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12-R-73 Development Agreement with 702 GroupRESOLUTION NO. 12-R-73 A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS AUTHORIZING A DEVELOPMENT AGREEMENT WITH THE CITY OF SCHERTZ AND 702 GROUP LLC, AND OTHER MATTERS IN CONNECTION THEREWITH WHEREAS, the Schertz Economic Development Corporation ("SEDC") Board has recommended that the City of Schertz (the "City") enter into a Development Agreement (the "Agreement") with 702 Group LLC (the "Developer") relating to development of Phase I and Phase II of the Presto Nova Subdivision; and WHEREAS, the City Council has determined that it is in the best interest of the City to contract with 702 Group LLC pursuant to the Development Agreement attached hereto as Exhibit A; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS: Section 1. The City Council hereby authorizes the City Manager to execute and deliver the Agreement with 702 Group LLC in substantially the form set forth on Exhibit A. Section 2. The recitals contained in the preamble hereof are hereby found to be true, and such recitals are hereby made a part of this Resolution for all purposes and are adopted as a part of the judgment and findings of the City Council. Section 3. All resolutions, or parts thereof, which are in conflict or inconsistent with any provision of this Resolution are hereby repealed to the extent of such conflict, and the provisions of this Resolution shall be and remain controlling as to the matters resolved herein. Section 4. This Resolution shall be construed and enforced in accordance with the laws of the State of Texas and the United States of America. Section 5. If any provision of this Resolution or the application thereof to any person or• circumstance shall be held to be invalid, the remainder of this Resolution and the application of such provision to other persons and circumstances shall nevertheless be valid, and the City Council hereby declares that this Resolution would have been enacted without such invalid provision. Section 6. It is officially found, determined, and declared that the meeting at which this Resolution is adopted was open to the public and public notice of the time, place, and subject matter of the public business to be considered at such meeting, including this Resolution, was given, all as required by Chapter 551, Texas Government Code, as amended. Section 7. This Resolution shall be in force and effect from and after its final passage, and it is so resolved. PASSED AND ADOPTED, this 14`h day of August, 2012. CITY OF CHERTZ, TEXAS Mayo - em ATTEST: City Secretary (CITY SEAL) 5023481 L l EXHIBIT A DEVELOPMENT AGREEMENT sozsas~ i.~ A-1 \~~ ~ VO13163 P60577 After Recordin Please Return To: Fulbtight & Jaworski L.L.P. 300 Convent Street, Suite 2100 San Antonio, Texas 78205 Attention: Katherine A. Tapley STATE OF TEXAS § COUNTY OF GUADALUPE § KNOW ALL PERSONS BY THESE PRESENTS: DEVELOPMENT AGREEMENT This Development Agreement (the "Agreement") is among 702 GROUP LLC, a Texas limited liability company (the "Developer"), and the CITY OF SCHERTZ, a Texas municipal corporation (the "C~"), and is effective upon the execution of this Agreement by the Developer and the City (the "Effective Date"). WHEREAS, the Developer is the owner of (i) an approximately 1.951 acre tract of real property located in the City of Schertz, Guadalupe County, Texas, mote specifically described as Lot 22, Block 1, Presto Nova Schertz Subdivision, recorded in Volume 7, Page 412 of the Guadalupe County Plat Records ("Phase I"); and (ii) an approximately acre tract of real property located in the City of Schertz, Guadalupe County, Texas, and more specifically described on Exhibit "A" attached hereto and incorporated herein for all purposes ("Phase II", and collectively with Phase I, the "Pro er "); and WHEREAS, the Developer has platted Phase I and has commenced developing Phase I as a retail shopping center; and WHEREAS, since the time that the Developer platted Phase I, the Developer has decided to also develop Phase II as a retail shopping center; and WHEREAS, it is in the best interest of the City for the Developer to develop Phase II as a retail shopping center; and WHEREAS, in order to comply with the City's ordinances, rules, and regulations (collectively, the "Gifu Laws") so that the Developer can obtain a certificate of occupancy for Phase I, the Developer must improve that portion of Phase I that is outlined in red on Exhibit "B" attached hereto and incorporated herein for all purposes (the "Parking/L,andscane Area"), with nine (9) parking spaces and the associated landscaping (the "Par•king/Landscane Requirements"); and WHEREAS, in order to develop Phase II as a retail shopping center, the Developer needs to construct a building in the Parking/Landscape Area; and WHEREAS, the Developer has requested that the City allow the Developer (i) to obtain surety in favor of the City fot• the Parking/Landscape Requirements until such requirements are satisfied; (ii) to obtain a temporary certificate of occupancy for Phase I following the passage of 50523320.2 _ t _ VOL 31 6 3 P60 5 7 8 all inspections and the completion of all requirements related to the construction and development of Phase I, except for• the Parking/Landscape Requirements; (iii) to allow the Developer to proceed with developing Phase II, including construction of a building in the Parking/Landscape Area; and (iv) to allow the Developer to satisfy the Parking/Landscape Requirements that are required on Phase I on the Phase II portion of the Property when Phase II is developed; and WHER);AS, the City has agreed to work with the Developer on these requests; and WHEREAS, the Developer and the City have entered into this Agreement in order to set forth the terms and conditions related to the foregoing. NOW THEREFORE, in consideration of the agreements set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby stipulated, the Developer and the City hereby agree as follows: 1. Develoner. The Developer hereby represents and warrants that, as of the Effective Date, the Developer has not conveyed, assigned, or• transferred all or any portion of its interest in the Property (other than leasehold interests) to any other person or entity (any such person or entity referred to herein as "Purchaser"), nor is the Developer a party to any contract or other understanding to do so. So long as the Developer has any obligation under this Agreement, the Developer agrees with the City that the Developer shall not make any such conveyance, assignment, or transfer (other than of leasehold interests) unless (i) this Agreement is attached to and incorporated by reference into the instrument of conveyance, assignment, or• transfer; (ii) the City receives a contemporaneous copy of such instrument, and (iii) the Purchaser under any such inshument agrees to be bound by the terms of this Agreement. 2. Postponement of Parkine/Landscane Area Requirements. The City agrees to allow the Developer to defer completion of the Parking/Landscape Requirements until the earlier of (i) December 31, 2013; or (ii) the date on which the Developer requests a permanent certificate of occupancy from the City for Phase II. The City further agrees to allow the Developer to satisfy the Parking/Landscape Requirements related to Phase I on the Phase II portion of the Property. In exchange for the City's agreement to defer the Parking/Landscape Requirement, the Developer agrees to provide surety to the City, in a form acceptable to the City in the City's sole discretion, in the amount of Eighteen Thousand Fom• Hundred Eighty-Three and 75/100 Dollars ($18,483.75) (the "Performance Bond"), which amount is one hundred and twenty-five percent (125%) of the agreed anticipated cost of completing the Parking/Landscape Requirements, and which Performance Bond shall not expire until at least two (2) years after the Effective Date of this Agreement. At such time as the Developer (i) has provided the Performance Bond to the City; (ii) has satisfied all requirements for construction and development of Phase I, except for• the Parking/Landscape Requirements, but including all other parking and landscaping requirements attributable to Phase I; and (iii) has passed all City inspections on Phase I, the City agrees to issue a temporary certificate of occupancy for the building on Phase I. In addition, after such temporary certificate of occupancy has been issued, the City will permit tenants in the building on Phase I to obtain temporary certificates of occupancy for their respective spaces. After (i) the Parking/Landscape Requirements have been completed; (ii) the Developer has satisfied all requirements for conshuction and development of 50523320.2 _2 _ Ys~3163 Ps0579 Phase I; and (iii) Phase I has passed all City inspections, the City will then issue a permanent certificate of occupancy for• the building and permanent certificates of occupancy for the tenants in Phase I. If the Developer has not satisfied the Parking/Landscape Requirements on or prior to December 31, 2013, the City may call in the surety to complete the Par•king/Landscape Requirements. In no event may the Developer obtain a permanent certificate of occupancy for Phase I or Phase II until the Parking/Landscape Requirements have been completed. Further, in addition to satisfying the Parking/Landscape Requirements attributable to Phase I on the Phase II portion of the Property, and notwithstanding anything herein to the contrary, the Developer shall be required to fully comply with all City Laws applicable to Phase II, including, without limitation, all parking and landscaping requirements attributable to Phase II. 3. Governmental Immunity. The City does not waive or relinquish any immunity or defense on behalf of itself, its officers, employees, and agents as a result of the execution of this Agreement and the performance of the covenants and actions contained herein. 4. Bindine Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, executors, representatives, successors, and assigns where permitted by this Agreement, and the terms hereof shall run with the Property. 5. Authori The execution, delivery, and performance by the Developer of this Agreement have been duly authorized by all necessary action and will not violate the organizational documents of the Developer. The execution of this Agreement by the Developer does not require any consent or approval that has not been obtained, including, without limitation, the consent or approval of any governmental or quasi-governmental authority. 6. Relationshia of the Parties. It is expressly understood and agreed that neither the Developer nor any of its agents, employees, or representatives shall for any purpose be deemed to be nor• be represented to be, an employee, agent, or servant of the City; nor• shall anything contained herein operate or be construed to create hereunder any type of partnership, joint venture, joint enterprise, or franchise relationship between the Developer and the City. 7. Costs and Attornevs' Fees. In the event that the Developer should default under any of the provisions of this Agreement and the City should employ attorneys or incur other expenses for the collection of the payments due under this Agreement or the enforcement of performance or observance of any obligation or• agreement on the part of the Developer herein contained, the Developer agrees to pay to the City reasonable fees of such attorneys and such other expenses so incurred by the City. 8. Effect of Waiver or Consent. No waiver or consent, express or• implied, by any party to or of any breach or default by any party in the performance by such party of its obligations hereunder shall be deemed or construed to be a consent or waiver to or of any other breach or default in the performance by such party of the same or any other obligations of such party hereunder. Failure on the part of a party to complain of any act of any party or• to declare any party in default, irrespective of how long such failure continues, shall not constitute a waiver by such party of its rights hereunder until the applicable statute of limitation period has run. 50523320.2 _3 _ YOL3 1 6 3 PEO 5 8 0 9. Inteeration. This Agreement is the complete agreement between the parties as to the subject matter hereof and cannot be varied except by the written agreement of the Developer and the City. The Developer and the City each agrees that there are no oral agreements, understandings,representations or warranties which are not expressly set forth herein. 10. Leeal Construction. If any provision in this Agreement is for any reason unenforceable, to the extent the unenforceability does not destroy the basis of the bargain among the parties, such unenforceability will not affect any other provision hereof, and this Agreement will be construed as if the unenforceable provision had never been a part of this Agreement. Whenever the context requires, the singular will include the plural and neuter include the masculine or Feminine gender, and vice versa. Article and section headings in this Agreement are for reference only and are not intended to restrict or define the text of any section. This Agreement will not be construed more or less favorably between the parties by reason of authorship or origin of language. 11. Choice of Law. This Agreement will be construed under the laws of the State of Texas without regard to choice-of--law rules of any jurisdiction. Venue shall be in the State District Court of Guadalupe County, Texas with respect to any lawsuit arising out of or construing the terms and provisions of this Agreement, and the parties agree to be subject to the jurisdiction of such court. 12. Time. Time is of the essence. Unless otherwise specified, all references to "days" mean calendar days. Business days exclude Saturdays, Sundays, and legal public holidays. If the date for performance of any obligation falls on a Saturday, Sunday, or legal public federal or Texas state holiday, the date for performance will be the next following regular business day. 13. Notices. Any notice or communication required or permitted hereunder shall be deemed to be delivered three (3) days after such notice is deposited in the United States mail, postage fully prepaid, registered or certified mail return receipt requested, and addressed to the intended recipient at the address shown herein, and if not so shown, then at the last lmown address according to the records of the party delivering the notice. Any address for notice may be changed by written notice delivered as provided herein. All notices hereunder shall be in writing and served as follows: 50523320.2 _ q _ VOL 316 3 PGO 5 8 1 If to the Developer: 702 GROUP LLC 7300 Blanco Road, Suite 603 San Antonio, Texas 78216 Attention: Doyle Spruill Phone: (210) 308-6682 If to the City: CITY OF SCHERTZ 1400 Schertz Parkway Schertz, Texas 78154 Attention: City Manager With copies to: CITY OF SCHERTZ 1400 Schertz Parkway Schertz, Texas 78154 Attention: Executive Director, SEDC FULBRIGHT & JAWORSKI L.L.P. 300 Convent Street, Suite 2100 San Antonio, Texas 78205 Attention: Katherine A. Tapley 14. Recitals: Exhibits. Any recitals in this Agreement are represented by the parties hereto to be accurate, constitute a part of the parties' substantive agreement, and are fully incorporated herein as matters of contract and not mere recitals. Further, any exhibits to this Agreement are incorporated herein as matters of contract and not mere exhibits. 15. Counteraarts. This Agreement may be executed in any number of counterparts with the same effect as if all signatory parties had signed the same document. All counterparts shall be construed together and shall constitute one and the same Agreement. 16. List of Exhibits. The following exhibits are attached to this Agreement: Exhibit "A" Legal Description of Phase II Exhibit "B" Depiction of the Parking/Landscape Area (Signatures and acknowledgments on the following pages] 50523320.2 _5 Y0~3163 PG0582 SIGNATURE PAGE TO DEVELOPMENT AGREEMENT IN WITNESS WHEREOF, the Parties have executed this Agreement to be effective as of the Effective Date. DEVELOPER: THE STATE OF TEXAS COUNTY OF 702 GROUP LLC, a Texas limited liability company Ey: .. D . Name: ,~, Title: ~G3 N Date: July, 2012 This inshvment was aclmow,l~dged before me on the ~ tS '= day of July, 2012 by ~ ~CS ~, II ,the { ~~~~r of 702 GROUP LLC, a Texas limited liability compan , on behalf of said limited liability company. (SEAL) aaaaaaaaaaaaaaaaaawaaaaav,aa ~~ CYNTHIA ANNE RALEIGH y uNotary Public in a d for ~ * * Notery PubNc y ~ ~~ State of Texas The State of Texas ~~~ Comm. 6cp. 02-11-2015 ~~G~G~6~G~c~G'6~G~t~L~G~G~G~G~G~G~Ge~G~G~G~c~c c~G My Commission Expires: ~' ~1-ao~S [Signatures and acknowledgments continue on the following page J 50523320.2 S - 1 VO13163 PG0583 SIGNATURE PAGE TO DEVELOPMENT AGREEMENT CITY: THE STATE OF TEXAS CITY OF SCHERTZ, a Texas municipal corporation By: Name: J C. I ssel, its City Manager Date: ~eriy ~, 2012 -l~~ngust COUNTY OF GUADALUPE § This instrument was acknowledged before me on the ~ day of~2012 by John C. Kessel, City Manager of the City of Schertz, Texas, a Texas municipal corporation, on behalf of the City. (SEAL) aavaaaaaaaaaaaa:~~aaaaaaaay ~ SARAH ~.CaONZALEZ ~ ~ ~ ®~ Notary Public f T ~+ exas Slate o ~~~ Comrn. Exp. 1031-2012 y ~ e ~~a~w~e~cw~~c~ceae~c~e~w~c~c~ee~we~e Notary Public in and for The State of Texas nn t~ My Commission Expires: Iv ~ p2~1 D\ 50523320.2 g _ 2 VOl3 16 3 P60 5 8 4 EXHIBIT A Legal Description of Phase II BEING a 3.344 acre Tract out of a 3.945 acre tract recorded in Volume 71, Page 479, of the Official Deed Records of Guadalupe County, Texas and being pazt of the unplatted portion of Lone Oak Subdivision, Schertz, Texas, recorded in Volume 3, Page 3, and being more particularly described by Meets and Bounds. BEGINN[1~IG at a % inch iron pin found on the south right of way line of F.M. 78, being the northwest corner of this tract, said point being 250.00 feet from the east line of Cloverleaf Drive and the north line of said Lone Oak Subdivision along the south line of F,M, 78 with a curve having a radius of 3,754.80 feat; THENCE in a easterly direction along a curve to the right having a radius of 3,754.80 feet and along the north right of way line of F.M. 78, a distance of 485.41, chord bearing and distance of N 78 20' 41" E - 485.08 feet to a'/: inch iron pin found for the most northeasterly comer of this tract; THENCE S 18 46' 17" E along the westerly line of Schertz Animal Clinic Subdivision recorded in heed and Plat Records of Guadalupe County, a distance of 286.10 feet to a %z inch iron pin found for the southeasterly corner of this tract and the southwesterly corner of said Schertz Animal Clinic Subdivision; "iT-IENCE in a westerly direction along a curve to the left having a radius of 3,454.80 feet and along the north right of way line of a 16-foot alley, a distance of 486.30 feet, chord and bearing and distance of S 78 58' 47" W - 485.90 feet to a % inch iron pin found for the southeasterly corner of this tract' TFIENCE N 19 45' S7" W a distance of 301.10 feet along the east boundary line of Lone Star Plaza recorded in Ollicial Property Records and the westerly line of this tract to the POINT OF BEGINNING. OF h'¢ ~a~y ' .~ . SIA 5AYYADI ~" " I~ { ~~~5451o~a1~ ~ 1 ~ `~ . 9d,~.~~~~,'4 ~U94 50523320.2 Exhibit A -Page 1 VOL3 16 3 P60 5 8 5 SAVE AND EXCEPT THE FOLLOWING TRACT: An approximately 1.951 acre tract of real property located in the City of Schertz, Guadalupe County, Texas, more specifically described as Lot 22, Block 1, Presto Nova Schertz Subdivision, recorded in Volume 7, Page 412 of the Guadalupe County Plat Records. 50523320.2 Exhibit A -Page 2 YO13163 PG0586 EXHIBIT B The Parking and Landscape Area ~ ~ ~ ~~ - - --'- - - - -- ` W Ir-- ~- - - - ----------F.M 78 ,~ ~ _--- 50523320.2 Exhibit B -Page 1 YO13163 P60587 This page has been added by the Guadalupe County Clerk's office to comply with the statutory requirement that the clerk shall stamp the recording information at the foot of the last page of the document. Th//is page becomes a part of the document identified by Document Number /a~ `~.SS~.$~ affixed on the first page of this document. ,,m„~.. =_ ,_ Fll. rn ror~ Rrcof~o 12 AUG 17 AM 10~ 39 TERE A KIEL CDUNiYCLER ADALUPECDUNTY a B STATE OF TEXAS COUNTY OF GUADALUPE I carlily this inslrum=nl was FILED on en tlele and al the time stamped Thereon end xss duly racoaled in ~ OlMtlal Wblic Reoonia of Guadalupe County, Texas J~ItY Cp ~.T~~lR~ Gpa ~' IERESA HIEL Guadalupe Cgxrly Clerx ~~.