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HomeMy WebLinkAboutLegal Documente Amendment to Development Agreement This Amendment to the Development Agreement is entered into this the day of 1996, by and between the City of College Station, a Texas home-rule municipal corporation (the "City"), LaCour Investments, a Louisiana Limited Partnership ("LaCour"), and ,SCC Development, Ltd., a Texas Limited Partnership ("SCC"), and amends the Development Agreement entered into by and between the parties dated March 25, 1996. WHEREAS, Paragraph 10 of the Development Agreement currently requires SCC to construct a roadway through Lot One for the future extension of Kyle Street South in consideration for the City's agreement not. to further assess SCC for any additional improvements that the City might later,make to the roadway. WHEREAS, Paragraph 14 of the Development Agreement currently requires SCC to comply at all times with all other applicable City ordinances. affecting the use and development of the .land. described in and covered by that Development Agreement, and whereas. Chapter 12, Section 10.2 B of the City's Code of Ordinances requires SCC in this case to construct a pedestrian sidewalk along the Harvey Road perimeter of Lot One. WHEREAS, and contrary to the above-stated requirements, SCC does not now wish to construct all of the required roadway or all of the required sidewalk. WHEREAS, the City has agreed to construct the remainder of the roadway and the remainder of the sidewalk at a later date in exchange for further comparable reductions in the price at which SCC will later convey the right-of--way for the Kyle Street South extension to the City pursuant to Paragraph 12 of the Development Agreement. NOW THEREFORE, for and in .consideration of the recitations above and in consideration of the promises and covenants herein expressed, the parties do hereby agree and covenant to amend the Development Agreement as follows: I. Construction of the Roadway and Sidewalk A. Paragraph 10 of the Development Agreement is hereby deleted in its entirety and replaced with the following new Paragraph 10: "In consideration for SCC's reduction in the sale price, as specified herein, of the right-of--way for the future extension of Kyle Street South through Lot One, the City agrees to make no further assessments, which would otherwise be allocated to SCC, for improvements that the City may elect to make to the right-of--way, including the costs of construction of the roadway." Page 1 of 4 10/4/96 ps/c/dots/Oct96/lacour. dot B. Paragraph 11 of the Development Agreement is hereby deleted in its entirety and replaced with the following new Paragraph 11: "SCC agrees to and does hereby grant to the City a right of access over the right- of-way .area for the future extension of Kyle Street South through Lot One as designated on the final plat, solely for the City's access to the Wolf Pen Creek Dedication for maintenance and related purposes." C. Paragraph 14 of the Development Agreement is hereby deleted in its entirety and replaced with the following new Paragraph 14: "In exchange for the reduction in the future sale price of the right-of--way for the extension of Kyle Street South, as specified above, the City hereby agrees that SCC. will not be required to pay for or construct a pedestrian sidewalk in its entirety along the Harvey" Road perimeter of Lot One as would otherwise be required by Chapter 12, Section 10.2 B of the .City's Code of Ordinances. However, LaCour and SCC hereby agree to comply at all times with all other applicable .City ordinances and state and federal laws affecting the use and development of the land described in the Preliminary Plat." II. Additional Reduction in the Sale Price of Right-of-Wav for the Kyle Street South Extension Paragraph 12 of the Development. Agreement is hereby deleted in its entirety and replaced with the following new Paragraph 12: "At such time that the City decides to extend Kyle Street South beyond (south of) Harvey Road, the City shall acquire from SCC. and SCC hereby agrees to convey to the City the necessary Kyle Street South .right-of--way through Lot One, as designated on the final plat, at the contemporary fair market value of the property, less the following discounts: (a) the estimated cost of construction of the remainder of the roadway and all associated improvements for the extension of Kyle Street South through Lot One, as determined by the design engineer ~ the time of the City's construction of same. (b) the estimated cost of .construction of the remainder of the pedestrian sidewalk along Harvey Road, as determined by the design engineer at the time of the City's construction of same. (c) the contemporary fair market value of that portion of said sidewalk and roadway improvements that were constructed by SCC." Page 2 of 4 10/4/96 ps/c/dots/Oct96/lacour. dot III. Other Terms & Conditions of the Original Development Agreement All other terms and conditions of the March 25, 1996, Development Agreement, including SCC's obligations- in Paragraph 9 to pay for the design costs for the construction of Kyle .Street South through Lot One and participate in the grade study, shall remain in full. force and effect and are expressly incorporated herein by reference. IV. Reimbursement of Costs SCC hereby agrees and shall .pay .for the City's cost of preparation of this Amendment to the Development: Agreement in accordance with City Council Policy. The City shall remit a bill for said costs to .SCC that shall be due and payable in full within ten (10) calendar days of receipt of same by SCC. V. Filin This Amendment to the Development Agreement shall be filed in the Official Records of Brazos County. SIGNED this day of , 1996. SCC DEVELOPMENT, LTD. CITY OF COLLEGE STATION By SCC-GP, Inc., its sole General Partner By: BY~ Fred J. Heyne III, Chairman of the Board LACOUR INVESTMENTS By: Charles D. LaCour, Managing General Partner Page 3 of 4 Lynn McIlhaney, Mayor ATTEST: Connie Hooks, City Secretary APPROVED: George K. Noe, City Manager Roxanne Nemcik, Acting City Atty. Glenn Schroeder, Executive Director of Finance 10/4/96 ps/c/dots/Oct96/lacour. dot STATE OF TEXAS ) COUNTY OF HARRIS ) ACKNOWLEDGMENT This instrument was acknowledged before me on the day of ,19_ by Fred J. Heyne III, in his capacity as Chairman of the Board of Directors of SCC-GP, Inc., a Texas corporation, on behalf of said corporation, and the corporation acknowledged this instrument as the sole general partner of SCC Development, Ltd., a Texas Limited Partnership, on behalf of said partnership. Notary Public in and for the State of Texas THE STATE OF FLORIDA ) ACKNOWLEDGMENT COUNTY OF ESCAMBIA ) This instrument was acknowledged before me on 1996, by Charles D. LaCour, as Managing General Partner of LaCour .Investments, a Louisiana Limited Partnership, on behalf of said partnership. Notary Public in and for The State of Florida STATE OF TEXAS ) COUNTY OF BRAZOS ) ACKNOWLEDGMENT This instrument was acknowledged before me on the day of 19T, by Lynn McIlhaney, in her capacity as Mayor of the City of College Station, a Texas home-rule municipal corporation, on behalf of said municipality. Notary Public in and for the State of Texas Page 4 of 4 10/4/96 ps/c/dots/Oct96/lacour. dot - ~ DEVELOPMENT: AGREEMENT This Agreement is entered into .this the ZS ~ day of /~ar~i. , 1996, by and among the CITY OF COLLEGE STATION, TEXAS, a Texas Home-Rule Municipal Corporation (hereinafter referred. to as the "City")~ LACOUR INVESTMENTS,: a :Louisiana .Limited .Partnership (hereinafter referred to as "LaCour"), and SCC DEVELOPMENT, LTDe, a Texas Limited Partnership, or its assigns, (hereinafter referred to as "SCC"). WHEREAS, LaCour is the owner of a certain 4.339 acre tract and a certain 7.891 acre tract, both in the Morgan Rector League, Brazos County, Texas, and being more fully depicted and. described in the revised, proposed. preliminary plat fore LaCour Subdivision,.Phase:.One, attached hereto as Exhibit "A", incorporated herein by reference, and hereinafter referred to as the. "Preliminary Plat". Wf~REAS, LaCour has proposed to sell, and SCC has agreed to buy, the -4:339 acre tract, denominated as, and hereinafter referred to as, "Lot One" on the Preliminary Plat. . V~REAS, the City is -interested-in acquiring, by dedication, sufficient right-of- way for a future extension. of Kyle South Street. WI~REAS, SCC has agreed o grant the City a thirty foot (30'). wide "Private Access Easement" through Lot'One, running from the most southerly .corner of Zot One ;-north and west through Lot One -to Harvey Road and as on the Preliminary Plato WI~REAS, SCC has also agreed, upon certain conditions, to ..grant Austaco,. Inca, the owner of property adjacent and to the west of Lot One, a thirty foot (30') wide "Private Access Easement" through Lot One, said easement being directly parallel` with and adjacent to that portion of themost westerly property line of Lot One that is also the. most easterly property line of Austaco, Inc. and-overlapping ~. portion of the pity's thu•ty Page 1 of 10 0223/5b ps/G9`eb96/LaCourdoc ~ _ i 22 ~1 foot (30') "Private Access Easement" described above, and all "as .shown on the Preliminary Plat. WI~EREAS, LaCour owes a significant amount ofproperty taxes onboth Lot One and the 7.891 acre `tract, and LaCour is unable to .pay those taxes prior to selling the properties and is thus unable to comply with City ordinance No. 18:16, codified in the City's Code of Ordinances at Chapter 9, Section 6-D.4.4, which requires developers seeking approval of a new subdivision plat to submit certificates from all taxing authorities showing payment. of all ad valorem taxes on the properly. WHEREAS, LaCour and SCC desire to comply with the City's Wolf Pen Creek Zoning Ordinance in other respects and have elected to comply with. said ordinance by dedicating to the City the minimum reservation area required by Section 7.21D of the Zoning Ordinance, and as shown on Exhibit B. NOW, THEREFORE, for and in consideration of the recitations above and in consideration of the promises. and covenants herein .expressed, ...the. parties hereby agree and covenant as follows; 1 LaCour agrees and. does hereby donate to the City the 5.100 'acre tract, as depicted.. on the Preliminary Plat and hereinafter referred to as the "Wolf Pen Creek Dedication". 2. LaCour agrees to and shall dedicate to the City athirty-five foot (35') wide right-of-way' (approximately- 0.094 acres) for the extension of Kyle Street .South :(hereinafter referred to as the "Kyle Street South Dedication") from the: southernmost property line of the Wolf Pen Creek Dedication south to the southernmost property line of the "Reserve Tract for Future Development" (hereinafter referred to as the "Reserve `Tract"), all ds depicted onthe Preliminary Plat. 3. LaCour and. SCC agree aad do hereby dedicate to the City a strip of land out of,and along the southeast `property line of Lot One. Said strip of land being twenty. Rage 2 of 10 ours ps/c/feb96lLac:our.doc 4 feet (20°) wide, containing .295 acres, and as shown on the Preliminary Plat. This dedication is being made in compliance with, and. fulfillment of, the requirements. of the Wolf Pen Creek Zoning Ordinance. 4. SCC agrees to and shall grant the City and LaCour a thirty foot (30') wide "Private Access Easement" for maintenance and engineering purposes through Lot. One, running from .the most southerly.. corner of Lot One north and west through Lot One to Harvey Road and as depicted on the Preliminary Plat. In addition, SCC agrees that in the event Austaco, Inc., .the property owner immediately to the west along .Harvey Road, agrees and does, in fact, close its most easterly curb-cutlaccess .drive .onto 'Harvey Road, Austaco may thereafter use the northern portion of this Private Access Easement for access from its property through Lot One to Harvey Road. - 5. Out of the proceeds of the sale of Lot One, LaCour agrees to and shall pay all accrued ad valorem taxes, including any and all outstanding taxes for prior years and the accrued, pro-rata portion of taxes for the current'year for Lot .One, the Kyle :Street South Dedication, and the Wolf Pen., Creek Dedication. Within seven (7) days of the sale of Lot One, LaCour shall provide the City v~rith certificates from all applicable taxing. authorities showing payment of all ad valorem taxes, both for the current year. and all past years, .for Lot One, the Kyle Street South Dedication, and the Wolf Pen Creek Dedication. Until such time, the City agrees to temporarily waive the application of a section of .City .Ordinance No. 1816, codified in the City's Code.. of Ordinances at Chapter 9 Section 6.- D.4.4 which requires developers, pror,.to approval and filing of a final plat, to submit certificates. from all taxing authorities. shov~ring paygnent of all ad ~ralorem taxes on the properly. 6. Contediporaneous with the execution of this Agreement, LaCour agrees to and shall-provide the pity with either a federal bankruptcy court order authorizing the sale of the properly subject to this Development Agreement, or in the alternative a court- Page ~ of ~10 vuz~s ps/c/feb96/LaCourdoc it:4 approved plan of reorganization that authorizes LaCour to sell or otherwise dispose of this property. 7. The City agrees :not to make any future assessments against .the .Reserve Tract for the initial construction and extension, including the .initial design and construction of associated drainage improvements, of Kyle Street South through the Reserve Tract. The City reserves the right, however, to make other future assessments against the Reserve Tract, including without limitation' assessments for subsequent maintenance costs. 8. LaCour will designate on the final plat the area within Lot One for the right- of-way for the future extension of Kyle Street South, which right-of-way.. shall ultimately be acquired by the City. 9. SCC agrees to incur and pay without recourse the costs. of the design and construction documents for the initial construction of Kyle. Street .South through Lot One. In addition, the City will :participate with SCC in an engineering study to determine the grade at which the extension of Kyle Street South will need to be built in order to accommodate the:. design and construction of any required bridge as part of the extension of Kyle Street South. The costs for this grade study, only, shall be borne: by and divided among the parties as follows: The City - 50%; SCC - 25%; and LaCour - 25%. 10. SCC agrees to construct within the designated right-of-way for the future extension of -Kyle .Street South _a roadway that meets the City's specifications. for a "commercial. collector". In .consideration for SCC's construction of said roadway, the City agrees to make no further :assessments, which would otherwise lie allocated to SCC for any additional improvements that the .City may elect to make to the roadway.. 11. SCC agrees to and hall :grant to the City a right °of access over said roadway for the purpose of the City's mess, solely for maintenance :and related purposes, to the Wolf l'en Creek Dedication. Page 4 of 10 o~n~s ps/dfeb96/LaCourdoc ~= 12. At such. time that the City decides to extend Kyle Street South beyond (south of) Lot One, the City shall acquire the Kyle Street South right-of-way through Lot One, as designated on the final plat,-from SCC at the contemporary fair market value of theproperly not including the roadway improvements thereon. 13. LaCour and 'SCC. agree. to and shall provide.. the City with impact studies associated with the preliminary plat. LaCour and SCC .agree to financially guarantee the costs of design and construction of a waterline from Harvey Road to the most southerly property line of Lot One .and from Holleman to the .most southerly property line of the Wolf Pen Creek Dedication. The form of this guarantee shall be a bond from SCC and cash--out of the closing proceeds--from LaCour. The basis for the amount of this guarantee shall be the difference between the entire cost of a waterline as required by the City less any oversize participation granted by the City Council as set forth in the City's subdivision regulations. LaCour and :SCC agree that no plat of any portion of this properly will be filed until this guarantee is posted with: the City. 14. LaCour and SCC agree to comply at all dimes. with all other applicable City ordinances =and state and federal laws affecting the -use: and development of the land described in the Preliminary Plat. 15. LaCour agrees to and shall,pay fifty percent {50%) of the actual preparation costs of this Development Agreement in an amount up' to, but not to exceed, two thousand five_.hundred dollars ($2,500:00). (costs incurred to -date equal $3,081:00, of which fifty. percent (50%) equals $:1,540.50. LaC'our agrees .that -this $1,5~-0.50.:. plus <fiflY percent (50%) of any additional costs incurred, up o a total of $2,500.00, shall be paid to the City .prior to submission of this. Development Agreement to the City Council for approval. 16. It is understood and -agreed`=that any failure to meet the terms ~d conditions of this Agreement terminates the Agreement. In ~ such event, the City shall neither be obligated to waive or defer any of its ordinance rcgquirements, -nor refia.in-from assessing Wage 5 of 1 o~z~~ ps/clfeb96lLa~urdoc either Lot One or the. Reserve Tract for the initial design and construction of Kyle Street South, nor, at the City's option, comply with any other term of this Agreement. 17. It is understood and agreed that the continued effectiveness of this Agreement and all its terms are dependent upon the occurrence of the proposed sale of Lot Onefrom LaCour to SCC within one..-hundred fifty.:{150) days of this Agreement. In the event that this proposed sale does not occur within one-hundred fifty (150) days of the date of this Agreement, the Agreement shall automatically terminate and have no further force or effect whatsoever. 18. LaCour hereby releases, relinquishes, and. discharges the 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 or death of any person (whether employees of any party or other third parties) and any loss of or damage: to property (whether. property of the parties hereto or of third parties) that is caused by,,alieged to be caused by arising out of, ®r is connection with this Agreement.. or LaCour's work to be .performed hereunder. This .release shall apply regardless of whether or not said claims, demands, and causes of action are covered in whole or in part byinsurance. 19. SCC hereby releases, relinquishes, and discharges. the. City, its officers, agents, -:and employees from alI claims, demands, and causes ®f acfion of every kind and character, including' he cost of defense thereof, for any injury to or deathof any person (whether employees of any party or .other third parties) and any loss of or damage to property .(whether property of the parties hereto or of third parties) that is caused by, alleged to be caased by, arising out of, or in connection with this `. Agreement•,or =SCC's- work. to :be performed hereunder. This release shall apply regardless of whether or not said claims, degnands, and causes of action are covered in whole or is part by insurance. Page 6 ®f10 -: 02/23(96 . ps/cA`eb96/LaCourdoc 20. LaCour agrees "to .and shall indemnify, hold harmless, and defend the 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, court costs, aad attorney's fees,. for injury to or death of any ~ on, or for damage to any property, or for :breach of contract, arising out of or in connection with this Agreement, the work to be .performed hereunder, and the properties designated herein as the Kyle Street South .Dedication, the Wolf Pen. Creek Dedication and 'the Reserve Tract, regardless of whether such injuries, death, damages, or breach are caused in whole or is part by the negligence of the City. 21.: SCC agrees to and shall indemnify, hold harmless, and defend the 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'' e~cpenses of litigation, court costs, and attorney's fees, for injury to or death of any person, or for damage to any property, or for breach of contract,. arising out of or in connection with. this Agreement, the work to be performed hereunder, .and the property designated herein as Lot One, including but not limited to the twenty foot (20',) wide dedication to Thee. City out of Lot One and the private access easements granted by this Agreement, This indemnification shall apply regardless of whether such injuries, death, damages, or breach are caused in whole or in part by the negligence of the City,: but it shall not. apply where such :injuries, death, damages, or breach are caused is whole or in ;:part by the negligence or iatentinnal acts or omissions of LaCour. 22. It is understocad that this Agreement shall be ;g©verned by, and construed and enforced in. accordance"with, anal subject to, the laws of the State ofTexas: The parties agree that performance of this Agreement .shall take place in Brazos County, Page 7 of 10 oarzs~s ps%dfeb9fi/L.aCourdoc M.k Texas, and that venue shall lie in a court of competent jurisdiction in Brazos bounty, Texas. 23. 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. 24. 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. 25. 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 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 to by both parties. Dated this. the 'Si~ day of /~~Y~ ,.1996. LACOUR INVESTMENTS SCC, DEVELOPMENT, LTD. by SCC-GP, Inc., its sole General Partner By ~r~yio~ CITY OF COLLEGE STATION BY: G ge ®e, City Manager APPROVED: By: Fred J. eyn III, ~ f~ ~~~JQ~ .3 Z_5 9~ Date , Page £~ ®f 10 otiz~s pslclfeb96lLr+Co~r. doc ._ ~ - Cathy Locke; - Atto D/ Glenn Schroeder, Executive Director of Fiscal and:Human Resources Fta r~d~, THE STATE OF ~~ )) COUNTY OF 3-ob1-9'G Date r + /~ ! Lam/ Date ACKNOWLEDGMENT ~. ~.scaw.l4-tc_ This .instrument was acknowledged before me on i1lltcre.~ ~{- , 1996, by Ct~avl~_~, ~ . ~~o,,,,r ash ~( pcw~+~tof LaCour Investments,. a Louisiana Limited Partnership, on be alf of said partnership and known to me to be the person whose name is subscribed to the foregoing' instiniment, and acknowledged to me that he executed -the same for the purposes and consideration. therein. expressed`, ,.•RY p ~,,; ~~~ • ~4~ % "OFFICIAL SEAL" ~:• Susan M Green ~ o My Commiss;On Expires tt~itJ o u is in aII or '-~,;FOF~.~o-'' COrtlmissi0fl #C(i 23E•752 ~e St3te of - Ftoircc.~C~, ~~~,~~~~,tt~~ THE STATE O TEXA$ ~A ~R i S ACKNOWLEDGMENT COUNTY OF 63- This instrument was acknowfledged before me on V ~ ~ 9 1996, by Fred J. Heyne III, as ~Y(QI (` Yl'ECt iU ~~~~ ~ SCC-GP, Inc., a Texas corporation, on behalf of said corporation, and the corporation ackaolwedged this instrument as the.-sole general .partner of SCC Development, Ltd., a Texas limited partnership, and known to me to be the person whose name `is subscribed tQ the foregoing instrument, and acknowledged to me that he executed the same for the -purposes and consideration therein :expressed. ,~7 .{..,may; The St< oa~z~ss ps/c11e696~LeCour. doc Page 9 of 10 f~. THE STATE OF TEXAS ACKNOWLEDGMENT COUNTY OF BRAZOS This instrument was acknowledged before me on ~~ ~ ^~ , 1996, by George K. Noe, City Manager of the City. of College Station, a Texas Municipal Corporation, on behalf of said corporatioa and known to me to •~e 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. otary u is in an or .The State of Texas Y CEUA HERNANDQ Notary Pubik, State o(Te~as• My Coinmtssion Expires SEPTEMBER 26,1999 02/231J6 ps/o7eb96Jl.aCour doC _