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2007-265ORDINANCE NO. 2007-,2W AN ORDINANCE OF THE CITY OF DENTON AUTHORIZING THE CITY MANAGER TO EXECUTE ON BEHALF OF THE CITY OF DENTON, TEXAS A "DEVELOPMENT AGREEMENT FOR SPENCER SQUARE" IN THE AMOUNT OF $90,976.95 BY AND BETWEEN THE CITY OF DENTON, TEXAS AND DBSI LANDSDOWNE I, L.P. FOR THE CONSTRUCTION OF A RIGHT TURN LANE TO SERVE THE SPENCER SQUARE DEVELOPMENT IN CONJUNCTION WITH THE LOOP 288 WIDENING PROJECT, WHICH AGREEMENT TRANSFERS ALL OBLIGATIONS OF THE ADVANCED FUNDING AGREEMENT EXECUTED BY THE CITY OF DENTON, OF EVEN DATE HEREWITH, TO THE DEVELOPER, DBSI LANDSDOWNE I, L.P.; AND DECLARING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Council of the City of Denton, Texas on this date has approved an "Advance Funding Agreement for Voluntary Local Government i Contributions to Transportation Improvement Projects With No Required Match" entered ` into by and between the City of Denton, Texas and the Texas Department of Transportation (TXDOT) in the amount of $90,976.95, in accordance with the terms of said Agreement, executed as an accommodation to the Developer, DBSI Lansdowne I, L.P., relating to the funds for the construction of a right turn lane in conjunction with the Loop 288 widening project; a copy of such agreement being attached hereto and made a part hereof for all purposes and referenced as Exhibit "A" (the "Agreement"). SECTION 2. The City Manager or his designee is the City's authorized representative who is directed to comply with any, conditions or agreements required to be executed to effectively transfer and assign all of the obligations of the City of Denton, Texas regarding the above referenced "Advance Funding Agreement" by and between the City of Denton, Texas and the Texas Department of Transportation (TXDOT), to the Developer, DBSI Lansdowne I., L.P. (the "Developer"). SECTION'). The City Manager is also authorized to execute the "Development Agreement for Spencer Square" ; a copy of which agreement being attached hereto and made a part hereof for all purposes and referenced as Exhibit "B" (the Development Agreement), by and between the City of Denton, Texas and DBSI Landsdowne 1, L.P., wherein the City of Denton is the assignor and the Developer is the assignee; said Developer wishes to develop the property to include a variety of commercial and retail uses pursuant to its final plat, and likewise desires to commit to certain improvements to public infrastructure which are connected to the overall development of Spencer Square, which involve the provision of expedited and special services from the City of Denton, Texas; and which Development Agreement also requires that among other things, Developer agrees to pay the city in accordance with said Agreement. SECTION 4. All prior actions of the City Manager and other City officials in executing various documents and certifications with regard to said Advance Funding Agreement as well as the "Development Agreement for Spencer Square" are hereby approved and ratified. SECTION 5. This ordinance shall become effective immediately upon its passage and approval. a PASSED AND APPROVED this the day of Amozkv, 2007. az,ynq--~ PERK . McNEILL, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY By: APPROVED AS TO LEGAL FORM: EDWIN M. SNYDER, CITY ATTORNEY By: 4a, ~ r STATE OF TEXAS § COUNTY OF DENTON § NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OF THE FOLLOWING INFORMATION FROM THIS INSTRUMENT BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER. DEVELOPMENT AGREEMENT FOR SPENCER SQUARE This Development Agreement ("Agreement") is entered into by and between the CITY OF DENTON, a Texas municipal corporation of Denton County, Texas (hereinafter called "City"), acting by and through its duly authorized officers, and DBSI Lansdowne I, L.P., a Texas limited partnership (hereinafter called "Developer"), and its duly authorized officers. WITNESSETH: WHEREAS, Developer owns 14.48 acres of property, more or less, situated generally north of Spencer Road on the northwest corner of the intersection of Spencer Road and Loop 288 and final platted as project FP06-0053 - Spencer Square at 1308 South Loop 288 and 2513 and 2517 Spencer Road (such property also being described herein as the "Property"); and WHEREAS, Developer wishes to develop the Property to include a variety of commercial and retail uses pursuant to the final plat, also to be known as Spencer Square (the "Development"); and WHEREAS, the Developer wishes to commit to certain improvements to public infrastructure which are connected to the overall development of Spencer Square which will involve the provision of expedited and special services from the City of Denton; and WHEREAS, the City has accommodated Developer by initiating an Advanced Funding Agreement (AFA) with the Texas Department of Transportation (hereinafter referred to as the "State") a copy of which is attached hereto; and WHEREAS, in consideration of the above accommodations, the risks associated with consideration of the possibility of increased costs and the responsibility for payment for same as outlined in the AFA, the City wishes to formulate this Agreement as a recorded covenant running with the land to ensure that Developer and its successors, assigns, agents and representatives, if any, carry out Developer's stated intention to fund the construction of the right turn lane on Loop 288 north of its intersection with Spencer Road, either for the Development as herein defined, or for any other alternative use of the Property. NOW THEREFORE, in consideration of the mutual covenants and obligations herein, the parties agree as follows: SECTION 1. DEVELOPER PARTICIPATION The Developer agrees that the Property will be developed in accordance with the following terms and conditions: A. Construction of Right Turn Lane From Loop 288. The Developer has agreed to pay the City a total of $90,976.95 for the costs to construct a turn lane off of Loop 288 into the Development. The City will in turn enter into an agreement with and pay the State for the construction of this turn lane using the TxDOT contractor for the Loop 288 widening project, CSJ#2250-01-021,012. The City will pay the State for this construction out of funds received from the Developer. No City funds will be contributed to or used by the Development for the construction of these improvements or for any associated or incidental costs resulting from the construction of these improvements caused solely by or required for the Development. The Developer shall submit all plans and specifications for this work to the City. Once the plans and specifications for this work have been reviewed by the City and it is determined that they are sufficient the City will approve the plans for the work and for permitting through the State. The Developer is solely responsible for satisfying all requirements for the submission of plans acceptable to the State. B. Increased Costs. The Developer recognizes and agrees that the funds set aside for the work may not reflect the actual, true and final cost of the work once constructed. The AFA between the City and the State requires the following under Article 9. Increased Costs: "In the event it is determined that the funding provided by the Local Government will be insufficient to cover the State's cost for performance of the Local Government's requested work, the Local government will pay to the State the additional funds necessary to cover the anticipated additional costs" within 30 days of receipt of written notification. The City is identified in the AFA as the "Local Government." The Developer agrees to deposit additional funds with the City for any additional costs so identified by the State within ten (10) days of receipt of written notification from the City and further agrees to reimburse the City for all costs incurred for handling and processing such agreements and payments. Developer understands the terms of the AFA executed between the City and State and hereby accepts all responsibilities on behalf of the City for all requirements, payments, liabilities and any and all other responsibilities of the City as identified in the AFA as if repeated in their entirety herein. SECTION 2. DELAYS AND FORCE MAJEURE It is expressly understood and agreed by the parties to this Agreement that if the substantial completion of the construction of any improvements contemplated hereunder is delayed by reason of war, civil commotion, acts of God, inclement weather, governmental restrictions, regulations, or interferences, delays caused by the franchised utilities (Denton Municipal Electric, CoServ, TXU Energy Delivery, Southwestern Bell Telephone, TXU Gas, Comcast Cable or any of their predecessors or successors or other utilities, or any of their contractors), fire or other casualty, court injunction,, necessary condemnation proceedings, acts of the other party, its affiliates/ related entities, and/or their contractors, or any circumstances which are reasonably beyond the control of the party obligated or permitted under the terms of this Agreement to do or perform the same, regardless of whether any such circumstance is similar to any of those enumerated or not, the party so obligated or permitted shall be excused from doing or performing the same during such period of delay, so that the time period applicable to such design or construction requirement shall be extended for a period of time equal to the period such party was delayed. The obligations subject to enlargement of time without penalty do not include funding obligations or obligations delayed for financial reasons. Developer understands that the enlargement of time is the only relief to which it may be entitled and that will be granted under this Agreement and that the right to any additional funding, compensation or damages, consequential or others, is hereby waived and released. SECTION 3. TERM The term of this Agreement shall begin on the date of execution, and end upon the complete performance of all obligations and conditions precedent by the parties to this Agreement. Upon execution, this Agreement shall be recorded in the Denton County Real Property Records as covenants running with the land. Developer's obligations shall be binding upon subsequent purchasers of the Property and/or the Developer's successors, assign, agents or representatives, until all obligations of the Developer are satisfied in full. SECTION 4. INDEMNIFICATION DEVELOPER AND ITS GENERAL PARTNER SHALL JOINTLY AND SEVERALLY INDEMNIFY AND HOLD HARMLESS THE CITY, MEMBERS OF THE CITY COUNCIL, AND ITS OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES AND CONSULTANTS (EACH PERSON DESCRIBED HEREDIN CALLED AN "INDEMNIFIED PARTY" AND COLLECTIVELY, THE "INDEMNIFIED PARTIES") AGAINST ANY AND ALL INDEMNIFIED LIABILITIES SUBJECT TO THE RESTRICTIONS IN THIS SECTION 4. IF AN INDEMNIFIED PARTY INCURS ANY INDEMNIFIED LIABILITIES, THE DEVELOPER AND ITS GENERAL PARTNER SHALL FULLY REIMBURSE SUCH INDEMNIFIED PARTY FOR ALL SUCH INDEMNIFIED LIABILITIES INCURRED. THE DEVELOPER AND ITS GENERAL PARTNER CONFIRM THAT ANY INDEMNIFICATION UNDER THIS AGREEMENT FOR INDEMNIFIED LIABILITIES FOR PERSONAL INJURY OR PERSONAL PROPERTY DAMAGE MAY ARISE OUT OF THE NEGLIGENCE OF ANY INDEMNIFIED PARTY IN CONJUNCTION WITH THE INDEMNIFIED PARTY'S ACTIVITIES, DUTIES OR RESPONSIBILITIES RELATING TO THE WORK TO BE PERFORMED BY THE INDEMNIFIED PARTIES UNDER OR IN ASSOCIATION WITH THIS AGREEMENT. HOWEVER, THE DEVELOPER AND ITS GENERAL PARTNER WILL NOT BE REQUIRED TO INDEMNIFY AND/OR HOLD HARMLESS ANY INDEMNIFIED PARTY FOR ANY LOSSES OR INDEMNIFIED LIABILITIES THAT RESULT FROM THE INDEMNIFIED PARTY'S INTENTIONAL MISCONDUCT OR KNOWING VIOLATION OF THE LAW. TO THE EXTENT APPLICABLE, THE DEVELOPER AND ITS GENERAL PARTNER SHALL BE SUBROGATED TO ANY CLAIMS OR RIGHTS OF THE INDEMNIFIED PARTIES AS AGAINST ANY OTHER PERSON (BUT NOT AN INDEMNIFIED PARTY) WITH RESPECT TO INDEMNIFIED LIABILITIES PAID BY THE DEVELOPER AND ITS GENERAL PARTNER. FOR PURPOSES OF THIS SECTION 4, "INDEMNIFIED LIABILITIES" SHALL BE DEFINED TO INCLUDE ALL LOSSES INCURRED BY ANY OF THE INDEMNIFIED PARTIES THAT ARE RELATED TO, ARISE OUT OF OR ARE ASSOCIATED WITH: (1) THE CONSTRUCTION OF THE WORK THAT IS CONTEMPLATED BY THIS AGREEMENT; (2) ANY BREACH OF OR INACCURACY IN ANY REPRESENTATION OR WARRANTY MADE BY THE DEVELOPER, ITS GENERAL PARTNER, OR PARTIES UNDER ITS CONTROL; (3) ANY BREACH OR NON-PERFORMANCE, PARTIAL OR TOTAL, BY DEVELOPER AND ITS GENERAL PARTNER OF ANY COVENANT OR AGREEMENT OF THE DEVELOPER AND ITS GENERAL PARTNER CONTAINED IN THIS AGREEMENT OR ANY AGREEMENT ASSOCIATED WITH THE DEVELOPMENT OF SPENCER SQUARE; (4) ANY CONDITION CREATED IN OR ABOUT THE SITE OF THE WORK CONTEMPLATED BY THIS AGREEMENT; AND (5) ANY ACCIDENT, INJURY OR PROPERTY DAMAGE WHATSOEVER OCCURRING IN, AT OR UPON THE SITE OF THE WORK CONTEMPLATED BY THIS AGREEMENT. SECTION 5. EVENTS OF DEFAULT A default shall exist if the Developer or City fail to perform or observe any material covenant contained in this Agreement. The non-defaulting party shall immediately notify the defaulting party in writing upon becoming aware of any change in the existence of any condition or event which would constitute a default or, with the giving of notice or passage of time, or both, would constitute a default under this Agreement. Such notice shall specify the nature and the period of existence thereof and what action, if any, the notifying party requires or proposes to require with respect to curing the default. SECTION 6. REMEDIES If a default shall occur and continue, after thirty (30) days advance written notice to cure default, City may, at its sole option, terminate this Agreement in accordance with Texas law, without the necessity of further notice to or demand upon the Developer. The City, may at its sole option provide notice to the surety bond company and make demand upon the bond company to either finish the project or to pay unpaid bills. All Developer's warranty and indemnification obligations shall survive any termination. Nothing in this Section shall be construed to waive any sovereign, governmental immunity available to City under Texas law. Nothing in this Section shall be construed as a waiver or release of any right, remedy or cause of action that is available to the City under or as a result of this Agreement, in equity or at law. SECTION 7. VENUE AND GOVERNING LAW THIS AGREEMENT SHALL BE INTERPRETED AND THE RIGHTS OF THE PARTIES DETERMINED IN ACCORDANCE WITH THE LAWS OF THE UNITED STATES APPLICABLE THERETO AND THE LAWS OF THE STATE OF TEXAS APPLICABLE TO AN AGREEMENT EXECUTED, DELEIVERED AND PERFORMED IN THE STATE OF TEXAS. This Agreement is performable in Denton County, Texas, and venue of any action arising out of this Agreement shall be exclusively in.in.the state district courts of Denton County, Texas. SECTION 8. NOTICES Any notice required by this Agreement shall be deemed to be properly served if deposited in the U.S. Mail by certified letter, return receipt requested, addressed to the recipient at the recipient's address shown below, subject to the right of either party to designate a different address by notice given in the manner just described. If intended for City, to: If intended for the Developer, to: City Manager City Hall 215 E. McKinney Denton, Texas 76201 Kris Silverthom, President DBSI Lansdowne I, LP 5207 McKinney Ave., Suite 12 Dallas, Texas 75205 SECTION 9. GIFT' TO PUBLIC SERVANT A. City may, at its sole option and discretion, terminate this Contract immediately if the Developer has offered, conferred or agreed to confer any benefit upon a City employee or official that the City employee or official is prohibited by law from accepting. B. For purposes of this Article, "benefit" means anything reasonably regarded as pecuniary gain or pecuniary advantage, including benefit to any other person in whose welfare the beneficiary has a direct or substantial interest, but does not include a contribution or expenditure made and reported in accordance with law. C. Notwithstanding any other legal remedies, City may require the Developer to remove any employee of the Developer from the Project who has violated the restrictions of this Article or any similar state or federal law, and obtain reimbursement for any expenditures made to the Developer as a result of the improper offer, agreement to confer, or conferring of a benefit to a City employee or official. SECTION 10. APPLICABLE LAWS This Agreement is made subject to the provisions of the Charter and ordinances of City, as amended, and all applicable state and federal laws. All work to be performed under this Agreement shall be in accordance will all applicable laws, including without limitation all applicable licenses, permits, building codes, restrictive covenants, zoning and subdivision ordinances and floor disaster, environmental laws, the Americans with Disabilities Act, all local ordinances, and state laws. SECTION 11. LEGAL CONSTRUCTION In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision thereof and this Agreement shall be considered as if such invalid, illegal, or unenforceable provision had never been contained in this Agreement. The election of the City to not exercise a right or seek a remedy at a particular time shall not be construed as a waiver or release of the City's rights, remedies, or causes of action under this Agreement or those that are available at law or in equity. SECTION 12. COUNTERPARTS This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and constitute one and the same instrument. SECTION 13. CAPTIONS The captions to the various clauses of this Agreement are for informational purposes only and shall not alter the substance of the terms and conditions of this Agreement. SECTION 14. SUCCESSORS AND ASSIGNS The terms and conditions of this Agreement are binding upon the successors and assigns of the parties to this Agreement, and stand as obligations running with the land until satisfied in full, regardless of whether the Property is developed as the Development, or as any other alternative use. SECTION 15. NO THIRD-PARTY BENEFICIARIES OR JOINT VENTURE The City and Developer intend that this Agreement shall inure only to their benefit and shall not benefit or create any right or cause of action in or on behalf of any third-party beneficiary, or any individual or entity other than the City and Developer or any of their assigns except where such a right arises from an indemnification or hold harmless obligation which shall inure to the benefit of a proper indemnitee. Nothing contained in this Agreement or any ancillary document created as part of this Agreement is intended to create a partnership or joint venture between the City and Developer and any implication to the contrary is expressly disavowed. It is understood that this Agreement does not create a joint enterprise, nor does it appoint either party as an agent for the other for any purpose whatsoever. Neither party shall in any way assume any liability of the other for acts of the other or obligations of the other unless specifically set forth in this Agreement or an ancillary document. SECTION 16. ENTIRE AGREEMENT This Agreement embodies the complete agreement of the parties hereto, superseding all oral or written previous and contemporary agreements between the parties relating to matters contained in this Agreement and, except as otherwise provided in this Agreement, cannot be modified without written agreement of the parties to be attached to and made a part of this Agreement. The AFA referenced in this Agreement is incorporated by reference as if set forth fully herein, and shall remain a component part of this Agreement. The scope of this Agreement is limited to the specific funding obligations of the Developer set forth in Section 1. The parties stipulate that this Agreement does not satisfy any other development obligation under law or City ordinances; particularly, it does not satisfy any applicable impact fee requirements or development exactions to construct required public infrastructure improvements, including those associated with transportation, storm sewer, water, sanitary sewer, or utilities. The parties further stipulate that with respect to the limited scope of this agreement, the funds provided are not disproportionate to the burdens of the development. The parties stipulate that this Agreement does not constitute a permit for development under Chapter 245 of the Texas Local Government Code. EXECUTED this It day of 20 b rthCity, signing by and through its City Manager, duly authorized o execute same by oW7z2b6 approved by the City Council on2007, and by the Developer, acting through its duly authorized officers. APPROVED AS TO FORM: CITY OF DENTON EDWIN M. SNYDER George C. Campbell City Attorney City Manager n I1 BY.: 11A (3w :Y BY: Attorney City Manager v DBSI Lansdowne I, LP, a Texas limited partnership Silverthorn, President ACKNOWLEDGEMENTS STATE OF TEXAS COUNTY OF DENTON This i strumen was acknowledged before me, the undersigned authority on this the -u° day of , 2007, by George C. Campbell, City Manager of the City of Denton, Tee s, a Municipal Corporation, on behalf of the same. JANE E. RICHARDSON Notary Public, State of Texas . My Commission Expires June 27. 2009 N tary Public in and for the State of Texas STATE OF TEXAS § COUNTY OF DENTON § This instrument was acknowledged before me, the undersigned authority on this day of 2007, by Kris Silverthom, President of DBSI Lansdowne I, LP, on behalf of same. `°6•' KAREN S. MAYNARD Notary Public in and fol he State of Texas _ Notary public, State of Texas ,•f'y:'+s My Commission Ex fires ''••fbit p June 16, 2009 CERTIFICATE OF SECRETARY I hereby certify that: I am the duly qualified and acting Secretary of Lansdowne Development, Inc. (the "Corporation"), a duly organized and existing Texas corporation. The following is a true and correct copy of resolutions adopted by the Board of Directors by Unanimous Written Consent of the Board of Directors, executed by the Board of Directors without a meeting, on October 1, 2007, and which consent was filed in the minute book of the Corporation. RESOLVED, that Kris Silverthorn ("the President") is hereby authorized, as the president of the General Partner of the limited partnership known as DBSI Lansdowne I L.P. (the "Partnership"), to execute all documents and take all actions necessary on behalf of the Corporation and the Partnership to insure that the property owned by the partnership in the City of Denton, Denton County, Texas, is platted in conformity with city and county procedures; FURTHER RESOLVED, that the President is hereby authorized to execute on behalf of the Partnership and the Corporation, as the General Partner of the Partnership, all plats and similar documents ancillary to the development of said real property and necessary for the development of the property. FURTHER RESOLVED, that the President is hereby authorized, as the president of the General Partner of the Partnership, to do and perform all acts and things that may be deemed necessary or proper, in the sole. discretion of the President, on behalf of the General Partner and the Partnership, to the development of such property. The resolutions are in conformity with the Articles of Incorporation and Bylaws of the Corporation, have not been modified or repealed, and are now in full force axrtl effect. Date: October 1, 2007 [SIGNATURES CONTINUE ON NEXT PAGE] CERTIFICATE OF SECRETARY 1 STATE OF ' 6 COUNTY OF L On 6AW 2007, before me, the undersigned, a Notary Public in and for said State, personally appeared Mark-.Matise as Secretary of Lansdowne Development, Inc., a Texas corporation, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument, and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by' his/her signature on the instrument the person, or the entity upon which the person acted, executed the instrument. WITNESS my hand and official seal. F OLGAAGHABEGIAId `Unary Public ic;rtr,.. 'rpirec sk4-99-2009 Notary Public (SEAL) CERTIFICATE OF SECRETARY