HomeMy WebLinkAboutDevelopment Agreement (A0-29?)
DEVELOPMENT AGREEMENT
This Agreement is entered into this the 14th day of December 2006, by and between the City of
College Station, a Texas Home-Rule Municipal Corporation (hereinafter referred to as "CITY"),
and LONESTAR-COLLEGE STATION GOLF ACADEMY, LTD, a Texas limited partnership,
owner of Lot 2, Horse Haven Estates (hereinafter referred to as the "OWNER").
WHEREAS, Lone Star — College Station Golf Academy is the owner of the property described
as Lot 2 of Horse Haven Estates, as shown on the Final Plat, a copy of which is attached hereto
as Exhibit A and incorporated herein by reference for all purposes(hereinafter referred to as"Lot
2"); and
WHEREAS, development of Lot 2 is subject to the terms and provisions of that certain
Development Agreement dated March 12, 1998, by and between the CITY and Burton Ray
Hermann and Virginia Boriskie Hermann, individually, and Burton Ray Hermann, Virginia
Boriskie Hermann, Michael W. Thiltgen, and Cheryl Thiltgen, as partners in the Lydia Boriskie
Partnership, recorded in Volume 3065, Page 0245 of the Official Records of Brazos County,
Texas(hereinafter referred to as the"Original Agreement"); and
WHEREAS,the OWNER is proposing to divide Lot 2 into three lots; Lot 2A, Lot 2B and Lot 2C
of Horse Haven Estates and sell to separate ownership for proposed redevelopment, Lot 2A, an
8.642 acre parcel, as shown on the Vacating and Final Plat of Lot 2, a copy of which is attached
hereto as Exhibit B and incorporated herein by reference for all purposes; and,
WHEREAS, the CITY's Thoroughfare Plan shows Appomattox Drive extending southward into
and through Lot 2C, Horse Haven Estates(hereinafter referred to as the"Extension"); and,
WHEREAS, the OWNER is proposing to rezone Lots 2A and 2B to a C-1 General Commercial
zoning classification and proposing that Lot 2C, Horse Haven Estates maintain its current A-0
Zoning Classification; and,
WHEREAS, under the terms of the Original Agreement, upon any redevelopment, rezoning or
change in use of Lot 2, the CITY will determine if the Extension is necessary, and if so, the
OWNER and/or its successors-in-interest, heirs or assigns are obligated to dedicate the necessary
right-of-way for the Extension and shall be obligated to construct the Extension; and
WHEREAS, the City Council of the CITY hereby determines that the Extension is not necessary
at the time of rezoning for Lots 2A and 2B, Horse Haven Estates, or at the time of proposed
redevelopment.of T,ol 2A, Horse Haven Estates; and
WHEREAS, the OWNER shall provide to the CITY a financial guarantee as outlined in Chapter
9, Section 7 of the City of College Station Code of Ordinances (Subdivision Regulations) to
guarantee the OWNER's completion of the Extension at a future time upon a determination by
the CITY that the Extension is necessary; and
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WHEREAS, the CITY'S Master Utility Plan shows an eight inch hate line anCvarious
sewer,
drainage and electrical infrastructure extending southward into and
Estates(hereinafter referred to as the"Utilities"); and
WHEREAS, OWNER desires to provide a financial guarantee for construction of the Utilities as
provided under the City's Subdivision Regulations; and
e
f
he
WHEREAS, deferral of the utility easement dedication varies from the rquit bents of t d
CITY'S Subdivision Regulations that require property for utility
before final plat approval; an
WHEREAS, Chapter 9, Section lB of the CITY's Code
Ordis aec fi rces equirements e of the
City
Council to approve development agreements requesting deferral p
Subdivision Regulations; and
efe
WHEREAS, this Agreement between the CITY and the OWNERadand file essing the
d e e ra the
rral of
dedication of utility easements is required before the CITY approve
Vacating and Final Plat of Lot 2;
NOW, THEREFORE, for and in consideration of the recitations above ancovenantdin consideration follows:of
the promises and covenants herein expressed,the parties hereby agree
l The OWNER agrees that any development of Lot 2C of Horse Haven Estates will be
subject to review and approval of the CITY. In this event, any and all relevant plans and/or
J
proposals will be submitted to the CITY for consideration of the need for the Extension and/or
the need for Utilities.
2. The OWNER agrees that, if in connection with any development of Lot 2C of Horse
Haven Estates, the CITY determines that the Extension is necessary, the OWNER and/or its
way
successors-in interest,heirs or assigns shall be obligated to
re Plan atcate ono cost to the CITY right-ofthe CITY the This
for the Extension as depicted on the CITY'S Thorough
dedication shall be by replatting of Lot 2C. OWNER and/or its successors-in-interest, heirs or
assigns shall pay for such survey as is required.
3. The OWNER agrees that, if in connection with any development of Lot 2C of Horse
Haven Estates, the CITY determines that the Extension
tois construct, the
OWNER expense,
P and/or
the
its
successors-in interest, heirs or assigns shall be obligated
Extension according to then existing CITY codes and ordinances.
4. The OWNER agrees that, if in connection with any development of Lot 2C of Horse
Haven Estates, the CITY determines that the Utilities are necessary, the OWNER and/or its
successors-in interest, heirs or assigns shall be obligated l t dedicate
di anat to no thecoCITY
o the
CeTYmenis
for the Utilities as depicted on the CITY'S MasterY
dedication shall be by replatting of Lot 2C. OWNER and/or its successors-in-interest, heirs or
assigns shall pay for such survey as is required.
5. The OWNER agrees that, if in connection with any development of
LLot 2C
andHo rse its
Haven Estates, the CITY determines that the Utilities are necessary,
the 2
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successors-in interest, heirs or assigns shall be obligated to construct, at their own expense, the
Utilities according to then existing CITY codes and ordinances.
6. The OWNER agrees to provide an irrevocable letter of credit in substantially the form
attached hereto as Exhibit C and incorporated herein by reference for all purposes, as outlined in
Chapter 9, Section 7 of the City of College Station Code of Ordinances (Subdivision
Regulations) for an amount not to exceed the total amount of the costs of design and construction
of the Extension and the construction of Utilities through Lot 2C of Horse Haven Estates as
established by an engineer's estimate prepared by the OWNER and approved by the CITY
(hereinafter referred to as the "Improvements"). The letter of credit for the first year of this
Agreement shall be for the total amount of $370,471.00, based upon the engineer's estimate
attached hereto as Exhibit D and incorporated herein by reference for all purposes. Said letter of
credit is required prior to the filing of the Vacating and Final Plat of Lot 2. The irrevocable letter
of credit shall be renewed each year until such time as the Improvements are constructed or until
such time as the Extension or Utilities are removed from the Thoroughfare Plan or Master Utility
Plan. The renewed letter of credit shall be submitted to the CITY for approval accompanied by
an updated engineer's estimate and shall be for the total amount as established by the new
engineer's estimate. In the event that the OWNER defaults and OWNER fails to cure such
default within ten (10) days after notice of default by the CITY as provided in paragraph 7
below, under the terms of this Agreement, the CITY may draw down on the irrevocable letter of
credit.
7. All notices and documents required herein shall be sent and provided to the parties at the
addresses and telephone numbers listed below:
Jim Baetge, Partner Dir. Development Services
LoneStar—College Station Golf Academy,Ltd City of College Station
2301 Earl Rudder Freeway South P.O. Box 9960
College Station,Texas 77845 College Station, Texas 77842
Mobile: 979.777.7023
Hunter Nelson, President
LoneStar—College Station Golf Academy,Ltd
8 Greenway Plaza, Suite 702
Houston,Texas 77046
Phone:713.877.8257
FAX: 713.877.1824
All notices and documents shall be deemed received when mailed with sufficient postage and
deposited in a regular mailbox of the United States Post Office. The parties may change
addresses upon thirty (30) days'written notice sent certified mail,return receipt requested.
8. This Agreement shall be filed of record in the Official Records of the Brazos County
Clerk,Brazos County,Texas.
9. INDEMNIFICATION. The OWNER agrees to and shall indemnify, hold harmless and
defend CITY, its officers, agents and employees, from and against any and all claims, losses,
damages, causes of action, suits and liability of every kind, including all expenses of litigation,
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court costs, and attorney's fees, for injury to or death of any person, or for damage to any
property arising out of or in connection with this Agreement. Such indemnity shall apply where
the claims, losses, damages, causes of action, suits, or liability (collectively, "Claims") arise in
whole or in part from the negligence of the CITY.
10. RELEASE. The OWNER, its successors-in-interest, heirs and assigns, hereby releases,
relinquishes and discharges the CITY, its agents, officers, and employees, from all claims,
demands, and causes of action of every kind and character, including the cost of defense thereof,
for any loss of or damage to property (whether property of either the parties hereto, their
employees, or of third parties) that is caused by or alleged to be caused by, arising out of, or in
connection with this Agreement. This release shall apply regardless of whether said claims,
demands, and causes of action are covered in whole or in part by insurance and regardless of
whether such loss or damage (collectively, "Damage") was caused in whole or in part by the
negligence of the CITY.
11. This Agreement has been made under and shall be governed by the laws of the State of
Texas. Venue shall lie in a court of competent jurisdiction in Brazos County, Texas.
12. If it is determined that the CITY had no authority to enter into this Agreement, then the
OWNER agrees that it shall meet all conditions required by the CITY'S Subdivision Regulations
and the Thoroughfare Plan or the CITY will not approve the final plat of Lot 2. If this occurs,
then as to Lot 2C of Horse Haven Estates, each party shall be considered to be returned to the
position they were in before this Agreement.
13. In the event of litigation, the non-prevailing party agrees to pay and shall pay for all of
the attorney's fees, court costs and other litigation costs of the prevailing party.
14. OWNER warrants that it is the only record owner of Lot 2, Horse Haven Estates. The
parties agree that they have read the terms of this Agreement and familiarized themselves with
the requirements hereunder and agree that they understand their rights and responsibilities
hereunder. It is understood and agreed that this Agreement shall be binding upon and shall inure
to the benefit of the parties and their respective heirs, lessees, representatives, successors, and
assigns; provided, however, and notwithstanding any contrary provision herein, it is agreed that
the OWNER's obligations hereunder shall not be binding upon Oppidan, Incorporated, or any of
its affiliates. It is understood that this Agreement contains the entire agreement between the
parties and (except as provided in paragraph 16 below) supersedes any and all prior agreements,
arrangements, or understandings between the parties relating to the subject matter. No oral
understandings, statements, promises or inducements contrary to the terms of this Agreement
exist. This Agreement cannot be changed or terminated unless in writing and agreed by both
parties.
15. Failure of either party, at any time, to enforce a provision of this Agreement, shall in no
way constitute a waiver of that provision, nor in any way affect the validity of this Agreement,
any part hereof, or the right of either party thereafter to enforce each and every provision hereof.
16. It is the intention of the parties that the Original Agreement shall remain in effect and not
be superseded by this Agreement until such time as the condition precedent referred to in the
succeeding sentence is satisfied. It shall be a condition precedent to this Agreement becoming
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effective that Lot 2 be re-platted into Lots 2A, 2B and 2C and that the CITY rezone Lots 2A and
2B of Horse Haven Estates to a C-1 General Commercial Zoning Classification; this Agreement
shall be of no force or effect unless and until such re-platting and rezoning occur. The parties
acknowledge that Lot 2C of Horse Haven Estates will maintain its current A-0 Zoning
Classification.
Executed this the 14th day of December, 2006.
OWNER CITY OF COLLEGE STATION
LONESTAR-COLLEGE STATION
GOLF ACADEMY, LTD,
a Texas limited partnership BY:
Ron Silvia,Mayor
By: LSG Enterprises, L.L.C.,
a Texas limited liability company ATTEST:
Hunter Nelson, President Connie Hooks, City Secretary
APPROVED:
Glenn Brown, City Manager
City Attorney
Jeff Kersten, Chief Financial Officer
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THE STATE OF TEXAS )
ACKNOWLEDGMENT
COUNTY OF BRAZOS )
Before me, the undersigned authority, on this day personally appeared RON SILVIA as
MAYOR of the CITY OF COLLEGE STATION, a Texas home rule municipal corporation,
known to me to be the person whose name is subscribed to the foregoing instrument, and
acknowledged to me that he executed the same for the purposes and consideration therein
expressed.
Given under my hand and seal of office on this the day of , 2006.
Notary Public in and for the
State of Texas
THE STATE OF TEXAS )
ACKNOWLEDGMENT
COUNTY OF BRAZOS )
Before me, the undersigned authority, on this day personally appeared HUNTER
NELSON as President of LSG ENTERPRISES, L.L.C., a Texas limited liability company,
general partner of LONESTAR-COLLEGE STATION GOLF ACADEMY, LTD., a Texas
limited partnership, known to me to be the person whose name is subscribed to the foregoing
instrument, and acknowledged to me that he executed the same for the purposes and
consideration therein expressed.
Given under my hand and seal of office on this the day of , 2006.
Notary Public in and for the
State of Texas
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EXHIBIT A
Final Plat—Horse Haven Estates
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EXHIBIT B
Vacating and Final Plat—Lot 2
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EXHIBIT C
Irrevocable Letter of Credit
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FROM:
ISSUER:
IRREVOCABLE LETTER OF CREDIT
DATE:
TO BENEFICIARY: City of College Station
Attention: Director of Development Services
1101 Texas Avenue
College Station,Texas 77840
IRREVOCABLE LETTER OF CREDIT NO.:
ISSUE DATE: 12:00 Noon Central Standard Time, ,200_
EXPIRATION DATE: 12:00 Noon Central Standard Time, , 200_, or upon the
completion and final payment to all contractors,whichever occurs first.
LOCATION OF PROJECT:
AMOUNT: THOUSAND HUNDRED
AND NO/100 DOLLARS($ .00)
ACCOUNT OF: ,(herein"DEVELOPER")
GENERAL TERMS&CONDITIONS:
The Issuing Bank set out above hereby issues its IRREVOCABLE LE I hR OF CREDIT NO.
in favor of the CITY OF COLLEGE STATION,TEXAS,in accordance with Chapter 5, V.T.C.A.TEXAS
BUSINESS AND COMMERCE CODE and pursuant to the Code of Ordinances of the City of College Station,
Chapter 9: Subdivisions, for the Account of DEVELOPER for an amount of up to
THOUSAND HUNDRED AND NO/100 DOLLARS
(S .00). This amount is available by your draft(s)payable at sight when accompanied by the
following:
1. Sworn Statement by a duly authorized representative of the City of College Station,Texas,stating
that Developer has/have,following required notice and an opportunity to cure,defaulted and failed
to complete the performance and construction of the improvements described below in accordance
with the Chapter 9 of the Code of Ordinances of the City of College Station,Texas, and that the
proceeds from this Letter of Credit will either be utilized by the City of College Station,Texas,to
complete such construction or will be returned by the City of College Station to the Issuing Bank.
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EXHIBIT D
Engineer's Estimate
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SPECIAL TERMS&CONDITIONS:
1. All banking fees/expenses/charges incurred are for the account of Developer. This Letter of
Credit is issued in conjunction with the development of Developer in the City of College Station,
Texas,specifically for the following:
To guarantee the payment and performance of the proposed construction
improvements in
a proposed addition to the City of College Station,
Texas,for a period not to exceed one(1)year from the date hereof.
2. Disbursements pursuant to this Letter of Credit will never exceed the above-stated amount, less
any amount released by the City of College Station,Texas. The amount of credit under this Letter
of Credit may be reduced upon approval and acceptance by the City of College Station of
completed improvements,which reduction may only be made with the written authorization of the
Director of Development Services of the City of College Station.
3. In accordance with Section 5.106 of the TEXAS BUSINESS AND COMMERCE CODE, this Letter of
Credit may be modified, upon the execution and delivery to Issuer of a sworn statement giving
consent to modification by the Director of Development Services of the City of College Station.
4. The Issuer of this Letter of Credit has caused this Letter to be signed by the undersigned officer
who has attached proof of his authorization to sign,together with attestation by Issuer's authorized
attesting officer and sealed with the seal of Issuer.
ISSUER:
BY:
Authorized Officer
Attested By:
STATE OF TEXAS
COUNTY OF BRAZOS *
This instrument was acknowledged before me on ,200_,by
the authorized officer of , Issuer, a Texas Banking Corporation, on
behalf of said Banking Corporation and in the capacity stated.
Notary Public—State of Texas
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