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HomeMy WebLinkAboutResolution No. 2012-026 CITY OF THE COLONY RESOLUTION NO. 2012- 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 JOE'S COUNTRY STORE, INC. FOR THE PURPOSE OF FACILITATING REDEVELOPMENT, A COPY OF WHICH IS ATTACHED HERETO AS EXHIBIT "A"; AUTHORIZING THE CITY MANAGER TO EXECUTE THE AGREEMENT; AND PROVIDING AN EFFECTIVE DATE WHEREAS, the City has determined that it is in the best interest of the City to enter into the Agreement with Joe's Country Store, Inc., a copy of which is attached hereto as Exhibit "A," and is incorporated herein for all purposes; and WHEREAS, the City has obtained the necessary utility easements from the Developer as previously agreed to facilitate water and wastewater services to the City's ETJ on Wynnwood Peninsula; and WHEREAS, with this Development Agreement the City agrees to grant ownership to the Developer of two (2) City owned lots adjacent to Developer's property, and the City agrees to abandon the right-of-way for Pine Court; and WHEREAS, with this Development Agreement the Developer will reconstruct Overlake Drive as well as associated water and drainage as stated in the Agreement, and plat all lots to facilitate redevelopment. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS: Section 1. That the Development Agreement, 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 3rd day of April, 2012. ' e McCo ry, Mayor Fr' t ATTEST: Christie Wilson, TRMC, City Secretary [CITY SEAL] APPROVED AS TO FORM: J ff Moore, C ty Attorney`' DEVELOPMENT AGREEMENT STATE OF TEXAS § COUNTY OF DENTON § This Development Agreement (hereinafter referred to as the "Agreement") is hereby entered into by and between the CITY OF THE COLONY, TEXAS, a Texas home rule municipality (hereinafter referred to as the "City-), and JOE'S COUNTRY STORE, INC., a Texas corporation (hereinafter referred to as the "Developer"), acting by and through their duly authorized representatives (collectively referred to as the "Parties"): WHEREAS, the City and the Developer desire to enter into this Agreement concerning the development of approximately 2 acres, generally as depicted in Exhibit A of this Agreement, which is attached hereto and incorporated herein for all purposes, within the City (hereinafter referred to as the "Property") as part of a retail and commercial development, located generally in Block 4, Garza-Little Elm Lake Estates, an addition to the City, according to the plat fled of record in Volume 2, Page 80 of the Plat Records of Denton County; and WHEREAS, the Parties do mutually agree and consent to enter into this Agreement pursuant to Chapter 212, TEX. LOCAL Gov'T CODE for the mutual benefit and advantage of the Parties. NOW, THEREFORE, the City and the Developer for and in consideration of the premises and the mutual covenants set forth in this Agreement and pursuant to the authority granted by the governing bodies or authorized representative of each of the Parties, do hereby agree as follows: ARTICLE I INCORPORATION OF RECITALS All matters and recitations stated in the Preamble to this Agreement are true and correct and are hereby incorporated by reference into the provisions of this Agreement as an expression of intent and as an aid to construction. ARTICLE 2 PURPOSES OF THIS AGREEMENT The purpose of this Agreement is to acknowledge mutual responsibilities and rights by and between the Parties as it relates to: (i) simultaneous construction of Overlake Addition, and Overlake drive by the Developer; (ii) City conveyance of Lots 4 and 5, Block 4 Garza-Little Elm Lake Estates; (iii) City abandon Pine Court to the Developer; (iv) Developer places $100,000.00 in escrow, and $150,000.00 letter of credit in escrow within thirty (30) days of the Effective Date of this Agreement for the reconstruction of Overlake Drive as a thirty-seven foot (37") wide concrete public roadway, with curb and gutters; and (v) Developer providing a drainage easement to be dedicated by plat; and (vi) other mutually beneficial acts. ARTICLE 3 TERM OF THE AGREEMENT The Agreement shall be effective as of the date of the last signature of the Parties hereto and shall continue in full force and effect until each of the Pasties has fully satisfied the terms and conditions set forth in this Agreement unless sooner terminated by mutual written agreement of the City and the Developer. ARTICLE 4 UNDERTAKING OF THE DEVELOPER Overlake Drive 4.1 The Developer agrees to reconstruct and pave Overlake Drive from Farm to Market Road 423, generally in an easterly direction to the eastern property line of existing Lot 7, Block 4, Garza-Little Elm Lake Estates, as depicted in Exhibit B of this Agreement, which is attached hereto and incorporated herein for all purposes. Overlake Drive will be located in its current location. 4.2 Overlake Drive shall be a minimum thirty-seven foot (37") wide public roadway. designed and constructed as a dedicated, two-lane, concrete, curb and gutter, street built to applicable City of The Colony, Texas standards. and said reconstruction shall include installation of a twelve inch (12") City water line within the dedicated right of way and any necessary drainage facilities. Developer is solely responsible for damage to any utility, municipal or otherwise, through the reconstruction of Overlake Drive. 4.3 To complete Overlake Drive obligations of Developer, it shall be accepted as a municipal thoroughfare and open to traffic from FM 423 easterly to the eastern property line of Lot 7, Block 4. Garza-Little Elm Lake Estates on or before April 1, 2013. Notwithstanding the foregoing, any ceremonial opening or other non-substantive events scheduled prior to completion of Overlake Drive to permit traffic to travel shall not be considered completion of Overlake Drive. Upon written request by the Developer" with good cause shown, the City Manager may approve in writing an extension until October 1, 2013. 4.4 Removal of the road material currently on Overlake Drive will be the sole responsibility of the Developer. i Site Plan and Replat Request 4.5 Within thirty (30) days of the conveyance of Lots 4 & 5, Block 4, Garza-Little Elm Lake Estates to the Developer, as described in Section 5.3 of this Agreement, the Developer shall submit to the City a site plan and replat for Lots 1 through 7, Block 4, Garza- Little Elm Lake Estates. The Replat shall include the abandonment of Pine Court as described in Section 5.1 of this Agreement. Escrow Money 4.6 Within ninety (90) days of the Effective Date of this Agreement, Developer covenants and agrees to place $100,000.00 in cash, and $150,000.00 letter of credit in escrow with the City (collectively referred to as the "Escrow Money") for the construction and reconstruction of Overlake Drive as required by Sections 4.1 to 4.4 of this Agreement. The City agrees to notify the financial institution which issued said letter of credit to reduce the amount of said letter of credit as payments are made for the construction of Overlake Drive. The City agrees to notify said financial institution within thirty (30) days of receipt of invoices, receipts, or other documentation reflecting the payments made for the construction of Overlake Drive. Further, once the amount of said letter of credit is extinguished, City will reduce the amount of the remaining Escrow Money by make payments of the Escrow Money to Developer based upon invoices, receipts, or other documentation reflecting the payments made for the construction of Overlake Drive. 4.7 Upon completion of Overlake Drive as specified by Sections 4.1 to 4.4 of this Agreement, any interest or remaining Escrow Money shall be refunded by City to Developer within thirty (30) days of completion of Overlake Drive. ARTICLE 5 UNDERTAKING OF THE CITY Abandonment of Pine Court 5.1 City staff agrees that it will recommend to the City Council that it abandon, close. and discontinue all of the City's right, title and interest in and to Pine Court within the municipal boundaries of the City (the "Abandonment"). The documents affecting the Abandonment shall be subject to the review and comment by the Developer prior to consideration by the City Council of the Abandonment. The Developer shall provide a legal description of the abandonment to the City. The Abandonment shall be submitted to the City Council within thirty (30) days of placement of the Escrow Money specified in Section 4.6 of this Agreement. 5.2 The formal action of the governing body of the City approving the Abandonment is made specifically contingent upon the payment by the Developer to the City, the Escrow Money described in Section 4.6 of this Agreement. Conveyance of Lots 4 and 5 to the Develo er 5.3 Within thirty (30) days of receipt of the Escrow Money specified in Section 4.6 of this Agreement, the City shall convey title to Lots 4 & 5, Block 4, Garza-Little Elm Lake Estates to the Developer by quitclaim deed, save and except the Lot 4 Permanent Easement attached as Exhibit C of this Agreement, and the Lot 5 Permanent Easement attached as Exhibit D of this Agreement. 5.4 Nothing contained in this Agreement shall effect. or be construed to effect, the municipal boundaries or extraterritorial jurisdiction of the City. ARTICLE 6 MISCELLANEOUS PROVISIONS 6.1 Authority of Parties. This Agreement is made by and entered into by a duly authorized official of the City and a duly authorized representative of the Developer. 6.2 Captions. The captions contained in this Agreement are for informational purposes only and shall not in any way affect the substantive terms or conditions of this Agreement. 6.3 Counterparts. 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. 6.4 Effective Date. The effective date of this Agreement shall be the date of the later to execute this Agreement by and between the City and Developer. 6.5 Entire Agreement. This Agreement and any exhibits which may be attached hereto, constitutes the entire agreement among the Parties hereto with respect to the subject matter hereof. and supersedes any prior understandings or written or oral agreements between the Parties with respect to the subject matter hereof. No amendment, modification, cancellation or alteration of the terms of this Agreement shall be binding on any party hereto unless the same is in writing, dated subsequent to the date hereof, and is duly authorized and executed by the Parties hereto. 6.6 Governing Law and Venue. This Agreement shall be construed under and governed by, and in accordance with the laws of the State of Texas. and all obligations of the Parties hereto, created by this Agreement are performable in Denton County, Texas. Venue of any suit or cause of action under this Agreement shall lie exclusively in Denton County, "Texas. 6.7 Modification. No waiver or modification of this Agreement or of any covenant, condition, limitation herein contained shall be valid unless in writing and duly executed by the party to be charged therewith. No evidence of any waiver or modification shall be offered or received in evidence in any proceeding arising between the Parties hereto out of or affecting this Agreement, or the rights or obligations of the Parties hereunder, unless such waiver or modification is in writing, duly executed. The Parties further agree that the provisions of this Article 6 will not be waived unless as herein set forth. 6.8 No Assignment. Except as otherwise provided herein, or except as may be hereafter determined by the Parties, no party to this Agreement may sell, assign, or transfer its interest in this Agreement or any of its rights, duties, or obligations hereunder without the prior written consent of the other party. 6.9 No Third Party Beneficiaries. This Agreement is solely for the benefit of the Parties and neither Party intends by any provision of this Agreement to create any rights in any third-party beneficiaries or to confer any benefit or enforceable rights under this Agreement or otherwise upon anyone other than the Parties. 6.10 Notice. Any notice given by one party to the other in connection with this Agreement shall be in writing and shall be (i) by personal delivery, (ii) sent by United States registered or certified mail, return receipt requested, postage prepaid, or (iii) sent by facsimile with a hard copy sent within one (1) business day by United States mail, to: To Developer: To City: Joe's Country Store, Inc. City of the Colony, Texas Attention: Gita Kiana Samadi Attention: City Manager 7616 North Main Street 6800 Main Street The Colony, Texas 75056 The Colony, Texas 75056 6.11 Severability, Provision. In the event that any one or more of the provisions hereof 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 effect the other provisions, and the Agreement shall be construed as if such invalid. illegal, or unenforceable provision had never been contained in this Agreement. 6.12 Waiver of Terms and Conditions. The failure of either party to enforce or insist upon compliance with any of the terms or conditions of this Agreement shall not constitute a general waiver or relinquishment of any such terms or conditions, but the same shall be and remain at all times in full force and effect. ARTICLE 7 DEFAULT 7.1 The City shall be able to enforce the terms of this Agreement according to its terms or by other legal or equitable means. 7.2 Failure of either party to comply with or perform any term, obligation or condition of this Agreement shall constitute an Event of Default. The non-defaulting party shall give written notice to the other party of any default, and the defaulting party shall have thirty (30) days to begin to cure said default. Should said default remain uncured, the non- defaulting party shall have the right to terminate this Agreement, enforce specific performance as appropriate, or maintain a cause of action for damages caused by the event(s) of default. In the event the Developer defaults in the construction of Overlake Drive. Sections 4.1 to 4.4 of this Agreement, and is unable or unwilling to cure said default within the prescribed time period, the parties covenant and agree the $100,000.00 in Escrow Money provided for in Section 4.6 of this Agreement shall be paid to the City, and the $150,000.00 letter of credit provided for in Section 4.6 of this Agreement may be used and drawn upon by the City to complete the construction of Overlake Drive. 7.3 If a party shall be delayed in the performance of any of their obligations hereunder because of strikes, lockouts, shortages of labor, fuel or materials, acts of God, legal requirements, fire or other casualty, or any other cause beyond such party's control, then performance of such obligation shall be excused for the period of such delay, and the period for the performance of such obligation shall be extended by the number of days of such delay. 7.4 Developer will indemnify the City from all claims, demands, costs, and liability of every kind, including reasonable attorney's fees, arising from Developer's breach of any provision of this Agreement. or from any act or negligence of the Developer. or its agents, contractors or employees. Developer will defend the City if the City is ever named as a defendant in any action arising from Developer's breach of any provision of this Agreement, or from any act or negligence of the Developer, its agents, contractors or employees. [THE BALANCE OF THIS PAGE INTENTIONALLY LEFT BLANK] SEPARATE SIGNATURE PAGE OF DEVELOPER EXECUTED on this the 1 ytday of MAX-C4 , 2012. DEVELOPER: JOE'S COUNTRY STORE, INC., A Texas corporation By: Name: /1'-l4' 14~. !0~1-e66 Title: STATE OF TEXAS § COUNTY OF BEFORE ME, the undersigned authority, a Notary Public in and for said State, on this day personally appeared(fefrh 1flN) mxb . the President of Joe's Country Store, Inc., a Texas corporation. known or proved to me on satisfactory evidence to be the person and officer whose name is subscribed to the foregoing instrument, and acknowledged to me that he/she executed the same for the purposes and consideration therein expressed and in the capacity therein stated. on behalf of such corporation and partnership. GIVEN UNDER MY HAND AND SEAL OF OFFICE this delay of M&L '2012. E(SMORTEZAAKHAVANZADEH My bttaary 22 4 STAMP, PRINT OR TYPE NOTARY'S NAME AND DATE COMMISSION EXPIRES: Notary Public in and for the State of Texas SEPARATE SIGNATURE PAGE OF THE CITY EXECUTED on this the day of~ 2012. CITY: CITY OF THE COLONY, TEXAS, A Texas home-rule municipality Powell ity Manager STATE OF TEXAS § COUNTY OF DENTON § BEFORE ME, the undersigned authority, a Notary Public in and for said State, on this day personally appeared Troy C. Powell, the City Manager of the City of The Colony, Texas, a Texas home-rule municipality, known or proved to me on satisfactory evidence to be the person and officer whose name is subscribed to the foregoing instrument, and acknowledged to me that he/she executed the same for the purposes and consideration therein expressed and in the capacity therein stated, on behalf of such corporation and partnership. GIVEN UNDER MY HAND AND SEAL OF OFFICE this X'_ day of -y"sf , 2012. STAMP, PRINT OR TYPE NOTARY'S NAME AND DATE / COMMISSION EXPIRES: f dd f. a o'- 1 't9..~ I l z C Notary Public in and for the State of Texas l~~ ,aY..... Christie Neu Wilson ;'~o~P a<<;= Notary Public, na %s~=-„k,.= State of Texas ~s9r 111" 4 `Comm. Exp. -22.13 s oee~:~~~~~~weeseeoeeeeeeeeee~~e~ Exhibit A [Description and/or Depiction of Property] EXHIBIT •A• BEING ALL OF LOTS 1 AND 2, AND PART OF LOTS 3-8, AS PART OF A RETAIL AND COMMERCIAL DEVELOPMENT, LOCATED IN BLOCK 4, OF GARZA - LITTLE ELM LAKE ESTATES ADDITION. AN ADDITION TO THE CITY OF THE COLONY, ACCORDING TO PLAT FILED OF RECORD IN VOLUME 2, PAGE 80 OF THE PLAT RECORDS OF DENTON COUNTY, TEXAS, AND ALL OF PINE COURT CITY RIGHT-OF-WAY. - - - - 20' EASEMENT- _y \ \ Sg4'13'WE \ a° 3 294.36' \ ~SSg.s o JOE'S COUNTRY STORE, INC. 4 5 Ss. .9 F, CITY OF THE COLONY; CITY OF THE COLONY..' s iw \ \ o I / °dla. w s N 2 6 • DITA K. SAMADI/ / Z o 2 / P cQ JOE'S COUNTRY STORE, INC. / C " H.,.Sy h Z A/ ..z4. ys~~'M o CITY OF THE COLONY o °o / o° / • •DARYL SIEMENS i / 0 i F-- / y 00 JOE'S COUNTRY STORE, INC. 7 ••C17q K. SO AMADI / C) c w w / o N _Z S89.40'00"M 152.35' / / Aa 1 8 O ~ /X39 OO. OVERLAKE DR. < OOal~s. )gs Ig, Exhibit B [Depiction of Overlake Drive] N'"_~~ t. 'I'f ~.il ♦+F ~i~ t:+wv iT re ,o r C. Y , 1 : , j , f - it ~ ~ i l• • ~ .r•. .I:.t~ -<';r nOVERLAKE DRIVE 51 2 .c I v ~r W ~'..r o- r r - _ 1- "`ate .I. - C•h. 6 I p ' r iN r I I = r r-v-I s .a~ q z Tom`:. NPR S~O,.0 l- 'Jti X Ft - - + ~i r,} +E.M1. ~ ' I ` _ I 1 PGs bV P J1. s6. Exhibit C [Lot 4 Permanent Easement] EXHIBIT 'C` EASEMENT PARCEL LOT 4 BEING 1950 SQUARE FOOT OF LAND AND BEING PART OF LOT 4, BLOCK 4, OF GARZA - LITTLE ELM LAKE ESTATES ADDITION, AN ADDITION TO THE CITY OF THE COLONY, ACCORDING TO THE PLAT FILED OF RECORD IN VOLUME 2, PAGE 80 OF THE PLAT RECORDS OF DENTON COUNTY, TEXAS. '+v SCALE:1"=60' 20' EASEMENT r20' EASEMENT 589.40'00"W 103.63' \7J 0 rn \ - - S89• 40 00 t1 91.36 \ \ 4\\ 5 \ JOE'S COUNTRY STORE, INC. N N THEI COLONY m CITY OF N THE COLONY t Lo N Z R=so. oo' Q L=35.66' 6 2 OITA K. SAMADI JOE'S COUNTRY STORE. INC. CITY OF THE COLONY 1 B JOE'S COUNTRY STORE, INC. 7 0 GITA K. 5AMA01 DARYL SIEMENS Ld N z / a- OVERLAKE DR. a> PREPARED BY; PAORIaS ENGINEERING, INC. Engineering. Surveying. 6ubeurface Utility E-MAIL: moriakhavaa@yahoo.com F-77701 PH: (972)816.2626 CONTACT: NORI AKHAVAN, P.E., SIT. Exhibit D [Lot 5 Permanent Easement] EXHIBIT "D' EASEMENT PARCEL LOT 5 BEING 1581 SQUARE FOOT OF LAND AND BEING PART OF LOT 5, BLOCK 4, OF GARZA - LITTLE ELM LAKE ESTATES ADDITION, AN ADDITION TO THE CITY OF THE COLONY, ACCORDING TO THE PLAT FILED OF RECORD IN VOLUME 2, PAGE 80 OF THE PLAT RECORDS OF DENTON COUNTY, TEXAS. N C2 SCALE:1"=60' Ss>. ~s• 00 00 E 76l u m N O 20' EASEMENT 20' EASEMENT - - - - - - - - - - - - - m A'63•S> ry 7S B7 93 o ---4 - Psss•7a o 3 h T3'F o~\ 5 CITY OF JOE'S COUNTRY STORE, INC. of ~5, Jq THE COLONY w CITY OF ry THE COLONY o° oti. ~ m M ~ m z roti Z = 7 Q !R~0 = 6 c G 2 r`?s°' CITA K. SAMA01 JOE'S COUNTRY STORE, INC. h z ~ 0 CITY OF THE COLONY m / ~ ryN ti ~ / h / 6 t m JOE'S COUNTRY STORE, INC. 7 m CITA K. SAMADI w-F DARYL SIEMENS U Q Z / d / 589.40'00"M 152.35' RTI l l B OVERLAKE DR. 9° °p~T7g ~ Of PREPARED BY: PAORIaS ENGINEERING, INC. Engineering. Surveying. Subsurface Utility E-MAIL: moriakhavan@yahoo.coe F-7701 PH: (972)816.2628 CONTACT: MORI AKHAVAN, P.E., SIT.