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Home My WebLink AboutResolution No. 06-011 RESOLUTION NO. 06- (f)/I ORIGINAL A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS, APPROVING THE TERMS AND CONDITIONS OF THE DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF THE COLONY AND FLOURNOY DEVELOPMENT CO. FOR THE PPURCHASE OF TWO WESTERN LANES OF SOUTH COLONY BLVD. FROM MEMORIAL DR. TO SH 121, WHICH IS ATTACHED HERETO AND INCORPORATED HEREIN AS EXHIBIT "A"; AUTHORIZING THE CITY MANAGER TO EXECUTE THE CONTRACT; AND PROVIDING AN EFFECTIVE DATE WHEREAS, the City has determined that it is in the best interest of the City to enter into the Contract with Flournoy Development Co., which is attached hereto and incorporated herein by reference as Exhibit "A," under the terms and conditions provided therein. WHEREAS, with this Development Contract the City of The Colony is agreeing to pay the sum of$1,155,926.00 for such work.. THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS THAT: Section 1. The Development Contract, 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 6th day of February, 2006. ~ ...,.., -----... 'Gh11"tit:: Tyfil:sul1, City SGCIdtiryA ,)41f.."..~etoV 'b. ~Y'c..v ~ J Dillard, Mayor . y of The Colony, Texas [CITY SEAL] (-.' l , c... ,.; rcv ~ -y " ?;>;>; (- ^ ,,1' "!1;'?2.tWJJJf.r0' 63918 STATE OF TEXAS ~ ~ FACILITIES / DEVELOPMENT AGREEMENT ~ COUNTY OF DENTON This Development Agreement (the "Agreement") is made by and between the City of The Colony, a Texas Home Rule Municipality (the "City"), and Flournoy Development Company, LLC (the "Developer") (the City and the Developer are hereinafter referred to together as the "Parties"). RECITALS WHEREAS, the Developer intends to construct certain public improvements within the City of The Colony to wit: roadway improvements (hereinafter referred to as the "Project"), as depicted in Exhibit "A," which is attached hereto and incorporated herein by reference, on and for the benefit of the Property and the City; and WHEREAS, as a part of the Project, the Developer will require right-of-way acquisition for the City to extend and construct South Colony from its intersection with Memorial Drive to State Highway 121; and WHEREAS, upon completion of the construction and extension of the roadway as provided herein, the City desires to purchase said roadway from the Developer for the sum of one million, five thousand, one hundred and fifty-three dollars and no cents ($1,005,153.00); and WHEREAS, the Parties desire to enter into an agreement pursuant to TEXAS LOCAL GOVERNMENT CODE, Section 212.071 et Seq.; NOW, THEREFORE, for and in consideration of the above and foregoing premises, and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the Parties hereby agree as follows: ARTICLE I Incorporation of Premises The above and foregoing premises are true and correct and are incorporated herein and made a part hereof for all intents and purposes. 207456 v2 FACILITIES I DEVELOPMENT AGREEMENT - PAGE 1 62952 ARTICLE II Definitions 2.1 "City" shall mean the City of The Colony, Texas 2.2 "City Engineer" shall mean the City of The Colony City Engineer, or designee. 2.3 "Commencement of Construction" shall mean the grading and/or preparation of South Colony for extension and construction. 2.4 "Completion of Construction" shall mean: (i) substantially completed in accordance with the approved plans; and, (ii) the Project has been accepted by the City. 2.5 "Construction Documents" shall mean those certain plans and specifications prepared by Kimley-Horn & Associates, Inc., dated November 16, 2005, submitted for the design, installation and construction of the Project, and approved by the City, which are attached hereto. 2.6 "Developer" shall mean Flournoy Development Company, LLC. 2.7 "Effective Date" shall mean the last date of execution of this Agreement. 2.8 "Force Majeure" shall mean strikes, riots, acts of God, shortages of labor or materials, war, governmental approvals, laws, regulations, or restrictions, or any other cause of any kind, whatsoever, which is beyond the reasonable control of a party. 2.9 "Property" shall mean the property described in Exhibit "A," which is attached hereto. 2.10 "Project" shall collectively mean the Project to be constructed by the Developer pursuant to this Agreement. ARTICLE III Agreement 3.1 As a condition precedent to the obligation contained in this Agreement, the Developer shall obtain or cause the dedication of right-of-way as depicted in Exhibit "A" for the construction of the Project to be dedicated to the City of The Colony within ninety (90) days of execution of this Agreement. Further, as a condition precedent to the obligations contained herein, City shall obtain funding for the purchase of the Project through a pending funding reimbursement agreement with Denton County within ninety (90) days. In the event that such dedication or funding does not occur, then the obligations under this Agreement shall not have any force or affect. 3.2 Proiect Construction. A. The Developer agrees without cost to the City, to design, construct and install the Project in accordance with the Construction Documents. The Developer agrees to cause the construction of the Project after City approval of the Construction Documents and Developer's and/or City's receipt of all necessary right-of-way dedication documents and other permits necessary for Developer to commence construction, and to cause Completion (subject to Force Majeure) of Construction of the Project within one hundred and eighty (180) days thereafter. B. The Developer agrees to extend and construct, in accordance with the Construction Documents, two lanes of a roadway called South Colony, extending from 207456 v2 FACILITIES / DEVELOPMENT AGREEMENT - PAGE 2 62952 Memorial Drive to SH 121 as part of the construction of the Project, as depicted on Exhibit "A." C. Upon Completion of Construction of the Project, the City agrees to purchase from the Developer the public right-of-way for the sum of one million, five thousand, one hundred and fifty-three dollars and no cents ($1,005,153.00). In the event that there is an actual cost overrun from the amount set forth herein, Developer shall provide the City with a ninety (90) day notice, and thereafter Developer and City shall negotiate a reasonable adjustment in the Contract price not to exceed fifteen percent (15%) of the purchase price as recited herein. If the cost of construction is less than the original amount, the City and the Developer will prorate the savings according to each individual's cost compared to the sum of the two. D. The Developer shall provide the City Engineer with copies of all invoices and records showing the total cost of the design, construction, and installation of the Project, and such other information as may be reasonably requested by the City Engineer to verify such costs. ARTICLE IV Termination This Agreement may be terminated by the mutual written agreement of the parties. Either party may terminate this Agreement if the other party breaches any of the terms and conditions of this Agreement, and such breach is not cured (or cure of such breach is not commenced) by such party within sixty (60) days after receipt of written notice thereof. ARTICLE V Miscellaneous 5.1 Parties Bound~ Assienment. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective legal representatives, successors and assigns and shall be a covenant running with the land. This Agreement may not be assigned, transferred or otherwise conveyed by the Developer without the prior written consent of the City. This Agreement shall not be recorded in the public land records without the written consent of Developer and City. 5.2 Bonds. Developer agrees to execute a performance bond fQr the construction of the Project by the Developer to ensure completion of the Project in accordance with Chapter 2253 TEXAS GOVERNMENT CODE and Section 212.073 of the TEXAS LOCAL GOVERNMENT CODE, or to cause its contractors to provide such performance bonds, and payment bonds in forms reasonably satisfactory to the City for the construction and to ensure completion of the Project. 5.3 INDEMNIFICATION / HOLD HARMLESS. DEVELOPER DOES HEREBY RELEASE, INDEMNIFY AND HOLD HARMLESS THE CITY, ITS OFFICERS, AGENTS, EMPLOYEES, AND THIRD PARTY REPRESENTATIVES (COLLECTIVELY REFERRED TO AS "CITY") FROM ANY AND ALL 207456 v2 FACILITIES / DEVELOPMENT AGREEMENT - PAGE 3 62952 CLAIMS, DAMAGES, CAUSES OF ACTION OF ANY KIND WHATSOEVER, STATUTORY OR OTHERWISE, PERSONAL INJURY (INCLUDING DEATH), PROPERTY DAMAGE AND LAWSUITS AND JUDGMENTS, INCLUDING COURT COST, EXPENSES AND ATTORNEY'S FEES, AND ALL OTHER EXPENSES ARISING DIRECTLY OR INDIRECTLY FROM THE DEVELOPER'S PERFORMANCE OF THIS AGREEMENT. THE FOREGOING RELEASE AND INDEMNITY SHALL EXPIRE AND BE OF NO FURTHER FORCE AND EFFECT UPON THE CITY'S PURCHASE OF THE PUBLIC RIGHT-OF-WAY DESCRIBED IN SECTION 3.1 HEREINABOVE. 5.4 Notice. All notices required by this Agreement shall be in writing and addressed to the following, or such other party or address as either party designates in writing, by certified mail, postage prepaid or by hand delivery. Ifintended for Developer, to: Flournoy Development Company, LLC ATTN: Brady Blair, Vice President 900 Brookstone Centre Parkway Columbus, Georgia 31904 Facsimile No. (706) 324 - 4150 Ifintended for City, to: With a copy to: City of The Colony ATTN: City Manager 6800 Main Street The Colony, Texas 75056 Facsimile No. (972) 624-2312 Robert E. Hager, City Attorney Nichols, Jackson, Dillard, Hager & Smith 1800 Lincoln Plaza, 500 N. Akard Dallas, Texas 75201 Facsimile No. (214) 965-0010 5.5 COIDoliance with Laws. Developer shall fully comply with all local, state and federal laws, including all codes, ordinances and regulations applicable to this Agreement and the work to be done thereunder, which exits or which may be enacted later by governmental bodies having jurisdiction or authority for such enactment. 5.6 Warranty. The persons executing the same are authorized to execute this agreement on behalf of each of the respective parties. 5.7 Governinl! Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas. Venue shall be in Denton County, Texas. 5.8 Lel!al Construction. In case anyone or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. 207456 v2 FACILITIES / DEVELOPMENT AGREEMENT - PAGE 4 62952 5.9 Entire A2:reement. This Agreement constitutes the entire agreement and understanding between the City and the Developer. This Agreement may only be changed or modified with the written consent of the Developer and the City Council. Such modification may be requested by either party, but shall not, in any event, be effective unless and until approved by the City Council of the City. IN WITNESS WHEREOF, each of the Parties hereto has caused this Agreement to be executed by its undersigned duly authorized representative as of the date herein above first mentioned. EXECUTED on this lp1J.aay of :;Z-~006. CITY OF THE COLONY, TEXAS FLOURNOY DEVELOPMENT COMPANY 9~ciL Dale Cheatham, City Manager r"L _ '.~ !!)A~ Christie Wilson, City Secretary City of The Colony 207456 v2 F ACILITlES I DEVELOPMENT AGREEMENT - PAGE 5 62952 CITY'S ACKNOWLEDGMENT STATE OF TEXAS ~ ~ COUNTY OF DENTON ~ This instrument was acknowledged before me on the ~ day of Fea ,2006 by Dale Cheatham, City Manager of the City of The Colony, a Texas municipality, on behalf of said municipality. ~~ tary ~UbliC' State of Texas My Commission expires: rJ8-(JS- (/)8 .'""""""""""""",. I ~, MATTHEW D. DENTON .~ I W NllIIry Mile, I1I11t of TI... ~ 1"",~",:=,::,~~:J DEVELOPER'S ACKNOWLEDGMENT STATE OF HXA8 f!:JetJf1 if).... 1jZS(O! ~1JJ' k. Mtha- Notary Public, Statx..\~~~1 MU!>~ee.. ,,~'~\ \'"[ MO}?~~ ~\l? O~AA'.. I.'~ ~~ ~ r U' ~ !~ E)(PIRES % ~ GEC,.".GlA ~ ~ JUL~ 25,200& .)..J \~ bI....i\..\C /Sj ~ ~UD ~~ ~~~OGEE. q\\\\\\~ ///1111111111\1\\\\\ My Commission expires: 207456 v2 FACILITIES I DEVELOPMENT AGREEMENT - PAGE 6 62952 , I I \ \ '\\ \ " \ " " \ \ \ \ \ , \ \ EXHIBIT "A" , \. \ " I," " '\\ \\\ I \\ \ I ! II \\ \~' \ \ :' \\\, \\--~ \V'\\ \ \ ~[7- -j~: I \ \ ~,\.----- \\ ~ \" \ \ ~ j/; \\::::~ \\~;L::::::o ~--\\ '- " MEMO~LE~\VE_- - - - - L -\k <v~ ~\\\ II \ -~L------- ,-r ?1f\~)\~~)~3 . ~~ ~ - ---~-------- ~ \ \_~-- I '_ ..J.---:: - :-.----- _ ~ \~ :::::: - - - I \ _____ ----- ~ I ----- \ ~ \ \ I I ~ cn\ o~ C -i I 81 r' ~I -<: OJI r, <, 01 STATE HIGHWAY 121 PROPOSED ROADWAY (SHADED AREAS) SCALE 1" = 300' I _____ ~--~-- ~---- 1---~------- I I I I I I I I I I I I I I I I I I :-----1 I I I , . I. ~=~ ==..... 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