abatement; and
WHEREAS, in order to maintain and enhance the residential, commercial and
industrial economic and employment base of the area, it is in the best
interests of the taxpayers for the City to enter into this Agreement in accordance with the
Ordinance, the Tax Abatement Guidelines, and the Tax Code; and
WHEREAS, the Owner's relocation and expansion efforts described herein will
create permanent new jobs in the City; and
WHEREAS, the City Council finds that the contemplated use of the Property
(hereinafter defined), the contemplated improvements to the Property in the amount set
forth in this Agreement, and the other terms hereof are consistent with encouraging
development of the Zone in accordance with the consistent with encouraging
development of the Zone in accordance with the purposes for its creation and/or in
compliance with the Tax Abatement Guidelines, the Ordinance adopted by the City, the
Tax Code, and all other applicable laws; and
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WHEREAS, the City Council finds that the improvements sought are feasible and
practicable and would benefit to the land to be included in the Zone and to the City after
expiration of this Agreement; and
WHEREAS, a copy of this Agreement has been furnished, in the manner
prescribed by the Code, to the presiding officers of the governing bodies of each of the
taxing units in which the premises to be subject to this Agreement is located;
NOW, THEREFORE, in consideration of the mutual benefits and promises
contained herein and for other good and valuable consideration, the adequacy and receipt
of which is hereby acknowledged, including the expansion of primary employment, the
attraction of major investment in the Zone, which contributes to the economic
development of the City and the enhancement of the tax base in the City, the parties agree
as follows:
I. DEFINITIONS
1. Wherever used in this Agreement, the following terms shall have the
meanings ascribed to them:
A. The Property shall mean the Land (hereinafter defined) and any
improvements and personal property, excluding inventory, which is added to the
Property subsequent to the execution of this Agreement.
B. The Improvements shall mean the contemplated improvements described
herein located on the Property and as further described in the plans submitted to
the City, including but not limited to buildings, structures, tangible personal
property, equipment, and fixtures added to the Property other than inventory.
C. The Total Assessed Tax Value shall mean the total assessed taxable value
on January 1 of any tax year of the Property, and Improvements located on the
Property, and the tangible personal property, excluding inventory, located on the
Property.
D. The Base Year Tax Value shall mean the Total Assessed Tax Value for the
year in which the Tax Abatement Agreement is executed (2000).
E. The First Year of the Tax Abatement Agreement shall be 2000, unless
otherwise agreed to by the parties.
F. Certified Appraisal Value means the appraised value of the Property as
certified by. Appraisal District as of January 1 of each year in
which the tax abatement is granted.
G. Current Year Tax Value means the Total Assessed Tax Value for the year
in which the tax abatement agreement is executed.
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II. GENERAL PROVISIONS
1. Owner is developing [or under contract to purchase] that parcel of land
described in Exhibit "B" which is attached hereto for all purposes (the "Land"), which
Property is located within the city limits of the City and within the Zone.
2. The Land is not in an improvement project financed by tax increment
bonds.
3. This Agreement is entered into subject to the rights of the holders of
outstanding bonds of the City.
4. The Property is not owned or leased by any member of the
City Council or any member of the City Planning and Zoning Commission, or any
member of the governing body of any taxing units joining in or adopting this Agreement.
5. All improvements shall conform to the City's Comprehensive Zoning
Ordinance, as amended, and the City's Comprehensive Plan, and all other applicable
ordinances and regulations.
III. TAX ABATEMENT AUTHORIZED
1. This Agreement is authorized by the Texas Property Redevelopment and
Tax Abatement Act of the Texas Tax Code, Chapter 312, and in accordance with the City
Tax Abatement Guidelines and Criteria, and approved by resolution of the City Council
of the City authorizing the execution of this Agreement.
2. Subject to the terms and conditions of this Agreement, the City hereby
grants an abatement of ad valorem taxation on real and/or personal property of
percent (100%) for a period of ten (10) years.
The actual percentage of value and taxes subject to abatement for each year of this
Agreement will apply only to the portion of the taxable value of the real property or of
the tangible personal property located on the real property, or both, that exceeds that
property's taxable value for the year in which this Agreement is executed (base year:
2000). The tax abatement agreement for tangible personal property may only apply to
the personal property added to the real property after this Agreement is executed.
Taxable value of property for each year of abatement less base year taxable value equals
excess taxable value subject to the abatement percentage above.
3. The period of tax abatement herein authorized shall be ( )
years, beginning on January 1, 2000 and continuing until December 31, 2000, unless
otherwise terminated or extended as set forth herein or amended by the parties pursuant
to the Texas Tax Code.
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4. During the period of tax abatement herein authorized, Owner shall be
subject to all City taxation not abated, including but not limited to, sales tax and ad
valorem taxation on land, inventory, and supplies.
IV. IMPROVEMENTS
1. Owner has purchased or will purchase the Property and agrees to construct
improvements to the Property for a [use] , consisting of [description] with
the following:
[list any development specifications]
The approximate locations of such Improvements are shown on the Site Plan of
the Property attached hereto as Exhibit "C" and made a part hereof for all purposes.
Nothing in this Agreement shall obligate Owner to construct Improvements on the
Property, but said Improvements are a condition precedent upon initiation of tax
abatement pursuant to this Agreement.
2. Subject to the terms and conditions of this Agreement, Owner is entitled to
an abatement of ad valorem taxation on its real property and/or personal property of
percent (100%) for a period of ten (i0) years.
V. CONSTRUCTION Of IMPROVEMENTS
1. As a condition precedent to the initiation of tax abatement pursuant to this
Agreement, Owner shall diligently and faithfully, in a good and workmanlike manner,
pursue the completion of the contemplated improvements before ,2000,
as good and valuable consideration for this Agreement. All construction of the
Improvements shall be in accordance with all applicable state and local laws, codes, and
regulations (or valid waiver thereof); provided that Owner shall have such additional time
to complete and maintain the Improvements as may be required in the event of "Force
Majeure" while Owner is diligently and faithfully pursuing completion of the
Improvements. For this purpose, "Force Majeure" shall mean any contingency or cause
beyond the reasonable control of Owner including, without limitation, acts of God or the
public enemy, war, riot, civil commotion, insurrection, adverse weather, government or
de facto governmental action (unless earned by acts or omissions of Owner), fire,
explosion, flood, strike, work slowdowns or stoppages.
2. Owner agrees to maintain the Property and the Improvements during the
term of this Agreement in accordance with all applicable state and local laws, codes, and
regulations.
3. The City, its agents and employees shall have the right of access to the
construction to inspect the Improvements at reasonable times and with reasonable notice
to Owner and in accordance with Owner's visitor access and security policies, in order to
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insure that the construction of the Improvements are in accordance with this Agreement
and all applicable state and local laws and regulations (or valid waiver thereof).
VI. GENERAL REQUIREMENTS
1. Construction plans for the Improvements constructed on the Property will
be filed with the City. The plans for such Improvements as filed shall be deemed to be
incorporated by reference herein and made a part hereof for all purposes.
2. Owner agrees from the date a certificate of occupancy is issued until the
expiration of this Agreement to continuously operate and maintain the Property as a
[use], or any other activity consistent with local zoning, in compliance with all applicable
federal, state and local laws.
3. After completion of the improvements, Owner shall certify in writing to
the City the construction cost of the Improvements. Such certification shall be signed by
all parties to this Agreement and shall then be attached hereto as Exhibit "D", and such
Exhibit shall become a part of this Agreement for all purposes.
4. The Property and the Improvements constructed thereon at all times shall
be used in the manner (i) that is consistent with the City's Comprehensive Zoning
Ordinance, as amended, and (ii) that, during the period taxes are abated hereunder, is
consistent with the general purposes of encouraging development or redevelopment
within the Zone.
VII. DEFAULT: RECAPTURE OF TAX REVENUE
1. In the event Owner fails in performance of the requirements of this
Agreement by: (i) failing to complete the Improvements in accordance with this
Agreement or in accordance with applicable State or local laws, codes, or regulations; (ii)
having any delinquent ad valorem or State sales taxes owed to the City (provided Owner
retains the right to timely and properly protest such taxes or assessment); or (iii)
breaching any of the terms and conditions of this Agreement, then Owner, after the
expiration of the notice and cure periods described in Paragraph 20 below, shall be in
default of this Agreement. As liquidated damages in the event of such default, Owner
shall, within sixty (60) days after demand, pay to the City all taxes which otherwise
would have been paid to the City without benefit of a tax abatement, with interest at the
statutory rate for delinquent taxes as determined by Section 33.01 of the Tax Code, as
amended, but without penalty. The parties acknowledge that actual damages in the event
of default termination would be speculative and difficult to determine. The parties
further agree that any property tax revenue lost, including interest, as a result of this
Agreement shall be recoverable against Owner, its successors and assigns and shall
constitute a tax lien on the Property itself and shall become due, owing, and shall be paid
to the City within sixty (60) days.
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2. Upon breach by Owner of any obligations under this Agreement, the City
shall notify Owner in writing. Owner shall have sixty (60) days from receipt of the
notice in which to cure any such default. If the default cannot reasonably be cured within
a sixty (60) day period, and Owner has diligently pursued such remedies as shall be
reasonably necessary to cure such default, then the parties shall automatically necessary
to cure such default, then the parties shall automatically extend the period in which the
violation must be cured for an additional sixty (60) days.
3. If Owner fails to cure the default within the time provided as specified in
Paragraph 20 above or as such time period may be extended, then the governing body of
the City, at its sole option, shall have the right to terminate or modify this Agreement by
written notice to Owner.
4. Upon termination of this Agreement pursuant to Paragraph 20 above, all
tax revenue abated as a result of this Agreement shall become a debt to the City as
liquidated damages, and shall become due and payable not later than sixty (60) days after
notice of termination is made. The City shall have all remedies for the collection of the
recaptured tax revenues provided generally in the Tax Code for the collection of
delinquent property tax. The City at its sole discretion has the option to provide a
payback schedule. The computation of tax revenue abated for the purposes of the
Agreement shall be based upon the full taxable value without tax abatement for the years
in which tax abatement hereunder was received by Owner with respect to the Property, as
determined by the Denton County Appraisal District, multiplied by the tax rate of the
years in question, as calculated by the City Tax Assessor-Collector. Penalties as
provided for delinquent taxes shall accrue after expiration of the sixty (60) day payment
period.
VIII. ANNUAL APPLICATION FOR TAX EXEMPTION
1. It shall be the responsibility of Owner, pursuant to the Texas Tax Code, to
file an annual exemption application form with the Chief Appraiser for each appraisal
district in which the eligible taxable personal property has situs. A copy of the exemption
application shall be submitted to the City for review.
IX. ANNUAL CERTIFICATION
1. It shall be the responsibility of the Owner to certify annually to the City
and to the governing body of each taxing unit that the Owner is in compliance with each
applicable term of this Agreement.
X. SUCCESSORS AND ASSIGNS
1. This Agreement shall be binding on and inure to the benefit of the parties
to it and their respective heirs, executors, administrators, legal representatives,
successors, and assigns. This Agreement may be assigned with the consent of the City.
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XI. NOTICE
1. All notices required by this Agreement shall be addressed to the following,
or other such other party or address as either party designates in writing, by certified
mail, postage prepaid, or by hand delivery:
If intended for Owner, to:
If intended for City, to:
XII. CITY COUNCIL AUTHORIZATION
1. This Agreement was authorized by resolution of the City Council
authorizing the Mayor to execute this Agreement on behalf of the City.
XIII. ESTOPPEL CERTIFICATE
1. Any party hereto may request an estoppel certificate from another party
hereto so long as the certificate is requested in connection with a bona fide business
purpose. The certificate, which if requested will be addressed to Owner or a subsequent
purchaser or assignee of Owner, shall include, but not necessarily be limited to,
statements that this Agreement is in full force and effect without default (or, if default
exists, the nature of default and action which should be undertaken to cure the default),
the remaining term of this Agreement, the levels of abatement in effect, and such other
matters reasonably requested by the party(ies) to receive the certificate. A party
providing a certificate must provide the certificate to the party requesting the same within
thirty (30) days of receipt of a written request for said certificate.
XIV. SEVERABILITY
1. In the event any section, subsection, paragraph, sentence, phrase, or word
herein is held invalid, illegal, or unconstitutional, the balance of this Agreement shall
stand, shall be enforceable and shall be read as if the parties intended at all times to delete
said invalid section, subsection, paragraph, sentence, phrase, or word.
XV. APPLICABLE LAW
1. This Agreement shall be construed under the laws of the State of Texas.
Venue for any action under this Agreement shall be the State District Court Denton
County, Texas. This Agreement is performable in Denton County, Texas.
XVI. COUNTERPARTS
1. This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original and constitute one and the same instrument.
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