HomeMy WebLinkAboutResolution No. 07-098
CITY OF THE COLONY, TEXAS
RESOLUTION NO. 07- oq r
A RESOLUTION OF THE CITY OF THE COLONY, TEXAS,
AUTHORIZING THE CITY MANAGER TO EXECUTE A
DEVELOPMENT AGREEMENT WITH LONZAR DELAWARE,
INC. FOR ACQUISITION OF UTILITY EASEMENT;
ATTACHING THE APPROVED FORM OF CONTRACT AS
EXHIBIT A; 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 LONZAR DELA WARE, INC.
FOR ACQUISITION OF UTILITY EASEMENT.
Section 2. That a true and correct copy of the Development Agreement is
attached hereto and incorporated herein, as exhibit A.
Section 3. That the city manager is authorized to execute the Development
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 5th day of November. 2007.
ATTEST:
~L!'L W~,
nstIe WIlson, TRMC, CIty Secretary
APPROVED AS TO FORM:
STATE OF TEXAS ~
~
COUNTY OF DENTON ~
Development Agreement
This Economic Development Incentive Agreement ("Agreement") is made by and
between the City of The Colony ("City") and Lonzar Delaware, Inc., a Delaware corporation
("Developer"), acting by and through their respective authorized officers.
WITNESSETH:
WHEREAS, the City has agreed, under its authority pursuant to Section 380.001 et seq.,
to construct at its cost and design the Improvements;
NOW THEREFORE, in consideration of the foregoing, and other valuable
consideration the sufficiency and receipt 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:
"Approved Plans" means the Construction Plans for the Improvements approved
by the City of The Colony.
"City" shall mean the City of The Colony, Texas.
"Developer" shall mean Lonzar Delaware, Inc., a Delaware corporation.
"Improvements" shall mean the construction and design of the Austin Ranch lift
station and force main with 0.5 million gallons per day (mgd) of wastewater collection
capacity for the Tsai Tract and providing the additional easement for installation of a future
wastewater gravity line from the south side of the Tsai Tract to the Austin Ranch lift station.
"Effective Date" shall mean the last date of execution hereof.
"Event of Bankruptcy or Insolvency" shall mean the dissolution or termination of
Developer's existence, insolvency, employment of receiver for any part of Developer's
property and such appointment is not terminated within ninety (90) days after such
appointment is initially made, any general assignment for the benefit of creditors or the
commencement of any proceedings under any bankruptcy or insolvency laws by or
Development Agreement - Page 1
TM 20187.76.000
against Developer and such proceedings are not dismissed within ninety (90) days after
the filing thereof.
"Expiration Date" shall mean the date all parties have satisfied all of their
respective obligations herein.
"Force Majeure" shall mean any contingency or cause beyond the reasonable control
of a party including, without limitation, acts of God or the public enemy, war, riot, civil
commotion, insurrection, government or de facto governmental action (unless caused by
acts of omissions of the party), fires, explosions or floods, strikes, slowdowns or work
stoppages.
"Tsai Tract" shall mean the real property located solely in The Colony, Denton
County, Texas, owned, managed, or developed by the developer, as depicted on Exhibit 2
to this agreement.
Article II
Term
The term of this Agreement shall begin on the Effective Date and continue until the
Expiration Date, unless sooner terminated as provided herein.
Article III
Improvements
3.1 Developer shall, cause the dedication and shall grant a thirty (30') foot utility
easement as provided in Exhibit "1," which is attached hereto and incorporated herein by
reference.
3.2 Developer shall convey to the City an adjacent parallel twenty (20') foot wide
temporary construction easement.
3.3 City shall provide for 0.5 mgd in Austin Ranch lift station and force main for
development of Tsai tract.
3.4 City shall purchase additional width of utility easement from the south side of
Tsai tract to Austin Ranch lift station to facilitate future development of Tsai tract by providing
easement for gravity wastewater service.
3.5 Compliance with Laws. Developer shall fully comply with all applicable local,
state and federal laws, including all codes, ordinances and regulations.
3.6 Warranties. Developer warrants that it is the current lawful owner of the property
granted to the City herein.
Development Agreement - Page 2
TM 20187.76.000
3.5 Indemnification. CITY SHALL NOT BE LIABLE OR RESPONSIBLE FOR,
AND SHALL BE INDEMNIFIED, HELD HARMLESS AND RELEASED BY DEVELOPER
FROM AND AGAINST ANY AND ALL SUITS, ACTIONS, LOSSES, DAMAGES,
CLAIMS, OR LIABILITY OF ANY CHARACTER, TYPE, OR DESCRIPTION,
INCLUDING ALL EXPENSES OF LITIGATION, COURT COSTS, AND ATTORNEY'S
FEES FOR INJURY OR DEATH TO ANY PERSON, OR INJURY OR LOSS TO ANY
PROPERTY, RECEIVED OR SUSTAINED BY ANY PERSON OR PERSONS, INCLUDING
DEVELOPER, OR PROPERTY, ARISING OUT OF, OR OCCASIONED BY, DIRECTLY
OR INDIRECTLY, THE PERFORMANCE OF DEVELOPER UNDER THIS AGREEMENT,
INCLUDING CLAIMS AND DAMAGES ARISING IN WHOLE OR IN PART FROM THE
NEGLIGENCE OF DEVELOPER, WITHOUT, HOWEVER, WAIVING ANY
GOVERNMENTAL IMMUNITY AVAILABLE TO THE CITY UNDER TEXAS LAW AND
WITHOUT WAIVING ANY DEFENSES OF THE PARTIES UNDER TEXAS LAW. THE
PROVISIONS OF THIS INDEMNIFICATION ARE SOLELY FOR THE BENEFIT OF THE
PARTIES HERETO AND NOT INTENDED TO CREATE OR GRANT ANY RIGHTS,
CONTRACTUAL OR OTHERWISE, TO ANY OTHER PERSON OR ENTITY. IT IS THE
EXPRESSED INTENT OF THE PARTIES TO THIS AGREEMENT THAT THE
INDEMNITY PROVIDED FOR IN THIS AGREEMENT IS AN INDEMNITY EXTENDED
BY DEVELOPER TO INDEMNIFY AND PROTECT CITY FROM THE CONSEQUENCES
OF THE DEVELOPER'S NEGLIGENCE, WHETHER SUCH NEGLIGENCE IS THE SOLE
OR PARTIAL CAUSE OF ANY SUCH INJURY, DEATH, OR DAMAGE.
Article IV
Termination
4.1 This Agreement shall terminate upon anyone of the following:
(a) by written agreement of the parties;
(b) Expiration Date;
(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;
(d) by City, if any subsequent Federal or State legislation or any decision of a
court of competent jurisdiction declares or renders this Agreement invalid,
illegal or unenforceable;
(e) by City or Developer if a development agreement providing for construction of
the Austin Ranch lift station and force main is not entered in to between the
City and Billingsley Development Corporation.
Article V
Miscellaneous
5.1 Bindine: 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 without the City's prior written consent.
Development Agreement - Page 3
TM 20187.76.000
5.2 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 Developer, 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. Developer 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 Developer's
performance of the conditions under this Agreement.
5.3 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.
5.4 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 set by courier or otherwise hand delivered.
If intended for City, to:
Attn: Dale Cheatham, City Manager
City of The Colony
6800 Main Street
The Colony, Texas 75056
If intended for Developer:
Attn: Sue Y. Moulliet
LOllZar Delaware, Inc.
5001 Spring Valley Road, Suite 1000 East Tower
Dallas, Texas 75244
5.5 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.
5.6 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.
5.7 Amendment. This Agreement may be amended by the mutual written agreement
of the parties.
5.8 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
Development Agreement - Page 4
TM 20187.76.000
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.
5.9 Recitals. The recitals to this Agreement are incorporated herein.
5.10 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.
5.11 Exhibits. Any exhibits to this Agreement are incorporated herein by reference
for all purposes wherever reference is made to the same.
5.12 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 (j. 171ray of ()~ W , 2007.
CITY OF THE COLONY, TEXAS
By:
Qh~
Dale Cheatham, City Manager
EXECUTED on this ILP'fh day of tJOl-'t..rYI. ~
,2007.
LONZAR DELAWARE, INC.
~~~~~
By: \, ~- ~~
Name: a~ Tsai
Title: President
Development Agreement - Page 5
TM 20187.76.000
City's Acknowledgment
State of Texas S
S
County of Denton S
This instrument was acknowledged before me on the # ~ay of fl {f)rf/hA. ..(rc-r ,
2007, by Dale Cheatham, City Manager ofthe City of The Colony, Texas, a Texas municipality, on
behalf of said municipality.
My Commission Expires: i ( .... ;L d-- - 0 1
l"~~~"""""'"
....~,y:. ~II.. ........................~
"'~,.. ". 'Ill)
I~,~~~' CHRtSTIf.NfU WILSON f
s-;~"l:~ I ..., PuIJIit. SIafe nl Teras I
.....', :\,.....,.... J
1lI"'~ ""eo.tla;on fJpfles 11-22-09 ..
"',......."""",......", J
....."""~
Developer's Acknowledgment
State of Texas
s
s
s
\'YLUa.s
County of~
This instrument was acknowledged before me on the I L> fh day of n~~~
2007, by 70;~ ~i Cl.0 -rSci \ , Ke siclex1-t , Lonzar Delaware, Inc., a Delaware
corporation, on behalf of said corporation.
~'dllM4 c;. ~ I A 0-Y71s- Mn7
Notary PubHc, State of Texas
My Commission Expires: 2--11'S (0 q
Development Agreement - Page 6 TM 20187.76.000
Exhibit "I"
CITY OF THE COLONY
30' UTILITY EASEMENT
THE ST ATE OF TEXAS
COUNTY OF DENTON
*
*
*
KNOW ALL MEN BY THESE PRESENTS
THAT Lonzar Delaware. Inc. a Texas corporation. hereinafter called "Grantor". for in
consideration of good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, does hereby grant, bargain, sell and convey to the CITY OF THE COLONY,
TEXAS, hereinafter individually and collectively called "Grantee", the easement and right of
ingress and egress upon and across the real property located in Denton County. Texas, as more
particularly described in Exhibit "A" , which is attached hereto and incorporated herein by
reference as if fully set forth herein (the "Easement Area") for the purpose of construction,
reconstruction. maintenance, repairs and replacement of utilities (the "Facilities") within the
easement granted, all as required by the City of The Colony, Texas. The easement granted
hereby and the Facilities shall be for public use and shall be dedicated to and thereafter
maintained by the City of The Colony, Texas.
TO HAVE AND TO HOLD the same perpetually unto Grantee and its successors and
assigns, together with the right and privilege of ingress and egress and at all times to enter said
premises, or any part thereof, for the purpose of construction, reconstruction. maintaining,
repairing and replacing said Facilities, and all incidental improvements. Grantee shall have the
right to construct, reconstruct and perpetually maintain, repair and replace, additional Facilities at
all times in the future, within the above described boundaries.
This Easement may be assigned in whole or in part.
Page 1 of 2
Development Agreement - Page 7
TM 20187.76.000
WITNESS my hand this the ILtt day of l.)O(;lA'-YY\."b.e.-r
,2007.
Lonzar Delaware, Inc.
-;hlian~ ~~
Title: 7,..tSi~n-l
SWORN TO and SUBSCRffiED before me on this J@ay of n ODe.n\_b..~,y ,2007.
~'clntli 01~S~~
Notary Public in d for
the State of Texas
'5;(1 nt'J.i fLJ uo..xzds-- f)J3oS~
Printed Name
My commission expires on
2-/rg) Uf
Page 2 of 2
Development Agreement - Page 8
TM 20187.76.000
EXHIBIT" A"
30' UTILITY EASI~:MENT
LONZAR DEL A \V ARE, INC.
A 30' wide tract or parcel of land situated in the Thomas A. West Survey, Abstract No.
1344, in the City of The Colony, Denton County, Texas, being part of the called 81.7201
acres tract described in the deed to Lonzar Delaware, Inc. recorded in Document No.
2000-105377 in Volume 4707 Page 868 in the Denton County Deed Records (DC DR),
and being more particularly described as follmo,rs:
COMl\H.:NCING the most easterly northeast corner of said 81.7201 acres tract, being on
the west right-of-way line of Plano Parkway (100' wide right-of-way);
TIIENCE South 89"'20'04" West 1022.39 teet along the north side oi's.aid 81.7201 acres
tract to a set 1/2 inch iron rod with C&P cap for the POINT OF BEGfNNING;
THENCE South 00039'56" East, 30,00 feet to a set 1/2 inch iron rod with C&P cap;
THENCE Somh 89020'04" West, 275.35 te..et to a set 1/2 ineh iron rod with C&P cap;
THENCE South 00"53'53" East, 2342.92 feet to a set 1/2 inch iron rod \Nith C&P cap~
THENCE South 88042'27" \Vest, 30.00 fect along the south side of said 81.7201 acres
tract to a set 1/2 inch iron rod with C&P cap;
THENCE NOIth 00053'53" West, 2373.25 feet along the \vcst side of said 81.7201 acres
tract to a set 1/2 inch iron rod with C&P cap;
THENCE North 89020'04" East, 305.47 feet along the north side of said 81.7201 acres
tract to the POII'\T OF BEGIN'NING and CONTAINING 79,455 square teet ofland,
morc or Icss_
Development Agreement - Page 9
TM 20187.76.000
- --- i
J ......1
' r'{'
<. r{v~ -
c) (....;0
.;0
<x.~
---~.
10
()!
CB /TI 'iTL!.:, L Hi
vO. 4)67 PC 1590
Cp.I, r f) .,WJ.l ';10 Ac:
(5'. ,(../
^...~. \~../
(> ~t;~
S.
',r)" STRIP. CiTY
Of- HCBROI'I
SSgo20'04"W' /'/'108 'I II
.~)91-;~',/: ~r 0 ~I " \\~~~~:j~~ -- -~
~ S89020'04"W :;,00 :39 56 [", COMMENCING ,II
/~ 275.35' 30.00' POINT
\)
LID
CROW/bILLlN L;SU:. .,'- \.lj\J1D':.R'M~
EY,(:H .\JIG!:. 'RUSl
\lOL 1.}.3/ PG 2'.11
Tt<,4,CT i CALLEDf.G':';'.74::,,) A.:-:
II
I
I
I.
I
Ii
ii'
I
Ii
l
,/
//
,'I
'J
./
;1
.'
.'/
/~I
ESMT
J
i.
f
'J
t,
~: "'1
l:;}(')
I,.t G
-;/
o
('.j: -0
..,). ui
r--I ' (".
1<)./ ..
"J n::;:;
/ -
/
:: 1/ 1""1
"j . I ..-
'--- Z /
n: q ~
(( lli L-;'
1/- L.J ';
(IlIl
t'
! ~'~;./ ,f...'
i Ok:' .. ,1.... \-..
/' ,~,/ -~-.,
I( --'. I-' 1/.' .c
"~I Q II }...ul..
'I 'C.r l/ ..-.1 C
~\ ,/ {l I.: Q~I ,ii'
\.? ~~?./ (~- 'y
\ ./ "{ /.' -;
\. dir;;. /
\ 1 . ','/'
'//120' 1/
,,/!J.9ij/
! I'
d /;
) ;.:
i
r'I
/1
/~~~#'
c)o
LGUZAR DCLA.WIIR'E. Iue
001..#2000 '05.)77
VUL 4707 FIe; D\~be
(AI I.rD 817201 Ae
'0 '(-) ,,;"
I - /,
'" ':
'p
I"
3::/
"'f'Y
rj<
i'
,I
,
,So
'J
';rj'" f',)
UJ ',t,..J
_t")1,1 ..p..
LO[ ~
o~,~
0, .
Z ./
//
~
II
I'
!
II
11
'.1
-11-
i /_ o. lP&l E~iMT
\ .. . ;~, ~c D{'} D~ 4'"
Y, /' 'vU,_ t:.~)()... .,~ I':.:
TRA.CT 2
,'- -
II '-. --
170' L:ASrMI:.N T TP.& ,.
COMPANv \/OLU~liF ~1?1. PA{jF 5.3
~ I
!L 1-
CT.TC I F;TCl' A.'S'oMfW vo'..,J~lT:' I
- ;;2.59._PAGUJDSL- ) - P'-
J II
,.I 'i,,- 10' TP&:.. [SMT
I. 1/ \/011.",80 P~ 479
'/ /1( 7F< A.('.."" .
.. :-..:;.t/' l,,'
/,..,-,./ li
Ji /:
.....
"'''-.~':--
~, .......,
,-~,- --
. ~ /'-U~I)TlLl:.SM;
''-''',.,. <'~;-.:. -- - l/ S8'O'42'27"W
"'--, ' 1IVO......<:.. ~ 30 00'
p~ "1"l1 '-- -., .
, , :';'~~,I1'-t~!\';--' .~->;:~.:=_.::::~ -
0:15J
------~~.1
ca. .Ka1t1lnlBRIIlIIUr. 11'1."1.1.
,
.30
EXHIBIT "A"
UTILITY EASFMENT
Er~gineering . Plonmng . SurveYing.
BASIS Of 1:lt.~RI'IG: DU.!) 10
LONZAR DELAWARE. If;C.
DOC. H:I000 ~ OS3 77
VOL >17m pc; R6R
1801 GATEVII<Y BLVD. SUITE 101
~ICHAR)SOt<, ;LXAS 75080 (972)644-2BOG
5c:ol'e'
Date:
OS/29/01
File.' XO J02B-I- sm t
1" 3CO'
PAGE :; OF
" ,)01) M{)
<
OL'\.'9.
07028
Development Agreement - Page 10
TM 20187.76.000