HomeMy WebLinkAbout00-00000210- 00073946DEVELOPMENT AGREEMENT
This Agreement is entered into this the 12th day of March 1998, by and between
the City of College Station, a Texas Home-Rule Municipal Corporation (hereinafter
referred to as "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", owners of
Horse Haven Estates (hereinafter referred to as the "OWNERS").
WHEREAS, the Lydia Boriskie Partnership is the owner of the property more
particularly described as Lot 2 of Horse Haven Estates, as well as part owner of Lot 3b of
Horse Haven Estates, and Burt Ray Hermann and Virginia Boriskie Hermann,
individually, are owners of Lot 3a of Horse Haven Estates, as well as, part owners of Lot
3b of Horse Haven Estates, as shown on the Master Plan of Burt Hermann Tract, a copy
of which is attached hereto and incorporated thereof, and
WHEREAS, the OWNERS are proposing to divide and sell to separate ownership
Lot 2, a 25.07 acre parcel, (hereinafter referred to as the "PROPERTY"), as shown on the
Final Plat of Lot 2, Horse Haven Estates, a copy of which is attached hereto and
incorporated thereof; and,
WHEREAS, the OWNERS and the Buyer of the PROPERTY are proposing that
it maintain its current A-O Zoning Classification and current use as a Golf Driving Range
and Practice Facility; and,
WHEREAS, the CITY's Thoroughfare Plan shows Appomattox Drive extending
southward into and through the PROPERTY and into Lots 3a and 3b of Horse Haven
Estates; and,
WHEREAS, the current use of the PROPERTY and of Lots 3a and 3b of the
Horse Haven Estates as shown on the Master Plan of Burt Hermann Tract does not
require the southward extension of Appomattox Drive; and,
WHEREAS, the CITY's Subdivision Regulations require right-of-way dedication
of all streets, alleys, parks, easements and public places as platted, as well as, either
construction of all streets, alleys, sidewalks and utilities or the filing of a guarantee of
performance of such before final plat approval as follows:
8-G.8 Principal Streets on Master Plan
Where subdivision embraces a principal street as shown on the master plan of the
City, such street shall be platted to maintain continuity in the approximate
location as shown, and of the type indicated.
6-D.4.2.4 The following certificates, when applicable, shall appear on the face of
the plat:
Certificate of Ownership and Dedication;
Certificate of Surveyor and/or engineer;
Certificate of City Engineer;
Approval of Commission; and
Certificate of the County Clerk.
6-D.5 Processing, the Final Plat, Amending Plat or Minor Plat
6-D.5.4 After conditional approval of a plat, the subdivider shall
notify the City Engineer within ten (10) days as to the construction
procedure he proposes to follow. He shall follow one (1) of the following
procedures:
6-D.5.4.1 The subdivider may proceed with construction of
streets, alleys, sidewalks, and utilities that he is required to install,
in which case the City will inspect the work as it progresses, and
upon completion and final acceptance, and upon written request of
the subdivider, the final plat will be approved and filed for record
with the County Clerk. The subdivider shall pay the recording fee.
6-D.5.4.2 The subdivider may elect to file a "guarantee of
performance" as provided in Section 7, in which case the guarantee
of performance shall be filed with the City Secretary, together with
a request that the plat be filed for record. In this case, the final plat
will be approved and filed with the County Clerk. The subdivider
shall pay the record filing fee. The City will inspect the
construction work as it progresses and will make the final
inspection to assure compliance with City requirements.
WHEREAS, deferral of the right-of-way dedication and construction of the
southward extension of Appomattox Drive until the PROPERTY is either redeveloped or
rezoned or the use of the PROPERTY changed, varies from the requirements of the
CITY's Subdivision Regulations that require property for streets to be dedicated and
construction complete, or a guarantee of performance filed, before a final plat may be
approved; and
WHEREAS, Section 1B of the CITY's Codes and Ordinances authorizes City
Council to approve development agreements requesting deferral of specific requirements
of the Subdivision Regulations ordinance; and
WHEREAS, this Agreement between the CITY and the OWNERS addressing the
deferral of right-of-way dedication and construction of the southward extension of
Appomattox Drive is required before the CITY can approve and file for record the Final
Plat of Lot 2, Horse Haven Estates; and,
WHEREAS, The City Council considered and approved this Agreement on March
12, 1998.
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:
~,e~~esfs by tl,eOw~vE~S,
I. OWNERS agree that any re-development, rezoningpor change in use of the wg x.
PROPERTY or of Lots 3a and 3b of Horse Haven Estates will be subject to
review and approval of the CITY. In this event, any and all relevant plans
and/or proposals will be submitted to the CITY for consideration of the need for
the southward extension of Appomattox Drive.
2. The OWNERS agree that, if the CITY determines that the southward extension
of Appomattox Drive is necessary, the OWNERS and/or their successors-in-
interest, heirs or assigns shall be obligated to dedicate to the CITY the right-of-
way for the Appomattox Drive extension as depicted on the CITY's
Thoroughfare Plan at no cost to the CITY. This dedication shall be by
replatting of the PROPERTY. OWNERS and/or their successors-in-interest,
heirs or assigns shall pay for such survey as is required.
3. The OWNERS agree that, if the CITY determines that the southward extension
of Appomattox Drive is necessary, the OWNERS and/or their successors-in-
interest, heirs or assigns shall be obligated to construct, at their own expense,
the Appomattox Drive extension according to then existing CITY codes and
ordinances.
4. All notices and documents required herein shall be sent and provided to the
parties at the addresses and telephone numbers listed below:
Burton Ray Hermann
2401 East Bypass
College Station, TX 77845
(409) 696-0795
City of College Station
City Planner
P.O. Box 9960
College Station, Texas 77842
(409) 764-3570
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.
5. This Agreement shall be filed of record in the Official Records of the Brazos
County Clerk, Brazos County, Texas.
6. Indemnification. The OWNERS agree 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, 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 arise in whole or in part from the negligence of the CITY.
7. Release. The OWNERS, their successors-in-interest, heirs and assigns,
hereby release, relinquish and discharge 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 was caused in whole or in part by the negligence of the
CITY.
8. 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.
9. If it is determined that the CITY had no authority to enter into this Agreement,
then the OWNERS agree that they 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, Horse Haven Estates, and thus the
OWNERS cannot sell the PROPERTY. If this occurs each party shall be
considered to be returned to the position they were in before this Agreement.
10. In the event of litigation, the OWNERS agree to pay and shall pay for all of the
attorney's fees, court costs and other litigation costs of CITY.
11. OWNERS warrant that they are the only record owners of the PROPERTY and
Lots 3a or 3b of Horse Haven Estates.
12. The parties agree that they have read the terms of this Agreement and
familiarized themselves with the requirements hereunder and agree that they
understand theirs rights and responsibilities hereunder.
13. 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.
14. It is understood that this Agreement contains the entire agreement between the
parties and supersedes 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 Agreements exist. This Agreement cannot be changed or terminated unless
in writing or agreed by both parties.
Executed this the th day of March, 1998.
OWNER CITY OF COLLEGE STATION
BY:
Herman Individually L nn McIlhaney, Mayo
Vir60nia Boriskie Hermann, Individually
Lydia Boriskie artnership:
By:
Virg' a Boriskie Hermann,
General Partner
By:
Burton Ray Hermann, Partner
By:
Michael W. Thiltgen, Partn
By:
Cheryl iltgen, Partner
EST:
Connie Hooks, City Secretary
APP ED:
George K. Noe, City Manager
STATE OF TEXAS )
ACKNOWLEDGMENT
COUNTY OF BRAZOS )
eforg me, the undersigned authority, on this day personally appeared
~i ~ t e;etxa rJti , as OWNER of Horse Haven Estates and Lots 3a
and 3b of the Master Plan of Burt Hermann, 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 consideration therein expressed. Give under my hand and seal
of office on this the day of March, 1998.
.
lel"::i( :z~
KATHERINE M. :STASKY y Public in and for
Notary Public, staexas The State of Texas
My Commission es
JULY 10, 2STATE OF TEXAS )
ACKNOWLEDGMENT
COUNTY OF BRAZOS )
Before me, the undersigned authority, on this day personally appeared Mayor
Lynn McIlhaney, 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. . A
Given under my hand and seal of office on this the 13' day of March, 1998.
~ ao -r YVONNE S. CASARES
Notary Public, State of Texas
My Commission Expires
AUGUST 5,1998
Y
\\1 k ~IdtDw
N Public in and for
The State of Texas
of Fiscal/Human Resources