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HomeMy WebLinkAboutLegal Document STATE OF TEXAS ) ) COUNTY OF BRAZOS ) DEVELOPMENT AGREEMENT This Agreement is entered into this the day of 1996, by and between the CITY OF COLLEGE STATION, aTexas Home Rule Munici- pal Corporation (hereinafter referred to as "CITY"), and J. V. Henton and David Scar- mardo (herein referred to as OWNERS). WHEREAS, J. V. Henton owns Lot 3, Henton Subdivision, College Station, Brazos County, Texas (herein referred to as the PROPERTY) depicted "in -the plat attached hereto as Exhibit "A" and incorporated herein by reference; WHEREAS, David Scarmardo owns Lots 1 and 2, Henton Subdivision, College Station, Texas, which are adjacent to the PROPERTY; WHEREAS, on January 9, 1986, Henton applied for a rezoning of the Lot 3 from A-P to R-4 and R-1 A; WHEREAS, the College Station City Council approved the rezoning of Lot 3 contingent upon Henton constructing a wall between the R-4 zone and the R-1A zone. A copy of the Minutes from the. hearing are attached hereto as .Exhibit "B" and the plat is attached hereto as Exhibit "C", both of which are incorporated herein by reference; WHEREAS, Henton neither constructed the wall nor developed the PROPERTY; WHEREAS, on February 9, 1995, the College Station City Council held a public hearing for the consideration of a rezoning request submitted by Henton for the PROPERTY from zone R-4 to R-1A; WHEREAS, at the public hearing Henton requested the removal of the require- ment that he construct a wall that was established in the 1986 rezoning; and WHEREAS, the City Council rezoned the property to R-1A as requested by Henton contingent upon construction of a wall but moved the location of the wall to the jslcljuly96/henton.doc 7/16/96 common boundary line between Lots 1 and 2, Henton Subdivision, the adjacent tract of land zoned A - P, and the PROPERTY, and the execution ofa Development Agreement between David Scarmardo, JOV. Henton and the CITY; NOW, THEREFORE, for and in consideration of the promises and covenants expressed herein, the parties hereby mutually agree as follows: 1. OWNERS agree .to construct a fence between Lots 1 and 2 and the PROPERTY. 2. The fence shall be constructed with brick columns and wooden fence interconnecting between the brick columns. The fence shall be six feet (6') in height and shall extend across the common lot line between Lots 1 and 2 and Lot 3-. (The location of the fence is depicted in yellow in Exhibit "A".) 3. OWNERS agree to constructthe fence at the time of development of Lots 1, 2 or 3, whichever occurs first. 4. The parties agree that the fence requirement is made to provide a buffer between the residential zoning applicable to Lot 3 and. the A-P zoning applicable to Lots 1 and 2. Accordingly, all parties agree that should Lots 1 and 2, or any part thereof, be rezoned and made the subject of residential development, the location of the fence shall be varied to provide the intended buffer between residential and non- residential development. Further, all parties agree that should Lots 1 and 2, or any part thereof, be rezoned and made the subject of residential development, standard vehicular access shall be provided to Lots 1 and 2 from Lincoln Avenue, such access to be along the southwestern boundary line of the subdivision and to be depicted upon the final subdivision plat. 5. No Building permits or Certificate of Occupancy shall be issued for Lots 1, 2 or 3 until such time that the fence is constructed. -2- jslcljuly96/henton.doc 7/16/96 6. If OWNERS fail to construct the fence as provided for in this agreement, or OWNERS fail to comply with any provision in this agreement, such failure shall constitute a default. In such event, the parties herein agree and understand that: a. CITY will not issue building permits or a certificate ofoccu- pancy for Lots 1, 20r 3 until the defaulting party cures such default. b. if Lot 3.has not yet been developed, the zoning classification of R-4 shall be reinstituted with its restrictions and the R-1A rezoning shall be null and void. 7. It is understood that this agreement shall be governed by, and construed and. enforced in accordance with, and subject to, the laws of the State of T eXgs. The parties agree that performance of this contract shall take place in Brazos County, Texas, and that venue shall>lie in a court of competent jurisdiction in Brazqs County, Texas. 8. The parties agree that they have read the terms of this agreement and familiarized themselves with the requirements hereunder and agree that they under- stand their rights and responsibilities hereunder. 9. 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, representa- tives, successors and assigns. 10. It is understood that this agreement contains the entire agreement between the parties and supersedes any and all prior agreements, arrangements, or understandings between the parties relating to the subject matter. No oral understand- ings, statements, promises or inducements contrary to the terms of this agreement exist. This agreement cannot be changed or terminated unless in writing and agreed to by both parties. 11. OWNERS hereby release, relinquish and discharge CITY, its officers, agents and employees, from all claims, demands, and causes of action of every -3- jslcljuly96/henton.doc 7/16/96 kind and character, including the cost of defense thereof, for any injury to, includ- ing death of, any person (whether they be third persons, contractor, or employ- ees of either of the parties hereto) and any loss of or damage to property (whether the same be that of either of the parties hereto or of third parties) caused by or alleged to be caused by, arising out of, or in connection with this Development Agreement, whether or not said claims, demands and causes of action, in whole or in part, are covered by insurance. 12. The parties executing. this Agreement represent that they either own the property or have authority to sign on behalf of the owners. 13. All notices and documents required herein shall be sent and provided to the parties at the addresses. and telephone.numbers listed below: City of College Station Director of Development Services P.O..Box 9960 College Station, Texas 77842-9960 Phone: (409) 764-3570 J. V. Henton HC30, Box 6M Brownwood, TX Phone: (915) 643-6486 David Scarmardo 111 FM 2818 Bryan, TX 77083 14. 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. 15 This Agreement shall be filed of record in the Official Records of the Brazos County Clerk, Brazos County, Texas. -4- jslc/july96/henton.doc 7/16/96 16. In the event of litigation, OWNERS agree to pay and shall pay all of the attorney's fees,. court costs and other litigation costs of CITY. Executed this the day of ,1996. AGREED: AGREED: CITY OF COLLEGE STATION BY: LYNN MclLHANEY, Mayor J.V. HENTON ATTEST: DAVID SCARMARDO CONNIE HOOKS, City Secretary APPROVED: GEORGE K. NOE,. City Manager APPROVED AS TO FORM: ROXANNE NEMCIK, Acting City Attorney APPROVED AS TO FINANCING: GLENN SCHROEDER, Director of Finance -5- jslcljuly96/henton.doc 7/16/96 THE STATE OF TEXAS ) ) COUNTY OF BRAZOS ) Before me, the undersigned authority, on this day personally appeared J. V. ACKNOWLEDGMENT HENTON, 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 ,1996. Notary Public in and for The State of Texas THE STATE OF TEXAS COUNTY OF BRAZOS ) ) ) ACKNOWLEDGMENT Before me, the undersigned authority, on this day personally appeared DAVID SCARMARDO, known to me to be the person whose .name is subscribed to the fore- going 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 ,1996. Notary Public in and for The State of Texas -6.- jslcljuly96/henton.doc 7/16/96 THE STATE OF TEXAS COUNTY OF BRAZOS ) ) ) ACKNOWLEDGMENT Before me, the undersigned authority, on this day personally appeared Mayor LYNN MclLHANEY, as Mayor of the City of College Station, a Texas Municipal Corpo- ration, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that she executed the same for the purposes and consideration therein expressed. Given under my hand and seal of office on this the day of ,1996. Notary PUblic in and for The State of Texas -7- jslcljuly96/henton.doc 7/16/96 DRAFT 3/22/96 12:07 PM 'This is a working draft and intended to facilitate obtaining a final document. It may contain errors or omissions and is in need of further revision. It. is intended only for those to whom it is addressed. IT IS NOT FOR DISTRIBUTION. Please review it carefully and make any changes or corrections as necessary. STATE OF TEXAS COUNTY OF BRAZOS ) ) ) DEVELOPMENT AGREEMENT This Agreement is entered into this the day of 1996 by and between the CITY OF COLLEGE STATION, a Texas Home Rule Munici- pal Corporation (hereinatter referred to as "CITY"), and J. V. Henton and David Scamardo (herein referred to as OWNERS). WHEREAS, .J. V. Henton owns Lot 3, Henton Subdivision, College Station, Brazos County, Texas (herein referred to as PROPERTY) depicted in the plat attached hereto as Exhibit "Anand incorporated herein by reference; WHEREAS, David Scamardoowns tots 1 and 2, Henton Subdivision, College Station, Texas, which are adjacent to the PROPERTY; WHEREAS,on January 9,1986, Henton applied for a rezoning of the Lot 3 from A-P to R-4 and R-1A; WHEREAS, the College Station City Council approved the rezoning of Lot 3 contingent upon Henton constructing a wall between the R-4 zone and the R-1Azone. A copy of the Minutes from lhe hearing are attached hereto as Exhibit "B" and the plat is attached hereto as Exhibit "C" both of which are incorporated herein by reference; WHEREAS, Henton neither constructed the wall nor developed the PROPERTY; WHEREAS, on February 9, 1995, the College Station City Council held a public hearing for the consideration of a rezoning request submitted by Henton for the PROPERTY from zone R-4 to R-1A; js/c/mar96/henton.doc 3122196 DRAFT 3/22/96 12:07 PM WHEREAS, at the public hearing Henton requested the removal of the require- menUhat he construct a wall that wasestabHshedin the 1986 rezoning; and WHEREAS, the City Council rezoned the property to R-1A as requested by Henton contingent upon construction of a wall but moved the location of the wall to the common boundary line between Lots 1 and 2, Henton Subdivision, the adjacent tract of land zoned A -P,.and the PROPERTY and the execution of a Development Agreement between David Scamardo, Henton and the CITY; NOW THEREFORE, for and inconsideration of the promises . and covenants expressed herein the parties hereby mutually agree as follows: 1. OWNERS agree to construct a fence. on the common boundary between Lots 1 and 2 and the PROPERTY. 2. The fence shaH be constructed with brick columns and wooden fence interconnecting between the brick columns. The .fence shall be six feet (6') in height and shall extend across th.ecommon Jot line between Lots 1 and 2 and Lot 3. The location of the fence is depicted in yellow in Exhibit "A". 3. OWNERS agree toconstrucUhe fence at the time of development of Lots 1 or2, whichever occurs first. 4. OWNERS shall post a financial guarantee in the form of a payment bond acceptable to CITY to guarantee the cost to construct the fence. The amount of said guarantee shall be established bya written cost estimate prepared by a contractor estimating the cost to construct the. fence. OWNERS shall obtain and submit the construction cost estimate to the Planning Department upon execution of this agree- ment. 5. No Building permits or Certificate of Occupancy shall be issued for Lots 1 or 2 until such time that the fence is constructed. -2- jslc/mal96/henton.doa :1122196 DRAFT 3/22196 12:07 PM 6. If OWNERS fail to construct the fence as provided for in this agreement, or OWNERS fail to comply with any provision in this agreement, such failure shall constitute a default. In such event the parties herein agree and understand that: a. CITY shall be authorized file a claim against the payment the bond. b. A written notice signed by the Director of Development Services stating that OWNERS are in default shall constitute sufficient . authorization for filing a claim on the bond provided forthe benefit of the CITY by OWNERS. c. Presentation by CITY, beneficiary of the bond, for collection by Director of Finance shall be in the following form: I, Jim Callaway, Director of Development Services (or his delegate) hereby file a claim on Payment Bond No. in the amount . of $ for default of the Development Agreement dated between the City of College Station, OWNERS. d. The funds secured by the payment bond shall be used by CITY to construct the fence at the designated location. e. If the funds guaranteed by the payment bond are .insufficient to cover the actual cost of construction of the fence, OWNERS agree that the tendering of this document with a sworn statementof the Director of Development Services that OWNERS are in default shallconstitute$ufficient evidence for a <;anfession of judgment and OWNERS agree that they do hereby confess judgment. f. CITY will not . issue building permits Of: a certificate of occupancy for Lots 1, 2 or 3 until the defaulting party cures such default. g. if Lot 3 has not yet been developed, the zoning classification of R-4 shall be reinstituted with its restrictions and the R-1A rezoning shall be null .and void. -3- jslclmar96/henton.doc 3122196 DRAFT 3/22/96 12:07 PM 7. It is understood that this agreement shall be governed by, and construed and enforced in accordance. with,and subject to, the laws of the State of Texas. The parties agree that performance of this contract shall take place in Brazos County, Texas and thatvenueshalllieina court of competent jurisdiction in Brazos County, Texas. 8. The parties agree that they have read the terms of this agreement and familiarized themselves with the requirements hereunder and agree that they under- stand their rights and responsibilities hereunder. 9. \tis understood and agreed that this agreement shall be binding upon and shall inure to the benefit of the parties and their respective heir, lessees, representa- tives, successors and assigns. 10. \t is understood that this agreement contains the entire agreement between the parties and supersedes any and all prior agreements, arrangements, or understandings between the parties relating to the subject matter. No oral understand- ings, statements, promises or inducements contrary to the terms of this. agreement exist This agreement cannot be changed or terminated unless in writing and agreed to by both parties. 11. OWNERS hereby release, relinquish and discharge CITY, its officers, agents and employees, from all claims, demands, and causes of action of every kind and character including the cost of defense thereof, for any injury to, includ- ingdeath of, person (whether they be third persons, contractor, or employees of either of the parties hereto) and any loss of or damage to property (whether the same be that either.of the parties hereto or of third parties) caused by or alleged to be caused, arising out of, or in connection with this Development Agreement -4- jslc/mat96/henton.doc 3/22/96 DRAFT 3/22/96 12:07 PM whether or not said claims, demands and causes of action in whole or in part are covered by insurance. 12. The parties executing this Agreement state that they are each authorized to sign on behalf of their respective corporations. OWNERS shall provide proof of their authorization to enter into this agreement. 13. All notices and documents required herein shall be sent and provided to the parties at the addresses and telephone numbers listed below: City of College Station Director of Development Services P.O. Box 9960 College Station, Texas 77840-0960 Phone: (409) 764-3570 J. V. Henton HC 30, Box 6M Brownwood, TX Phone: (915) 643-6486 DavidSeamardo 111 FM2818 Bryan, TX 77083 14. 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. 15 This Agreement shall be filed of record in the Official Records of the Brazos County Clerk, Brazos County, Texas. 16. In the event of litigation, OWNERS agree to pay and shall pay all of the attorney's fees, court costs and other litigation costs of CITY. -5- jslclmar96/henton.doc 3/22196 , . Executed this the AGREED: J. V. HENTON DAVID SCAMARDO BY: J.V. Henton BY: David Scamardo js/c1mar96/henton.doc 3122196 day of AGREED: CITY OF COLLEGE STATION BY: DRAFT 3/22/96 12:07 PM ,1996. Mayor Larry Ringer ATTEST: Connie Hooks, City Secretary APPROVED: George K.. Noe, City Manager APPROVED AS TO FORM: Cathy Locke, CityAttorney APPROVED AS TO FINANCING: Glenn Schroeder, Executive Director of Finance -6- ," .. DRAFT 3/22/96 3:29 PM THE STATE OF TEXAS ) ) COUNTY OF BRAZOS ) Before me, the undersigned authority, on this day personally appeared ACKNOWLEDGMENT known to me to be the person whose name is . subscribed to the foregoing instrument, and acknowledged to me that he executed the . same forthe purposes and consideration therein.expressed. Given under my hand and seal of office on this the day of ,1996. Notary Public in and for The State of Texas THE STATE OF TEXAS ) ) COUNTY OF BRAZOS ) Before me, the undersigned authority, on this day personally appeared Mayor ACKNOWLEDGMENT LARRY RINGER, as Mayor of the City of College Station, a Texas 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 ,1996. Notary Public in and for The State of Texas -7- jslclmar96/henton.doc 3/22196