Loading...
HomeMy WebLinkAbout2000-371FILE REFERENCE FORM 1 2000-371 X Additional File Exists Additional File Contains Records Not Public, According to the Public Records Act Other FILES Date Initials Termination of Development Contract —copy attached 12/21/00 ) R S\our Q .IotROodlodn.\O oow iu um do.I.mol egeemem old doe ORDINANCE NO of MDD' ,--5 %1 AN ORDINANCE OF THE CITY OF DENTON, TEXAS APPROVING A DEVELOPMENT AGREEMENT BETWEEN THE CITY OF DENTON AND LOCUST/288 PARTNERS, LTD AND NORTH DENTON PARTNERS, LTD, RELATING TO THE DEVELOPMENT OF AN APPROXIMATE 20 ACRE TRACT OR PARCEL OF LAND BEING A PART OF LOT 2, BLOCK A OF THE SANDLIN ADDITION, AN ADDITION TO THE CITY OF DENTON, FOR USE AS A REGIONAL DETENTION POND, AND RELATED DEVELOPMENT ISSUES, AUTHORIZING THE EXPENDITURE OF FUNDS THEREFORE, AND PROVIDING AN EFFECTIVE DATE THE COUNCIL OF THE CITY OF DENTON, TEXAS HEREBY ORDAINS SECTION 1 The City Manager is hereby authorized to execute a Development Agreement between the City and Locust/288 Partners, Ltd and North Denton Partners, Ltd, in substantially the form of the Development Agreement which is attached hereto and made a part of this ordinance for all purposes, relating to the development of approximately 20 acres of land for use as a regional detention pond and related development issues SECTION 2 The City Manager is authorized to make the expenditures as set forth in the attached Development Agreement SECTION 3 This ordinance shall become effective immediately upon its passage and approval PASSED AND APPROVED this the day of , 2000 ATTEST JENNIFER WALTERS, CITY SECRETARY 7 / I M EULINE BROCK, MAYOR DEVELOPMENT AGREEMENT This Development Agreement is dated to be effective the 41" day of October, 2000 (the "Effective Date"), and is by and between the City of Denton, Texas, a Texas municipal corporation (the "City"), North Denton Partners, Ltd, a Texas limited partnership ("North Denton Partners"), and Locust/288 Partners, Ltd , a Texas limited partnership ("Locust/288 Partners"), to wit WITNESSETH WHEREAS, North Denton Partners owns certain real property located with the city limits of the City, including that certain 30 191-acre tract, being the same lands described as Tract Two in that certain Special Warranty Deed with Vendor's Lien, dated January 21, 1988, from SLI-GP, Inc , to North Denton Partners, Ltd, recorded in Volume 4264, Page 1384, Deed Records, Denton County, Texas (the "North Denton Partners Tract"), and WHEREAS, Locust/288 Partners owns certain real property located in the city limits of the City, being the same lands described in that certain Special Warranty Deed with Vendor's Lien, dated March 16, 1999, from KDRC II Limited Partnership to Locust/288 Partners, Ltd, recorded in Volume 4299, Page 805, Deed Records, Denton County, Texas (the "Locust/288 Partners Tract"), and WHEREAS, the North Denton Partners Tract and the Locust/288 Partners Tract are subject to that certain Planned Development zoning district, entitled "PD 120", as enacted by Ordinance No 86-173, which was amended in October of 1998 by Ordinance No 98-324 (which amended the concept plan), and WHEREAS, Locust/288 Partners has submitted a Preliminary Plat covering a portion of the Locust/288 Partners Tract (the "Preliminary Plat"), which was approved by the Planning and Zoning Commission on April 12, 2000, and WHEREAS, North Denton Partners, Ltd , as seller, and the City, as purchaser, have entered into that certain Contract of Sale (the "Detention Pond Contract"), of even date herewith, covering 20 acres, more or less, out of the North Denton Partners Tract (the "Detention Pond Property"), under which the City has the right to purchase the Detention Pond Property subject to the terms and conditions of the Detention Pond Contract, and WHEREAS, pursuant to the Preliminary Plat, the parties hereto have reached certain agreements relating to the development of the Locust/288 Partners Tract and the North Denton Partners Tract (both Tracts being collectively referred to herein as the "Property") as set forth below and desire to set forth the terms of those agreements in this Development Agreement (this "Agreement"), NOW, THEREFORE, in consideration of the mutual covenants and obligations set forth DEVELOPMENT AGREEMENT PAGE I herein, the receipt and sufficiency of which being acknowledged by all parties hereto, the City, North Denton Partners, and Locust/288 Partners do hereby agree as follows ARTICLE I Construction of Regional Detention Pond 101 Recitals The City and Locust/288 Partners stipulate that the recitals set forth in the preamble hereto, as well as the following recitals, are true and correct (a) the latter has submitted to the City the Preliminary Plat covering all or part of the Locust/288 Partners Tract, (b) among other things, the Preliminary Plat provides for development of the lands covered thereby into a single-family, residential subdivision called "North Pointe" to be developed in phases (the "Subdivision"), (c) to manage the increased storm runoff which may result from construction of the subdivision, the City has indicated its preference that a regional detention pond be constructed which would serve not only the Locust/288 Partners Tract, but other lands as well, rather than development -specific detention ponds constructed to serve only the lands covered by the various phases of the Subdivision as reflected in the Preliminary Plat, (d) the Detention Pond Contract is intended to give the City an opportunity to acquire the land necessary for construction of such a regional detention pond, (e) if the Detention Pond Contract is terminated pursuant to the terms thereof, the City intends to institute condemnation proceedings to acquire all or part of the Detention Pond Property under its rights of eminent domain, and (f) the parties anticipate the probability that the City will not be able to complete acquisition of the Detention Pond Property and construction of the regional detention pond prior to completion of the first phase of the Subdivision 102 Obligation to Construct Subject to Locust/288 Partners' rights set forth in Article II, below (the "Retained Rights"), upon (i) the City's closing of the purchase of the Detention Pond Property pursuant to the Detention Pond Contract, or (ii) the date of a final judgment awarding all or part of the Detention Pond Property to the City pursuant to the City's institution of condemnation proceedings therefor, the City shall commence and diligently pursue design and construction of aregional detention pond in size, configuration, and location sufficient to accommodate storm water runoff from the Locust/288 Partners Tract and North Denton Partners Tract, and such other DEVFI OPMENT AGREEMENT PAGE lands as the City may reasonably determine should also be served thereby 103 Pro-Rata Contribution The provisions of this Section 103 are subject to the waiver provisions set forth in Section 2 03, below Prior to the recordation of the final plat for each phase of the Subdivision development covered by the Preliminary Plat (and as a condition to the recordation of same), Locust/288 Partners agrees to pay the City the sum of (i) $935 00 per acre (or portion thereof) subject to such final plat, and (it) an additional amount serving as an escalator from the date construction of the regional detention pond is completed, such amount being equal to the product of the amount set forth in (i), above, multiplied by 06/365, multiplied by the number of days elapsed from the date construction of the regional detention pond is completed to the date of payment (the 'Pro-Rata Contribution") This amount will serve as Locust/288 Partners' pro-rata contribution towards the cost ofthe City's construction of the regional detention pond 104 Indemnity (a) If (i) Locust/288 Partners does not exercise the Retained Rights or (u) Locust/288 Partners exercises the Retained Rights but the City subsequently commences construction of or constructs the regional detention pond on all or part of the North Denton Partners Tract, the City agrees to indemnify, defend, and hold Locust/288 Partners, its officers, directors, partners, employees, successors, and assigns harmless from and against all claims, causes of action, fines, damages, costs, attorneys' fees, demands, settlements, and threats of litigation suffered or incurred by, or asserted against, Locust/288 Partners, its successors and assigns, relating to, directly or indirectly, the City's construction or use of, or failure to complete construction of, the regional detention pond and its operation (b) If Locust/288 Partners exercises the Retained Rights, it agrees to indemnify, defend, and hold the City, its officers and employees harmless from and against all claims, causes of action, fines, damages, costs, attorneys' fees, demands, settlements, and threats of litigation suffered or incurred by, or asserted against, the City, its officers, employees, successors, and assigns, relating to, directly or indirectly, Locust/288 Partners' exercise of the Retained Rights or construction or use of the development -specific detention pond constructed by Locust/288 Partners pursuant to its exercise of the Retained Rights, as provided in Article II, below DEVELOPMENT AGREEMENT PAGE ARTICLE II Retained Rights 201 Right of Entry to Construct Development -Specific Detention Pond (a) Notwithstanding any other provision of this Agreement, if Locust/288 Partners determines in its sole discretion that (1) construction of any phase of the Subdivision will be completed prior to the City's completion of construction of the regional detention pond and (Li) construction and/or enlargement and modification of a development -specific detention pond will be necessary to service the storm water runoff needs of the phase of the Subdivision being completed, Locust/288 Partners shall have the right from time to time (the "Retained Rights"), exercised by notice to either the City or North Denton Partners (whichever may then own the Detention Pond Property, as the case may be), to enter upon the Detention Pond Property for the purposes set forth in Section 2 02, below (b) At any time and from time to time following the City's acquisition of the Detention Pond Property (either through closing under the Detention Pond Contract or by way of condemnation) and upon Locust/288 Partners' written request, the City agrees to grant and convey to Locust/288 Partners a nonexclusive easement over and across up to four (4) contiguous acres out of the Detention Pond Property for the following purposes (1) for constructing and/or enlarging and modifying a development - specific detention pond to service the storm water runoff needs of any phase or phases of the Subdivision, pursuant to the construction rights set forth in Section 2 02, below, (2) for ingress and egress in connection with the construction and/or enlargement and modification of the development -specific detention pond,and (3) for discharge of storm water onto, over, and across the Detention Pond Property This easement shall terminate upon the City's completion of construction of the regional detention pond The instrument granting and conveying the easement shall be in the form to which the City and Locust/288 Partners shall reasonably agree (c) At any time and from time to time prior to the City's acquisition of the DEVELOPMENT AGREEMENT PAGE 4 Detention Pond Property (either through closing under the Detention Pond Contract or by way of condemnation) and upon Locust/288 Partners' written request, North Denton Partners agrees to grant and convey to Locust/288 Partners a nonexclusive easement over and across up to four (4) contiguous acres out of the Detention Pond Property for the following purposes (1) for constructing and/or enlarging and modifying adevelopment- specific detentionpond to service the storm water runoff needs of any phase or phases of the Subdivision, pursuant to the construction rights set forth in Section 2 02, below, (2) for ingress and egress in connection with the construction and/or enlargement and modification of the development -specific detention pond, and (3) for discharge of storm water onto, over, and across the Detention Pond Property This easement shall terminate upon the City's acquisition of the Detention Pond Property The instrument granting and conveying the easement shall be in the form to which North Denton Partners and Locust/288 Partners shall reasonably agree 202 Construction of Development -Specific Detention Pond If Locust/288 Partners exercises the Retained Rights, it shall have (and such Retained Rights shall include) the right to commence construction of a development -specific detention pond to service the storm water runoff needs of the lands covered by the first phase of the Subdivision, as well as the right to upgrade the outfall, excavate, and otherwise enlarge and/or modify the development -specific detention pond to service the storm water runoff needs of the lands covered by subsequent phases of the Subdivision Prior to commencement of construction, Locust/288 Partners shall submit engineering plans for the development -specific detention pond's construction and/or enlargement and modification to the City for review The development -specific detention pond shall be designed to reasonably facilitate its incorporation into the design of the regional detention pond by the City The City shall approve such plans unless the City's engineering staff reasonably has legitimate engineering reasons for revising the plans Such legitimate reasons can only relate to the design's ability to accommodate storm water runoff from the lands covered by the Preliminary Plat, and such legitimate reasons cannot include concerns relating to lands other than those covered by the Preliminary Plat or policy concerns about favoring regional detention ponds over development -specific detention ponds, except for the requirement that it be designed to reasonably facilitate its incorporation into the design of the regional detention pond In other words, and except for the design integration requirement, DEVELOPMENT AGREEMENT PAGE 5 if under sound engineering practices the design for construction and/or enlargement and modification of the development -specific detention pond would serve the storm water runoff needs of the phase of the Subdivision at issue, the City shall approve such plans and shall take all such other actions as are required by its procedures to approve construction and/or enlargement and modification pursuant thereto Following the City's acquisition of the Detention Pond Property, all construction contracts shall require thatthe contractor provide comprehensive general liability and worker's compensation coverage in the type and manner required by the City's general conditions for public works construction, which shall include without limitation the City being named as an additional insured Performance and payment bonds shall also be required in the manner required for City public works contracts 203 Return of Pro-Rata Contnbution If the Retained Rights are exercised by Locust/288 Partners in connection with a particular phase of the Subdivision and it has made a Pro-Rata Contribution to the City for that particular phase of the Subdivision, the City shall refund the Pro-Rata Contribution (plus interest at six percent [6%] per annum from the date of the payment of the Pro-Rata Contribution to the date of the City's repayment under this Section 2 03) to Locust/288 Partners within ten (10) days of completion of the construction and/or enlargement and modification of the development specific detention pond and acceptance thereof by the City If Locust/288 Partners has not made a Pro-Rata Contribution to the City for a particular phase of the Subdivision, then within ten (10) days of completion of construction and/or enlargement and modification of the development -specific pond and acceptance thereof by the City, the City shall waive any requirement that a Pro-Rata Contribution be made to the City by Locust/288 Partners for that particular phase of the Subdivision 204 City's Acceptance of Pond Acceptance of construction and/or enlargement and modification of the development -specific detention pond shall be made by the City if such construction and/or enlargement and modification meets the specifications provided for in the engineering plans for same which have been approved by the City Such acceptance shall not be unreasonably withheld or delayed 205 Sanitary Sewer Line Attached hereto and made a part hereof as Exhibit "A" is a drawing showing the location of an existing City sanitary sewer line that traverses the Detention Pond Property The development of the Subdivision shown on the Preliminary Plat located to the west of the Detention Pond Property (the "West Area") contemplates, and the City will permit, that the segment of the existing sanitary sewer line shown on Exhibit "A" that traverses the Detention Pond Property will be utilized for all phases in the West Area Such segment of the existing sanitary sewer line is not currently being used However, when the development of the Subdivision shown on the Preliminary Plat located to the north of the Detention Pond Property receives final plat approval, the segment of the existing sanitary sewer line DEVELOPMENT AGREEMENT PAGE 6 shown on Exhibit "A" shall be vacated upon the completion of construction of a new sanitary sewer line as shown on Exhibit "A" Exhibit "A" shows the portions of the new sanitary line to be constructed by Locust/288 Partners, or its successors or assigns, and that portion to be constructed by the City The covenants in this Section 2 05 run with and affect all of the lands comprising the Subdivision, and are binding upon all present and future owners of said property 206 Extraction and Deposit of Soil (a) In constructing the Regional Detention Pond, the City shall have the right to deposit onto the "Remaining Property" (as that term is defined below) up to 10,000 cubic yards of soil extracted from the Detention Pond Property The City may deposit such soil in piles without any grading or compaction of any kind Prior to depositing the soil, the City will notify Locust/288 Partners, or the then current owner of the Remaining Property (the "Owner"), in writing of the intent to deposit the soil Within 10 days after the notice, the Owner may give the City written direction of the preferred location to deposit the soil If no written direction is made within said time period, the City will be permitted to deposit the soil at any location on the Remaining Property (b) The Owner shall be entitled to extract up to 90,000 cubic yards of soil from the Detention Pond Property at a location that does not interfere with the regional detention pond After extraction, if required by the City, the Owner shall level and restore the area of extraction in such manner as may be reasonably directed by the City Prior to extracting the soil, the Owner will notify the City in writing of the intent do so Within 10 days after the notice, the City may give the Owner written direction of the preferred location to extract the soil If no written direction is made within said time period, the Owner will be permitted to extract the soil at any location on the Detention Pond Property that does not interfere with the regional detention pond At the time of the development of the regional detention pond, and with the Owner's approval (which will not be unreasonably withheld or delayed) the City may deposit additional soil on the Remaining Property which will count towards satisfaction of the 90,000 cubic yards provided for in this paragraph Such deposits shall be made in accordance with the terms set forth in paragraph 2 06(a) above (c) The covenants in this Section 2 06 run with and affect the Detention Pond Property and Remaining Property, and are binding upon all present and future owners of said property As used in this Agreement, the term "Remaining Property" shall mean that portion of the Subdivision on which, at the relevant time, no subdivision improvements have been constructed or are in the process of being constructed DEVELOPMENT AGREEMENT PAGE/ ARTICLE III Miscellaneous 301 Notices Any notice or communication required or permitted hereunder must be in writing and shall be deemed to be delivered, whether actually received or not, on the earlier date of (i) actual receipt, if delivered in person or by messenger or overnight courier with evidence of delivery, or (n) transmission of an electronic facsimile transmission ("Fax") with confirmation of delivery, or (ni) upon deposit in the United States Mail as required below Notices may be transmitted by Fax to the Fax telephone numbers specified below, if any Notices delivered by mail must be deposited in the U S Postal Service, certified mail, return receipt requested, postage prepaid, and properly addressed to the intended recipient at the address set forth below Any party may change its address for notice purposes by delivering written notice of its new address to all other parties in the manner set forth above which notice of change of address will be effective five (5) days after receipt 302 Attorney's Fees If any parry shall be required to employ an attorney to enforce or defend the rights of such party hereunder, the prevailing party shall be entitled to recover reasonable attorney's fees and costs 303 Integration This Agreement contains the complete agreement between the parties with respect to the subject matter hereof and cannot be varied except by written agreement The parties agree that there are no oral or signed agreements, understandings, representations or warranties made by the parties which are not expressly set forth herein 304 Survival Except as otherwise provided in this Agreement, any portion of this Agreement not otherwise consummated by the exercise of and closing under any option granted herein will survive as a continuing agreement by and between the Parties 3 05 Binding Effect This Agreement shall inure to the benefit of and bind the parties hereto and their respective heirs, representatives, successors and permitted assigns 306 Time for Performance Time is of the essence under each provision of this Agreement Strict compliance with the times for performance is required 307 Governing Law This Agreement shall be construed under and governed by the laws of the State of Texas, and unless otherwise provided herein, all obligations of the parties created under this contract are to be performed in the county where the Property is located DEVELOPMENT AGREEMENT PAGE 8 308 Severabilitv If any provision of this Agreement is held to be invalid, illegal, or unenforceable by a court of competent jurisdiction, the invalid, illegal or unenforceable provision shall not affect any other provisions, and this Agreement shall be construed as if the invalid, illegal, or unenforceable provision is severed and deleted from this Agreement 309 Counterparts This Agreement may be executed in a number of identical counterparts Each counterpart is deemed an original and all counterparts shall collectively constitute one agreement 3 10 Gender, Number Unless the context requires otherwise, all pronouns used in this Agreement shall be construed to include the other genders, whether used in the masculine, feminine or neuter gender Words in the singular number shall be construed to include the plural, and words in the plural shall be construed to include the singular 3 11 Assignment North Denton Partners and Locust/288 Partners shall have the right upon ten (10) days prior written notice to the City to assign their respective rights and delegate their respective duties under this Agreement without the express written consent of the City The City may not assign its rights and delegate its duties under this Agreement without the express written consent of North Denton Partners and Locust/288 Partners, or their successors or assigns 3 12 Memorandum The parties hereto shall execute, contemporaneously herewith, a Memorandum ofthe rights ofthe parties hereto, substantially in the same form as that attached hereto as Exhibit `B" and made a part hereof for all purposes DEVELOPMENT AGREEMENT PAGE 9 Dated on the dates following each of the parties' respective executions, but effective on the Effective Date Attest Jennifer Walters, City Secretary i Approved as to legal form Her L routy, rty Attorney By Nametier .. Title J& ffyfj The City of Denton, a TexasAnunicipal corporation Title City North Denton Partners, Ltd, a Texas limited partnership By SLI-GP, Inc, its General Part B � l y Name Michael San in Title President Locust/288 Partners, Ltd , By NOPO, L L C , its General Partner By Name i in Title Manager DEVELOPMENT AGREEMENT PAGE 10 CERTIFICATION I, the undersigned City Secretary of the City of Denton, do hereby certify that this Development Agreement was approved by ordinance or resolution adopted by the City Council of the City of Denton on the 4°i day of October, 2000 N>fine #�5r City Secretary WDK4116A \DevAgr CttyDenton-NDenton Locust288 05wpd wpd DEVELOPMENT AGREEMENT PAGE 11 /�OY1 -/�QOW / FUTURE CONNECTING PARK TRAIL ADJACENT EXHIBIT_,._.., TO CREEK/DRAINAGE FACILITIES--� 474 SSMH �9 �lb 27 n kin soasz 1 v�115 126 1151 25 Y4 i co 1 49 23 i 00 Wr Z 114 5 22 n Approximate alignment for relocation of Sanitary Sewer 1143'R to be constructed with eastern half of Northpomte by developer Final alignment and pipe sizes to be determined 44 at the time of construction plan review 1140 20 LIC OPEN SPACQPARK/DETENTION I I 113 7 (301 ACRES) •� I I 19 r ISSMH 17 113D 1927 15 2 4' \ / 14 % * 13` 12'. mS00'5264 111, N1 ,This portion of Future Sanitary Sewer Relocation 1Q E " to be constructed by the City of Denton c X EXHIBIT "B" MEMORANDUM This Memorandum (this "Memorandum") is dated to be effective the 41' day of October, 2000, and is by and between the City of Denton, Texas, a Texas municipal corporation (the "City"), North Denton Partners, Ltd , a Texas limited partnership ("North Denton Partners"), and Locust/288 Partners, Ltd , a Texas limited partnership ("Locust/288 Partners"), to wit This Memorandum is executed by the City, North Denton Partners, and Locust/288 Partners, for the purposes of placing the public on notice of the existence of that certain Development Agreement, of even date herewith, by and between the parties hereto, which grants certain rights to various parties hereto and creates certain obligations of various parties hereto which cover and affect the following lands (1) that certain 30 191-acre tract, being the same land described as Tract Two in that certain Special Warranty Deed with Vendor's Lien, dated January 21, 1988, from SLI-GP, Inc , to North Denton Partners, Ltd , recorded in Volume 4264, Page 1384, Deed Records, Denton County, Texas, and (2) the lands described in that certain Special Warranty Deed with Vendor's Lien, dated March 16,1999, from KDRC II limited partnership to Locust/288 Partners, recorded in Volume 4299, Page 805, Deed Records, Denton County, Texas (the "Locust/288 Partners Tract") The rights and obligations of the parties hereto under the Development Agreement shall terminate upon the filing for record with the County Clerk of Denton County, Texas, of final plats which collectively cover all of the Locust/288 Partners tract Copies of the Development Agreement are maintained in the offices of the City, as well as the offices of North Denton Partners and Locust/288 Partners, and are available for inspection and review by the public Executed to be effective as set forth above The City of Denton, a Texas mgnicipal corporation Title City North Denton Partners, Ltd , a Texas limited partnership By SLI-GP, Inc , its General Par By Name Michael S d n Title President Locust/288 Partners, Ltd , a Texas limited partnership By NOPO, L L C , its General Partner By Name Mi ael Sandlr Title Manager STATE OF TEX S ) COUNTY OF & ) This instrument was acknowledged before me on ef Manager of The City of Denton, a Texas municipal corporation, 6�1 STATE OF TEXAS y, Michael W Jez, City of said cornoratidJn ��"" a ANN FORSYTHE � . Notary Public, State of Texas Wl) My commislma 110ros COUNTY OF QG� 5 2 Uo 0 1This nstr ant a ackn wledged before me on �� �, ii� by 4 �, ,' of SLI-GP, Inc, a Texas corporation, on behalf of said corporation, on behalf of North Denton Partners, Ltd, a Texas limited partnership STATE OF TEXAS COUNTY O�) y Public, State of Texas n yrdfc;� rJ�l � 'r PR. aJ'�?1_'f�Pur�PJ@!CI wl JAN4NHIiE ( p, 'lLIC c � lox i I A,'y'r n �, , p r�q � "001 � This instru ent was acknowledged before me on �LIOC� by ��, Manager ofNOPO, L L C , a Texas limited liability comp ny, on behalf of said limited liability company, on behalf ofLocust/288 Partners, Ltd , a Texas limited partnership y Public, State of Texas �1 cf'cPcfc�frlr?Ir1rJc�.lr1c��i.td'21�4�.1PP1(��?�� , 1 .e JANViiIlBE N N� TNZY PU BII(, oleic of I" a101 wdkl 16A \CityDenton NDenton Locust288 MEMO wpd