HomeMy WebLinkAboutResolution No. 07-040
CITY OF THE COLONY, TEXAS
RESOLUTION NO. 07- 01.../0
A RESOLUTION OF THE CITY OF THE COLONY, TEXAS,
AUTHORIZING THE CITY MANAGER TO ENTER INTO AN
OPTION AGREEMENT WITH WYNNWOOD PENINSULA, LTD.,
MATTHEWS SOUTHWEST, FOR THE FUTURE PURCHASE OF
A WATER WELL TO BE CONSTRUCTED IN WYNNWOOD
PENINSULA; ATTACHING THE APPROVED FORM OF
AGREEMENT AS EXHIBIT A; 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 City Council of the City of The Colony, Texas hereby
approves the OPTION AGREEMENT WITH WYNNWOOD PENINSULA, LTD.,
MATTHEWS SOUTHWEST, FOR THE FUTURE PURCHASE OF A WATER WELL
TO BE CONSTRUCTED IN WYNNWOOD PENINSULA.
Section 2. That a true and correct copy of the Agreement is attached hereto
and incorporated herein, as exhibit A.
Section 3. That the city manager is authorized to execute the Agreement on
behalf of the city.
Section 4. That this resolution shall take effect immediately from and after its
passage.
PASSED AND APPROVED by the City Council of the City of The Colony,
Texas, this 7th day of Mav. 2007.
ATTEST:
C)0-f~ LJ~~
hnstle WIlson, TRMC, City Secretary
STATE OF TEXAS ~
~
COUNTY OF DENTON ~
Option Agreement
This Option Agreement ("Agreement") is made by and between the City of The Colony,
Texas ("City") and Wynn wood Peninsula Venture, a Texas joint venture ("Company"), acting by
and through their respective authorized officers.
WITNESSETH:
WHEREAS, the Company is the owner of real property consisting of approximately
56.584 acres located in Wynn wood Peninsula located in the City of The Colony, Texas; and
WHEREAS, the Company desires to construct a water well with meter ("Well") to be
located on a 35 foot by 35 foot tract containing approximately 0.028 acres of the 56.584 acre
tract and being further described in Exhibit "A" (the "Land") with the location of the Well shown
on Exhibit "B"; and
WHEREAS, the Company desires to grant to the City and its assigns an option to
purchase the Land and the Well constructed thereon for the "fair market value" price (the
"Option Price") upon the occurrence of certain pre-conditions; and
WHEREAS, the City desires to be granted such option to purchase the Land and the
W ell located thereon. .
NOW THEREFORE, in consideration of the foregoing, and other consideration the
receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
Article I
Definitions
Wherever used in this Agreement, the following terms shall have the meanings ascribed
to them:
"City" shall mean the City of The Colony, Denton County, Texas, or its assigns.
"Company" shall mean Wynnwood Peninsula Venture, a Texas joint venture.
"Effective Date" shall mean the last date of execution hereof.
"Expiration Date" shall mean twenty (20) years from the Effective Date.
"Land" shall mean that real property consisting of approximately 0.028 acres as
described in Exhibit "A".
Option Agreement - I
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"Option Price" shall mean the sum of (i) the Company's cost of construction of
the Well and (ii) the fair market value of the Land at the time the Option is exercised.
Article II
Term
The term of this Agreement ("Option Period") shall begin on the Effective Date and
continue until the earlier to occur of (i) exercise of the Option by delivery of the Option Notice
(as defined hereafter) (ii) the Expiration Date, unless sooner terminated as provided herein.
Article III
Option
3.1 In consideration of ten dollars ($10.00) and other good and valuable
consideration, the receipt of which is hereby acknowledged, the Company hereby grants the City
an option ("Option"), to purchase the Land and the Well, or any portion thereof, for the Option
Price as defined herein. The Company and City acknowledges and agrees that the City may not
assign the Option to purchase the Land, the Well and any improvements or appurtenances thereto
or any remaining portion of the Land not purchased by the City after the exercise of the Option
(whether for all of the Land or any portion thereof and the Well) by the City, for the Option
Price. The City hereby agrees and acknowledges that (i) the Option to purchase the Land and the
Well may be exercised by the City only in the event that the Federal, State of Texas or other
statewide governmental agency shall proceed to shut down the Well and (ii) the City does not
have any right to purchase the Land and the Well except for the occurrence of such event
described in (i) above.
3.2 Subject to Section 3.1 above, the Option may be exercised by the City during the
"Option Period by written notice to Company in accordance with this Agreement (the "Option
Notice"). Upon Company receipt of the Option Notice, the Company and City shall proceed to
close the purchase of the Land and the Well or portion thereof pursuant to the terms and
conditions set forth herein.
3.3 Upon the timely exercise of the Option by the City and delivery of the Option
Notice the Company agrees to sell, and City agrees to purchase, the Land or portion thereof, as
provided in this Agreement for the Option Price.
3.4 Upon the timely exercise of the Option by the City and delivery of the Option
Notice in accordance with the foregoing provisions, the parties shall forthwith (and in any event
within ten (10) business days following such exercise) proceed to execute a contract of purchase
and sale containing such terms and conditions as are customary in purchase and sale agreements
in Denton County, Texas and reasonably acceptable to both the Company and the City.
3.5 Should the City exercise the Option and purchase the Land (or any portion
thereof) and the Well, the City agrees that it shall sell to the Company or its assignees all water
that the well is capable of producing in conformity with the uniform rate. In the event that such
rate exceeds cost of production, the City agrees to rebate the difference between the rate and cost
Option Agreement - 2
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w:
of production. The City agrees and acknowledges that the Company has the first right to
purchase all water produced from the Well. The parties shall enter into a contract reasonably
acceptable to both parties for the sale of the water from the Well.
Article IV
Termination
This Agreement shall terminate upon anyone of the following:
(a) by mutual written agreement of the parties;
(b) Expiration Date; or
(c) by either party in the event the other party breaches any of the terms or
conditions of this Agreement and such breach is not cured within thirty (30)
days after written notice thereof.
Article V
Covenants Run With Land
The provisions of this Agreement are hereby declared covenants running with the Land
and are fully binding on the Company and each and every subsequent owner of all or any portion
of the Land but only during the term of such party's ownership thereof (except with respect to
defaults that occur during the term of such person's ownership) and shall be binding on all
successors, heirs, and assigns of the Company which acquire any right, title, or interest in or to
the Land, or any part thereof. Any person who acquires any right, title, or interest in or to the
Land, or any part hereof, thereby agrees and covenants to abide by and fully perform the
provisions of this Agreement with respect to the right, title or interest in such Land. The City
agrees to provide a release in recordable form reasonably satisfactory to the Company upon each
party's full and complete satisfaction of the respective obligations herein. A copy of this
Agreement shall be recorded in the Denton County deed records.
Article VI
Miscellaneous
6.1 BindiDlZ Ae:reement. This Agreement shall be binding upon and inure to the
benefit of the heirs, successors, affiliates, administrators, executors, and assigns of the respective
parties. This Agreement may not be assigned by the City.
6.2 Limitation on Liabilitv. It is acknowledged and agreed by the parties that the
terms hereof are not intended to and shall not be deemed to create a partnership or joint venture
among the parties. It is understood and agreed between the parties that Company, in satisfying
the conditions of this Agreement, has acted independently, and City assumes no responsibilities
or liabilities to third parties in connection with these actions. Company agrees to indemnify and
hold harmless the City from all such claims, suits, and causes of actions, liabilities and expenses,
including reasonable attorney's fees, of any nature whatsoever arising out of the Company's
performance of the conditions under this Agreement.
Option Agreement - 3
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6.3 Authorization. Each party represents that it has full capacity and authority to
grant all rights and assume all obligations that is granted and assumed under this Agreement.
6.4 Notice. Any notice required or permitted to be delivered hereunder shall be
deemed received three (3) days thereafter sent by United States Mail, postage prepaid, certified
mail, return receipt requested, addressed to the party at the address set forth below or on the day
actually received as sent by courier or otherwise hand delivered.
If intended for City, to:
With a copy to:
Attn: Dale Cheatham, City Manager
City of The Colony
6800 Main Street
The Colony, Texas 75056
Robert E. Hager, City Attorney
Nichols, Jackson, Dillard, Hager & Smith, LLP
500 North Akard, 1800 Lincoln Plaza
Dallas, Texas 75201
If intended for Company:
Wynn wood Peninsula Venture
600 N. Pearl, Suite 650, LB 149
Dallas, Texas 75201
Attention: Christopher Jackson
Wynn wood Peninsula Venture
1600 S. Stemmons Frwy., Suite 100
Lewisville, Texas 75067
Attn: Kristian Teleki
6.5 Entire Ae:reement. This Agreement is the entire Agreement between the parties
with respect to the subject matter covered in this Agreement. There is no other collateral oral or
written Agreement between the parties that in any manner relates to the subject matter of this
Agreement, except as provided in any Exhibits attached hereto.
6.6 Governine: Law. This Agreement shall be governed by the laws of the State of
Texas; and venue for any action concerning this Agreement shall be in the State District Court of
Denton County, Texas. The parties agree to submit to the personal and subject matter
jurisdiction of said Court.
6.7 Amendment. This Agreement may be amended by the mutual written agreement
of the parties.
6.8 Lee:al Construction. In the event 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 not affect other provisions, and it is the
intention of the parties to this Agreement that in lieu of each 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.
6.9 Recitals. The recitals to this Agreement are incorporated herein.
Option Agreement - 4
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6.10 Counterparts. This Agreement may be executed in counterparts. Each of the
counterparts shall be deemed an original instrument, but all of the counterparts shall constitute
one and the same instrument.
6.11 Exhibits. Any exhibits to this Agreement are incorporated herein by reference
for the purposes wherever reference is made to the same.
6.12 Survival of Covenants. Any of the representations, warranties, covenants, and
obligations of the parties, as well as any rights and benefits of the parties, pertaining to a period
of time following the termination of this Agreement shall survive termination.
EXECUTED on this 7th day of May, 2007.
CITY OF THE COLONY
By:
<8~ ctL
Dale Cheatham, City Manager
EXECUTED on this ~ day of
M<<
WYNN WOOD PENINSULA VENTURE,
a Texas joint venture
,2007.
By: MSW WYNNWOOD HOLDINGS, LTD.,
a Texas limited partnership
By: MSW Wynnwood Holdings GP, LLC, a
Texas limited liability company, its General
Partner
By:
i~t: '---
Kristian Teleki
Senior Vice-President
By: W/J TRIBUTE, LTD., a Texas limited
partnership
By: W/J Tribute Management, LLC,
a Texas limite lia 'li ny
its Gen
By:
Option Agreement - 5
TM 16267.76.000
CITY'S Acknowledgement
ST ATE OF TEXAS ~
~
COUNTY OF DENTON ~
This instrument was acknowledged before me on the V<-I//) day of
2007, by Dale Cheatham, being City Manager of the City of The Colony, on beh of said
corporation.
My Commission expires:
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Option Agreement - 6
TM 16267.76.000
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Company's Acknowledgem
SHERRY l. HARTMAN
Notary Public. State of Texas
My Commission Expires
February 16. 2010
THE STATE OF TEXAS
~
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COUNTY O~cJ..to.A ~
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This instr~nt was acknowled~ bef~re me on the 80 day of rn ~ ' 2007,
by KR.JS"f,,,.J ~LE.\("\, the~. RcA~ ofMSW Wynnwood Holdi s GP, LLC,
a Texas limited liability company, the general partner of MSW Wynnwood Holdings, Ltd., a
Texas limited partnership, a joint venture partner of Wynnwood Peninsula Venture, a Texas joint
venture, on behalf of said limited liability company, Ii . ed partnership and' oint venture.
~ Comrvission Expires:
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SHERRY l. HARTMAN
Notary Public. State of Texas
My Commission Expires
February 16. 2010
THE STATE OF TEXAS
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COUNTY O~~ lllo.,.c ~
,. '~Thi~ iyprument was ackno"lledged before me on the (3.0* day of ,2007,
by~W ~~ , the Vt'-~ of W/J Tribute Management LC, a Texas
limited liability company, the general partner of W/J Tribute, Ltd., a Texas limite partnership, a
joint venture partner of Wynn wood Peninsula Venture, a Texas joint venture, on behalf of said
limited liability company, limited partnership and join enture.
My Commission Expires:
~ ) (p ,2/)07
Option Agreement - 7
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~xh/bif A
LEGAL DESCRIPTION
0.028 ACRE
BEING a tract of land out of the T. LUCKETT SURVEY, Abstract No. 752 in the City of
the Colony, Denton County, Texas, being part of the 56.584 acre tract of land described
in deed to Wynnwood Peninsula Venture, recorded in Denton County Clerk's File No.
2006-43169 of the Real Property Records of Denton County, Texas and being more
particularly described as follows:
COMMENCING at a 5/8" iron rod found for the southwest corner of said 56.584 acre
tract; THENCE with the south line of said 56.584 acre tract, North 89018'15" East, a
distance of 471.00 feet to a point for corner; THENCE leaving said south line, North
00041 '45" West, a distance of 50.43 feet to the POINT OF BEGINNING;
THENCE the following courses and distances to wit:
NORTH, a distance of 35.00 feet to a point for corner;
EAST, a distance of 35.00 feet to a point for corner;
SOUTH, a distance of 35.00 feet to a point for corner;
WEST, a distance of 35,00 feet to POINT OF BEGINNING and containing 0.028
acre of land.
Bearing system based on the Texas State Plane Coordinate System (NAD 83).
January 9, 2006
G:\Survey\67286000- WYNNWOOD\EXHlBITS\131 WELL LEGAL.doc
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U.SA.
""'- 371 PG. 17
""'- 468 PG. '''''
D.R.D.C.r.
471.00'
N89'18'15"E
PO"T OF
COIlllENC..G
GRAPHIC SCALE
--~
k.._
( IInur)
1 mob . 500 rt.
ExAib,r (3
THE REBECCA ELAINE RAGAN
BARR TRUST NO.1. ET AL
VOL. 2163 PG. 433
R'p,R.D,C, T.
40.53 AG.
WYNN WOOD PENINSULA VENTURE
D.C.C.F,# 2006-43169
R.P.R.D.C. T.
~~<4
~~ 1'6'/.
~~~~"€ <i>O'
,\\. ...(!;,~ 56.58 AG.
~v WYNNWOOD PENINSULA VENTURE
D.C.C.F.# 2006-43169
R.P.R.D.C. T.
LEBANON ROAD
12D' ROW
CAB. W PC. 268
PR.D. C. T.
PROPOSED
SIL T FENCE
35.00'
SOUTH
35.00'
WEST U.S.A,
PO"T OF . VOL. 371 PG. 17
"" VOL. 468 PG, 130
BEGINNING D.R.D.C. T.
PROPOSED
A CCESS TO WELL
SITE LOCA nON
324.084 AC.
WYNN WOOD PENINSULA VENTURE
D.C.C.F,# 2006-43169
R.P,R.D.C. T.
EXHIBIT DRAWING
TRIBUTE WELL LOCATION
CITY OF THE COLONY
DENTON COUNTY, TEXAS
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