HomeMy WebLinkAboutResolution No. 07-076
CITY OF THE COLONY, TEXAS
RESOLUTION NO. 07-{[Jfp
A RESOLUTION OF THE CITY OF THE COLONY, TEXAS,
AUTHORIZING THE CITY MANAGER TO ENTER INTO A
DEVELOPMENT AGREEMENT WITH DBSI COLONY WEST
DEVELOPMENT LLC FOR CONSTRUCTION OF LEFT TURN
LANES AND MEDIAN CUTS WITH THE CONSTRUCTION OF
THE MEMORIAL DRIVE PROJECT; ATTACHING THE
APPROVED FORM OF CONTRACT 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 DEVELOPMENT AGREEMENT WITH DBSI COLONY WEST
DEVELOPMENT LLC FOR CONSTRUCTION OF LEFT TURN LANES AND
MEDIAN CUTS WITH THE CONSTRUCTION OF THE MEMORIAL DRIVE
PROJECT.
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 4th day ofSel.!tember, 2007. Q'
n Dillard, Mayor
of The Colony, Texas
ATTEST:
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APPROVED AS TO FORM:
STATE OF TEXAS
~
~
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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 DBSI Colony West
Development LLC, an Idaho limited liability company (the "Developer" or "DBSI") (the City
and the Developer are hereinafter referred to together as the "Parties").
RECITALS
WHEREAS, the City intends to construct certain public improvements within the City of
The Colony to wit: construction of four (4) median cuts with left turn lanes to south on
Memorial Drive between Paige and Blair Oaks (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, upon completion of the construction as provided herein, the Developer
shall pay the City for actual construction cost in an amount not to exceed ONE HUNDRED
THIRTY-FIVE THOUSAND dollars and no cents ($135,000.00); and
WHEREAS, the Parties desire to enter into an agreement for the Developer to assist in
the construction cost to pay for the City to include the construction of the Project as defined
herein;
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.
ARTICLE II
Definitions
2.01 "City" shall mean the City of The Colony, Texas
2.02 "City Engineer" shall mean the City of The Colony City Engineer, or designee.
2.03 "Commencement of Construction" shall mean the grading and/or preparation of
Memorial Drive between Paige and Blair Oaks for construction.
2.04 "Completion of Construction" shall mean: (i) substantially completed in accordance with
the approved plans; and, (ii) the Project has been accepted by the City.
2.05 "Construction Documents" shall mean those certain plans and specifications submitted
DEVELOPMENT AGREEMENT - Page 1 of 10
TM 14988.76.000
for the design, installation and construction of the Project, and approved by the City,
which are attached hereto.
2.06 "Developer" shall mean DBSI.
2.07 "Effective Date" shall mean the last date of execution ofthis Agreement.
2.08 "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.
2.09 "Property" shall mean the property described in Exhibit "A," which is attached hereto.
2.10 "Project" shall collectively mean the Project to be constructed pursuant to this
Agreement, to wit: the construction of four (4) median cuts on Memorial Drive between
Paige and Blair Oaks.
ARTICLE III
Agreement
3.01 The City agrees to design, bid and construct the two (2) north lanes of Memorial Drive to
Blair Oaks and Paige in accordance with State law. DBSI is a developer and property
owner of which is adjacent to and abuts the proposed extension and expansion of
Memorial Drive. It is necessary for the access of Memorial Drive by Developer to
improve the traffic circulation and safety of Memorial Drive to provide points of access
to and from Memorial Drive to Developer's property. At the time of execution of this
agreement, Developer shall provide an irrevocable letter of credit in favor of the City to
secure payment of the obligations undertaken herein.
3.02 That in order to accommodate the public safety and provide such access four (4) median
cuts, two (2) which will contain left turn lanes as depicted on Exhibit "A" are necessary.
3.03 That in consideration of the request of Developer to provide access, Developer has agreed
to pay for the actual construction cost of the median cut and turn lanes as depicted on
Exhibit "A" in an amount not to exceed $135,000.00 which includes a contingency that
may only be used for change orders for construction related to the items in Section 3.02.
3.04 The Developer agrees to reimburse the City for the actual costs of construction of the
Project within 15 days from Completion of Construction of the Project and providing
written verification of construction cost, including change orders for the work specified
in Section 3.02.
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.
DEVELOPMENT AGREEMENT - Page 2 of 10
TM 14988.76.000
ARTICLE V
Miscellaneous
5.01 Parties Bound: Assie:nment. 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.
5.02 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
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 DIRECTL Y OR INDIRECTL Y FROM THE
DEVELOPER'S PERFORMANCE OF THIS AGREEMENT.
5.03 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.
If intended for Developer, to:
With a copy to:
DBSI Development Services LLC
A TTN: Meredith Smith
1480 I Quorum Drive, Suite 200
Dallas, Texas 75254
Telephone: (214) 442-8956
Facsimile No. (208) 445-0226
DBSI Development Services LLC
A TTN: Land Development/Legal
12426 W. Explorer Drive, Suite 100
Boise, Idaho 83713
Facsimile No. (208) 445-0226
If intended for City, to:
With a copy to:
City of The Colony
A TTN: 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
5.04 Compliance with Laws. Developer shall fully comply with all local, state and federal
laws, including all codes, ordinances and regulations applicable to this Agreement and
DEVELOPMENT AGREEMENT-Page 3 oflO
TM 14988.76.000
the work to be done thereunder, which exits or which may be enacted later by
governmental bodies having jurisdiction or authority for such enactment.
5.05 Warranty. The persons executing the same are authorized to execute this agreement on
behalf of each of the respective parties.
5.06 Governine: 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.
5.07 Lee: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.
5.08 Entire Ae: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 thi/-l.ll1day~.
CITY OF THE COLONY, TEXAS DBSI Colony West Development LLC
~ (\ ^ ^ an Idaho limited liability company
'0~ ('~
Dale Cheatham, City Manager By: DBSI Short-Term Development
Fund LLC, an Idaho limited liability
company, Its Member
By: DBSI Development Services LLC
an Idaho limited liability company,
Its Manager
Approved as to form:
By:
Jeremy Swenson, Its Secre ary
Date: August~ , 2007
DEVELOPMENT AGREEMENT - Page 4 of 10
TM 14988.76.000
CITY'S ACKNOWLEDGMENT
STATE OF TEXAS ~
~
COUNTY OF DENTON ~
This instrument was acknowledged before me on th~ day 0
Dale Cheatham, City Manager of the City of The Colony, a Texas municipality, on behalf of Said
municipality.
My Commission expires:
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, /0 --'''''''' c;,\ ANGELA KELLY ~
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DEVELOPER'S ACKNOWLEDGMENT
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STATE OF IDAHO ~
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COUNTY OF ADA ~
This instrument was acknowledged before me this.2.2,...A day of 41","1- ,
2007, by Jeremy Swenson, Secretary ofDBSI Development Services, as Manager ofD SI Short
Term Development Fund LLC llft!!~m!'~Je member ofDBSI Colony West Development LLC.
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DEVELOPMENT AGREEMENT - Page 6 of 10
EXHIBIT "A"
Site Plan
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EXHIBIT "B"
Construction Documents
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