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HomeMy WebLinkAboutResolution - 2016-R0158 - Agreements In Lieu Of Annexation - 04_28_2016Resolution No. 2016-RO 158 I Item No. 7.10 April 28.2016 RESOLUTION WHEREAS, tine City Council by Resolution No. 2016-ROO26 on January 14, 2016 directed city staff to prepare a survey and a service plan and to draft development agreements for property owners in reference to a proposed annexation: and WHEREAS, the proposed area subject to annexation was generally described as 2,394 acres located between one-half mile east of CR 2200 (University Avenue) and approximately CR 1700 (Milwaukee Avenue), from the existing southern city limits to approximately 660 feet south of CR 7500 (the "proposed annexed area"); and WHEREAS, notice was sent to the property owners in the proposed annex area, as required by Chapter 43 of the Texas Local Government Code, and two public hearings \vere conducted by the City Council on March 8 and March 10, 2016 all pursuant to state law, and WHEREAS, the City Council received input and comment from affected property owners at each public hearing; and WHEREAS, the City of Lubbock on or about March 3. 2016 mailed. by certified mail return receipt requested, an offer to make a development agreement to each property owner of agriculturally exempt property in the proposed annexed area as required by Section 43.035 of the Texas Local Government Code: and WHEREAS. the City Council finds that each property owner of agriculturally exempt property as determined by the Lubbock Central Appraisal District has been offered an agreement pursuant to Section 43.035 of the Texas Local Government Code and that each owner has either accepted the offer or has rejected the offer: and WHEREAS, on March 28, 2016, the City Council by Resolution No. 2016-R0122 authorized the City Manager and staff to offer agreements in lieu of annexation as allowed under Section 212.172 of the Texas Local Government Code to all eligible property owners in the proposed annexed area for a twenty (20) year term: and WHEREAS, such an agreement is effective only if the area that is the subject of the agreement is affirmatively annexed by the City Council, and WHEREAS, the City Council finds it to be in the public interest to authorize the Mayor to execute said agreements if the City Council affirmatively votes to annex an area that contains Y� the property subject to the agreement: NOW THEREFORE. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LU13BOCK: THAT the Mayor of the City of Lubbock is hereby authorized and directed to execute for and on behalf of the City of Lubbock each agreement, attached hereto as Exhibit "A", pursuant to Section 212.172 or Section 43.035 of the Texas Local Government Code, as an agreement in lieu of annexation, conditioned upon the affirmative vote of the City Council to annex an area in which the property subject to said agreement is included. Passed by the City Council on April 28, 2016 — I A�l GLYK C. ROBERTSON, MAYOR ATTEST: Re ecca Garza, City Se ret APPROVED AS TO CONTENT: ames Loomi"ity Manager APPROVED S TO FORM: Chad Weaver, City Attorney ccdocs/RES.Annexation-Development Agreement CITY OF LUBBOCK OFFICE PICK UP 2016017909 9 PG8 AGREE mill tri, "KA11101.11+1 !Mimi, IZ110111111 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 REAL PROPERTY RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER CITY OF LUBBOCK CH. 212 DEVELOPMENT AGREEMENT IN LIEU OF ANNEXATION THIS DEVELOPMEN�REEM;anbLetween LIEU OF ANNEXATION (the "Agreement") is made and effective this day of , 2016, and is entered into pursuant to §212.172 of the Texas Local Government Code, by the City of Lubbock, Texas, a Texas home rule municipal corporation (the "City"), and the undersigned property owner(s) (the "Owner"), with the term "Owner" including all owners of the Property, and is as follows: RECITALS WHEREAS, the Owner owns a parcel of real property (the "Property") in Lubbock County, Texas, which is more particularly and separately described in the attached Exhibit A; and WHEREAS, the City has instituted annexation proceedings for all portions of the Property and held public hearings regarding the proposed annexation on March 8 and March 10, 2016; and WHEREAS, at the public hearings, the Owner was presented with a service plan for the Property and the Owner was given the opportunity to be heard by the City Council of the City of Lubbock; and WHEREAS, the Owner does not want the Property to be annexed and desires to have the Property remain in the City's extraterritorial jurisdiction, in consideration for which the Owner agrees to enter into this Agreement; and WHEREAS, it is the City's intention to allow the Owner to continue to use the Property as it is being used at the time of this Agreement; and WHEREAS, the Owner and the City acknowledge that this Agreement is binding upon the City and the Owner and their respective successors and assigns for the duration of this Agreement; and WHEREAS, this Agreement is to be recorded in the real property records of Lubbock County, Texas; NOW, THEREFORE, in consideration of the mutual promises contained in this Agreement, the Owner and the City agree as follows: AGREEMENT Section I — The Property: Current Status. The City acknowledges that the Property, more particularly described in the attached "Exhibit A," is located within the extraterritorial jurisdiction of the City and is subject to annexation by the City unless this Agreement is signed by the Owner. Section 2 — The Property: Continued Status. In lieu of annexation, the Owner desires that the Property remain in the extraterritorial jurisdiction of the City for the duration of this Agreement. The Ch. 212 Development Agreement In Lieu Of Annexation -1 1 P a g e Owner acknowledges that unless the Property is annexed by the City, the Property is not eligible to receive City services, the Property shall not be included in the City's voting precincts, and the Property shall be immune from City property taxes for the duration of this Agreement. The Owner's use of the Property at the time of this Agreement is "grandfathered" into the acceptable uses of the City, and the City is prohibited from interfering with any uses on the Property that comply with §43.002 of the Texas Local Government Code. The Owner acknowledges that Section 22.03.091(a) of the Code of Ordinances of the City prohibits the City from providing water to any entity outside of the city limits, and acknowledges that the City will not be providing water to the Property unless the Property is annexed into the City. However, if the Property is annexed pursuant to a provision of this Agreement, then the City shall provide services to the Property pursuant to Chapter 43 of the Texas Local Government Code. Subject to the provisions of this Agreement, the City shall not annex the Property, shall not involuntarily institute proceedings to annex the Property, and shall not include the Property in a statutory annexation plan. The Owner authorizes the enforcement by the City of all of the City's regulations and planning authority that do not materially interfere with the use of the Property in the same manner that the City's regulations and planning authority are enforced within the City's boundaries. The City specifically reserves its authority pursuant to Chapter 251 of the Texas Local Government Code to exercise eminent domain over property that is subject to a §212. l 72 development agreement. The City further reserves its regulatory and planning authority in the City's ETJ, as such authority has been granted to it by the City Council. Section 3 — The Property. Change in Status. The Owner agrees not to substantially change the use of the Property as it is used on the date of the execution of this Agreement. The Owner agrees not to develop the Property by filing any type of subdivision plat or related development document for the Property with Lubbock County or the City throughout the duration of this Agreement. The Owner acknowledges that if any plat or related development document is filed for the Property, or if the Owner commences any development of the Property other than that which supports the use of the Property as the Property is used on the date of the execution of this Agreement, then this Agreement shall terminate, and in addition to the City's other remedies, such act will constitute a petition for voluntary annexation by the Owner, and the Property will be subject to annexation at the discretion of the City Council. The Owner agrees that such annexation shall be voluntary and the Owner hereby consents to such annexation as though a petition for such annexation had been tendered by the Owner. If annexation proceedings begin pursuant to this Section, then the Owner acknowledges that this Agreement serves as an exception to Local Government Code §43.052, requiring a municipality to use certain statutory procedures under an annexation plan, and as an exception to Local Government Code §43.062 requiring certain statutory procedures as to the Owner to effectuate an annexation. Further, the Owner hereby waives any and all vested rights and claims that it may have under §43.002(a)(2) and Chapter 245 of the Texas Local Government Code that would otherwise exist by virtue of any plat or construction the Owner may initiate during the time between the expiration of this Agreement and the institution of annexation proceedings by the City. Section 4 — The Term. The term of this Agreement (the "Term") shall be twenty (20) years from the date that this Agreement is approved by the City Council of the City of Lubbock. At the end of the Term, the Owner, and all of the Owner's heirs, successors and assigns shall be deemed to have filed Ch. 212 Development Agreement In Lieu Of Annexation - 2 1 P a g e a petition for voluntary annexation of the Property, and the Property will be subject to voluntary annexation in accordance with Section 3 of this Agreement. Prior to the end of the Term, the City may commence the voluntary annexation of the Property. Section 5 — Termination. This Agreement will automatically terminate at the end of the Term. This Agreement shall terminate upon the filing of any plat or related development document with the City or with Lubbock County or upon the Owner's failure to prove that it is the sole owner of the Property with the authority to sign this Agreement. The Owner and the City may agree in writing to terminate this Agreement prior to the expiration of the Term of this Agreement. Section G — City Council Approval Required. If the City Council of the City of Lubbock does not affirmatively vote to annex an area that contains the Property, then this Agreement will be null and void in its entirety. Section 7 — Notification. Any person who sells or conveys any portion of the Property shall, prior to such sale or conveyance, give written notice of this Agreement to the prospective purchaser or grantee, and shall give written notice of the sale or conveyance to the City. Further, the Owner and the Owner's heirs, successors, and assigns shall give the City written notice within fourteen (14) days of any change in the status of the Property. A copy of any notice required by this section shall be forwarded to the City at the following address: City of Lubbock With copy to: City of Lubbock Attn: City Secretary Attn: Director of Planning P.O. Box 2000 P.O. Box 2000 Lubbock, Texas 79457 Lubbock, Texas 79457 This Agreement shall run with the Property and be recorded in the real property records of Lubbock County, Texas. Section 8 — Waiver. Any failure by the Owner or the City to insist upon strict performance by either party of any material provision of this Agreement shall not be deemed a waiver thereof, and the Owner or the City shall have the right at any time thereafter to insist upon strict performance of any and all provisions of this Agreement. No provision of this Agreement may be waived except by a written agreement signed by the Owner or the City waiving such provision. Any waiver shall be limited to the specific purposes for which it is given. No waiver by the Owner or the City of any provision of this Agreement shall be deemed or construed to be a waiver of any other provision or subsequent waiver of the same provision. The Parties expressly agree that no provision of this Agreement is in any way intended to constitute a waiver by any Party of any immunity from suit or liability that it may have by operation of law. The Parties agree that the City shall retain all of its governmental immunities. Section 9 — Assurance of Ownership. The Owner hereby expressly affirms that it is the sole owner of the Property and that no other person or entity has a valid claim to any right, title, or ownership in the Property. Should any dispute of right, title, or ownership concerning the Property arise subsequent to the Owner's execution of this Agreement, the Owner hereby agrees to be solely responsible for defending and confirming its absolute right, title, and ownership to the Property. if the Owner cannot Ch. 212 Development Agreement In Lieu Of Annexation - 3 1 P a g e defend or fails to defend its right, title, and ownership to the Property, then this Agreement shall terminate. Section 10 — Governing Law. This Agreement is entered into under and pursuant to, and is to be construed and enforceable in accordance with, the laws of the State of Texas, and all obligations of the Owner and the City are performable in Lubbock County, Texas. Venue for any action to enforce or construe this Agreement shall be Lubbock County, Texas. This Agreement is subject to all applicable federal, state, and local laws and any applicable ordinances, rules, orders and regulations of any local, state, or federal governmental authority, having or asserting jurisdiction. However, nothing contained in this Agreement shall be construed as a waiver by the Owner or the City of any right to question or contest any law, order, rule, or regulation which may affect the terms and conditions of this Agreement in any forum having jurisdiction, and the Owner and the City each agree to make a good faith effort to support all proposed Iaws and regulations which would be consistent with the performance of this Agreement in accordance with its terms. No subsequent change in the law regarding annexation shall affect the enforceability of this Agreement or the City's ability to annex the Property pursuant to this Agreement. Section 11— Remedy. The City reserves the right to exercise any right or remedy available to it by law, contract, equity, or otherwise, including without limitation, the right to seek any and all forms of relief in a court of competent jurisdiction. Further, the City shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this Agreement, the former shall control. Section 12 — Public Information. This Agreement is public information. To the extent, if any, that any provision of this Agreement is in conflict with the Texas Public Information Act (Tex. Gov't. Code Ann. Chapter 552 et seq., as amended), the same shall be of no force and effect. Section 13 — Third -Party Beneficiaries. This Agreement only inures to the benefit of, and may only be enforced by, the Owner and the City. No other person or entity shall have any right, title, or interest under this Agreement or otherwise be deemed to be a third -party beneficiary of this Agreement. Section 14 — No Personal Liability & No Joint Venture. Nothing in this Agreement is construed as creating any personal liability on the part of any employee, officer or agent of any public body that may be a party to this Agreement. This Agreement is not intended to, and shall not be construed to, create any joint enterprise between or among the parties. Section 15 — Due Diligence & Force Majeure. The Owner and the City shall use good faith, due diligence, and reasonable care in the performance of the obligations under this Agreement, and time shall be of the essence in such performance. In the event that the Owner or the City is unable to perform its respective obligations under this Agreement, due to any event or circumstance that is not within the reasonable respective control of the Owner or the City that could not have been avoided by either the Owner or the City with the exercise of good faith, due diligence, and reasonable care (a "Force Majeure"), then the obligations affected by the Force Majeure shall be temporarily suspended. Within three (3) business days after the occurrence of a Force Majeure, the Owner or the City shall give notice to each other, including a detailed explanation of the Force Majeure and a description of the action that will be taken to remedy the Force Majeure and resume full performance at the earliest possible time. Ch. 212 Development Agreement In Lieu Of Annexation - 4 1 P a g e Section 16 — Enforcement. This Agreement may be enforced by the Owner or the City by any proceeding at law or in equity. Failure to do so shall not be deemed a waiver to enforce the Agreement thereafter. Section 17 — Governmental Powers. It is understood that by execution of this Agreement, the City does not waive or surrender any of its governmental powers, except as expressly set forth herein. Section 18 — 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. The Owner acknowledges that each and every owner of the Property must sign this Agreement in order for the Agreement to take full effect. Section 19 — Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be unenforceable for any reason, such unenforceable provision shall be deleted from this Agreement, and the remainder of this Agreement shall remain in full force and effect and shall be interpreted to give effect to the intent of the Owner and the City. Without limiting the generality of the foregoing, if it is determined that, as of the date that this Agreement becomes effective, that any Owner does not own any portion of the Property, then this Agreement shall remain in full force and effect with respect to the remaining portion of the Property that the Owners actually own. Section 20 — Entire Agreement. This Agreement constitutes the entire agreement between the Owner and the City and supersedes all prior agreements, whether oral or written, covering the subject matter of this Agreement. The Owner acknowledges that each and every Owner of the Property must sign this Agreement in order for the Agreement to take full effect. Section 21— Captions & Recitals. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. However, each of the recitals contained herein, by this reference, shall be incorporated into, and deemed a part of, this Agreement. Section 22 — Modification of Agreement. This Agreement cannot be modified or amended except in writing signed by the Owner and the City and attached and made a part of this Agreement. Section 23 — Ch. 212 Agreement in lieu of Ch. 43 Agreement. If the Property is subject to an agricultural exemption, the Owner hereby acknowledges that the City, through the Office of the City Attorney, offered to make a development agreement with the Owner under §43.035 of the Texas Local Government Code. The Owner further acknowledges that the Owner rejected the offer to make a §43.035 Agreement in order to enter in to this §212.172 Agreement. IN WITNESS HEREOF, the parties mutually nter this Agreement on this day of 2016. Ch. 212 Development Agreement In Lieu Of Annexation - 5 1 P a g e For the City I "Alwvi GLEN C. RO RTS N, MAYOR ATTEST: Rolipcca Garza, City, Secret' APPROVED AS TO CONTENT: Andrew Paxton, Director'of Planning APPROVED AS TO FORM: Justin rui As. ist nt City Attorney l For the Owner Gayle C. Turnbow, Owner Ch. 212 Development Agreement In Lieu Of Annexation - 6 1 P a g e NOTARIZATION State of Texas § County of Lubbock § This instrument was executed before me on 4k$ 2016, by •,���7J�q � pAT. NAME of the City of Lubbock, a Texas municipal corporation, on behalf of said m r, `,,"'J$1flrrrrrrr,�I corporation. *�'��P $Owo�� cl -�_ N ry Public 7 �r� , ._aF�` State of Texas § County of Lubbock § This instrument was executed before me on ')1 2016, b y V411-11'7 n,irE - fiAY41NA C.TU � -Q - on behalf of said Owner. When Recorded Return To: City Secretary City of Lubbock, Texas 1625 13'h Street Lubbock, Texas 79401 MVENITA WADSWORTH MYCO.Ok"W"mo Ch. 212 Development Agreement In Lieu Of Annexation - 7 1 P a g e EXHIBIT A — The Property A 1.145 acre tract of land out a 4.0 acre tract of land out of Section 1, Block A-K, Lubbock County, Texas, as recorded in Volume 2363, Page 144, Deed Records, Lubbock County, Texas and being more particularly described as follows: ' BEGINNING at a %" rod set for the Southeast comer of this survey in the East line of the above described 4.0 acre tract from whence the Southeast comer of Section 1 bears S 0 001' 48" W 1739.13' and 'S a9" 59' 12" E, 1298.82' ; THENCE N 00 01' 48" E, along the East line of the above described 4.0 acre tract, at 176.2' pass a found W' rod in the South ROW of a paved county road; continuing for a distance of 236.2" to a found %1' rod for the Northeast comer of this survey and the Northeast corner of the above described 4.0 acre tract. THENCE N 69 056' 54" W, along the North line of the above described 4.0 acre tract and the North ROW of a paved county road a distance of 211.18' to a %" rod set for the Northwest corner of this survey; THENCE S 0 001' 46" W, at 60' pass a W' rod set in the South ROW of a paved county road, continuing for a distance of 236.2' to '!s" rod set for the Southwest corner of this Survey; THENCE S 89 1056' 54" E a distance of 211.18' to the place of beginning and containing 1.145 acres of land. (Turnbow — R133772) Page 1 of 2 BLK AK SEC 1 AB 189 E12 TR G UNIVERSITY SOUTH AC: 2 LO4'uo NRECOR E12 R133772 2 AC � r 211.181 FILED AND RECORDED OFFICIAL PUBLIC RECORDS Kalyy pinfon County -Clerk Lubbaak County TEXAS 05/23/2016 1062 AA FEE; #SS-00 2016017909 Page 2 of 2 (Turnbow — R133772) CITY OF LUBBOCK OFFICE PICK UP 2016017910 9 PG8 AGREE 1111 M% 1*0111411 M INLIVI 11sh 11111 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 REAL PROPERTY RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER CITY OF LUBBOCK CH. 212 DEVELOPMENT AGREEMENT IN LIEU OF ANNEXATION THIS DEVELOPMENT AGREEM[EIYT IN LIEU OF ANNEXATION (the "Agreement") is made and effective this 2S* day o 2016, and is entered into pursuant to §212.172 of the Texas Local Government Code, by ad between the City of Lubbock, Texas, a Texas home rule municipal corporation (the "City"), and the undersigned property owner(s) (the "Owner"), with the term "Owner" including all owners of the Property, and is as follows: RECITALS WHEREAS, the Owner owns a parcel of real property (the "Property") in Lubbock County, Texas, which is more particularly and separately described in the attached Exhibit A; and WHEREAS, the City has instituted annexation proceedings for all portions of the Property and held public hearings regarding the proposed annexation on March 8 and March 10, 2016; and WHEREAS, at the public hearings, the Owner was presented with a service plan for the Property and the Owner was given the opportunity to be heard by the City Council of the City of Lubbock; and WHEREAS, the Owner does not want the Property to be annexed and desires to have the Property remain in the City's extraterritorial jurisdiction, in consideration for which the Owner agrees to enter into this Agreement; and WHEREAS, it is the City's intention to allow the Owner to continue to use the Property as it is being used at the time of this Agreement; and WHEREAS, the Owner and the City acknowledge that this Agreement is binding upon the City and the Owner and their respective successors and assigns for the duration of this Agreement; and WHEREAS, this Agreement is to be recorded in the real property records of Lubbock County, Texas; NOW, THEREFORE, in consideration of the mutual promises contained in this Agreement, the Owner and the City agree as follows: AGREEMENT Section 1 — The Property: Current Status. The City acknowledges that the Property, more particularly described in the attached "Exhibit A," is located within the extraterritorial jurisdiction of the City and is subject to annexation by the City unless this Agreement is signed by the Owner. Section 2 — The Property: Continued Status. In lieu of annexation, the Owner desires that the Property remain in the extraterritorial jurisdiction of the City for the duration of this Agreement. The Ch. 212 Development Agreement In Lieu Of Annexation - i I Owner acknowledges that unless the Property is annexed by the City, the Property is not eligible to receive City services, the Property shall not be included in the City's voting precincts, and the Property shall be immune from City property taxes for the duration of this Agreement. The Owner's use of the Property at the time of this Agreement is "grandfathered" into the acceptable uses of the City, and the City is prohibited from interfering with any uses on the Property that comply with §43.002 of the Texas Local Government Code. The Owner acknowledges that Section 22.03.091(a) of the Code of Ordinances of the City prohibits the City from providing water to any entity outside of the city limits, and acknowledges that the City will not be providing water to the Property unless the Property is annexed into the City. However, if the Property is annexed pursuant to a provision of this Agreement, then the City shall provide services to the Property pursuant to Chapter 43 of the Texas Local Government Code. Subject to the provisions of this Agreement, the City shall not annex the Property, shall not involuntarily institute proceedings to annex the Property, and shall not include the Property in a statutory annexation plan. The Owner authorizes the enforcement by the City of ali of the City's regulations and planning authority that do not materially interfere with the use of the Property in the same manner that the City's regulations and planning authority are enforced within the City's boundaries. The City specifically reserves its authority pursuant to Chapter 251 of the Texas Local Government Code to exercise eminent domain over property that is subject to a §212.172 development agreement. The City fiuther reserves its regulatory and planning authority in the City's ETJ, as such authority has been granted to it by the City Council. Section 3 — The Property: Change In Status. The Owner agrees not to substantially change the use of the Property as it is used on the date of the execution of this Agreement. The Owner agrees not to develop the Property by filing any type of subdivision plat or related development document for the Property with Lubbock County or the City throughout the duration of this Agreement. The Owner acknowledges that if any plat or related development document is filed for the Property, or if the Owner commences any development of the Property other than that which supports the use of the Property as the Property is used on the date of the execution of this Agreement, then this Agreement shall terminate, and in addition to the City's other remedies, such act will constitute a petition for voluntary annexation by the Owner, and the Property will be subject to annexation at the discretion of the City Council. The Owner agrees that such annexation shall be voluntary and the Owner hereby consents to such annexation as though a petition for such annexation had been tendered by the Owner. If annexation proceedings begin pursuant to this Section, then the Owner acknowledges that this Agreement serves as an exception to Local Government Code §43.052, requiring a municipality to use certain statutory procedures under an annexation plan, and as an exception to Local Government Code §43.062 requiring certain statutory procedures as to the Owner to effectuate an annexation. Further, the Owner hereby waives any and all vested rights and claims that it may have under §43.002(a)(2) and Chapter 245 of the Texas Local Government Code that would otherwise exist by virtue of any plat or construction the Owner may initiate during the time between the expiration of this Agreement and the institution of annexation proceedings by the City. Section 4 — The Term. The term of this Agreement (the "Term") shall be twenty (20) years from the date that this Agreement is approved by the City Council of the City of Lubbock. At the end of the Term, the Owner, and all of the Owner's heirs, successors and assigns shall be deemed to have filed Ch. 212 Development Agreement In lieu Of Annexation - 2 1 a petition for voluntary annexation of the Property, and the Property will be subject to voluntary annexation in accordance with Section 3 of this Agreement. Prior to the end of the Term, the City may commence the voluntary annexation of the Property. Section 5 — Termination. This Agreement will automatically terminate at the end of the Term. This Agreement shall terminate upon the filing of any plat or related development document with the City or with Lubbock County or upon the Owner's failure to prove that it is the sole owner of the Property with the authority to sign this Agreement. The Owner and the City may agree in writing to terminate this Agreement prior to the expiration of the Term of this Agreement. Section 6 — City Council Approval Required. If the City Council of the City of Lubbock does not affirmatively vote to annex an area that contains the Property, then this Agreement will be null and void in its entirety. Section 7 — Notification. Any person who sells or conveys any portion of the Property shall, prior to such sale or conveyance, give written notice of this Agreement to the prospective purchaser or grantee, and shall give written notice of the sale or conveyance to the City. Further, the Owner and the Owner's heirs, successors, and assigns shall give the City written notice within fourteen (14) days of any change in the status of the Property. A copy of any notice required by this section shall be forwarded to the City at the following address: City of Lubbock With copy to: City of Lubbock Attn: City Secretary Attn: Director of Planning P.O. Box 2000 P.O. Box 2000 Lubbock, Texas 79457 Lubbock, Texas 79457 This Agreement shall run with the Property and be recorded in the real property records of Lubbock County, Texas. Section S — Waiver. Any failure by the Owner or the City to insist upon strict performance by either party of any material provision of this Agreement shall not be deemed a waiver thereof, and the Owner or the City shall have the right at any time thereafter to insist upon strict performance of any and all provisions of this Agreement. No provision of this Agreement may be waived except by a written agreement signed by the Owner or the City waiving such provision. Any waiver shall be limited to the specific purposes for which it is given. No waiver by the Owner or the City of any provision of this Agreement shall be deemed or construed to be a waiver of any other provision or subsequent waiver of the same provision. The Parties expressly agree that no provision of this Agreement is in any way intended to constitute a waiver by any Party of any immunity from suit or liability that it may have by operation of law. The Parties agree that the City shall retain all of its governmental immunities. Section 9 — Assurance of Ownership. The Owner hereby expressly affirms that it is the sole owner of the Property and that no other person or entity has a valid claim to any right, title, or ownership in the Property. Should any dispute of right, title, or ownership concerning the Property arise subsequent to the Owner's execution of this Agreement, the Owner hereby agrees to be solely responsible for defending and confirming its absolute right, title, and ownership to the Property. If the Owner cannot Ch. 212 Development Agreement In Lieu Of Annexation - 3 1 defend or fails to defend its right, title, and ownership to the Property, then this Agreement shall terminate. Section 10 — Governing Law. This Agreement is entered into under and pursuant to, and is to be construed and enforceable in accordance with, the laws of the State of Texas, and all obligations of the Owner and the City are performable in Lubbock County, Texas. Venue for any action to enforce or construe this Agreement shall be Lubbock County, Texas. This Agreement is subject to all applicable federal, state, and local laws and any applicable ordinances, rules, orders and regulations of any local, state, or federal governmental authority, having or asserting jurisdiction. However, nothing contained in this Agreement shall be construed as a waiver by the Owner or the City of any right to question or contest any law, order, rule, or regulation which may affect the terms and conditions of this Agreement in any forum having jurisdiction, and the Owner and the City each agree to make a good faith effort to support all proposed laws and regulations which would be consistent with the performance of this Agreement in accordance with its terms. No subsequent change in the law regarding annexation shall affect the enforceability of this Agreement or the City's ability to annex the Property pursuant to this Agreement. Section 11— Remedy. The City reserves the right to exercise any right or remedy available to it by law, contract, equity, or otherwise, including without limitation, the right to seek any and all forms of relief in a court of competent jurisdiction. Further, the City shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this Agreement, the former shall control. Section 12 — Public Information. This Agreement is public information. To the extent, if any, that any provision of this Agreement is in conflict with the Texas Public Information Act (Tex. Gov't. Code Ann. Chapter 552 et seq., as amended), the same shall be of no force and effect. Section 13 — Third -Party Beneficiaries. This Agreement only inures to the benefit of, and may only be enforced by, the Owner and the City. No other person or entity shall have any right, title, or interest under this Agreement or otherwise be deemed to be a third -party beneficiary of this Agreement. Section 14 — No Personal Liability & No Joint Venture. Nothing in this Agreement is construed as creating any personal liability on the part of any employee, officer or agent of any public body that may be a party to this Agreement. This Agreement is not intended to, and shall not be construed to, create any joint enterprise between or among the parties. Section 15 — Due Diligence & Force Majeure. The Owner and the City shall use good faith, due diligence, and reasonable care in the performance of the obligations under this Agreement, and time shall be of the essence in such performance. In the event that the Owner or the City is unable to perform its respective obligations under this Agreement, due to any event or circumstance that is not within the reasonable respective control of the Owner or the City that could not have been avoided by either the Owner or the City with the exercise of good faith, due diligence, and reasonable care (a "Force Majeure"), then the obligations affected by the Force Majeure shall be temporarily suspended. Within three (3) business days after the occurrence of a Force Majeure, the Owner or the City shall give notice to each other, including a detailed explanation of the Force Majcure and a description of the action that will be taken to remedy the Force Majeure and resume full performance at the earliest possible time. Ch. 212 Development Agreement in Lieu Of Annexation - 4 1 Section 16 — Enforcement. This Agreement may be enforced by the Owner or the City by any proceeding at law or in equity. Failure to do so shall not be deemed a waiver to enforce the Agreement thereafter. Section 17 — Governmental Powers. It is understood that by execution of this Agreement, the City does not waive or surrender any of its governmental powers, except as expressly set forth herein. Section 18 — 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. The Owner acknowledges that each and every owner of the Property must sign this Agreement in order for the Agreement to take full effect. Section 19 — Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be unenforceable for any reason, such unenforceable provision shall be deleted from this Agreement, and the remainder of this Agreement shall remain in full force and effect and shall be interpreted to give effect to the intent of the Owner and the City. Without limiting the generality of the foregoing, if it is determined that, as of the date that this Agreement becomes effective, that any Owner does not own any portion of the Property, then this Agreement shall remain in full force and effect with respect to the remaining portion of the Property that the Owners actually own. Section 20 — Entire Agreement. This Agreement constitutes the entire agreement between the Owner and the City and supersedes all prior agreements, whether oral or written, covering the subject matter of this Agreement. The Owner acknowledges that each and every Owner of the Property must sign this Agreement in order for the Agreement to take full effect. Section 21— Captions & Recitals. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. However, each of the recitals contained herein, by this reference, shall be incorporated into, and deemed a part of, this Agreement. Section 22 — Modification of Agreement. This Agreement cannot be modified or amended except in writing signed by the Owner and the City and attached and made a part of this Agreement. Section 23 — Ch. 212 Agreement in lieu of Ch. 43 Agreement. If the Property is subject to an agricultural exemption, the Owner hereby acknowledges that the City, through the Office of the City Attorney, offered to make a development agreement with the Owner under §43.035 of the Texas Local Government Code. The Owner further acknowledges that the Owner rejected the offer to make a §43.035 Agreement in order to enter in to this §212.172 Agreement. IN WITNESS HEREOF, the pa9;ys mutuallenter this Agreement - on this clay of 2016. Ch. 212 Development Agreement to Lieu Of Annexation - 5 I For the City GLEN C. ON, MAYOR 011 et ATTF40: J •�..yfi" f �, L.,J 7� APPROVED AS TO CONTENT: �I Andrew Paxton, Director of Planning APPROVED AS TO FORM: Sus'P tt, iksstnt City Attorney For the Owner Kenneth-W. McCabe, Owner pijld�- i 1?hLrejaL artha A. McCabe, Owner Ch. 212 Development Agreement In Lieu Of Annexation - 6 1 NOTARIZATION State of Texas § County of Lubbock § This instrument was executed before me on 2016, by AaiA UNIT %-.-, MAIM ,I ! of the City of Lubbock, a Texas municipal corporation, on behalf of said corporation. ..�`¢c�pWblCr4 C�'•,,, qLQ AA ns N Public = ,° State of Texas § County of Lubbock § This instrument was executed before me on _ 2016, by - - YATL ICZMNLZIi W. swria¢_ on behalf of said ChuneL VENITA WADSWORTH Notary Pia, Slete of Texas Note M i0531Ofrtf fly C MMiWm F.*m *&2020 State of Texas § County of Lubbock § This instrument was executed before me on 2016, by 11494 Yi A. McCAAk-OSYMV.R on behalf of rAid0wner. When Recorded Return To: City Secretary City of Lubbock, Texas 1625 131h Street Lubbock, Texas 79401 VENITA WADSWORTH Is i� 0e� ol s My Cwvhslm Eras 06*2020 Ch. 212 Development Agreement 1n Lieu Of Annexation - 7 1 EXHIBIT A — The Property A 2.50 acre tract of land out of the Southwest quarter of Section 24, Block E-2, Certificate No. 1869, L. A. Patillo original Grantee, Lubbock County, Texas and more particularly described as follows: BEGINNING at a 1/2' rod set in the North R.O.W. of F. H. highway 1585 from whence the Southwest corner of Section 24 bears South 89° 02' 31" West 1365.1359 and South 0 31' 12" East, 55.00' for the Southwest corner of this survey THENCE North 0' 30, 36" West a distance of 794.47' to a 1/2" rod set for the Northwest corner of this survey; THENCE North 89' 02, 31" East a distance of 137.1151 to a 1/2" rod set for the Northeast corner of this survey; THENCE South 0° 30' East a distance of 794.47' to a 1/2" rod set in the North R.O.W. of F. h- 1585 for the Southeast corner of this survey; THENCE South 890 02' 31" West, along the North R.O.W. of F. M. 1585, a distance of 137.045' to the place of beginning and containing 2.50 acres of land. AND A 2.5 acre tract of land out of the Southwest quarter of Section 24, Block E-2, Certificate No. 1869, L.A. Patillo Original Grantee, Lubbock, County, Texas and more particularly described as follows: BEGINNING at a 1/2" rod set in the North R.O.W. of F.H. Highway 1585 from whence the Southwest corner of Section 24 bears South 89" 02' 31" West 1228.091 and South 00 31' 12" East, 55.000 for the Southwest corner of this survey; THENCE north 011 30' 36" West a distance of 794.470 to a 1/2" rod set for the Northwest corner of this survey; THENCE Borth 890 02' 31" East a distance of 137.1150 to a 2/2" rod set for the Northeast corner of this survey; THENCE South 00 30' East a distance of 794.47' to a 1/2" rod set in the North R.O.W. of F.M. 1585 for the Southeast corner of this survey; THENCE South 89" 02' 31" Wiest along the North R.O.W. of F.H. 1585, a distance of 137.045' to the place of beginning and containing 2.50 acres of land. (McCabe - R121773 & R68499) Page 1 of 2 FRANKFORD FARMS E137.115' OF TR 5 AND FRANKFORD FARMS W137.105' OF TR 5 (LESS BLDG ONLY) FILED AND RECORDED OFFICIAL PUBLIC RECORDS Kelly Pinion County Clark Lubbock County TEXAS 05/23/2016 10:62 AM FrE: 88.00 Z@16�lT810 (McCabe — R121773 & R68499j Page 2of2 CITY OF LUBBOCK 2016027911 9 PGs AGREE � �'I III OFFICE PICK UP ,III IA*KMIWA I��M 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 REAL PROPERTY RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER CITY OF LUBBOCK CH. 212 DEVELOPMENT AGREEMENT IN LIEU OF ANNEXATION THIS DEVELOPMENT AGREEMELIEU OF ANNEXATION (the "Agreement") is made and effective this �� day of1 2016, and is entered into pursuant to §212.1 72 of the Texas Local Government Code, by and between the City of Lubbock, Texas, a Texas home rule municipal corporation (the "City'), and the undersigned property owner(s) (the "Owner"), with the term "Owner" including all owners of the Property, and is as follows: RECITALS WHEREAS, the Owner owns a parcel of real property (the "Property") in Lubbock County, Texas, which is more particularly and separately described in the attached Exhibit A; and WHEREAS, the City has instituted annexation proceedings for all portions of the Property and held public hearings regarding the proposed annexation on March 8 and March 10, 2016; and WHEREAS, at the public hearings, the Owner was presented with a service plan for the Property and the Owner was given the opportunity to be heard by the City Council of the City of Lubbock; and WHEREAS, the Owner does not want the Property to be annexed and desires to have the Property remain in the City's extraterritorial jurisdiction, in consideration for which the Owner agrees to enter into this Agreement; and WHEREAS, it is the City's intention to allow the Owner to continue to use the Property as it is being used at the time of this Agreement; and WHEREAS, the Owner and the City acknowledge that this Agreement is binding upon the City and the Owner and their respective successors and assigns for the duration of this Agreement; and WHEREAS, this Agreement is to be recorded in the real property records of Lubbock County, Texas; NOW, THEREFORE, in consideration of the mutual promises contained in this Agreement, the Owner and the City agree as follows: AGREEMENT Section 1 -- The Property: Current Status. The City acknowledges that the Property, more particularly described in the attached "Exhibit A," is located within the extraterritorial jurisdiction of the City and is subject to annexation by the City unless this Agreement is signed by the Owner. Section 2 — The Property: Continued Status. In lieu of annexation, the Owner desires that the Property remain in the extraterritorial jurisdiction of the City for the duration of this Agreement. The Ch. 212 Development Agreement In lieu Of Annexation -1 I Owner acknowledges that unless the Property is annexed by the City, the Property is not eligible to receive City services, the Property shall not be included in the City's voting precincts, and the Property shall be immune from City property taxes for the duration of this Agreement. The Owner's use of the Property at the time of this Agreement is "grandfathered" into the acceptable uses of the City, and the City is prohibited from interfering with any uses on the Property that comply with §43.002 of the Texas Local Government Code. The Owner acknowledges that Section 22.03.091(a) of the Code of Ordinances of the City prohibits the City from providing water to any entity outside of the city limits, and acknowledges that the City will not be providing water to the Property unless the Property is annexed into the City. However, if the Property is annexed pursuant to a provision of this Agreement, then the City shall provide services to the Property pursuant to Chapter 43 of the Texas Local Government Code. Subject to the provisions of this Agreement, the City shall not annex the Property, shall not involuntarily institute proceedings to annex the Property, and shall not include the Property in a statutory annexation plan. The Owner authorizes the enforcement by the City of all of the City's regulations and planning authority that do not materially interfere with the use of the Property in the same manner that the City's regulations and planning authority are enforced within the City's boundaries. The City specifically reserves its authority pursuant to Chapter 251 of the Texas Local Government Code to exercise eminent domain over property that is subject to a §212.172 development agreement. The City further reserves its regulatory and planning authority in the City's ETJ, as such authority has been granted to it by the City Council. Section 3 — The Property: Change In Status. The Owner agrees not to substantially change the use of the Property as it is used on the date of the execution of this Agreement. The Owner agrees not to develop the Property by filing any type of subdivision plat or related development document for the Property with Lubbock County or the City throughout the duration of this Agreement. The Owner acknowledges that if any plat or related development document is filed for the Property, or if the Owner commences any development of the Property other than that which supports the use of the Property as the Property is used on the date of the execution of this Agreement, then this Agreement shall terminate, and in addition to the City's other remedies, such act will constitute a petition for voluntary annexation by the Owner, and the Property will be subject to annexation at the discretion of the City Council. The Owner agrees that such annexation shall be voluntary and the Owner hereby consents to such annexation as though a petition for such annexation had been tendered by the Owner. If annexation proceedings begin pursuant to this Section, then the Owner acknowledges that this Agreement serves as an exception to Local Government Code §43.052, requiring a municipality to use certain statutory procedures under an annexation plan, and as an exception to Local Government Code §43.062 requiring certain statutory procedures as to the Owner to effectuate an annexation. Further, the Owner hereby waives any and all vested rights and claims that it may have under §43.002(ax2) and Chapter 245 of the Texas Local Government Code that would otherwise exist by virtue of any plat or construction the Owner may initiate during the time between the expiration of this Agreement and the institution of annexation proceedings by the City. Section 4 — The Term. The term of this Agreement (the "Tenn") shall be twenty (20) years from the date that this Agreement is approved by the City Council of the City of Lubbock. At the end of the Term, the Owner, and all of the Owner's heirs, successors and assigns shall be deemed to have filed Ch. 212 Development Agreement In lieu Of Annexation - 2 1 a petition for voluntary annexation of the Property, and the Property will be subject to voluntary annexation in accordance with Section 3 of this Agreement. Prior to the end of the Term, the City may commence the voluntary annexation of the Property. Section 5 — Termination. This Agreement will automatically terminate at the end of the Term. This Agreement shall terminate upon the filing of any plat or related development document with the City or with Lubbock County or upon the Owner's failure to prove that it is the sole owner of the Property with the authority to sign this Agreement. The Owner and the City may agree in writing to terminate this Agreement prior to the expiration of the Term of this Agreement. Section b — City Council Approval Required. If the City Council of the City of Lubbock does not affirmatively vote to annex an area that contains the Property, then this Agreement will be null and void in its entirety. Section 7 — Notification. Any person who sells or conveys any portion of the Property shall, prior to such sale or conveyance, give written notice of this Agreement to the prospective purchaser or grantee, and shall give written notice of the sale or conveyance to the City. Further, the Owner and the Owner's heirs, successors, and assigns shall give the City written notice within fourteen (14) days of any change in the status of the Property. A copy of any notice required by this section shall be forwarded to the City at the following address: City of Lubbock With copy to: City of Lubbock Attn: City Secretary Attn: Director of Planning P.O. Box 2000 P.O. Bog 2000 Lubbock, Texas 79457 Lubbock, Texas 79457 This Agreement shall run with the Property and be recorded in the real property records of Lubbock County, Texas. Section 8 — Waiver. Any failure by the Owner or the City to insist upon strict performance by either party of any material provision of this Agreement shall not be deemed a waiver thereof, and the Owner or the City shall have the right at any time thereafter to insist upon strict performance of any and all provisions of this Agreement. No provision of this Agreement may be waived except by a written agreement signed by the Owner or the City waiving such provision. Any waiver shall be limited to the specific purposes for which it is given. No waiver by the Owner or the City of any provision of this Agreement shall be deemed or construed to be a waiver of any other provision or subsequent waiver of the same provision. The Parties expressly agree that no provision of this Agreement is in any way intended to constitute a waiver by any Party of any immunity from suit or liability that it may have by operation of law. The Parties agree that the City shall retain all of its governmental immunities. Section 9 — Assurance of Ownership. The Owner hereby expressly affirms that it is the sole owner of the Property and that no other person or entity has a valid claim to any right, title, or ownership in the Property. Should any dispute of right, title, or ownership concerning the Property arise subsequent to the Owner's execution of this Agreemcnt, the Owner hereby agrees to be solely responsible for defending and confirming its absolute right, title, and ownership to the Property. If the Owner cannot Ch. 212 Development Agreement In lieu Of Annexation - 3 1 defend or fails to defend its right, title, and ownership to the Property, then this Agreement shall terminate. Section 10 — Governing Law. This Agreement is entered into under and pursuant to, and is to be construed and enforceable in accordance with, the laws of the State of Texas, and all obligations of the Owner and the City are performable in Lubbock County, Texas. Venue for any action to enforce or construe this Agreement shall be Lubbock County, Texas. This Agreement is subject to all applicable federal, state, and local laws and any applicable ordinances, rules, orders and regulations of any local, state, or federal governmental authority, having or asserting jurisdiction. However, nothing contained in this Agreement shall be construed as a waiver by the Owner or the City of any right to question or contest any law, order, rule, or regulation which may affect the terms and conditions of this Agreement in any forum having jurisdiction, and the Owner and the City each agree to make a good faith effort to support all proposed laws and regulations which would be consistent with the performance of this Agreement in accordance with its terns. No subsequent change in the law regarding annexation shall affect the enforceability of this Agreement or the City's ability to annex the Property pursuant to this Agreement. Section 11— Remedy. The City reserves the right to exercise any right or remedy available to it by law, contract, equity, or otherwise, including without limitation, the right to seek any and all forms of relief in a court of competent jurisdiction. Further, the City shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this Agreement, the former shall control. Section 12 Public Information. This Agreement is public information. To the extent, if any, that any provision of this Agreement is in conflict with the Texas Public Information Act (Tex. Gov't. Code Ann. Chapter 552 et seq., as amended), the same shall be of no force and effect. Section 13 — Third -Party Beneficiaries. This Agreement only inures to the benefit of, and may only be enforced by, the Owner and the City. No other person or entity shall have any right, title, or interest under this Agreement or otherwise be deemed to be a third -party beneficiary of this Agreement. Section 14 — No Personal Liability & No Joint Venture. Nothing in this Agreement is construed as creating any personal liability on the part of any employee, officer or agent of any public body that may be a party to this Agreement. This Agreement is not intended to, and shall not be construed to, create any joint enterprise between or among the parties. Section 15 — Due Diligence & Force Majeure. The Owner and the City shall use good faith, due diligence, and reasonable care in the performance of the obligations under this Agreement, and time shall be of the essence in such performance. In the event that the Owner or the City is unable to perform its respective obligations under this Agreement, due to any event or circumstance that is not within the reasonable respective control of the Owner or the City that could not have been avoided by either the Owner or the City with the exercise of good faith, due diligence, and reasonable care (a "Force Majeure"), then the obligations affected by the Force Majeure shall be temporarily suspended. Within three (3) business days after the occurrence of a Force Majeure, the Owner or the City shall give notice to each other, including a detailed explanation of the Force Majeure and a description of the action that will be taken to remedy the Force Majeure and resume full performance at the earliest possible time. Ch. 212 Development Agreement In Lieu Of Annexation - 4 1 Section 16 -- Enforcement. This Agreement may be enforced by the Owner or the City by any proceeding at law or in equity. Failure to do so shall not be deemed a waiver to enforce the Agreement thereafter. Section 17 — Governmental Powers. It is understood that by execution of this Agreement, the City does not waive or surrender any of its governmental powers, except as expressly set forth herein. Section 18 -- 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. The Owner acknowledges that each and every owner of the Property must sign this Agreement in order for the Agreement to take full effect. Section 19 — Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be unenforceable for any reason, such unenforceable provision shall be deleted from this Agreement, and the remainder of this Agreement shall remain in full force and effect and shall be interpreted to give effect to the intent of the Owner and the City. Without limiting the generality of the foregoing, if it is determined that, as of the date that this Agreement becomes effective, that any Owner does not own any portion of the Property, then this Agreement shall remain in full force and effect with respect to the remaining portion of the Property that the Owners actually own. Section 20 — Entire Agreement. This Agreement constitutes the entire agreement between the Owner and the City and supersedes all prior agreements, whether oral or written, covering the subject matter of this Agreement. The Owner acknowledges that each and every Owner of the Property must sign this Agreement in order for the Agreement to take full effect. Section 21— Captions & Recitals. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. However, each of the recitals contained herein, by this reference, shall be incorporated into, and deemed a part of, this Agreement. Section 22 -- Modification of Agreement. This Agreement cannot be modified or amended except in writing signed by the Owner and the City and attached and made a part of this Agreement. Section 23 — Ch. 212 Agreement in lien of Ch. 43 Agreement. If the Property is subject to an agricultural exemption, the Owner hereby acknowledges that the City, through the Office of the City Attorney, offered to make a development agreement with the Owner under §43.035 of the Texas Local Government Code. The Owner further acknowledges that the Owner rejected the offer to make a §43.035 Agreement in order to enter in to this §212.172 Agreement. IN WITNESS HEIOF, the pa 'es mutually enter this Agreement on this ay of 2016. Ch. 212 Development Agreement to Lieu Of Annexation - 5 1 For the City GLEN R)ALIffWN, ATTEST: Reb ca Garza, City Secre ' APPROVED AS TO CONTENT: Andrew Paxton, Director of Planning APPROVED AS TO FORM: r /,/U.% ) Ius n j itt, ssis _ t City Attorney For the Owner k 11 enneth W. McCabe, Owner Ch. 21Z Development Agreement In Lieu Of Annexation - 6 1 NOTARIZATION State of Texas § County of Lubbock § This instrument was executed before me on 4p� - 2016, by of the City of Lubbock,pa Texas municipal corporation, n behalf of said eorporatlo s. %�� ai% 0%,111�/itl C'4 ���l� L`I ICI,',,` J = P Y..P& N: r Public _ * cn Of State of Texas -list+` County of Lubbock § 1 This instrument was executed before me on _ 2016, by f � R+'k �Riiw.�C'nBt-u5a. on behalf of said VEN1 I A WADSI ORTH NIMM Public My Conwissiai EON O5,'M When Recorded Return To: City Secretary City of Lubbock, Texas 1625 131' Street Lubbock, Texas 79401 Ch. 212 Development Agreement In Lieu Of Annexation - 7 1 EXHIBIT A -- The Property A 2.50 acre tract of land out of the Southwest quarter of Section 24, Block E-2, Certificate No. 1869, L. A. Patillo Original Grantee, Lubbock County, Texas and more particularly described as follows: BEGINNING at a 1/20 rod set in the north R.U.W. of P. H. highway 1585 from whence the Southwest corner of Section 24 bears South 89° 029 31" West 1365.1350 and South 0° 31' 12" East, 55.00' for the Southwest corner of this survey; THENCE North 0' 30' 36" West a distance of 794.471 to a 1/2" rod set for the Northwest corner of this survey; THENCE North 990 02' 31" East a distance of 137.1151 to a 1/2" rod set for the Northeast corner of this survey; THENCE South 00 30' East a distance of 794.471 to a 1/2" rod set in the North R.O.W. of F. fl. 1585 for the Southeast corner of this survey; THENCE South 890 02' 31" West, along the North R.O.W. of F. M. 1585, a distance of 137.0451 to the place of beginning and containing 2.50 acres of land. AND A 2.5 acre tract of land out of the Southwest quarter of Section 24, Black E-2, Certificate No. 1869, L.A. Patillo Original Grantee, Lubbock, County, Texas and more particularly described as follows: BEGINNING at a 1/2" rod set in the North R.O.W. of F.M. Highway 1585 from whence the Southwest corner of Section 24 bears South 89" 02, 31" West 1228.090 and South 00 310 12" East, 55.00' for the southwest corner of this survey; THENCE North 00 30' 36" West a distance of 794.470 to a 1/2" rodset for the Northwest corner of this survey; THENCE North 890 024 31" East a distance of 137.1151 to a 1/2" rod set for the Northeast corner of this survey; THENCE South 0. 30' East a distance of 794.471 to a 1/2" rod set in the North R.O.W. of F.M. 1585 for the Southeast corner of this survey; THENCE South 89. 02' 31" West along the North R.O.W. of F.H. 1585, a distance of 137.0451 to the place of beginning and containing 2.50 acres of land. (McCabe — R121773 & R68499) Page 1 of 2 FRANKFORD FARMS E137.115' OF TR 5 AND FRANKFORD FARMS W137.105' OF TR 5 (LESS BLDG ONLY) FILED AND RECORDED OFFICIAL PUBLIC RECORDS „ t Kelly Pinion C nt Clark 7 Lubbock County 05/2016 10:62 Rh FEE; 58.00 2016 911 (McCabe — R121773 & R68499) Page 2 of 2 CITY OF LUBBOCK 2016017912 10PG5 AGREE OFFICE PICK UP mill V9 111111 R11 WMI&I WE An 11111 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 REAL PROPERTY RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER CITY OF LUBBOCK CH. 212 DEVELOPMENT AGREEMENT IN LIEU OF ANNEXATION THIS DEVELOPMENT AGREEMEIN LIEU OF ANNEXATION (the "Agreement") is made and effective this day of 2016, and is entered into pursuant to §2I2.172 of the Texas Local Government Code, by and between the City of Lubbock, Texas, a Texas home rule municipal corporation (the "City"), and the undersigned property owner(s) (the "Owner"), with the term "Owner" including all owners of the Property, and is as follows: RECITALS WHEREAS, the Owner owns a parcel of real property (the "Property") in Lubbock County, Texas, which is more particularly and separately described in the attached Exhibit A; and WHEREAS, the City has instituted annexation proceedings for all portions of the Property and held public hearings regarding the proposed annexation on March $ and March 10, 2016; and WHEREAS, at the public hearings, the Owner was presented with a service plan for the Property and the Owner was given the opportunity to be heard by the City Council of the City of Lubbock; and WHEREAS, the Owner does not want the Property to be annexed and desires to have the Property remain in the City's extraterritorial jurisdiction, in consideration for which the Owner agrees to enter into this Agreement; and WHEREAS, it is the City's intention to allow the Owner to continue to use the Property as it is being used at the time of this Agreement; and WHEREAS, the Owner and the City acknowledge that this Agreement is binding upon the City and the Owner and their respective successors and assigns for the duration of this Agreement; and WHEREAS, this Agreement is to be recorded in the real property records of Lubbock County, Texas; NOW, THEREFORE, in consideration of the mutual promises contained in this Agreement, the Owner and the City agree as follows: AGREEMENT Section 1 — The Property: Current Status. The City acknowledges that the Property, more particularly described in the attached "Exhibit A," is located within the extraterritorial jurisdiction of the City and is subject to annexation by the City unless this Agreement is signed by the Owner. Section 2 — The Property: Continued Status. In lieu of annexation, the Owner desires that the Property remain in the extraterritorial jurisdiction of the City for the duration of this Agreement. The Ch. 212 Development Agreement In Lieu Of Annexation -1 I Owner acknowledges that unless the Property is annexed by the City, the Property is not eligible to receive City services, the Property shall not be included in the City's voting precincts, and the Property shall be immune from City property taxes for the duration of this Agreement. The Owner's use of the Property at the time of this Agreement is "grandfathered" into the acceptable uses of the City, and the City is prohibited from interfering with any uses on the Property that comply with §43.002 of the Texas Local Government Code. The Owner acknowledges that Section 22.03.091(a) of the Code of Ordinances of the City prohibits the City from providing water to any entity outside of the city limits, and acknowledges that the City will not be providing water to the Property unless the Property is annexed into the City. However, if the Property is annexed pursuant to a provision of this Agreement, then the City shall provide services to the Property pursuant to Chapter 43 of the Texas Local Government Code. Subject to the provisions of this Agreement, the City shall not annex the Property, shall not involuntarily institute proceedings to annex the Property, and shall not include the Property in a statutory annexation plan. The Owner authorizes the enforcement by the City of all of the City's regulations and planning authority that do not materially interfere with the use of the Property in the same manner that the City's regulations and planning authority are enforced within the City's boundaries. The City specifically reserves its authority pursuant to Chapter 251 of the Texas Local Government Code to exercise eminent domain over property that is subject to a §212.172 development agreement. The City further reserves its regulatory and planning authority in the City's ETJ, as such authority has been granted to it by the City Council. Section 3 — The Property: Change In Status. The Owner agrees not to substantially change the use of the Property as it is used on the date of the execution of this Agreement. The Owner agrees not to develop the Property by filing any type of subdivision plat or related development document for the Property with Lubbock County or the City throughout the duration of this Agreement. The Owner acknowledges that if any plat or related development document is filed for the Property, or if the Owner commences any development of the Property other than that which supports the use of the Property as the Property is used on the date of the execution of this Agreement, then this Agreement shall terminate, and in addition to the City's other remedies, such act will constitute a petition for voluntary annexation by the Owner, and the Property will be subject to annexation at the discretion of the City Council. The Owner agrees that such annexation shall be voluntary and the Owner hereby consents to such annexation as though a petition for such annexation had been tendered by the Owner. If annexation proceedings begin pursuant to this Section, then the Owner acknowledges that this Agreement serves as an exception to Local Government Code §43.052, requiring a municipality to use certain statutory procedures under an annexation plan, and as an exception to Local Government Code §43.062 requiring certain statutory procedures as to the Owner to effectuate an annexation. Further, the Owner hereby waives any and all vested rights and claims that it may have under §43.002(a)(2) and Chapter 245 of the Texas Local Government Code that would otherwise exist by virtue of any plat or construction the Owner may initiate during the time between the expiration of this Agreement and the institution of annexation proceedings by the City. Section 4 — The Term. The term of this Agreement (the "Term") shall be twenty (20) years from the date that this Agreement is approved by the City Council of the City of Lubbock. At the end of the Term, the Owner, and all of the Owner's heirs, successors and assigns shall be deemed to have filed Ch. 212 Development Agreement In Lieu Of Annexation - 2 1 a petition for voluntary annexation of the Property, and the Property will be subject to voluntary annexation in accordance with Section 3 of this Agreement. Prior to the end of the Term, the City may commence the voluntary annexation of the Property. Section 5 — Termination. This Agreement will automatically terminate at the end of the Term. This Agreement shall terminate upon the filing of any plat or related development document with the City or with Lubbock County or upon the Owner's failure to prove that it is the sole owner of the Property with the authority to sign this Agreement. The Owner and the City may agree in writing to terminate this Agreement prior to the expiration of the Term of this Agreement. Section d — City Council Approval Required. If the City Council of the City of Lubbock does not affirmatively vote to annex an area that contains the Property, then this Agreement will be null and void in its entirety. Section 7 — Notification. Any person who sells or conveys any portion of the Property shall, prior to such sale or conveyance, give written notice of this Agreement to the prospective purchaser or grantee, and shall give written notice of the sale or conveyance to the City. Further, the Owner and the Owner's heirs, successors, and assigns shall give the City written notice within fourteen (14) days of any change in the status of the Property. A copy of any notice required by this section shall be forwarded to the City at the following address: City of Lubbock With cony to: City of Lubbock Attn: City Secretary Attn: Director of Planning P.O. Box 2000 P.O. Box 2000 Lubbock, Texas 79457 Lubbock, Texas 79457 This Agreement shall run with the Property and be recorded in the real property records of Lubbock County, Texas. Section 8 — Waiver. Any failure by the Owner or the City to insist upon strict performance by either party of any material provision of this Agreement shall not be deemed a waiver thereof, and the Owner or the City shall have the right at any time thereafter to insist upon strict performance of any and all provisions of this Agreement. No provision of this Agreement may be waived except by a written agreement signed by the Owner or the City waiving such provision. Any waiver shall be limited to the specific purposes for which it is given. No waiver by the Owner or the City of any provision of this Agreement shall be deemed or construed to be a waiver of any other provision or subsequent waiver of the same provision. The Parties expressly agree that no provision of this Agreement is in any way intended to constitute a waiver by any Party of any immunity from suit or liability that it may have by operation of law. The Parties agree that the City shall retain all of its governmental immunities. Section 9 — Assurance of Ownership. The Owner hereby expressly affirms that it is the sole owner of the Property and that no other person or entity has a valid claim to any right, title, or ownership in the Property. Should any dispute of right, title, or ownership concerning the Property arise subsequent to the Owner's execution of this Agreement, the Owner hereby agrees to be solely responsible for defending and confirming its absolute right, title, and ownership to the Property. If the Owner cannot Ch. 212 Development Agreement In Lieu Of Annexation - 3 1 defend or fails to defend its right, title, and ownership to the Property, then this Agreement shall terminate. Section 10 — Governing Law. This Agreement is entered into under and pursuant to, and is to be construed and enforceable in accordance with, the laws of the State of Texas, and all obligations of the Owner and the City are performable in Lubbock County, Texas. Venue for any action to enforce or construe this Agreement shall be Lubbock County, Texas. This Agreement is subject to all applicable federal, state, and local laws and any applicable ordinances, rules, orders and regulations of any local, state, or federal governmental authority, having or asserting jurisdiction. However, nothing contained in this Agreement shall be construed as a waiver by the Owner or the City of any right to question or contest any law, order, rule, or regulation which may affect the terms and conditions of this Agreement in any forum having jurisdiction, and the Owner and the City each agree to make a good faith effort to support all proposed laws and regulations which would be consistent with the performance of this Agreement in accordance with its terms. No subsequent change in the law regarding annexation shall affect the enforceability of this Agreement or the City's ability to annex the Property pursuant to this Agreement. Section 11 — Remedy. The City reserves the right to exercise any right or remedy available to it by law, contract, equity, or otherwise, including without limitation, the right to seek any and all forms of relief in a court of competent jurisdiction. Further, the City shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this Agreement, the former shall control. Section 12 — Public Information. This Agreement is public information. To the extent, if any, that any provision of this Agreement is in conflict with the Texas Public Information Act (Tex. Gov't. Code Ann. Chapter 552 et seq., as amended), the same shall be of no force and effect. Section 13 — Third -Party Beneficiaries. This Agreement only inures to the benefit of, and may only be enforced by, the Owner and the City. No other person or entity shall have any right, title, or interest under this Agreement or otherwise be deemed to be a third -party beneficiary of this Agreement. Section 14 — No Personal Liability & No Joint Venture. Nothing in this Agreement is construed as creating any personal liability on the part of any employee, officer or agent of any public body that may be a party to this Agreement. This Agreement is not intended to, and shall not be construed to, create any joint enterprise between or among the parties. Section 15 — Due Diligence & Force Majeure. The Owner and the City shall use good faith, due diligence, and reasonable care in the performance of the obligations under this Agreement, and time shall be of the essence in such performance. In the event that the Owner or the City is unable to perform its respective obligations under this Agreement, due to any event or circumstance that is not within the reasonable respective control of the Owner or the City that could not have been avoided by either the Owner or the City with the exercise of good faith, due diligence, and reasonable care (a "Force Majeure'), then the obligations affected by the Force Majeure shall be temporarily suspended. Within three (3) business days after the occurrence of a Force Majeure, the Owner or the City shall give notice to each other, including a detailed explanation of the Force Majeure and a description of the action that will be taken to remedy the Force Majeure and resume full performance at the earliest possible time. Ch. 212 Development Agreement In Lieu Of Annexation - 4 Section 16 — Enforcement. This Agreement may be enforced by the Owner or the City by any proceeding at law or in equity. Failure to do so shall not be deemed a waiver to enforce the Agreement thereafter. Section 17 — Governmental Powers. It is understood that by execution of this Agreement, the City does not waive or surrender any of its governmental powers, except as expressly set forth herein. Section 18 — 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. The Owner acknowledges that each and every owner of the Property must sign this Agreement in order for the Agreement to take full effect. Section 19 — Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be unenforceable for any reason, such unenforceable provision shall be deleted from this Agreement, and the remainder of this Agreement shall remain in full force and effect and shall be interpreted to give effect to the intent of the Owner and the City. Without limiting the generality of the foregoing, if it is determined that, as of the date that this Agreement becomes effective, that any Owner does not own any portion of the Property, then this Agreement shall remain in full force and effect with respect to the remaining portion of the Property that the Owners actually own. Section 20 — Entire Agreement. This Agreement constitutes the entire agreement between the Owner and the City and supersedes all prior agreements, whether oral or written, covering the subject matter of this Agreement. The Owner acknowledges that each and every Owner of the Property must sign this Agreement in order for the Agreement to take full effect. Section 21— Captions & Recitals. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. However, each of the recitals contained herein, by this reference, shall be incorporated into, and deemed a part of, this Agreement. Section 22 — Modification of Agreement. This Agreement cannot be modified or amended except in writing signed by the Owner and the City and attached and made a part of this Agreement. Section 23 — Ch. 212 Agreement in lieu of Ch. 43 Agreement. If the Property is subject to an agricultural exemption, the Owner hereby acknowledges that the City, through the Office of the City Attorney, offered to make a development agreement with the Owner under §43.035 of the Texas Local Government Code. The Owner further acknowledges that the Owner rejected the offer to make a §43.035 Agreement in order to enter in to this §212.172 Agreement. IN WITNESS HEREOF, the pa 'es mutually enter this Agreement on this A041BY of .2016. Ch. 212 Development Agreement in Lieu Of Annexation - 5 1 For the City GLEN C. RCdEWS6N, MAYOR ;;altit�rilrrir�xrf' i Retie ca Garza; City Secretary APPROVED AS TO CONTENT: z 4 z - Z� Andrew Pax n, Director of Planning APPROVED AS TO FORM: Ju tin ht, A sistant City Attorney For the Owner Michael Allen, Owner IL �L Jeri Allen, Owner Ch. 212 Development Agreement In Lieu Of Annexation - 6 1 P a g e NOTARIZATION State of Texas § County of Lubbock § This instrument was executed before me on 2016, by DA'M ��NAME of the City of Lubbock, a Texas municipal corporation, on behalf of said corporation. No y Public ��� *' OF .- State of Texas § County of Lubbock § r This instrument was executed before me on �1 - I 2016,by , BAlR MIL7rAxI.A1.IJ,ff.OWMlw on behalf of said Owner. JACKIE DYER rotary T'eibNC, We d Tomas Comm. Ex;*os 06.11.201 a No rl ublic Notary ID 129844244 State of Texas § County of Lubbock § This instrument was executed before me on 1 2016, by bATs � Awi.srr.owxxr on behalf of said Owner. "� JACKIE DYER xa°; z Notary PUNIC, Stal@ 01 Texas U*, ¢ Comm. ExpRes 06-11.201 R o Public +„,;,,,+'' N01131y ID 129849244 When Recorded Return To: City Secretary City of Lubbock, Texas 1625 13a' Street Lubbock, Texas 79401 Ch. 212 Development Agreement In Lieu Of Annexation - 7 1 P a g e EXHIBIT A The Property r �: . , , SAVE AND EXCEPT the East 175 feet thereof i r:�• " G r t- • /" CcAUNN CLERY, MEMO POR-nONS OF THIS DO MEN-r NOT ,NHEN SFCEIVFD. LEGMLF (Allen — R68969) Page 1 of 3 � N K + FTi4a�l1••-1\ \YI 1� r111]d•:,r•}Yw}twS.l:Clwr�Pw��L\.i �s•-•_.y.�llht,ltrrl: i I rVIR•41+,•�HCrw. r} i 1 r�; � 1 1 .2 M m; 9 126th 5TIMET f ltn .y.1+Y •,�IM1Cwa1N• r • 1Fr;: r1... rrY:/l.Mk,+h rw�Mw1F R�rr tf M n.••. i F4•. t•.• 4 FRANKFORD FARMS TR 21 FILED AND RECORDED OFFICIAL PUBLIC RECORDS Kwlly Plnloo County Clark Lubbock County TEXAS 05/23/2016 10:62 AM FEE: $52.00 2016027912 Page 3 of 3 (Allen — R68969) 2018017913 9 PG5 AGREE CITY OF LUBBOCK mill K M1111101k t ii*4votClLLl�i�� �I III OFFICE PICK UP 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 REAL PROPERTY RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER CITY OF LUBBOCK CH. 212 DEVELOPMENT AGREEMENT IN LIEU OF ANNEXATION THIS DEVELOPMENT AGREEME IN LIEU OF ANNEXATION (the "Agreement") is made and effective this Zo.. day of , 2016, and is entered into pursuant to §212.172 of the Texas Local Government Code, by an between the City of Lubbock, Texas, a Texas home rule municipal corporation (the "City"), and the undersigned property owner(s) (the "Owner"), with the term "Owner" including all owners of the Property, and is as follows: RECITALS WHEREAS, the Owner owns a parcel of real property (the "Property") in Lubbock County, Texas, which is more particularly and separately described in the attached Exhibit A; and WHEREAS, the City has instituted annexation proceedings for all portions of the Property and held public hearings regarding the proposed annexation on March 8 and March 10, 2016; and WHEREAS, at the public hearings, the Owner was presented with a service plan for the Property and the Owner was given the opportunity to be heard by the City Council of the City of Lubbock; and WHEREAS, the Owner does not want the Property to be annexed and desires to have the Property remain in the City's extraterritorial jurisdiction, in consideration for which the Owner agrees to enter into this Agreement; and WHEREAS, it is the City's intention to allow the Owner to continue to use the Property as it is being used at the time of this Agreement; and WHEREAS, the Owner and the City acknowledge that this Agreement is binding upon the City and the Owner and their respective successors and assigns for the duration of this Agreement; and WHEREAS, this Agreement is to be recorded in the real property records of Lubbock County, Texas; NOW, THEREFORE, in consideration of the mutual promises contained in this Agreement, the Owner and the City agree as follows: AGREEMENT Section 1 — The Property: Current Status. The City acknowledges that the Property, more particularly described in the attached "Exhibit A," is located within the extraterritorial jurisdiction of the City and is subject to annexation by the City unless this Agreement is signed by the Owner. Section 2 — The Property: Continued Status. In lieu of annexation, the Owner desires that the Property remain in the extraterritorial jurisdiction of the City for the duration of this Agreement. The Ch. 212 Development Agreement In Lieu Of Annexation -1 1 P a g e Owner acknowledges that unless the Property is annexed by the City, the Property is not eligible to receive City services, the Property shall not be included in the City's voting precincts, and the Property shall be immune from City property taxes for the duration of this Agreement. The Owner's use of the Property at the time of this Agreement is "grandfathered" into the acceptable uses of the City, and the City is prohibited from interfering with any uses on the Property that comply with §43.002 of the Texas Local Government Code. The Owner acknowledges that Section 22.03.091(a) of the Code of Ordinances of the City prohibits the City from providing water to any entity outside of the city limits, and acknowledges that the City will not be providing water to the Property unless the Property is annexed into the City. However, if the Property is annexed pursuant to a provision of this Agreement, then the City shall provide services to the Property pursuant to Chapter 43 of the Texas Local Government Code. Subject to the provisions of this Agreement, the City shall not annex the Property, shall not involuntarily institute proceedings to annex the Property, and shall not include the Property in a statutory annexation plan. The Owner authorizes the enforcement by the City of all of the City's regulations and planning authority that do not materially interfere with the use of the Property in the same manner that the City's regulations and planning authority are enforced within the City's boundaries. The City specifically reserves its authority pursuant to Chapter 251 of the Texas Local Government Code to exercise eminent domain over property that is subject to a §212.172 development agreement. The City further reserves its regulatory and planning authority in the City's ETJ, as such authority has been granted to it by the City Council. Section 3 — The Property: Change In Status. The Owner agrees not to substantially change the use of the Property as it is used on the date of the execution of this Agreement. The Owner agrees not to develop the Property by filing any type of subdivision plat or related development document for the Property with Lubbock County or the City throughout the duration of this Agreement. The Owner acknowledges that if any plat or related development document is filed for the Property, or if the Owner commences any development of the Property other than that which supports the use of the Property as the Property is used on the date of the execution of this Agreement, then this Agreement shall terminate, and in addition to the City's other remedies, such act will constitute a petition for voluntary annexation by the Owner, and the Property will be subject to annexation at the discretion of the City Council. The Owner agrees that such annexation shall be voluntary and the Owner hereby consents to such annexation as though a petition for such annexation had been tendered by the Owner. If annexation proceedings begin pursuant to this Section, then the Owner acknowledges that this Agreement serves as an exception to Local Government Code §43.052, requiring a municipality to use certain statutory procedures under an annexation plan, and as an exception to Local Government Code §43.062 requiring certain statutory procedures as to the Owner to effectuate an annexation. Further, the Owner hereby waives any and all vested rights and claims that it may have under §43.002(a)(2) and Chapter 245 of the Texas Local Government Code that would otherwise exist by virtue of any plat or construction the Owner may initiate during the time between the expiration of this Agreement and the institution of annexation proceedings by the City. Section 4 — The Term. The term of this Agreement (the "Term") shall be twenty (20) years from the date that this Agreement is approved by the City Council of the City of Lubbock. At the end of the Term, the Owner, and all of the Owner's heirs, successors and assigns shall be deemed to have filed Ch. 212 Development Agreement In Lieu Of Annexation - 2 1 P a g e a petition for voluntary annexation of the Property, and the Property will be subject to voluntary annexation in accordance with Section 3 of this Agreement. Prior to the end of the Tenn, the City may commence the voluntary annexation of the Property. Section 5 — Termination. This Agreement will automatically terminate at the end of the Term. This Agreement shall terminate upon the filing of any plat or related development document with the City or with Lubbock County or upon the Owner's failure to prove that it is the sole owner of the Property with the authority to sign this Agreement. The Owner and the City may agree in writing to terminate this Agreement prior to the expiration of the Term of this Agreement. Section 6 — City Council Approval Required. If the City Council of the City of Lubbock does not affirmatively vote to annex an area that contains the Property, then this Agreement will be null and void in its entirety. Section 7 — Notification. Any person who sells or conveys any portion of the Property shall, prior to such sale or conveyance, give written notice of this Agreement to the prospective purchaser or grantee, and shall give written notice of the sale or conveyance to the City. Further, the Owner and the Owner's heirs, successors, and assigns shall give the City written notice within fourteen (14) days of any change in the status of the Property. A copy of any notice required by this section shall be forwarded to the City at the following address: City of Lubbock Willa copv to: City of Lubbock Attn: City Secretary Attn: Director of Planning P.O. Box 2000 P.O. sox 2000 Lubbock, Texas 79457 Lubbock, Texas 79457 This Agreement shall run with the Property and be recorded in the real property records of Lubbock County, Texas. Section 8 — Waiver. Any failure by the Owner or the City to insist upon strict performance by either party of any material provision of this Agreement shall not be deemed a waiver thereof, and the Owner or the City shall have the right at any time thereafter to insist upon strict performance of any and all provisions of this Agreement. No provision of this Agreement may be waived except by a written agreement signed by the Owner or the City waiving such provision. Any waiver shall be limited to the specific purposes for which it is given. No waiver by the Owner or the City of any provision of this Agreement shall be deemed or construed to be a waiver of any other provision or subsequent waiver of the same provision. The Parties expressly agree that no provision of this Agreement is in any way intended to constitute a waiver by any Party of any immunity from suit or liability that it may have by operation of law. The Parties agree that the City shall retain all of its governmental immunities. Section 9 — Assurance of Ownership. The Owner hereby expressly affirms that it is the sole owner of the Property and that no other person or entity has a valid claim to any right, title, or ownership in the Property. Should any dispute of right, title, or ownership conceming the Property arise subsequent to the Owner's execution of this Agreement, the Owner hereby agrees to be solely responsible for defending and confirming its absolute right, title, and ownership to the Property. if the Owner cannot Ch. 212 Development Agreement In Lieu Of Annexation - 3 1 P a g e defend or fails to defend its right, title, and ownership to the Property, then this Agreement shall terminate. Section 10 — Governing Law. This Agreement is entered into under and pursuant to, and is to be construed and enforceable in accordance with, the laws of the State of Texas, and all obligations of the Owner and the City are performable in Lubbock County, Texas. Venue for any action to enforce or construe this Agreement shall be Lubbock County, Texas. This Agreement is subject to all applicable federal, state, and local laws and any applicable ordinances, rules, orders and regulations of any local, state, or federal governmental authority, having or asserting jurisdiction. However, nothing contained in this Agreement shall be construed as a waiver by the Owner or the City of any right to question or contest any law, order, rule, or regulation which may affect the terms and conditions of this Agreement in any forum having jurisdiction, and the Owner and the City each agree to make a good faith effort to support all proposed laws and regulations which would be consistent with the performance of this Agreement in accordance with its terms. No subsequent change in the law regarding annexation shall affect the enforceability of this Agreement or the City's ability to annex the Property pursuant to this Agreement. Section 11 — Remedy. The City reserves the right to exercise any right or remedy available to it by law, contract, equity, or otherwise, including without limitation, the right to seek any and all forms of relief in a court of competent jurisdiction. Further, the City shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this Agreement, the former shall control. Section 12 — Public Information. This Agreement is public information. To the extent, if any, that any provision of this Agreement is in conflict with the Texas Public Information Act (Tex. Gov't. Code Ann. Chapter 552 et seq., as amended), the same shall be of no force and effect. Section 13 — Third -Party Beneficiaries. This Agreement only inures to the benefit of, and may only be enforced by, the Owner and the City. No other person or entity shall have any right, title, or interest under this Agreement or otherwise be deemed to be a third -party beneficiary of this Agreement. Section 14 — No Personal Liability & No Joint Venture. Nothing in this Agreement is construed as creating any personal liability on the part of any employee, officer or agent of any public body that may be a party to this Agreement. This Agreement is not intended to, and shall not be construed to, create any joint enterprise between or among the parties. Section 15 — Due Diligence & Force Majeure. The Owner and the City shall use good faith, due diligence, and reasonable care in the performance of the obligations under this Agreement, and time shall be of the essence in such performance. In the event that the Owner or the City is unable to perform its respective obligations under this Agreement, due to any event or circumstance that is not within the reasonable respective control of the Owner or the City that could not have been avoided by either the Owner or the City with the exercise of good faith, due diligence, and reasonable care (a "Force Majeure"), then the obligations affected by the Force Majeure shall be temporarily suspended. Within three (3) business days after the occurrence of a Force Majeure, the Owner or the City shall give notice to each other, including a detailed explanation of the Force Majeure and a description of the action that will be taken to remedy the Force Majeure and resume full performance at the earliest possible time. Ch. 212 Development Agreement In lieu Of Annexation - 4 1 P a g e Section 16 — Enforcement. This Agreement may be enforced by the Owner or the City by any proceeding at law or in equity. Failure to do so shall not be deemed a waiver to enforce the Agreement thereafter. Section 17 — Governmental Powers. It is understood that by execution of this Agreement, the City does not waive or surrender any of its governmental powers, except as expressly set forth herein. Section 18 —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. The Owner acknowledges that each and every owner of the Property must sign this Agreement in order for the Agreement to take full effect. Section 19 — Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be unenforceable for any reason, such unenforceable provision shall be deleted from this Agreement, and the remainder of this Agreement shall remain in full force and effect and shall be interpreted to give effect to the intent of the Owner and the City. Without limiting the generality of the foregoing, if it is determined that, as of the date that this Agreement becomes effective, that any Owner does not own any portion of the Property, then this Agreement shall remain in full force and effect with respect to the remaining portion of the Property that the Owners actually own. Section 20 — Entire Agreement. This Agreement constitutes the entire agreement between the Owner and the City and supersedes all prior agreements, whether oral or written, covering the subject matter of this Agreement. The Owner acknowledges that each and every Owner of the Property must sign this Agreement in order for the Agreement to take full effect. Section 21— Captions & Recitals. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. However, each of the recitals contained herein, by this reference, shall be incorporated into, and deemed a part of, this Agreement. Section 22 — Modification of Agreement. This Agreement cannot be modified or amended except in writing signed by the Owner and the City and attached and made a part of this Agreement. Section 23 -- Ch. 212 Agreement in lieu of Ch. 43 Agreement. If the Property is subject to an agricultural exemption, the Owner hereby acknowledges that the City, through the Office of the City Attorney, offered to make a development agreement with the Owner under §43.035 of the Texas Local Government Code. The Owner further acknowledges that the Owner rejected the offer to make a §43.035 Agreement in order to enter in to this §212.172 Agreement. IN WITNESS HEREOF, the pa ties mutually enter this Agreement on this Nay of .2016. Ch. 212 Development Agreement In Lieu Of Annexation - 5 1 P a g e For the City GLEN C. R0),*JRTS0Tq, MAYOR ATTEST:,' r~ Rebe ; Garza, City�Secrefary ry . APPROVtl[) 4AS TQ, CONTENT: Andrew Paxton, Director of Planning APPROVED AS TO FORM: For the Owner 4::�: -, /- - Thomas . Larson, Owner Its ...rE Ch. 212 Development Agreement In Ueu Of Annexation - 6 1 P a g e NOTARIZATION State of Texas § County of Lubbock § This instrument was executed before me on AdU 2016, by 9of the City of Lubbock, a Texas municipal corporation, on behalf of said c0 ratl ►►►,pnrrlurrr.0 ,41 1A Ail, 0�'O'd Z �. N ry Public = # n r- State of Texas § "'%pG •.." •� 6 County of Lubbock § '�•. �8-20� ,•• f1jr114i411►I1•i This instrument was executed before me on / 2016, by pATB oeusll.,ulsov owncrl on behalf of said Owner. CYNTHIA J. SOOTER MY COMMISSION EXRfFtES ota Public Ap 0,2017 State of Texas § County of Lubbock § This instrument was executed before me on ?016, b , AATL sru►wt�, a ealaart_awrtrn on�lf of said Owner. CYNTHIA J. SOOTER NI/ MY COMMISSION EXPIRES ,R Aptl 8, 2017 Notary lic When Recorded Return To: City Secretary City of Lubbock, Texas 1625 131h Street Lubbock, Texas 79401 Ch. 212 Development Agreement In Lieu Of Annexation - 7 1 P a g e EXHIBIT A — The Property PROPERTY: All that certain 10.895 acres, more or less, situated in the East A of Section 8, Block A-K, more fully described in the Warranty Deed to the Veterans Land Board dated November 30,1981, recorded in Volume 1773, Page 99 of the Deed Records of Lubbock County, Texas, also described in that Forfeited Contract of sale and Purchase dated January 2,1998, recorded in Volume 5681, Page 187, of the Deed Records of Lubbock County, Texas. BLK AK SEC 8 AB 959 TR E2 OF E12 ACS: 10.895 1299 22' h CU Ln TR E-2 10.9 AC N R 116014 R 115914 m (Larson - R116914) Page 1 of 1 FILED AND RECORDED OFFICIAL PUBLIC RECORDS Ka11y Pinlon Countyy Clark Lubbock County TExgS 0S/23/2016 18:62 am FEE: $54.00 2016017913 CITY OF LUBBOCK OFFICE PICK UP 2015017914 10 PG5 AGREE mill KrA I N911119MAWWi Wi 11111 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 REAL PROPERTY RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER CITY OF LUBBOCK CH. 21.2 DEVELOPMENT AGREEMENT IN LIEU OF ANNEXATION THIS DEVELOPMENT AGREEME 'T IN LIEU OF ANNEXATION (the "Agreement") is made and effective this day of, 2016, and is entered into pursuant to §212.172 of the Texas Local Government Code, byI&bctw—een the City of Lubbock, Texas, a Texas home rule municipal corporation (the "City"), and the undersigned property owner(s) (the "Owner"), with the term "Owner" including all owners of the Property, and is as follows: RECITALS WHEREAS, the Owner owns a parcel of real property (the "Property") in Lubbock County, Texas, which is more particularly and separately described in the attached Exhibit A; and WHEREAS, the City has instituted annexation proceedings for all portions of the Property and held public hearings regarding the proposed annexation on March 8 and March 10, 2016; and WHEREAS, at the public hearings, the Owner was presented with a service plan for the Property and the Owner was given the opportunity to be heard by the City Council of the City of Lubbock; and WHEREAS, the Owner does not want the Property to be annexed and desires to have the Property remain in the City's extraterritorial jurisdiction, in consideration for which the Owner agrees to enter into this Agreement; and WHEREAS, it is the City's intention to allow the Owner to continue to use the Property as it is being used at the time of this Agreement; and WHEREAS, the Owner and the City acknowledge that this Agreement is binding, upon the City and the Owner and their respective successors and assigns for the duration of this Agreement; and WHEREAS, this Agreement is to be recorded in the real property records of Lubbock County, Texas; NOW, THEREFORE, in consideration of the mutual promises contained in this Agreement, the Owner and the City agree as follows: AGREEMENT Section 1 — The Property: Current Status. The City acknowledges that the Property, more particularly described in the attached "Exhibit A," is located within the extraterritorial jurisdiction of the City and is subject to annexation by the City unless this Agreement is signed by the Owner. Section 2 — The Property: Continued Status. In lieu of annexation, the Owner desires that the Property remain in the extraterritorial jurisdiction of the City for the duration of this Agreement. The Ch. 212 Development Agreement In Lieu Of Annexation -1 1 P a g e Owner acknowledges that unless the Property is annexed by the City, the Property is not eligible to receive City services, the Property shall not be included in the City's voting precincts, and the Property shall be immune from City property taxes for the duration of this Agreement. The Owner's use of the Property at the time of this Agreement is "grandfathered" into the acceptable uses of the City, and the City is prohibited from interfering with any uses on the Property that comply with §43.002 of the Texas Local Government Code. The Owner acknowledges that Section 22.03.091(a) of the Code of Ordinances of the City prohibits the City from providing water to any entity outside of the city limits, and acknowledges that the City will not be providing water to the Property unless the Property is annexed into the City. However, if the Property is annexed pursuant to a provision of this Agreement, then the City shall provide services to the Property pursuant to Chapter 43 of the Texas Local Government Code. Subject to the provisions of this Agreement, the City shall not annex the Property, shall not involuntarily institute proceedings to annex the Property, and shall not include the Property in a statutory annexation plan. The Owner authorizes the enforcement by the City of all of the City's regulations and planning authority that do not materially interfere with the use of the Property in the same manner that the City's regulations and planning authority are enforced within the City's boundaries. The City specifically reserves its authority pursuant to Chapter 251 of the Texas Local Government Code to exercise eminent domain over property that is subject to a §212.172 development agreement. The City further reserves its regulatory and planning authority in the City's ETJ, as such authority has been granted to it by the City Council. Section 3 — The Property: Change In Status. The Owner agrees not to substantially change the use of the Property as it is used on the date of the execution of this Agreement. The Owner agrees not to develop the Property by filing any type of subdivision plat or related development document for the Property with Lubbock County or the City throughout the duration of this Agreement. The Owner acknowledges that if any plat or related development document is filed for the Property, or if the Owner commences any development of the Property other than that which supports the use of the Property as the Property is used on the date of the execution of this Agreement, then this Agreement shall terminate, and in addition to the City's other remedies, such act will constitute a petition for voluntary annexation by the Owner, and the Property will be subject to annexation at the discretion of the City Council. The Owner agrees that such annexation shall be voluntary and the Owner hereby consents to such annexation as though a petition for such annexation had been tendered by the Owner. If annexation proceedings begin pursuant to this Section, then the Owner acknowledges that this Agreement serves as an exception to Local Government Code §43.052, requiring a municipality to use certain statutory procedures under an annexation plan, and as an exception to Local Government Code §43.062 requiring certain statutory procedures as to the Owner to effectuate an annexation. Further, the Owner hereby waives any and all vested rights and claims that it may have under §43.002(a)(2) and Chapter 245 of the Texas Local Government Code that would otherwise exist by virtue of any plat or construction the Owner may initiate during the time between the expiration of this Agreement and the institution of annexation proceedings by the City. Section 4 — The Term. The tenn of this Agreement (the "Term") shall be twenty (20) years from the date that this Agreement is approved by the City Council of the City of Lubbock. At the end of the Term, the Owner, and all of the Owner's heirs, successors and assigns shall be deemed to have filed Ch. 212 Development Agreement In Lieu Of Annexation - 2 1 P a g e a petition for voluntary annexation of the Property, and the Property will be subject to voluntary annexation in accordance with Section 3 of this Agreement. Prior to the end of the Term, the City may commence the voluntary annexation of the Property. Section 5 — Termination. This Agreement will automatically terminate at the end of the Term. This Agreement shall terminate upon the filing of any plat or related development document with the City or with Lubbock County or upon the Owner's failure to prove that it is the sole owner of the Property with the authority to sign this Agreement. The Owner and the City may agree in writing to terminate this Agreement prior to the expiration of the Term of this Agreement. Section 6 — City Council Approval Required. If the City Council of the City of Lubbock does not affirmatively vote to annex an area that contains the Property, then this Agreement will be null and void in its entirety. Section 7 — Notification. Any person who sells or conveys any portion of the Property shall, prior to such sale or conveyance, give written notice of this Agreement to the prospective purchaser or grantee, and shall give written notice of the sale or conveyance to the City. Further, the Owner and the Owner's heirs, successors, and assigns shall give the City written notice within fourteen (14) days of any change in the status of the Property. A copy of any notice required by this section shall be forwarded to the City at the following address: City of Lubbock Wi111 cnpy to: City of Lubbock Attn: City Secretary Attn: Director of Planning P.O. Box 2000 P.O. Box 2000 Lubbock, Texas 79457 Lubbock, Texas 79457 This Agreement shall run with the Property and be recorded in the real property records of Lubbock County, Texas, Section 8 — Waiver. Any failure by the Owner or the City to insist upon strict performance by either party of any material provision of this Agreement shall not be deemed a waiver thereof, and the Owner or the City shall have the right at any time thereafter to insist upon strict performance of any and all provisions of this Agreement. No provision of this Agreement may be waived except by a written agreement signed by the Owner or the City waiving such provision. Any waiver shall be limited to the specific purposes for which it is given. No waiver by the Owner or the City of any provision of this Agreement shall be deemed or construed to be a waiver of any other provision or subsequent waiver of the same provision. The Parties expressly agree that no provision of this Agreement is in any way intended to constitute a waiver by any Party of any immunity from suit or liability that it may have by operation of law. The Parties agree that the City shall retain all of its governmental immunities. Section 9 — Assurance of Ownership. The Owner hereby expressly affirms that it is the sole owner of the Property and that no other person or entity has a valid claim to any right, title, or ownership in the Property. Should any dispute of right, title, or ownership concerning the Property arise subsequent to the Owner's execution of this Agreement, the Owner hereby agrees to be solely responsible for defending and confirming its absolute right, title, and ownership to the Property. If the Owner cannot Ch. 212 Development Agreement In Lieu Of Annexation - 3 1 P a g e defend or fails to defend its right, title, and ownership to the Property, then this Agreement shall terminate. Section 10 — Governing Law. This Agreement is entered into under and pursuant to, and is to be construed and enforceable in accordance with, the laws of the State of Texas, and all obligations of the Owner and the City are performable in Lubbock County, Texas. Venue for any action to enforce or construe this Agreement shall be Lubbock County, Texas. This Agreement is subject to all applicable federal, state, and local laws and any applicable ordinances, rules, orders and regulations of any local, state, or federal governmental authority, having or asserting jurisdiction. However, nothing contained in this Agreement shall be construed as a waiver by the Owner or the City of any right to question or contest any Iaw, order, rule, or regulation which may affect the terms and conditions of this Agreement in any forum having jurisdiction, and the Owner and the City each agree to make a good faith effort to support all proposed laws and regulations which would be consistent with the performance of this Agreement in accordance with its terms. No subsequent change in the law regarding annexation shall affect the enforceability of this Agreement or the City's ability to annex the Property pursuant to this Agreement. Section 11 — Remedy. The City reserves the right to exercise any right or remedy available to it by law, contract, equity, or otherwise, including without limitation, the right to seek any and all forms of relief in a court of competent jurisdiction. Further, the City shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this Agreement, the former shall control. Section 12 -- Public Information. This Agreement is public information. To the extent, if any, that any provision of this Agreement is in conflict with the Texas Public Information Act (Tex. Gov't. Code Ann. Chapter 552 et seq., as amended), the same shall be of no force and effect. Section 13 — Third -Party Beneficiaries. This Agreement only inures to the benefit of, and may only be enforced by, the Owner and the City. No other person or entity shall have any right, title, or interest under this Agreement or otherwise be deemed to be a third -party beneficiary of this Agreement. Section 14 — No Personal Liability & No Joint Venture. Nothing in this Agreement is construed as creating any personal liability on the part of any employee, officer or agent of any public body that may be a party to this Agreement. This Agreement is not intended to, and shall not be construed to, create any joint enterprise between or among the parties. Section 15 — Due Diligence & Force Majeure. The Owner and the City shall use good faith, due diligence, and reasonable care in the performance of the obligations under this Agreement, and time shall be of the essence in such performance. In the event that the Owner or the City is unable to perform its respective obligations under this Agreement, due to any event or circumstance that is not within the reasonable respective control of the Owner or the City that could not have been avoided by either the Owner or the City with the exercise of good faith, due diligence, and reasonable care (a "Force Majeure"), then the obligations affected by the Force Majeure shall be temporarily suspended. Within three (3) business days after the occurrence of a Force Majeure, the Owner or the City shall give notice to each other, including a detailed explanation of the Force Majeure and a description of the action that will be taken to remedy the Force Majeure and resume full performance at the earliest possible time. Ch. 212 Development Agreement to Lieu Of Annexation - 4 1 P a g e Section 16 — Enforcement. This Agreement may be enforced by the Owner or the City by any proceeding at Iaw or in equity. Failure to do so shall not be deemed a waiver to enforce the Agreement thereafter. Section 17 — Governmental Powers. It is understood that by execution of this Agreement, the City does not waive or surrender any of its governmental powers, except as expressly set forth herein. Section 18 — 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. The Owner acknowledges that each and every owner of the Property must sign this Agreement in order for the Agreement to take full effect. Section 19 — Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be unenforceable for any reason, such unenforceable provision shall be deleted from this Agreement, and the remainder of this Agreement shall remain in full force and effect and shall be interpreted to give effect to the intent of the Owner and the City. Without limiting the generality of the foregoing, if it is determined that, as of the date that this Agreement becomes effective, that any Owner does not own any portion of the Property, then this Agreement shall remain in full force and effect with respect to the remaining portion of the Property that the Owners actually own. Section 20 — Entire Agreement. This Agreement constitutes the entire agreement between the Owner and the City and supersedes all prior agreements, whether oral or written, covering the subject matter of this Agreement. The Owner acknowledges that each and every Owner of the Property must sign this Agreement in order for the Agreement to take full effect. Section 21 — Captions & Recitals. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. However, each of the recitals contained herein, by this reference, shall be incorporated into, and deemed a part of, this Agreement. Section 22 — Modification of Agreement. This Agreement cannot be modified or amended except in writing signed by the Owner and the City and attached and made a part of this Agreement. Section 23 — Ch. 212 Agreement in lieu of Ch. 43 Agreement. If the Property is subject to an agricultural exemption, the Owner hereby acknowledges that the City, through the Office of the City Attorney, offered to make a development agreement with the Owner under §43.035 of the Texas Local Government Code. The Owner further acknowledges that the Owner rejected the offer to make a §43.035 Agreement in order to enter in to this §212.172 Agreement. IN WITNESS HEREOF, the p roes mutually enter this Agreement on this dLpAday of 2016. Ch. 212 Development Agreement In Lieu Of Annexation - 5 1 P a g e For the City GLEN C. ROB R ON, MAYOR 41 ATTE Reb 'ca GAtsq,, City+, e+CcKary Y 3 �1dlr��l�r�lttM ►v�• APPROVED AS TO CONTENT: Andrew Paxton, Director of Planning APPROVED AS TO FORM: Ju in P itt, Assistant City Attorney For the Owner den Rentals, LLC, Owner Ashton Walden, Member AWNEWS PRINTED NAME Ch. 212 Development Agreement In Lieu Of Annexation - 6 1 P a a e NOTARIZATION State of Texas § County of Lubbock § This instrument was executed before me on 2016, by AQM (f, AM", pAYE lIAk1E of the City of Lubbock, a Texas municipal corparalion, on behalf of said corporation" 4+pllllln nll/h"/I �po' 7ww'm 11, M1, 'woo, am State of Texas § County of Lubbock § ,I This instrument was executed before me on ! 2016, by Ci , ATV 'lI1CF'144ALIIEH. hIEMRER }'p0. 4 N on behalf of said Owner. VENITA WADSWORTH NcWY tbic 8*dTens t ublic NofaryfDt1063705$ h1yC,ottxttE�iottExpirea05282020 When Recorded Return To: City Secretary City of Lubbock, Texas 1625 130' Street Lubbock, Texas 79401 Ch. 212 Development Agreement In Lieu Of Annexation - 7 1 P a g e EXHIBIT A — The Property Tract "O", Huffines Business Park, a subdivision located in Section 8, Block AK, Lubbock County, Texas, according to the map, plat andlor dedication deed thereof recorded January 13, 2015 under County Clerk File No. 2015001070, Official Public Records, Lubbock County, Texas, METES AND BOUNDS DESCRIPTION for the plat limits of Tract 00', Huffines Business Park, a subdivision located in Section S. Block AK, Lubbock County, Texas, being further described as follows: BEGINNING at a 112" bon rod with cap found at the Southeast comer of County (load 7410 as dedicated by plat recorded under County Clerk File No. (CCFN) 2013043704 of the Official Public Records of Lubbock County, Texas, (OPRLCT), in the Western boundary of a 14.541 acre tract of land as described under CCFN 2013048239, OPRLCT, at the Northeast comer of a 1.517 acre tract of land as described under CCFN 2013012811, OPRLCT and the Northwest comer of this tract which bears N. 89'27'01' E a distance of 1976.17 feel and S. 00005180 W. a distance of 690.04 feet from the Northwest comer of Section 8, Block AK, Lubbock County, Texas, THENCE N. 89027'01" E. a distance of 50 35 feet to a 1/2' iron rod with cap found at a point of curvature; THENCE Southeasterly, along a curve to the right. said curve having a radius of 670.00 feet, a central angle of 0900212% tangent lengths of 52.98 feet, a chord distance of 105.63 feet and a chord bearing of S. 86'01'43' E, to a 1/2" Iron rod with cap set for a point of inlersection for the Northeast corner of this tract; THENCE S. 00'32'5W E. a distance of 298.22 feet to a 112' Iron rod with cap set for the Southeast comer of this tract; THENCE S. 89'27'014 W. a distance of 155.65 feet to a 1/2' iron rod with cap set to the Westem boundary of said 14.541 acre tract, at the Southeast comer of said 1.517 acre tract and the most Easterly Northeast comer of a 10.427 acre tract of land as described under CCFN 2012021983, OPRLCT, for the Southwest comer of this tract; THENCE N. 00"32'59' W., along the Western boundary of said 14.541 acre tract and the Eastern boundary of said 1.517 acre tract, a distance of 306.55 feet to the Point of Beginning. CONTAINS:1.089 acres HUFFINES BUSINESS PARK TR 4 50.35' TR F-2 OF N/2 OF NW/4 R32571 O 1.089 AC (Walden Rentals, LLC (Ashton Walden] — R325710) Page 1 of 2 (Walden Rentals, LLC [Ashton Walden] — R325710) Page 2 of 2 FILED FIND RECORDED OFFICIAL PUBLIC RECORDS - U K�IIy Pinion County C1ork Lubbock Coun�y TEXAS 05/23/2916 10:62 AM FEE: $58.00 2016017914 CITY OF LUBBOCK OFFICE PICK UP 2016017915 9 PGS AGREE ■III K 010KINN R IAL KIMIAW h 11111 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 REAL PROPERTY RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER CITY OF LUBBOCK CH. 212 DEVELOPMENT AGREEMENT IN LIEU OF ANNEXATION THIS DEVELOPMENT AGREEME 'T IN LIEU OF ANNEXATION (the "Agreement") is made and effective this day of 2016, and is entered into pursuant to §212.172 of the Texas Local Government Code, by an between the City of Lubbock, Texas, a Texas home rule municipal corporation (the "City"), and the undersigned property owner(s) (the "Owner"), with the term "Owner" including all owners of the Property, and is as follows: RECITALS WHEREAS, the Owner owns a parcel of real property (the "Property") in Lubbock County, Texas, which is more particularly and separately described in the attached Exhibit A; and WHEREAS, the City has instituted annexation proceedings for all portions of the Property and held public hearings regarding the proposed annexation on March 8 and March 10, 2016; and WHEREAS, at the public hearings, the Owner was presented with a service plan for the Property and the Owner was given the opportunity to be heard by the City Council of the City of Lubbock; and WHEREAS, the Owner does not want the Property to be annexed and desires to have the Property remain in the City's extraterritorial jurisdiction, in consideration for which the Owner agrees to enter into this Agreement; and WHEREAS, it is the City's intention to allow the Owner to continue to use the Property as it is being used at the time of this Agreement; and WHEREAS, the Owner and the City acknowledge that this Agreement is binding upon the City and the Owner and their respective successors and assigns for the duration of this Agreement; and WHEREAS, this Agreement is to be recorded in the real property records of Lubbock County, Texas; NOW, THEREFORE, in consideration of the mutual promises contained in this Agreement, the Owner and the City agree as follows: AGREEMENT Section 1 — The Property: Current Status. The City acknowledges that the Property, more particularly described in the attached "Exhibit A," is located within the extraterritorial jurisdiction of the City and is subject to annexation by the City unless this Agreement is signed by the Owner. Section 2 — The Property: Continued Status. In lieu of annexation, the Owner desires that the Property remain in the extraterritorial jurisdiction of the City for the duration of this Agreement. The Ch. 212 Development Agreement In Ueu of Annexation -1 1 p it g e Owner acknowledges that unless the Property is annexed by the City, the Property is not eligible to receive City services, the Property shall not be included in the City's voting precincts, and the Property shall be immune from City property taxes for the duration of this Agreement. The Owner's use of the Property at the time of this Agreement is "grandfathered" into the acceptable uses of the City, and the City is prohibited from interfering with any uses on the Property that comply with §43.002 of the Texas Local Government Code. The Owner acknowledges that Section 22.03.091(a) of the Code of Ordinances of the City prohibits the City from providing water to any entity outside of the city limits, and acknowledges that the City will not be providing water to the Property unless the Property is annexed into the City. However, if the Property is annexed pursuant to a provision of this Agreement, then the City shall provide services to the Property pursuant to Chapter 43 of the Texas Local Government Code. Subject to the provisions of this Agreement, the City shall not annex the Property, shall not involuntarily institute proceedings to annex the Property, and shall not include the Property in a statutory annexation plan. The Owner authorizes the enforcement by the City of all of the City's regulations and planning authority that do not materially interfere with the use of the Property in the same manner that the City's regulations and planning authority are enforced within the City's boundaries. The City specifically reserves its authority pursuant to Chapter 251 of the Texas Local Government Code to exercise eminent domain over property that is subject to a §212.172 development agreement. The City further reserves its regulatory and planning authority in the City's ET1, as such authority has been granted to it by the City Council. Section 3 — The Property: Change In Status. The Owner agrees not to substantially change the use of the Property as it is used on the date of the execution of this Agreement. The Owner agrees not to develop the Property by filing any type of subdivision plat or related development document for the Property with Lubbock County or the City throughout the duration of this Agreement. The Owner acknowledges that if any plat or related development document is Fled for the Property, or if the Owner commences any development of the Property other than that which supports the use of the Property as the Property is used on the date of the execution of this Agreement, then this Agreement shall terminate, and in addition to the City's other remedies, such act will constitute a petition for voluntary annexation by the Owner, and the Property will be subject to annexation at the discretion of the City Council. The Owner agrees that such annexation shall be voluntary and the Owner hereby consents to such annexation as though a petition for such annexation had been tendered by the Owner. If annexation proceedings begin pursuant to this Section, then the Owner acknowledges that this Agreement serves as an exception to Local Government Code §43.052, requiring a municipality to use certain statutory procedures under an annexation plan, and as an exception to Local Government Code §43.062 requiring certain statutory procedures as to the Owner to effectuate an annexation. Further, the Owner hereby waives any and all vested rights and claims that it may have under §43.002(a)(2) and Chapter 245 of the Texas Local Government Code that would otherwise exist by virtue of any plat or construction the Owner may initiate during the time between the expiration of this Agreement and the institution of annexation proceedings by the City. Section 4 —The Term. The term of this Agreement (the "Term") shal I be twenty (20) years from the date that this Agreement is approved by the City Council of the City of Lubbock. At the end of the Term, the Owner, and all of the Owner's heirs, successors and assigns shall be deemed to have filed Ch. 212 Development Agreement 1n Lieu Of Annexation - 2 1 P a g e a petition for voluntary annexation of the Property, and the Property will be subject to voluntary annexation in accordance with Section 3 of this Agreement. Prior to the end of the Term, the City may commence the voluntary annexation of the Property. Section 5 —Termination. This Agreement will automatically terminate at the end of the Term. This Agreement shall terminate upon the filing of any plat or related development document with the City or with Lubbock County or upon the Owner's failure to prove that it is the sole owner of the Property with the authority to sign this Agreement. The Owner and the City may agree in writing to terminate this Agreement prior to the expiration of the Term of this Agreement. Section 6 — City Council Approval Required. If the City Council of the City of Lubbock does not affirmatively vote to annex an area that contains the Property, then this Agreement will be null and void in its entirety. Section 7 — Notification. Any person who sells or conveys any portion of the Property shall, prior to such sale or conveyance, give written notice of this Agreement to the prospective purchaser or grantee, and shall give written notice of the sale or conveyance to the City. Further, the Owner and the Owner's heirs, successors, and assigns shall give the City written notice within fourteen (14) days of any change in the status of the Property. A copy of any notice required by this section shall be forwarded to the City at the following address: City of Lubbock With copy to: City of Lubbock Attn: City Secretary Attn: Director of Planning P.O. Box 2000 P.O. Box 2000 Lubbock, Texas 79457 Lubbock, Texas 79457 This Agreement shall run with the Property and be recorded in the real property records of Lubbock County, Texas. Section 8 — Waiver. Any failure by the Owner or the City to insist upon strict performance by either party of any material provision of this Agreement shall not be deemed a waiver thereof, and the Owner or the City shall have the right at any time thereafter to insist upon strict performance of any and all provisions of this Agreement. No provision of this Agreement may be waived except by a written agreement signed by the Owner or the City waiving such provision. Any waiver shall be limited to the specific purposes for which it is given. No waiver by the Owner or the City of any provision of this Agreement shall be deemed or construed to be a waiver of any other provision or subsequent waiver of the same provision. The Parties expressly agree that no provision of this Agreement is in any way intended to constitute a waiver by any Party of any immunity from suitor liability that it may have by operation of law. The Parties agree that the City shall retain all of its governmental immunities. Section 9 — Assurance of Ownership. The Owner hereby expressly affirms that it is the sole owner of the Property and that no other person or entity has a valid claim to any right, title, or ownership in the Property. Should any dispute of right, title, or ownership concerning the Property arise subsequent to the Owner's execution of this Agreement, the Owner hereby agrees to be solely responsible for defending and confirming its absolute right, title, and ownership to the Property. If the Owner cannot Ch. 212 Development Agreement In Ueu Of Annexation - 3 1 P a g e defend or fails to defend its right, title, and ownership to the Property, then this Agreement shall terminate. Section 10 — Governing Law. This Agreement is entered into under and pursuant to, and is to be construed and enforceable in accordance with, the laws of the State of Texas, and all obligations of the Owner and the City are performable in Lubbock County, Texas. Venue for any action to enforce or construe this Agreement shall be Lubbock County, Texas. This Agreement is subject to all applicable federal, state, and local laws and any applicable ordinances, rules, orders and regulations of any local, state, or federal governmental authority, having or asserting jurisdiction. However, nothing contained in this Agreement shall be construed as a waiver by the Owner or the City of any right to question or contest any law, order, rule, or regulation which may affect the terms and conditions of this Agreement in any forum having jurisdiction, and the Owner and the City each agree to make a good faith effort to support all proposed laws and regulations which would be consistent with the performance of this Agreement in accordance with its terms. No subsequent change in the law regarding annexation shall affect the enforceability of this Agreement or the City's ability to annex the Property pursuant to this Agreement. Section l 1 — Remedy. The City reserves the right to exercise any right or remedy available to it by law, contract, equity, or otherwise, including without Iimitation, the right to seek any and all forms of relief in a court of competent jurisdiction. Further, the City shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this Agreement, the former shall control. Section 12 -- Public Information. This Agreement is public information. To the extent, if any, that any provision of this Agreement is in conflict with the Texas Public Information Act (Tex. Gov't. Code Ann. Chapter 552 et seq., as amended), the same shall be of no force and effect. Section 13 — Third -Party Beneficiaries. This Agreement only inures to the benefit of, and may only be enforced by, the Owner and the City. No other person or entity shall have any right, title, or interest under this Agreement or otherwise be deemed to be a third -party beneficiary of this Agreement. Section 14 — No Personal Liability & No Joint Venture. Nothing in this Agreement is construed as creating any personal liability on the part of any employee, officer or agent of any public body that may be a party to this Agreement. This Agreement is not intended to, and shall not be construed to, create any joint enterprise between or among the parties. Section 15 — Due Diligence & Force Majeure. The Owner and the City shall use good faith, due diligence, and reasonable care in the performance of the obligations under this Agreement, and time shall be of the essence in such performance. In the event that the Owner or the City is unable to perform its respective obligations under this Agreement, due to any event or circumstance that is not within the reasonable respective control of the Owner or the City that could not have been avoided by either the Owner or the City with the exercise of good faith, due diligence, and reasonable care (a "Force Majeure"), then the obligations affected by the Force Majeure shall be temporarily suspended. Within three (3) business days after the occurrence of a Force Majeure, the Owner or the City shall give notice to each other, including a detailed explanation of the Force Majeure and a description of the action that will be taken to remedy the Force Majeure and resume full performance at the earliest possible time. Ch. 212 Development Agreement In Lieu Of Annexation - 4 1 P a g e Section 16 — Enforcement. This Agreement may be enforced by the Owner or the City by any proceeding at law or in equity. Failure to do so shall not be deemed a waiver to enforce the Agreement thereafter. Section 17 — Governmental Powers. It is understood that by execution of this Agreement, the City does not waive or surrender any of its governmental powers, except as expressly set forth herein. Section 18 — 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. The Owner acknowledges that each and every owner of the Property must sign this Agreement in order for the Agreement to take full effect. Section 19 — Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be unenforceable for any reason, such unenforceable provision shall be deleted from this Agreement, and the remainder of this Agreement shall remain in full force and effect and shall be interpreted to give effect to the intent of the Owner and the City. Without limiting the generality of the foregoing, if it is determined that, as of the date that this Agreement becomes effective, that any Owner does not own any portion of the Property, then this Agreement shall remain in full force and effect with respect to the remaining portion of the Property that the Owners actually own. Section 20 — Entire Agreement. This Agreement constitutes the entire agreement between the Owner and the City and supersedes all prior agreements, whether oral or written, covering the subject matter of this Agreement. The Owner acknowledges that each and every Owner of the Property must sign this Agreement in order for the Agreement to take full effect. Section 21— Captions & Recitals. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. However, each of the recitals contained herein, by this reference, shall be incorporated into, and deemed a part of, this Agreement. Section 22 — Modification of Agreement. This Agreement cannot be modified or amended except in writing signed by the Owner and the City and attached and made a part of this Agreement. Section 23 — Ch. 212 Agreement in lieu of Ch. 43 Agreement. If the Property is subject to an agricultural exemption, the Owner hereby acknowledges that the City, through the Office of the City Attorney, offered to make a development agreement with the Owner under §43.035 of the Texas Local Government Code. The Owner further acknowledges that the Owner rejected the offer to make a §43.035 Agreement in order to enter in to this §212.172 Agreement. IN WITNESS HEREOF, the pa ties mutually enter this Agreement on this J%l Iday of , 2016. Ch. 212 Development Agreement in Lieu Of Annexation - 5 1 P a g e For the City GLEN C.rWR : SON, MAYOR of �qe ! ,a ATTEgi: 4 r� 4 Rebli0a. Garza, City Secret y APPROVED AS TO CONTENT: Andrew Paxton, Director of Planning APPROVED AS TO FORM: For the Owner Gerald A. Bonner, Jr., Owne Ch. 212 Development Agreement In Lieu Of Annexation - 6 1 P a g e NOTARIZATION State of Texas § County of Lubbock § This instrument was executed before me on 2016, by—�*f DATE NA"E of the City of Lubbock, a Texas municipal corporation, on behalf of said T corporation. `yµovi0 nn C F4� Not ry Public Qom. Of�,.. 6-2pp n State of Texas § County of Lubbock § This instrument was executed before me on 2016, b) SAFE GERALA & on behalf of said-O- ter. is When Recorded Return To: City Secretary City of Lubbock, Texas 1625 131h Street Lubbock, Texas 79401 VENITA WADMOUH W�*SM Ch. 212 Development Agreement In Lieu Of Annexation - 7 1 P a g e EXHIBIT A -- The Property All of Tract 6, Frankford Farms Subdivision, Section 24, Block E-2, Lubbock County, Texas, as shown by Plat recorded in Volume 3016, Page 219, Lubbock County Official Real Property Records. FRANKFORD FARMS TR 6 LESS NEIC AND FRANKFORD FARMS NEIC OF TR 6 kn (Banner. Gerald - R69522 & R312007) Page i of 2 FILED AND RECORDED OFFICIAL PUBLIC RECORDS s (r' Kelly pinion Countyy Clerk Lubbock County TERRS 05/23/2016 10:62 An 2026017915 CITY OF LUBBOCK OFFICE PICK UP x016e17916 11 PGS AGREE ■II1 roh fflA6hFJft1V 'W&1I1M 11111 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 REAL PROPERTY RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER CITY OF LUBBOCK CH. 212 DEVELOPMENT AGREEMENT IN LIEU OF ANNEXATION THIS DEVELOPMENT GREEME T IN LIEU OF ANNEXATION (the "Agreement") is made and effective this day of , 2016, and is entered into pursuant to §212.172 of the Texas Local Govenrunent Code, by and between the City of Lubbock, Texas, a Texas home rule municipal corporation (the "City"), and the undersigned property owner(s) (the "Owner"), with the term "Owner" including all owners of the Property, and is as follows: RECITALS WHEREAS, the Owner owns a parcel of real property (the "Property") in Lubbock County, Texas, which is more particularly and separately described in the attached Exhibit A; and WHEREAS, the City has instituted annexation proceedings for all portions of the Property and held public hearings regarding the proposed annexation on March S and March 10, 2016; and WHEREAS, at the public hearings, the Owner was presented with a service plan for the Property and the Owner was given the opportunity to be heard by the City Council of the City of Lubbock; and WHEREAS, the Owner does not want the Property to be annexed and desires to have the Property remain in the City's extraterritorial jurisdiction, in consideration for which the Owner agrees to enter into this Agreement; and WHEREAS, it is the City's intention to allow the Owner to continue to use the Property as it is being used at the time of this Agreement; and WHEREAS, the Owner and the City acknowledge that this Agreement is binding upon the City and the Owner and their respective successors and assigns for the duration of this Agreement; and WHEREAS, this Agreement is to be recorded in the real property records of Lubbock County, Texas; NOW, THEREFORE, in consideration of the mutual promises contained in this Agreement, the Owner and the City agree as follows: AGREEMENT Section 1 -- The Property: Current Status. The City acknowledges that the Property, more particularly described in the attached "Exhibit A," is located within the extraterritorial jurisdiction of the City and is subject to annexation by the City unless this Agreement is signed by the Owner. Section 2 — The Property: Continued Status. In lieu of annexation, the Owner desires that the Property remain in the extraterritorial jurisdiction of the City for the duration of this Agreement. The Ch. 212 Development Agreement In Lieu Of Annexation -1 I F , g E Owner acknowledges that unless the Property is annexed by the City, the Property is not eligible to receive City services, the Property shall not be included in the City's voting precincts, and the Property shall be immune from City property taxes for the duration of this Agreement. The Owner's use of the Property at the time of this Agreement is "grandfathered" into the acceptable uses of the City, and the City is prohibited from interfering with any uses on the Property that comply with §43.002 of the Texas Local Government Code. The Owner acknowledges that Section 22.03.091(a) of the Code of Ordinances of the City prohibits the City from providing water to any entity outside of the city limits, and acknowledges that the City will not be providing water to the Property unless the Property is annexed into the City. However, if the Property is annexed pursuant to a provision of this Agreement, then the City shall provide services to the Property pursuant to Chapter 43 of the Texas Local Government Code. Subject to the provisions of this Agreement, the City shall not annex the Property, shall not involuntarily institute proceedings to annex the Property, and shall not include the Property in a statutory annexation plan. The Owner authorizes the enforcement by the City of all of the City's regulations and planning authority that do not materially interfere with the use of the Property in the same manner that the City's regulations and planning authority are enforced within the City's boundaries. The City specifically reserves its authority pursuant to Chapter 251 of the Texas Local Government Code to exercise eminent domain over property that is subject to a §212.172 development agreement. The City further reserves its regulatory and planning authority in the City's ETJ, as such authority has been granted to it by the City Council. Section 3 — The Property: Change In Status. The Owner agrees not to substantially change the use of the Property as it is used on the date of the execution of this Agreement. The Owner agrees not to develop the Property by filing any type of subdivision plat or related development document for the Property with Lubbock County or the City throughout the duration of this Agreement. The Owner acknowledges that if any plat or related development document is filed for the Property, or if the Owner commences any development of the Property other than that which supports the use of the Property as the Property is used on the date of the execution of this Agreement, then this Agreement shall terminate, and in addition to the City's other remedies, such act will constitute a petition for voluntary annexation by the Owner, and the Property will be subject to annexation at the discretion of the City Council. The Owner agrees that such annexation shall be voluntary and the Owner hereby consents to such annexation as though a petition for such annexation had been tendered by the Owner. If annexation proceedings begin pursuant to this Section, then the Owner acknowledges that this Agreement serves as an exception to Local Government Code §43.052, requiring a municipality to use certain statutory procedures under an annexation plan, and as an exception to Local Government Code §43.062 requiring certain statutory procedures as to the Owner to effectuate an annexation. Further, the Owner hereby waives any and all vested rights and claims that it may have under §43.002(a)(2) and Chapter 245 of the Texas Local Government Code that would otherwise exist by virtue of any plat or construction the Owner may initiate during the time between the expiration of this Agreement and the institution of annexation proceedings by the City. Section 4 — The Term. The term of this Agreement (the "Term") shall be twenty (20) years from the date that this Agreement is approved by the City Council of the City of Lubbock. At the end of the Term, the Owner, and all of the Owner's heirs, successors and assigns shall be deemed to have filed Ch. 212 Development Agreement In Lieu Of Annexation - 2 1 P ai ;; n a petition for voluntary annexation of the Property, and the Property will be subject to voluntary annexation in accordance with Section 3 of this Agreement. Prior to the end of the Term, the City may commence the voluntary annexation of the Property. Section 5 — Termination. This Agreement will automatically terminate at the end of the Tenn. This Agreement shall terminate upon the filing of any plat or related development document with the City or with Lubbock County or upon the Owner's failure to prove that it is the sole owner of the Property with the authority to sign this Agreement. The Owner and the City may agree in writing to terminate this Agreement prior to the expiration of the Term of this Agreement. Section 6 — City Council Approval Required. If the City Council of the City of Lubbock does not affirmatively vote to annex an area that contains the Property, then this Agreement will be null and void in its entirety. Section 7 — Notification. Any person who sells or conveys any portion of the Property shall, prior to such sale or conveyance, give written notice of this Agreement to the prospective purchaser or grantee, and shall give written notice of the sale or conveyance to the City. Further, the Owner and the Owner's heirs, successors, and assigns shall give the City written notice within fourteen (14) days of any change in the status of the Property. A copy of any notice required by this section shall be forwarded to the City at the following address: City of Lubbock With col2v to: City of Lubbock Attn: City Secretary Attn: Director of Planning P.O. Box 2000 P.O. Box 2000 Lubbock, Texas 79457 Lubbock, Texas 79457 This Agreement shall run with the Property and be recorded in the real property records of Lubbock County, Texas. Section 8 — Waiver. Any failure by the Owner or the City to insist upon strict performance by either party of any material provision of this Agreement shall not be deemed a waiver thereof, and the Owner or the City shall have the right at any time thereafter to insist upon strict performance of any and all provisions of this Agreement. No provision of this Agreement may be waived except by a written agreement signed by the Owner or the City waiving such provision. Any waiver shall be limited to the specific purposes for which it is given. No waiver by the Owner or the City of any provision of this Agreement shall be deemed or construed to be a waiver of any other provision or subsequent waiver of the same provision. The Parties expressly agree that no provision of this Agreement is in any way intended to constitute a waiver by any Party of any immunity from suit or liability that it may have by operation of law. The Parties agree that the City shall retain all of its governmental immunities. Section 9 — Assurance of Ownership. The Owner hereby expressly affirms that it is the sole owner of the Property and that no other person or entity has a valid claim to any right, title, or ownership in the Property. Should any dispute of right, title, or ownership concerning the Property arise subsequent to the Owner's execution of this Agreement, the Owner hereby agrees to be solely responsible for defending and confirming its absolute right, title, and ownership to the Property. If the Owner cannot Ch. 212 Development Agreement In lieu Of Annexation - 3 1 P a g e defend or fails to defend its right, title, and ownership to the Property, then this Agreement shall terminate. Section 10 — Governing Law. This Agreement is entered into under and pursuant to, and is to be construed and enforceable in accordance with, the laws of the State of Texas, and all obligations of the Owner and the City are performable in Lubbock County, Texas. Venue for any action to enforce or construe this Agreement shall be Lubbock County, Texas. This Agreement is subject to all applicable federal, state, and local laws and any applicable ordinances, rules, orders and regulations of any local, state, or federal governmental authority, having or asserting jurisdiction. However, nothing contained in this Agreement shall be construed as a waiver by the Owner or the City of any right to question or contest any law, order, rule, or regulation which may affect the terms and conditions of this Agreement in any forum having jurisdiction, and the Owner and the City each agree to make a good faith effort to support all proposed laws and regulations which would be consistent with the performance of this Agreement in accordance with its terms. No subsequent change in the law regarding annexation shall affect the enforceability of this Agreement or the City's ability to annex the Property pursuant to this Agreement. Section 11 -- Remedy. The City reserves the right to exercise any right or remedy available to it by law, contract, equity, or otherwise, including without Iimitation, the right to seek any and all forms of relief in a court of competent jurisdiction. Further, the City shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this Agreement, the former shall control. Section 12 — Public Information. This Agreement is public information. To the extent, if any, that any provision of this Agreement is in conflict with the Texas Public Information Act (Tex. Gov't. Code Ann. Chapter 552 et seq., as amended), the same shall be of no force and effect. Section 13 -- Third -Party Beneficiaries. This Agreement only inures to the benefit of, and may only be enforced by, the Owner and the City. No other person or entity shall have any right, title, or interest under this Agreement or otherwise be deemed to be a third -party beneficiary of this Agreement. Section 14 -- No Personal Liability & No Joint Venture. Nothing in this Agreement is construed as creating any personal liability on the part of any employee, officer or agent of any public body that may be a party to this Agreement. This Agreement is not intended to, and shall not be construed to, create any joint enterprise between or among the parties. Section 15 — Due Diligence & Force Majeure. The Owner and the City shall use good faith, due diligence, and reasonable care in the performance of the obligations under this Agreement, and time shall be of the essence in such performance. In the event that the Owner or the City is unable to perform its respective obligations under this Agreement, due to any event or circumstance that is not within the reasonable respective control of the Owner or the City that could not have been avoided by either the Owner or the City with the exercise of good faith, due diligence, and reasonable care (a "Force Majeure"), then the obligations affected by the Force Majeure shall be temporarily suspended. Within three (3) business days after the occurrence of a Force Majeure, the Owner or the City shall give notice to each other, including a detailed explanation of the Force Majeure and a description of the action that will be taken to remedy the Force Majeure and resume full performance at the earliest possible time. Ch. 212 Development Agreement In Lieu Of Annexation - 4 1 P a g E Section 16 — Enforcement. This Agreement may be enforced by the Owner or the City by any proceeding at law or in equity. Failure to do so shall not be deemed a waiver to enforce the Agreement thereafter. Section 17 — Governmental Powers. It is understood that by execution of this Agreement, the City does not waive or surrender any of its governmental powers, except as expressly set forth herein. Section 18 — 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. The Owner acknowledges that each and every owner of the Property must sign this Agreement in order for the Agreement to take full effect. Section 19 — Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be unenforceable for any reason, such unenforceable provision shall be deleted from this Agreement, and the remainder of this Agreement shall remain in full force and effect and shall be interpreted to give effect to the intent of the Owner and the City. Without limiting the generality of the foregoing, if it is determined that, as of the date that this Agreement becomes effective, that any Owner does not own any portion of the Property, then this Agreement shall remain in full force and effect with respect to the remaining portion of the Property that the Owners actually own. Section 20 — Entire Agreement. This Agreement constitutes the entire agreement between the Owner and the City and supersedes all prior agreements, whether oral or written, covering the subject matter of this Agreement. The Owner acknowledges that each and every Owner of the Property must sign this Agreement in order for the Agreement to take full effect. Section 21-- Captions & Recitals. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. However, each of the recitals contained herein, by this reference, shall be incorporated into, and deemed a part of, this Agreement. Section 22 — Modification of Agreement. This Agreement cannot be modified or amended except in writing signed by the Owner and the City and attached and made a part of this Agreement. Section 23 — Ch. 212 Agreement in lieu of Ch. 43 Agreement. If the Property is subject to an agricultural exemption, the Owner hereby acknowledges that the City, through the Office of the City Attorney, offered to make a development agreement with the Owner under §43.035 of the Texas Local Government Code. The Owner further acknowledges that the Owner rejected the offer to make a §43.035 Agreement in order to enter in to this §212.172 Agreement. IN WITNESS HEREOF, the pa ties mutually enter this Agreement 11 on this*tlay of , 2016. Ch. 212 Development Agreement In Lieu Of Annexation - 5 1 P a g e For the City GLEN C. R9tlk11TS6N, MAYOR ATTEST: Pteb� �a Ga a, C'ty Secretary APPROVE AS• T&C. ' ONTENT: X?rn'dare Pax n, Director of Planning APPROVED AS TO FORM: Justin ni t, Ahistint City Attorney For the Owner South Frankford Ninmercial Park, L C Armon L. Abbe, Managing Member Ch. 212 Development Agreement In lieu Of Annexation - 6 1 P a g e NOTARIZATION State of Texas § County of Lubbock § This instrument was executed before me on 2016, by NAME ' of the City of Lubbock, a Texas municipal corporation, on behalf of said T - corporatloC . i,er»nrr+rr �Ycbfry Public tiSdWDEq r04 Y FU�F��ZF * •`�� Qr1E *_ Ale - - s`� State of Texas § 4•�s 28-20."%1 `'� •,r•r County of Lubbock § / This instrument was executed before me on 2016, by 1ff'-/� e6l,, ARMOrl L. AM rn\NEA on behalf of said er. VENITA WADSMMH N"P*0wdT4m No ublic ,�-. W�EfTlir?B;1s� When Recorded Return To: City Secretary City of Lubbock, Texas 1625 13`h Street Lubbock, Texas 79401 Ch. 212 Development Agreement In Lieu Of Annexation - 7 1 EXHIBIT A — The Property Tracts Twenty-Six-B (26-B), Twenty-Six-C (26-C), and Twenty-Six-D (26-D), a replat of Tract Twenty -Six (26), FRANKFORD FARMS, a Subdivision out of the Southeast Quarter (SE/4) of Section Twenty -Four (24), Block E-Two (E--2), Lubbock County, Texas, according to the Map, Plat, and/or Dedication Deed thereof, recorded under Clerk's File No. 2015002528, Official Public Records of Lubbock County, Texas (the "Property"). FRANKFORD FARMS TR 26B FRANKFORD FARMS TR 26C FRANKFORD FARMS TR 26D (Abbe - 551712e St. and 5S111261 St. and 5505 126h St.) Page 1 of 1 EXHIBIT A -- The Property Property: A 10.00 acre tract out of a 20.01 acre tract described in Volume 8181, Page 334 of the Real Property Records of Lubbock County, Texas, located in Section 24, Block E-2, Lubbock County, Texas, being hirther described as follows: BEGINNING at a spike nail found at the Southwest corner of the Northwest quarter of Section 24, Block E-2, Lubbock County, Texas, and the Southwest corner of this tract, same being the Southwest corner of said 20 01 acre tract, which bears S OW 09' 31 " E, a distance of 2644.80 feat from the Northwest corner of Section 24, Block E- 2, Lubbock Counry, Texas; THENCE N 000 09' 31' W, along the West line of Section 24, and the West line of said 20.01 acre tract a distance of 330.01 feet to a nail with cap found at the Northwest comer of this tract; THENCE N 890 24' 53" E, along the North line of said 20.01 acre tract, a distance of 1320.00 feet to a W' 1R with enp set for the Northeast corner of this tract; THENCE S 00" 09' 3 1 " E, a distance of 330.00 feet to a'/,' IR with cap set in the South line of the Northwest gunner of Section 24, the South line of said 20.01 acre tract, and theNorth right-of-way line of 122nd Street as dedicated by plat of Ftankford Farms a Subdivision out of the Sauthw'est quarter of Section 24, Block E-2, Lubbock County, Texas, according to the map, plat, andlor dedication deed thetzof recorded in Volume 3176, Page 340, Real Property, Records of Lubbock County, Texas, for the Southeast corner of this tract; THENCE S 89" 24' 53" W, along the South line of the Northwest quarter of Section 24, the South line of said 20.01 acre tract and the North right of way line of 122a° Street, a distance of 1320,00 feet to the Point of Beginning. Bearings are relative to the 20.01 acre tract as described in Volume 8181, Page 334 of the Real Property Records of Lubbock County, Texas, and being located in Section 24, Block E-2, Lubbock County, Texas. (Abbe - R301544) Page 1 of 2 Save and except the following 1.331 acre tract: METES AND BOUNDS DESCRIPTION for the plat limits of a 1.331 acre tract of land located in Section 24, Block E-2, Lubbock County. Texas, being further described as fWlcws: BEGINNING at a concrete nail with cap found in the West line of Section 24. Block E-2, Lubbock County, Texas, which gears S. 00409*31' E. a distance of 23314.70 feel from the Northwest comer of Section 24, Block E-2. Lubbock County, Taxes: THENCE N. 89124'ST E . a distance of 34B.76 feet to a 1/2' Iron rod with cap set for the Northeast comer of this tract; THENCE S. 00.35'07' E- a distance of 166.00 feet to a ill' iron rod with cap set for the Southeast comer of this trod; THENCE S. 89'24'53' W. a distance of 350.00 feet to a cotlon spindle with washer set for the Souttmrest comer of fhis tract; THENCE N. 00909W W. a distance of 166.00 feet to the Point of Beginning. Beatings relative to the West Fine of Section 24, Block E-2, being previously recognized as N. 00'09'31' W. BLK E2 SEC 24 AB 842 TR C8 LES W55' AC: 8.462 (Abbe - R3015") Page 2 of 2 FILED AND RECORDED OFFICIAL PUBLIC RECORDS c� Kelly Plnlon Couniyy Clerk Lubbock County iEx s 05/23/2016 10:62 AM FEE: $62.00 2016017916 CITY OF LUBBOCK 201501-M17 12 FAGS ACNE t OFFICE PICK UP mill IRA 11 VIIIJA�W�4 W1449M 110111111 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 REAL PROPERTY RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER CITY OF LUBBOCK CH. 212 DEVELOPMENT AGREEMENT IN LIEU OF ANNEXATION THIS DEVELOPMENrTAGREEME T IN LIEU OF ANNEXATION (the "Agreement") is made and effective this day of , 2016, and is entered into pursuant to §212.172 of the Texas Local Government Code, by a between the City of Lubbock, Texas, a Texas home rule municipal corporation (the "City"), and the undersigned property owner(s) (the "Owner"), with the term "Owner" including all owners of the Property, and is as follows: RECITALS WHEREAS, the Owner owns a parcel of real property (the "Property") in Lubbock County, Texas, which is more particularly and separately described in the attached Exhibit A; and WHEREAS, the City has instituted annexation proceedings for all portions of the Property and held public hearings regarding the proposed annexation on March 8 and March 10, 2016; and WHEREAS, at the public hearings, the Owner was presented with a service plan for the Property and the Owner was given the opportunity to be heard by the City Council of the City of Lubbock, and WHEREAS, the Owner does not want the Property to be annexed and desires to have the Property remain in the City's extraterritorial jurisdiction, in consideration for which the Owner agrees to enter into this Agreement; and WHEREAS, it is the City's intention to allow the Owner to continue to use the Property as it is being used at the time of this Agreement; and WHEREAS, the Owner and the City acknowledge that this Agreement is binding upon the City and the Owner and their respective successors and assigns for the duration of this Agreement; and WHEREAS, this Agreement is to be recorded in the real property records of Lubbock County, Texas; NOW, THEREFORE, in consideration of the mutual promises contained in this Agreement, the Owner and the City agree as follows: AGREEMENT Section I — The Property: Current Status. The City acknowledges that the Property, more particularly described in the attached "Exhibit A," is located within the extraterritorial jurisdiction of the City and is subject to annexation by the City unless this Agreement is signed by the Owner. Section 2 — The Property: Continued Status. In lieu of annexation, the Owner desires that the Property remain in the extraterritorial jurisdiction of the City for the duration of this Agreement. The Ch. 212 Development Agreement In Lieu Of Annexation -1 j P a « e Owner acknowledges that unless the Property is annexed by the City, the Property is not eligible to receive City services, the Property shall not be included in the City's voting precincts, and the Property shall be immune from City property taxes for the duration of this Agreement. The Owner's use of the Property at the time of this Agreement is "grandfathered" into the acceptable uses of the City, and the City is prohibited from interfering with any uses on the Property that comply with §43.002 of the Texas Local Government Code. The Owner acknowledges that Section 22.03.091(a) of the Code of Ordinances of the City prohibits the City from providing water to any entity outside of the city limits, and acknowledges that the City will not be providing water to the Property unless the Property is annexed into the City. However, if the Property is annexed pursuant to a provision of this Agreement, then the City shall provide services to the Property pursuant to Chapter 43 of the Texas Local Government Code. Subject to the provisions of this Agreement, the City shall not annex the Property, shall not involuntarily institute proceedings to annex the Property, and shall not include the Property in a statutory annexation plan. The Owner authorizes the enforcement by the City of all of the City's regulations and planning authority that do not materially interfere with the use of the Property in the same manner that the City's regulations and planning authority are enforced within the City's boundaries. The City specifically reserves its authority pursuant to Chapter 251 of the Texas Local Government Code to exercise eminent domain over property that is subject to a §212.172 development agreement. The City further reserves its regulatory and planning authority in the City's ETJ, as such authority has been granted to it by the City Council. Section 3 — The Property. Change In Status. The Owner agrees not to substantially change the use of the Property as it is used on the date of the execution of this Agreement. The Owner agrees not to develop the Property by filing any type of subdivision plat or related development document for the Property with Lubbock County or the City throughout the duration of this Agreement. The Owner acknowledges that if any plat or related development document is filed for the Property, or if the Owner commences any development of the Property other than that which supports the use of the Property as the Property is used on the date of the execution of this Agreement, then this Agreement shall terminate, and in addition to the City's other remedies, such act will constitute a petition for voluntary annexation by the Owner, and the Property will be subject to annexation at the discretion of the City Council. The Owner agrees that such annexation shall be voluntary and the Owner hereby consents to such annexation as though a petition for such annexation had been tendered by the Owner. If annexation proceedings begin pursuant to this Section, then the Owner acknowledges that this Agreement serves as an exception to Local Government Code §43.052, requiring a municipality to use certain statutory procedures under an annexation plan, and as an exception to Local Government Code §43.062 requiring certain statutory procedures as to the Owner to effectuate an annexation. Further, the Owner hereby waives any and all vested rights and claims that it may have under §43.002(a)(2) and Chapter 245 of the Texas Local Government Code that would otherwise exist by virtue of any plat or construction the Owner may initiate during the time between the expiration of this Agreement and the institution of annexation proceedings by the City. Section 4 — The Term. The term of this Agreement (the "Term") shall be twenty (20) years from the date that this Agreement is approved by the City Council of the City of Lubbock. At the end of the Term, the Owner, and all of the Owner's heirs, successors and assigns shall be deemed to have filed Ch. 222 Development Agreement In Lieu Of Annexation - 2 1 P ) F e a petition for voluntary annexation of the Property, and the Property will be subject to voluntary annexation in accordance with Section 3 of this Agreement. Prior to the end of the Term, the City may commence the voluntary annexation of the Property. Section 5—Termination. This Agreement will automatically terminate at the end of the Term. This Agreement shall terminate upon the filing of any plat or related development document with the City or with Lubbock County or upon the Owner's failure to prove that it is the sole owner of the Property with the authority to sign this Agreement. The Owner and the City may agree in writing to terminate this Agreement prior to the expiration of the Term of this Agreement. Section 6 — City Council Approval Required. If the City Council of the City of Lubbock does not affirmatively vote to annex an area that contains the Property, then this Agreement will be null and void in its entirety. Section 7 — Notification. Any person who sells or conveys any portion of the Property shall, prior to such sale or conveyance, give written notice of this Agreement to the prospective purchaser or grantee, and shall give written notice of the sale or conveyance to the City. Further, the Owner and the Owner's heirs, successors, and assigns shall give the City written notice within fourteen (14) days of any change in the status of the Property. A copy of any notice required by this section shall be forwarded to the City at the following address: City of Lubbock With coRy to: City of Lubbock Attn: City Secretary Attn: Director of Planning P.O. Box 2000 P.O. Box 2000 Lubbock, Texas 79457 Lubbock, Texas 79457 This Agreement shall run with the Property and be recorded in the real property records of Lubbock County, Texas. Section 8 — Waiver. Any failure by the Owner or the City to insist upon strict performance by either party of any material provision of this Agreement shall not be deemed a waiver thereof, and the Owner or the City shall have the right at any time thereafter to insist upon strict performance of any and all provisions of this Agreement. No provision of this Agreement may be waived except by a written agreement signed by the Owner or the City waiving such provision. Any waiver shall be limited to the specific purposes for which it is given. No waiver by the Owner or the City of any provision of this Agreement shall be deemed or construed to be a waiver of any other provision or subsequent waiver of the same provision. The Parties expressly agree that no provision of this Agreement is in any way intended to constitute a waiver by any Party of any immunity from suit or liability that it may have by operation of law. The Parties agree that the City shall retain all of its governmental immunities. Section 9 — Assurance of Ownership. The Owner hereby expressly affirms that it is the sole owner of the Property and that no other person or entity has a valid claim to any right, title, or ownership in the Property. Should any dispute of right, title, or ownership concerning the Property arise subsequent to the Owner's execution of this Agreement, the Owner hereby agrees to be solely responsible for defending and confirming its absolute right, title, and ownership to the Property. If the Owner cannot Ch. 212 Development Agreement In Lieu Of Annexation - 3 1 a a g e defend or fails to defend its right, title, and ownership to the Property, then this Agreement shall terminate. Section 10 — Governing Law. This Agreement is entered into under and pursuant to, and is to be construed and enforceable in accordance with, the Iaws of the State of Texas, and all obligations of the Owner and the City are performable in Lubbock County, Texas. Venue for any action to enforce or construe this Agreement shall be Lubbock County, Texas. This Agreement is subject to all applicable federal, state, and local laws and any applicable ordinances, rules, orders and regulations of any local, state, or federal governmental authority, having or asserting jurisdiction. However, nothing contained in this Agreement shall be construed as a waiver by the Owner or the City of any right to question or contest any law, order, rule, or regulation which may affect the terms and conditions of this Agreement in any forum having jurisdiction, and the Owner and the City each agree to make a good faith effort to support all proposed laws and regulations which would be consistent with the performance of this Agreement in accordance with its terms. No subsequent change in the law regarding annexation shall affect the enforceability of this Agreement or the City's ability to annex the Property pursuant to this Agreement. Section 11— Remedy. The City reserves the right to exercise any right or remedy available to it by law, contract, equity, or otherwise, including without limitation, the right to seek any and all forms of relief in a court of competent jurisdiction. Further, the City shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this Agreement, the former shall control. Section 12 — Public Information. This Agreement is public information. To the extent, if any, that any provision of this Agreement is in conflict with the Texas Public Information Act (Tex. Gov't. Code Ann. Chapter 552 et seq., as amended), the same shall be of no force and effect. Section 13 — Third -Party Beneficiaries. This Agreement only inures to the benefit of, and may only be enforced by, the Owner and the City. No other person or entity shall have any right, title, or interest under this Agreement or otherwise be deemed to be a third -party beneficiary of this Agreement. Section 14 — No Personal Liability & No Joint Venture. Nothing in this Agreement is construed as creating any personal Iiability on the part of any employee, officer or agent of any public body that may be a party to this Agreement. This Agreement is not intended to, and shall not be construed to, create any joint enterprise between or among the parties. Section 15 — Due Diligence & Force Majeure. The Owner and the City shall use good faith, due diligence, and reasonable care in the performance of the obligations under this Agreement, and time shall be of the essence in such performance. In the event that the Owner or the City is unable to perform its respective obligations under this Agreement, due to any event or circumstance that is not within the reasonable respective control of the Owner or the City that could not have been avoided by either the Owner or the City with the exercise of good faith, due diligence, and reasonable care (a "Force Majeure"), then the obligations affected by the Force Majeure shall be temporarily suspended. Within three (3) business days after the occurrence of a Force Majeure, the Owner or the City shall give notice to each other, including a detailed explanation of the Force Majeure and a description of the action that will be taken to remedy the Force Majeure and resume full performance at the earliest possible time. Ch. 212 Development Agreement In Lieu Of Annexation - 4 1 P , a e Section 16 -- Enforcement. This Agreement may be enforced by the Owner or the City by any proceeding at law or in equity. Failure to do so shall not be deemed a waiver to enforce the Agreement thereafter. Section 17 — Governmental Powers. It is understood that by execution of this Agreement, the City does not waive or surrender any of its governmental powers, except as expressly set forth herein. Section 18 — 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. The Owner acknowledges that each and every owner of the Property must sign this Agreement in order for the Agreement to take full effect. Section 19 — Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be unenforceable for any reason, such unenforceable provision shall be deleted from this Agreement, and the remainder of this Agreement shall remain in full force and effect and shall be interpreted to give effect to the intent of the Owner and the City. Without limiting the generality of the foregoing, if it is determined that, as of the date that this Agreement becomes effective, that any Owner does not own any portion of the Property, then this Agreement shall remain in full force and effect with respect to the remaining portion of the Property that the Owners actually own. Section 20 — Entire Agreement. This Agreement constitutes the entire agreement between the Owner and the City and supersedes all prior agreements, whether oral or written, covering the subject matter of this Agreement. The Owner acknowledges that each and every Owner of the Property must sign this Agreement in order for the Agreement to take full effect. Section 21— Captions & Recitals. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. However, each of the recitals contained herein, by this reference, shall be incorporated into, and deemed a part of, this Agreement. Section 22 — Modification of Agreement. This Agreement cannot be modified or amended except in writing signed by the Owner and the City and attached and made a part of this Agreement. Section 23 — Ch. 212 Agreement in lieu of Ch. 43 Agreement. If the Property is subject to an agricultural exemption, the Owner hereby acknowledges that the City, through the Office of the City Attorney, offered to make a development agreement with the Owner under §43.035 of the Texas Local Government Code. The Owner further acknowledges that the Owner rejected the offer to make a §43.035 Agreement in order to enter in to this §212.172 Agreement. IN WITNESS HEREOF, the p rties mutually enter this Agreement on this (kAkday of 2016. Ch. 212 Development Agreement In Lieu Of Annexation - 5 1 s, For the City GLEN C. KOREIMON, MAYOR ATTEST: Rebeka Garza; Citxary APPROVED AS TO CONTENT: Andrew Paxton, Director of Planning APPROVED AS TO FORM: I� Justi P 'tt, A list nt City Attorney For the Owner QVIJ-��% 4-." Armon L. Abbe — Signature Lind . Abbe — Signature Ch. 212 Development Agreement In Lieu Of Annexation - 6 1 P G L; NOTARIZATION State of Texas § County of Lubbock § This instrument was executed before me on 2016, by A&, PATE of the City of Lubbock, a Texas my pioipai,gorporation, on behalf of said tm corporation. �.�`°%",N0ER �I f,41P C, ,.•¢.. yt Nnta Public P �Nlb aski W" State of Texas § County of Lubbock § This instrument was executed before me on 2016, by q.Ula[GM LABMC n tiLA on behalf of said O r. VENITA WADSWORTH bKOK—Public I�cm , 600n E> K(Oir2g,202p State of Texas § County of Lubbock § This instrument was executed before me on 2016, by' , OA7L LIfNLI �.AB1E U157MER on behalf of said O er. AA9M& vENI TA WADSWORTH ECd '. kl/ "N" NAublic MyCaw& nE�Ires**2020 -We When Recorded Return To: City Secretary City of Lubbock, Texas 1625 131h Street Lubbock, Texas 79401 Ch. 212 Development Agreement In Lieu Of Annexation - 7 1 P a g e EXHIBIT A -- The Property The North 1.00 acre of Tract Eleven (11), FRANKFORD FARMS, a subdivision out of the SW/4 of Section 24, Block E-2, Lubbock County, Texas, according to the Map, Plat, and/or Dedication Deed thereof, recorded in Volume 3033, Page 242, corrected in Volume 3176, Page 340, official Real Property Records of Lubbock County, Texas, being further described by metes and bounds as follows: BEGIMING at a M11 iron rod found in the South right-of- way line of 1220d Street at the original Northeast corner of Tract 11, Frankford Farms, and this tract; THENCE South 001130152" East, along the East line of said Tract 11, a distance of 188.22 feet to a %" iron rod with cap found at the Southeast corner of this tract; THENCE South 8900412311 West a distance of 231.42 feet to a %N iron rod with cap set in the West line of said Tract 11 for the Southeast corner of this tract; THENCE North 00031112" West, along the West line of said Tract 11, a distance of 188.22 feet to a W rod with cap set in the South right-of-way line of 122nd Street for the Northwest corner of said Tract 11 and this tract; THENCE North 8900412311 East, along said right-of-way line, a distance of 231.44 feet to the POINT OF BEGINNING (the "Property"). (Abbe - R68662) Page 1 of 2 FRANKFORD FARMS N188.22 OF TR 11 231.44' N188.22' N N R686G2 00 OF 11 � (Abbe - R68662) Page 2 of 2 EXHIBIT A -- The Property Tract Eleven (11), FRANKFORD FARMS, a subdivision out of the SW/4 of Section 24, Block E-2, Lubbock County, Texas, according to the Map, Plat, and/or Dedication Deed thereof, recorded in Volume 3033, Page 242, corrected in Volume 3176, Page 340, official Real Property Records of Lubbock County, Texas; SAVE & EXCEPT the North 1.0D acre of Tract Eleven (11); the The North 1.00 acre of Tract Eleven (I1), FRANKFORD FARMS, a subdivision out of the SW/4 of Section 24, Block E-2, Lubbock County, Texas, according to the Map, Plat, and/or Dedication Deed thereof, recorded in Volume 3033, Page 242, corrected in Volume 3176, Page 340, Official Real Property Records of Lubbock County, Texas, being further described by metes and bounds as follows: BEGINNING at a M" iron rod found in the South right-of- way line of 1220d Street at the original Northeast corner of Tract 11, Frankford Farms, and this tract; THENCE South 00030152" East, along the East line of said Tract 11, a distance of 188.22 feet to a %%'.iron rod with cap found at the Southeast corner of this tract; THENCE South 89004123" West a distance of 231.42 feet to a %m iron rod with cap set in the West line of said Tract 11 for the Southeast corner of this tract; THENCE North 001231112" West, along the West line of said Tract 11, a distance of 188.22 feet to a %" rod with cap set in the South right-of-way line of 122"d Street for the Northwest corner of said Tract 11 and this tract; THENCE North 89004123" East, along said right-of-way line, a distance of 231.44 feet to the POINT OF BEGINNING (the "Property"). (Abbe — R317247) Page 1 of 3 aces--lU-1-firu ZH: and Tracts 70, OB 7 !tt ,� ~ ` Frankf ord 11 rr �� %. i S 90. a replat of 'tracts 7. 8, & 9, •, a subdivision out of the S1r/4 of 5eWon 24, Block E-2. Lubbock County, Toxav r+. •.i+.ri �. w � F. +i.i Yfw•n ��w�q p pI1 Y FtiYrMryy.��.ar��� � n� .I.M r+. Mp y w•Mp. � . r to w Ir . r RtiV 4M i R w MW 1 rr• Y Y YM i .RVN M V,/ 1w1t HM groQS trepum fQa "411 fa+�l ul-rlw FRANKFORD FARMS S753.07' OF L 11 FILED AND RECORDED OFFICIAL. PWLIC WORN Kelly pinion Countyy Clerk Lubbock County TEXFIS pEE23/70�6 10;62 AM 201�i 17917 Page 3of3 (Abbe — R317247) CITY OF LUBBOCK OFFICE PICK UP 2016017918 9 PCS AGREE ■III 11% *01M I& M M AM 11111 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 REAL PROPERTY RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER CITY OF LUBBOCK CH. 212 DEVELOPMENT AGREEMENT IN LIEU OF ANNEXATION THIS DEVELOPMENT AGREEME T IN LIEU OF ANNEXATION (the "Agreement") is made and effective this day of , 2016, and is entered into pursuant to §212.172 of the Texas Local Government Code, by Ab between the City of Lubbock, Texas, a Texas home rule municipal corporation (the "City"), and the undersigned property owner(s) (the "Owner"), with the term "Owner" including all owners of the Property, and is as follows: RECITALS WHEREAS, the Owner owns a parcel of real property (the "Property") in Lubbock County, Texas, which is more particularly and separately described in the attached Exhibit A; and WHEREAS, the City has instituted annexation proceedings for all portions of the Property and held public hearings regarding the proposed annexation on March 8 and March 10, 2016; and WHEREAS, at the public hearings, the Owner was presented with a service plan for the Property and the Owner was given the opportunity to be heard by the City Council of the City of Lubbock; and WHEREAS, the Owner does not want the Property to be annexed and desires to have the Property remain in the City's extraterritorial jurisdiction, in consideration for which the Owner agrees to enter into this Agreement; and WHEREAS, it is the City's intention to allow the Owner to continue to use the Property as it is being used at the time of this Agreement; and WHEREAS, the Owner and the City acknowledge that this Agreement is binding upon the City and the Owner and their respective successors and assigns for the duration of this Agreement; and WHEREAS, this Agreement is to be recorded in the real property records of Lubbock County, Texas; NOW, THEREFORE, in consideration of the mutual promises contained in this Agreement, the Owner and the City agree as follows: AGREEMENT Section I — The Property: Current Status. The City acknowledges that the Property, more particularly described in the attached "Exhibit A," is located within the extraterritorial jurisdiction of the City and is subject to annexation by the City unless this Agreement is signed by the Owner. Section 2 — The Property: Continued Status. In lieu of annexation, the Owner desires that the Property remain in the extraterritorial jurisdiction of the City for the duration of this Agreement. The Ch. 212 Development Agreement to Ueu Of Annexation -1 I P a g e Owner acknowledges that unless the Property is annexed by the City, the Property is not eligible to receive City services, the Property shal l not be included in the City's voting precincts, and the Property shall be immune from City property taxes for the duration of this Agreement. The Owner's use of the Property at the time of this Agreement is "grand fathered" into the acceptable uses of the City, and the City is prohibited from interfering with any uses on the Property that comply with §43.002 of the Texas Local Government Code. The Owner acknowledges that Section 22.03.091(a) of the Code of Ordinances of the City prohibits the City from providing water to any entity outside of the city limits, and acknowledges that the City will not be providing water to the Property unless the Property is annexed into the City. However, if the Property is annexed pursuant to a provision of this Agreement, then the City shall provide services to the Property pursuant to Chapter 43 of the Texas Local Government Code. Subject to the provisions of this Agreement, the City shall not annex the Property, shall not involuntarily institute proceedings to annex the Property, and shall not include the Property in a statutory annexation plan. The Owner authorizes the enforcement by the City of all of the City's regulations and planning authority that do not materially interfere with the use of the Property in the same manner that the City's regulations and planning authority are enforced within the City's boundaries. The City specifically reserves its authority pursuant to Chapter 251 of the Texas Local Government Code to exercise eminent domain over property that is subject to a §212.172 development agreement. The City further reserves its regulatory and planning authority in the City's ETJ, as such authority has been granted to it by the City Council. Section 3 — The Property: Change In Status. The Owner agrees not to substantially change the use of the Property as it is used on the date of the execution of this Agreement. The Owner agrees not to develop the Property by filing any type of subdivision plat or related development document for the Property with Lubbock County or the City throughout the duration of this Agreement. The Owner acknowledges that if any plat or related development document is filed for the Property, or if the Owner commences any development of the Property other than that which supports the use of the Property as the Property is used on the date of the execution of this Agreement, then this Agreement shall terminate, and in addition to the City's other remedies, such act will constitute a petition for voluntary annexation by the Owner, and the Property will be subject to annexation at the discretion of the City Council. The Owner agrees that such annexation shall be voluntary and the Owner hereby consents to such annexation as though a petition for such annexation had been tendered by the Owner. If annexation proceedings begin pursuant to this Section, then the Owner acknowledges that this Agreement serves as an exception to Local Government Code §43.052, requiring a municipality to use certain statutory procedures under an annexation plan, and as an exception to Local Government Code §43.062 requiring certain statutory procedures as to the Owner to effectuate an annexation. Further, the Owner hereby waives any and all vested rights and claims that it may have under §43.002(a)(2) and Chapter 245 of the Texas Local Government Code that would otherwise exist by virtue of any plat or construction the Owner may initiate during the time between the expiration of this Agreement and the institution of annexation proceedings by the City. Section 4 — The Term. The tern of this Agreement (the "Tenn") shall be twenty (20) years from the date that this Agreement is approved by the City Council of the City of Lubbock. At the end of the Term, the Owner, and all of the Owner's heirs, successors and assigns shall be deemed to have filed Ch. 222 Development Agreement In lieu Of Annexation - 2 1 P a g e a petition for voluntary annexation of the Property, and the Property will be subject to voluntary annexation in accordance with Section 3 of this Agreement. Prior to the end of the Term, the City may commence the voluntary annexation of the Property. Section 5 —Termination. This Agreement will automatically terminate at the end of the Term. This Agreement shall terminate upon the filing of any plat or related development document with the City or with Lubbock County or upon the Owner's failure to prove that it is the sole owner of the Property with the authority to sign this Agreement, The Owner and the City may agree in writing to terminate this Agreement prior to the expiration of the Term of this Agreement. Section 6 — City Council Approval Required. If the City Council of the City of Lubbock does not affirmatively vote to annex an area that contains the Property, then this Agreement will be null and void in its entirety. Section 7 — Notification. Any person who sells or conveys any portion of the Property shall, prior to such sale or conveyance, give written notice of this Agreement to the prospective purchaser or grantee, and shal l give written notice of the sale or conveyance to the City. Further, the Owner and the Owner's heirs, successors, and assigns shall give the City written notice within fourteen (14) days of any change in the status of the Property. A copy of any notice required by this section shall be forwarded to the City at the following address: City of Lubbock With copyto: City of Lubbock Attn: City Secretary Attn: Director of Planning P.O. Box 2000 P.O. Box 2000 Lubbock, Texas 79457 Lubbock, Texas 79457 This Agreement shall run with the Property and be recorded in the real property records of Lubbock County, Texas. Section 8 — Waiver. Any failure by the Owner or the City to insist upon strict performance by either party of any material provision of this Agreement shall not be deemed a waiver thereof, and the Owner or the City shall have the right at any time thereafter to insist upon strict performance of any and all provisions of this Agreement. No provision of this Agreement may be waived except by a written agreement signed by the Owner or the City waiving such provision. Any waiver shall be limited to the specific purposes for which it is given. No waiver by the Owner or the City of any provision of this Agreement shall be deemed or construed to be a waiver of any other provision or subsequent waiver of the same provision. The Parties expressly agree that no provision of this Agreement is in any way intended to constitute a waiver by any Party of any immunity from suit or liability that it may have by operation of law. The Parties agree that the City shall retain all of its governmental immunities. Section 9 — Assurance of Ownership. The Owner hereby expressly affirms that it is the sole owner of the Property and that no other person or entity has a valid claim to any right, title, or ownership in the Property. Should any dispute of right, title, or ownership concerning the Property arise subsequent to the Owner's execution of this Agreement, the Owner hereby agrees to be solely responsible for defending and confirming its absolute right, title, and ownership to the Property. If the Owner cannot Ch. 212 Development Agreement In Lieu Of Annexation - 3 1 P a g e defend or fails to defend its right, title, and ownership to the Property, then this Agreement shall terminate. Section 10 — Governing Law. This Agreement is entered into under and pursuant to, and is to be construed and enforceable in accordance with, the laws of the State of Texas, and all obligations of the Owner and the City are performable in Lubbock County, Texas. Venue for any action to enforce or construe this Agreement shall be Lubbock County, Texas. This Agreement is subject to all applicable federal, state, and local laws and any applicable ordinances, rules, orders and regulations of any local, state, or federal governmental authority, having or asserting jurisdiction. However, nothing contained in this Agreement shall be construed as a waiver by the Owner or the City of any right to question or contest any law, order, rule, or regulation which may affect the terms and conditions of this Agreement in any forum having jurisdiction, and the Owner and the City each agree to make a good faith effort to support all proposed laws and regulations which would be consistent with the performance of this Agreement in accordance with its terms. No subsequent change in the law regarding annexation shall affect the enforceability of this Agreement or the City's ability to annex the Property pursuant to this Agreement. Section 11— Remedy. The City reserves the right to exercise any right or remedy available to it by law, contract, equity, or otherwise, including without limitation, the right to seek any and all forms of relief in a court of competent jurisdiction. Further, the City shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this Agreement, the former shall control. Section 12 — Public Information, This Agreement is public information. To the extent, if any, that any provision of this Agreement is in conflict with the Texas Public Information Act (Tex. Gov't. Code Ann. Chapter 552 et seq., as amended), the same shall be of no force and effect. Section 13 — Third -Party Beneficiaries. This Agreement only inures to the benefit of, and may only be enforced by, the Owner and the City. No other person or entity shall have any right, title, or interest under this Agreement or otherwise be deemed to be a third -party beneficiary of this Agreement. Section 14 — No Personal Liability & No Joint Venture. Nothing in this Agreement is construed as creating any personal liability on the part of any employee, officer or agent of any public body that may be a party to this Agreement. This Agreement is not intended to, and shall not be construed to, create any joint enterprise between or among the parties. Section 15 — Due Diligence & Force Majeure. The Owner and the City shall use good faith, due diligence, and reasonable care in the performance of the obligations under this Agreement, and time shalt be of the essence in such performance. In the event that the Owner or the City is unable to perform its respective obligations under this Agreement, due to any event or circumstance that is not within the reasonable respective control of the Owner or the City that could not have been avoided by either the Owner or the City with the exercise of good faith, due diligence, and reasonable care (a "Force Majeure"), then the obligations affected by the Force Majeure shall be temporarily suspended. Within three (3) business days after the occurrence of a Force Majeure, the Owner or the City shall give notice to each other, including a detailed explanation of the Force Majeure and a description of the action that will be taken to remedy the Force Majeure and resume full performance at the earliest possible time. Ch. 212 Development Agreement In Lieu Of Annexation - 4 1 P a g e Section 16 — Enforcement. This Agreement may be enforced by the Owner or the City by any proceeding at law or in equity. Failure to do so shall not be deemed a waiver to enforce the Agreement thereafter. Section 17 — Governmental Powers. It is understood that by execution of this Agreement, the City does not waive or surrender any of its governmental powers, except as expressly set forth herein. Section 18 — 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. The Owner acknowledges that each and every owner of the Property must sign this Agreement in order for the Agreement to take full effect. Section 19 — Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be unenforceable for any reason, such unenforceable provision shall be deleted from this Agreement, and the remainder of this Agreement shall remain in full force and effect and shall be interpreted to give effect to the intent of the Owner and the City. Without limiting the generality of the foregoing, if it is determined that, as of the date that this Agreement becomes effective, that any Owner does not own any portion of the Property, then this Agreement shall remain in full force and effect with respect to the remaining portion of the Property that the Owners actually own. Section 20 — Entire Agreement. This Agreement constitutes the entire agreement between the Owner and the City and supersedes all prior agreements, whether oral or written, covering the subject matter of this Agreement. The Owner acknowledges that each and every Owner of the Property must sign this Agreement in order for the Agreement to take full effect. Section 21— Captions & Recitals. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. However, each of the recitals contained herein, by this reference, shall be incorporated into, and deemed a part of, this Agreement. Section 22 — Mollification of Agreement. This Agreement cannot be modified or amended except in writing signed by the Owner and the City and attached and made a part of this Agreement. Section 23 — Ch. 212 Agreement in lieu of Ch. 43 Agreement. If the Property is subject to an agricultural exemption, the Owner hereby acknowledges that the City, through the Off ice of the City Attorney, offered to make a development agreement with the Owner under §43.035 of the Texas Local Government Code. The Owner further acknowledges that the Owner rejected the offer to make a §43.035 Agreement in order to enter in to this §212,172 Agreement. IN WITNESS HEREOF, the parties mutually enter this Agreement on this 2,�*, day of , 2016. Ch. 212 Development Agreement In Lieu Of Annexation - 5 1 P a g e For the City GLEN C. BERT ON, MAYOR d n ;ATTES'd'' `� 4 uI O q L~ 1 o_ Re garza, ecreta 'i °yaan.sa�n�— APPROVED AS TO CONTENT: Andrew Paxton, Director of Planning APPROVED AS TO FORM: At 4,611 ]us n P id, As istant y Attorney For the Owner oe E. Smith, Owner Beverly J. S i , Owner Ch. 212 Development Agreement In Lieu Of Annexation - 6 1 P a g e NOTARIZATION State of Texas § County of Lubbock § This instrument was executed before me on 4Z 2016, by , "Ye NAME of the City of Lubbock, a Texas municipal corporation, on behalf of said „",p 1,+1111,,,�,eA. corporation. ,<<-s SoWDFR�''`'.. z?� ...... Y �;c ���'': Ir -� Na Public oF.� State of Texas § ���''�.0s 2�1201�' ,,•"�'' County of Lubbock § This instrument was executed before me on 2016, by +'+ an mE on behalf of said Owner. VENITA WADSWORTH I(S NAY ftk State ofTexas � = State of Texas § County of Lubbock § f , This instrument was executed before me on 2016, by;iZjZffjL- DA"M! , _ BLVERLV 1 on behalf of said her. VENITA WADSWORTH Le-- Nd�ry Pubk, Sfe� afteums H�i N 1053 O" N ublic 11�20�l1 When Recorded Return To: City Secretary City of Lubbock, Texas 1625 13" Street Lubbock, Texas 79401 Ch. 212 Development Agreement In Lieu Of Annexation - 7 1 P a g e EXHIBIT A — The Property METES AND BOUNDS DE.SSCRIPTiON of a 0.6686 acre tract of land located in Section 8, Block AK, Lubbock County, 'Texas, being further described as (allows: BEGINNING at a 1/2" iron rod with cap found at the Northwest comer of this tract which bears N. 89'27'01" E. a distance of 1657.99 feet and S. 00'3759" E. a distance of 690.00 feet from the Northwest comer of Section 8, Block AK, Lubbock County, Texas; THENCE N. 89'27'01" E. a distance of 95.00 feet to a w iron rod with cap set for the Northeast corner of this tract, from whence a found W iron rod with cap bears N. 89'27'0 t" E. a distance of 15.59 feet; THENCE S. OD'32'59" E. a distance of306.55 feet to a'/%" iron rod with cap set in the Northern boundary of that tract of land as described under County Clark File Number 2012021983 of the Official Public Records ofLubbock County, Texas, for the Southeast corner ofthis tract, from whence a found'/s" iron rod with cap bears N. 89'2TOI" E. a distance of 215.59 feet; THENCE S. 89'2701" W., along said Northern boundary, a distance of 95 00 feet to a'/," iron rod with cap found at the Southwest comer of this tract; THENCE N. 00 32'S9" W. a distance of 306 55 feet to the Point of Beginning. Contains. 29,I22 square feet HUFFINES BUSINESS PARK TR I R 7410 n :? TR I '� R323542 (Smith, Joe & Beverly - R323542) Page 1 of 1 FILED AND RECORDED OFFICIALPUBLIC RECORDS t �t Kelly Pinlan County Clark ublhack Cahn#y TEXAS 05/23/2016 10:62 AM FEE: $54.00 2016017918 CITY OF LUBBOCK OFFICE PICK UP 2616017919 9 PGS AGREE mill fr., INIKIFEIII ANk N NAR 11111 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 1S FILED FOR RECORD IN THE REAL PROPERTY RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER CITY OF LUBBOCK CH. 212 DEVELOPMENT AGREEMENT IN LIEU OF ANNEXATION THIS DEVELOPMENT AGREEME IN LIEU OF ANNEXATION (the "Agreement") is made and effective this —�-a' day of , 2016, and is entered into pursuant to §212.172 of the Texas Local Government Code, by between the City of Lubbock, Texas, a 'Texas home rule municipal corporation (the "City"), and the undersigned property owner(s) (the "Owner"), with the term "Owner" including all owners of the Property, and is as follows: RECITALS WHEREAS, the Owner owns a parcel of real property (the "Property") in Lubbock County, Texas, which is more particularly and separately described in the attached Exhibit A; and WHEREAS, the City has instituted annexation proceedings for all portions of the Property and held public hearings regarding the proposed annexation on March 8 and March 10, 2016; and WHEREAS, at the public hearings, the Owner was presented with a service plan for the Property and the Owner was given the opportunity to be heard by the City Council of the City of Lubbock; and WHEREAS, the Owner does not want the Property to be annexed and desires to have the Property remain in the City's extraterritorial jurisdiction, in consideration for which the Owner agrees to enter into this Agreement; and WHEREAS, it is the City's intention to allow the Owner to continue to use the Property as it is being used at the time of this Agreement; and WHEREAS, the Owner and the City acknowledge that this Agreement is binding upon the City and the Owner and their respective successors and assigns for the duration of this Agreement; and WHEREAS, this Agreement is to be recorded in the real property records of Lubbock County, Texas; NOW, THEREFORE, in consideration of the mutual promises contained in this Agreement, the Owner and the City agree as follows: AGREEMENT Section I — The Property: Current Status. The City acknowledges that the Property, more particularly described in the attached "Exhibit A," is located within the extraterritorial jurisdiction of the City and is subject to annexation by the City unless this Agreement is signed by the Owner. Section 2 — The Property: Continued Status. In lieu of annexation, the Owner desires that the Property remain in the extraterritorial jurisdiction of the City for the duration of this Agreement. The Ch. 212 Development Agreement In Lieu Of Annexation -1 1 P a g e Owner acknowledges that unless the Property is annexed by the City, the Property is not eligible to receive City services, the Property shall not be included in the City's voting precincts, and the Property shall be immune from City property taxes for the duration of this Agreement. The Owner's use of the Property at the time of this Agreement is `°grandfathered" into the acceptable uses of the City, and the City is prohibited from interfering with any uses on the Property that comply with §43.002 of the Texas Local Government Code. The Owner acknowledges that Section 22.03.091(a) of the Code of Ordinances of the City prohibits the City from providing water to any entity outside of the city limits, and acknowledges that the City will not be providing water to the Property unless the Property is annexed into the City. However, if the Property is annexed pursuant to a provision of this Agreement, then the City shall provide services to the Property pursuant to Chapter 43 of the Texas Local Government Code. Subject to the provisions of this Agreement, the City shall not annex the Property, shall not involuntarily institute proceedings to annex the Property, and shall not include the Property in a statutory annexation plan. The Owner authorizes the enforcement by the City of all of the City's regulations and planning authority that do not materially interfere with the use of the Property in the same manner that the City's regulations and planning authority are enforced within the City's boundaries. The City specifically reserves its authority pursuant to Chapter 251 of the Texas Local Government Code to exercise eminent domain over property that is subject to a §212.172 development agreement. The City further reserves its regulatory and planning authority in the City's ETJ, as such authority has been granted to it by the City Council. Section 3 — The Property: Change In Status. The Owner agrees not to substantially change the use of the Property as it is used on the date of the execution of this Agreement. The Owner agrees not to develop the Property by filing any type of subdivision plat or related development document for the Property with Lubbock County or the City throughout the duration of this Agreement. The Owner acknowledges that if any plat or related development document is filed for the Property, or if the Owner commences any development of the Property other than that which supports the use of the Property as the Property is used on the date of the execution of this Agreement, then this Agreement shall terminate, and in addition to the City's other remedies, such act will constitute a petition for voluntary annexation by the Owner, and the Property will be subject to annexation at the discretion of the City Council. The Owner agrees that such annexation shall be voluntary and the Owner hereby consents to such annexation as though a petition for such annexation had been tendered by the Owner. If annexation proceedings begin pursuant to this Section, then the Owner acknowledges that this Agreement serves as an exception to Local Government Code §43.052, requiring a municipality to use certain statutory procedures under an annexation plan, and as an exception to Local Government Code §43.062 requiring certain statutory procedures as to the Owner to effectuate an annexation. Further, the Owner hereby waives any and all vested rights and claims that it may have under §43.002(a)(2) and Chapter 245 of the Texas Local Government Code that would otherwise exist by virtue of any plat or construction the Owner may initiate during the time between the expiration of this Agreement and the institution of annexation proceedings by the City. Section 4 — The Term. The term of this Agreement (the "Term") shall be twenty (20) years from the date that this Agreement is approved by the City Council of the City of Lubbock. At the end of the Term, the Owner, and all of the Owner's heirs, successors and assigns shall be deemed to have filed Ch. 212 Development Agreement In Lieu Of Annexation - 2 1 P a g e a petition for voluntary annexation of the Property, and the Property will be subject to voluntary annexation in accordance with Section 3 of this Agreement. Prior to the end of the Term, the City may commence the voluntary annexation of the Property. Section 5 — Termination. This Agreement will automatically terminate at the end of the Term. This Agreement shall terminate upon the filing of any plat or related development document with the City or with Lubbock County or upon the Owner's failure to prove that it is the sole owner of the Property with the authority to sign this Agreement. The Owner and the City may agree in writing to terminate this Agreement prior to the expiration of the Term of this Agreement. Section 6 — City Council Approval Required. If the City Council of the City of Lubbock does not affinnatively vote to annex an area that contains the Property, then this Agreement will be null and void in its entirety. Section 7 — Notification. Any person who sells or conveys any portion of the Property shall, prior to such sale or conveyance, give written notice of this Agreement to the prospective purchaser or grantee, and shall give written notice of the sale or conveyance to the City. Further, the Owner and the Owner's heirs, successors, and assigns shall give the City written notice within fourteen { l4} days of any change in the status of the Property. A copy of any notice required by this section shall be forwarded to the City at the following address: City of Lubbock With copy to: City of Lubbock Attn: City Secretary Attn: Director of Planning P.O. Box 2000 P.O. Box 2000 Lubbock, Texas 79457 Lubbock, Texas 79457 This Agreement shall run with the Property and be recorded in the real property records of Lubbock County, Texas. Section 8 — Waiver. Any failure by the Owner or the City to insist upon strict performance by either party of any material provision of this Agreement shall not be deemed a waiver thereof, and the Owner or the City shall have the right at any time thereafter to insist upon strict performance of any and all provisions of this Agreement. No provision of this Agreement may be waived except by a written agreement signed by the Owner or the City waiving such provision. Any waiver shall be limited to the specific purposes for which it is given. No waiver by the Owner or the City of any provision of this Agreement shall be deemed or construed to be a waiver of any other provision or subsequent waiver of the same provision. The Parties expressly agree that no provision of this Agreement is in any way intended to constitute a waiver by any Party of any immunity from suit or liability that it may have by operation of law. The Parties agree that the City shall retain all of its governmental immunities. Section 9 — Assurance of Ownership. The Owner hereby expressly affirms that it is the sole owner of the Property and that no other person or entity has a valid claim to any right, title, or ownership in the Property. Should any dispute of right, title, or ownership concerning the Property arise subsequent to the Owner's execution of this Agreement, the Owner hereby agrees to be solely responsible for defending and confirming its absolute right, title, and ownership to the Property. If the Owner cannot Ch. 212 Development Agreement In Lieu Of Annexation - 3 1 P a g e defend or fails to defend its right, title, and ownership to the Property, then this Agreement shall terminate. Section 10 — Governing Law. This Agreement is entered into under and pursuant to, and is to be construed and enforceable in accordance with, the laws of the State of Texas, and all obligations of the Owner and the City are performable in Lubbock County, Texas. Venue for any action to enforce or construe this Agreement shall be Lubbock County, Texas. This Agreement is subject to all applicable federal, state, and local laws and any applicable ordinances, rules, orders and regulations of any local, state, or federal governmental authority, having or asserting jurisdiction. However, nothing contained in this Agreement shall be construed as a waiver by the Owner or the City of any right to question or contest any law, order, rule, or regulation which may affect the terms and conditions of this Agreement in any forum having jurisdiction, and the Owner and the City each agree to make a good faith effort to support all proposed laws and regulations which would be consistent with the performance of this Agreement in accordance with its terms. No subsequent change in the law regarding annexation shall affect the enforceability of this Agreement or the City's ability to annex the Property pursuant to this Agreement. Section 11 — Remedy. The City reserves the right to exercise any right or remedy available to it by law, contract, equity, or otherwise, including without limitation, the right to seek any and all forms of relief in a court of competent jurisdiction. Further, the City shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this Agreement, the former shall control. Section 12 — Public Information. This Agreement is public information. To the extent, if any, that any provision of this Agreement is in conflict with the Texas Public Information Act (Tex. Gov't. Code Ann. Chapter 552 et seq., as amended), the same shall be of no force and effect. Section 13 — Third -Party Beneficiaries. This Agreement only inures to the benefit of, and may only be enforced by, the Owner and the City. No other person or entity shall have any right, title, or interest under this Agreement or otherwise be deemed to be a third -party beneficiary of this Agreement. Section 14 — No Personal Liability & No Joint Venture. Nothing in this Agreement is construed as creating any personal liability on the part of any employee, officer or agent of any public body that may be a party to this Agreement. This Agreement is not intended to, and shall not be construed to, create any joint enterprise between or among the parties. Section 15 — Due Diligence & Force Majeure. The Owner and the City shall use good faith, due diligence, and reasonable care in the performance of the obligations under this Agreement, and time shall be of the essence in such performance. In the event that the Owner or the City is unable to perform its respective obligations under this Agreement, due to any event or circumstance that is not within the reasonable respective control of the Owner or the City that could not have been avoided by either the Owner or the City with the exercise of good faith, due diligence, and reasonable care (a "Force Majeure"), then the obligations affected by the Force Majeure shall be temporarily suspended. Within three (3) business days after the occurrence of a Force Majeure, the Owner or the City shall give notice to each other, including a detailed explanation of the Force Majeure and a description of the action that will be taken to remedy the Force Majeure and resume full performance at the earliest possible time. Ch. Z1Z Development Agreement In Lieu Of Annexation - 4 1 P a g e Section 16 — Enforcement. This Agreement may be enforced by the Owner or the City by any proceeding at law or in equity. Failure to do so shall not be deemed a waiver to enforce the Agreement thereafter. Section 17 — Governmental Powers. It is understood that by execution of this Agreement, the City does not waive or surrender any of its governmental powers, except as expressly set forth herein. Section 18 — 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. The Owner acknowledges that each and every owner of the Property must sign this Agreement in order for the Agreement to take full effect. Section 19 — Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be unenforceable for any reason, such unenforceable provision shall be deleted from this Agreement, and the remainder of this Agreement shall remain in full force and effect and shall be interpreted to give effect to the intent of the Owner and the City. Without limiting the generality of the foregoing, if it is determined that, as of the date that this Agreement becomes effective, that any Owner does not own any portion of the Property, then this Agreement shall remain in full force and effect with respect to the remaining portion of the Property that the Owners actually own. Section 20 — Entire Agreement. This Agreement constitutes the entire agreement between the Owner and the City and supersedes all prior agreements, whether oral or written, covering the subject matter of this Agreement. The Owner acknowledges that each and every Owner of the Property must sign this Agreement in order for the Agreement to take full effect. Section 21 — Captions & Recitals. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. However, each of the recitals contained herein, by this reference, shall be incorporated into, and deemed a part of, this Agreement. Section 22 — Modification of Agreement. This Agreement cannot be modified or amended except in writing signed by the Owner and the City and attached and made a part of this Agreement. Section 23 — Ch. 212 Agreement in lieu of Ch. 43 Agreement. If the Property is subject to an agricultural exemption, the Owner hereby acknowledges that the City, through the Office of the City Attorney, offered to make a development agreement with the Owner under §43.035 of the Texas Local Government Code. The Owner further acknowledges that the Owner rejected the offer to make a §43.035 Agreement in order to enter in to this §212.172 Agreement. IN WITNESS HEREOF, the pa ties tually enter this Agreement on thisAt-day of , 2016. Ch. 212 Development Agreement In Lieu Of Annexation - 5 1 R a g e For the City GLE . ROB'rRTSON, MAYOR �94AObaoppe� iA�• A'EST rf A n i 1?r na i:h a''CA-Li��or.e APPRO'S TO CONTENT: Andrew Paxton, Director of PIanning APPROVED AS TO FORM: Just` itt Ass taut Ci y Attorney For the Owner Cam+ I 9L4-- Jam Rhodes, Owner Ch. 212 Development Agreement In Lieu Of Annexation - 6 11 NOTARIZATION State of Texas § County of Lubbock § This instrument was executed before me on 2016, by C of the City of Lubbock, a Texas municipal corporation, on behalf of said _----- corporation. 07'I'MmIRUJIl 'It `1;!', 3M State of Texas § County of Lubbock § This instrument was executed before me on 2016, by , i�AT- K� arx ow..w on behalf of said Owner. When Recorded Return To: City Secretary City of Lubbock, Texas 1625 13'h Street Lubbock, Texas 79401 Y VENITA WADSWORTH DI loom Coranisslon F. ies ffi*M Ch. 212 Development Agreement In Lieu Of Annexation - 7 1 P a g e EXHIBIT A — The Property Only that portion of the property included in the official survey attached to the City of Lubbock Ordinance No. 2016- 00054. PROPERTY: All that certain 15.00 acres, more or leas in the N.£./4 of Section 2, Block A-K, more fully described in the warranty Deed to the Veterans Land Board dated September 2, 1987, recorded in Volume 2622, Page 229 of the Official Real Property Records of Lubbock County, Texasi and further described in that contract of sale and Purchase dated September 2, 2987, recorded in Volume 2622, Page 221 of the Official Real Property Records of Lubbock County, Texas PMD NOTM for a 15-00 acre tract of lr3ad out of the of Sectic a N, Block AA, Lubbock County. Te=s, described by metes and bounds as follawas Bffi3i2ia at a *" iron rod set in the South aide of an Fast -West graded road for the Northeast corner of this tract, from whence a railroad spike Votimd at the northeast corner of Section 2. Block fix. labbock County, Teas, bears 116955155P'Tr a distance of 2152.53 feat and North a distance of 25.00 foot; DIME South parallel to the Eset Line of said Section 2 a distance of 134D-40 feet to a 3/41, sucker rod not for the Southeast coiner of this tract; 23Mn SW55' 55"w parallel to the North Line of said Section 2 a dis- tance of W.47feet to a 519" iron rod set in the west Lim of the N.Z./4 of said Section 2 for the Southwest coiner of this tract, from whence a 3/811 iron rod bears Soutb a distance of 1.37 feet and Mut a distance of 6.19 feet; 7 ri AGE North clops the West Line of the 11.244 of said Section 2 a die- tance of 1310.11D feet to a P iron rod set is the Swath aids of an Ent - West graded road for the Northwest corner of this tract, from vheace the Northwest corner of the N,E.%4 of said Section 2 bears forth a dtst was of 25.00 feat cad a 3/8" itoa rod bears South a distaste or 4.51 feet cad Bast a distance of 0.79 foist; 5EE1 B N894551WE along the south We of said road, 25.00 feet fro® ■nd pirillel to the Borth Lino of said Section 2 a distance of 40.47 fast to the place of beginning. (Rhodes — R75041 & R161765) Page 1 of 2 BEK AK SEC 2 AB 1002 TR B1 OF NE/4 ACS: 13.166 AND BLK AK SEC 2 AS 1002 TR B1A OF NE/4 AC:1.834 7RO-SAOF tiGM R161765 15TR B 1 OF NE/11 an 15 AC R 75041 45 FILED AND RECORDED OFFICIAL PUBLIC RECORDS Xe11y pinion Countyy Clork Lubbock County TEXRS 05/23/2016 10:62 M FEE 58.00 2OW17919 (Rhodes - R75041 & R1$17$5) Page 2 of 2 CITY OF LUBBOCK OFFICE PICK UP 201501"20 10 PGS ANEE 1111 K KPIVINARAWMA 11111 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 REAL PROPERTY RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER CITY OF LUBBOCK CH. 212 DEVELOPMENT AGREEMENT IN LIEU OF ANNEXATION THIS DEVELOPMENT AGREEMEIJT IN LIEU OF ANNEXATION (the "Agreement") is made and effective this day o , 2016, and is entered into pursuant to §212.172 of the Texas Local Government Code, by an between the City of Lubbock, Texas, a Texas home rule municipal corporation (the "City"), and the undersigned property owner(s) (the "Owner"), with the term "Owner" including all owners of the Property, and is as follows: RECITALS WHEREAS, the Owner owns a parcel of real property (the "Property") in Lubbock County, Texas, which is more particularly and separately described in the attached Exhibit A; and WHEREAS, the City has instituted annexation proceedings for all portions of the Property and held public hearings regarding the proposed annexation on March 8 and March 10, 2016; and WHEREAS, at the public hearings, the Owner was presented with a service plan for the Property and the Owner was given the opportunity to be heard by the City Council of the City of Lubbock; and WHEREAS, the Owner does not want the Property to be annexed and desires to have the Property remain in the City's extraterritorial jurisdiction, in consideration for which the Owner agrees to enter into this Agreement; and WHEREAS, it is the City's intention to allow the Owner to continue to use the Property as it is being used at the time of this Agreement; and WHEREAS, the Owner and the City acknowledge that this Agreement is binding upon the City and the Owner and their respective successors and assigns for the duration of this Agreement; and WHEREAS, this Agreement is to be recorded in the real property records of Lubbock County, Texas; NOW, THEREFORE, in consideration of the mutual promises contained in this Agreement, the Owner and the City agree as follows: AGREEMENT Section 1 — The Property: Current Status. The City acknowledges that the Property, more particularly described in the attached "Exhibit A," is located within the extraterritorial jurisdiction of the City and is subject to annexation by the City unless this Agreement is signed by the Owner. Section 2 — The Property: Continued Status. In lieu of annexation, the Owner desires that the Property remain in the extraterritorial jurisdiction of the City for the duration of this Agreement. The Ch. 212 Development Agreement In lieu Of Annexation -1 1 P a g e Owner acknowledges that unless the Property is annexed by the City, the Property is not eligible to receive City services, the Property shall not be included in the City's voting precincts, and the Property shall be immune from City property taxes for the duration of this Agreement. The Owner's use of the Property at the time of this Agreement is "grandfathered" into the acceptable uses of the City, and the City is prohibited from interfering with any uses on the Property that comply with §43.002 of the Texas Local Government Code. The Owner acknowledges that Section 22.03.091(a) of the Code of Ordinances of the City prohibits the City from providing water to any entity outside of the city limits, and acknowledges that the City will not be providing water to the Property unless the Property is annexed into the City. However, if the Property is annexed pursuant to a provision of this Agreement, then the City shall provide services to the Property pursuant to Chapter 43 of the Texas Local Government Code. Subject to the provisions of this Agreement, the City shall not annex the Property, shall not involuntarily institute proceedings to annex the Property, and shall not include the Property in a statutory annexation plan. The Owner authorizes the enforcement by the City of all of the City's regulations and planning authority that do not materially interfere with the use of the Property in the same manner that the City's regulations and planning authority are enforced within the City's boundaries. The City specifically reserves its authority pursuant to Chapter 251 of the Texas Local Government Code to exercise eminent domain over property that is subject to a §212.172 development agreement. The City further reserves its regulatory and planning authority in the City's ET], as such authority has been granted to it by the City Council. Section 3 — The Property: Change In Status. The Owner agrees not to substantially change the use of the Property as it is used on the date of the execution of this Agreement. The Owner agrees not to develop the Property by filing any type of subdivision plat or related development document for the Property with Lubbock County or the City throughout the duration of this Agreement. The Owner acknowledges that if any plat or related development document is filed for the Property, or if the Owner commences any development of the Property other than that which supports the use of the Property as the Property is used on the date of the execution of this Agreement, then this Agreement shall terminate, and in addition to the City's other remedies, such act will constitute a petition for voluntary annexation by the Owner, and the Property will be subject to annexation at the discretion of the City Council. The Owner agrees that such annexation shall be voluntary and the Owner hereby consents to such annexation as though a petition for such annexation had been tendered by the Owner. If annexation proceedings begin pursuant to this Section, then the Owner acknowledges that this Agreement serves as an exception to Local Government Code §43.052, requiring a municipality to use certain statutory procedures under an annexation plan, and as an exception to Local Government Code §43.062 requiring certain statutory procedures as to the Owner to effectuate an annexation. Further, the Owner hereby waives any and all vested rights and claims that it may have under §43.002(a)(2) and Chapter 245 of the Texas Local Government Code that would otherwise exist by virtue of any plat or construction the Owner may initiate during the time between the expiration of this Agreement and the institution of annexation proceedings by the City. Section 4 — The Term. The term of this Agreement (the "Term") shall be twenty (20) years from the date that this Agreement is approved by the City Council of the City of Lubbock. At the end of the Term, the Owner, and all of the Owner's heirs, successors and assigns shall be deemed to have filed Ch. 212 Development Agreement In Lieu Of Annexation - 2 I P a n e a petition for voluntary annexation of the Property, and the Property will be subject to voluntary annexation in accordance with Section 3 of this Agreement. Prior to the end of the Term, the City may commence the voluntary annexation of the Property. Section 5 — Termination. This Agreement will automatically terminate at the end of the Term. This Agreement shall terminate upon the filing of any plat or related development document with the City or with Lubbock County or upon the Owner's failure to prove that it is the sole owner of the Property with the authority to sign this Agreement. The Owner and the City may agree in writing to terminate this Agreement prior to the expiration of the Tenn of this Agreement. Section 6 — City Council Approval Required. If the City Council of the City of Lubbock does not affirmatively vote to annex an area that contains the Property, then this Agreement will be null and void in its entirety. Section 7 — Notification. Any person who sells or conveys any portion of the Property shall, prior to such sale or conveyance, give written notice of this Agreement to the prospective purchaser or grantee, and shall give written notice of the sale or conveyance to the City. Further, the Owner and the Owner's heirs, successors, and assigns shall give the City written notice within fourteen (14) days of any change in the status of the Property. A copy of any notice required by this section shall be forwarded to the City at the following address: City of Lubbock With: City of Lubbock Attn: City Secretary Attu: Director of Planning P.O. Box 2000 P.O. Box 2000 Lubbock, Texas 79457 Lubbock, Texas 79457 This Agreement shall run with the Property and be recorded in the real property records of Lubbock County, Texas. Section 8 — Waiver. Any failure by the Owner or the City to insist upon strict performance by either party of any material provision of this Agreement shall not be deemed a waiver thereof, and the Owner or the City shall have the right at any time thereafter to insist upon strict performance of any and all provisions of this Agreement. No provision of this Agreement may be waived except by a written agreement signed by the Owner or the City waiving such provision. Any waiver shall be limited to the specific purposes for which it is given. No waiver by the Owner or the City of any provision of this Agreement shall be deemed or construed to be a waiver of any other provision or subsequent waiver of the same provision. The Parties expressly agree that no provision of this Agreement is in any way intended to constitute a waiver by any Party of any immunity from suit or liability that it may have by operation of law. The Parties agree that the City shall retain all of its governmental immunities. Section 9 — Assurance of Ownership. The Owner hereby expressly affirms that it is the sole owner of the Property and that no other person or entity has a valid claim to any right, title, or ownership in the Property. Should any dispute of right, title, or ownership concerning the Property arise subsequent to the Owner's execution of this Agreement, the Owner hereby agrees to be solely responsible for defending and confirming its absolute right, title, and ownership to the Property. If the Owner cannot Ch. 212 Development Agreement In Lieu Of Annexation - 3 1 � a defend or fails to defend its right, title, and ownership to the Property, then this Agreement shall terminate. Section 10 — Governing Law. This Agreement is entered into under and pursuant to, and is to be construed and enforceable in accordance with, the laws of the State of Texas, and all obligations of the Owner and the City are performable in Lubbock County, Texas. Venue for any action to enforce or construe this Agreement shall be Lubbock County, Texas. This Agreement is subject to all applicable federal, state, and local laws and any applicable ordinances, rules, orders and regulations of any local, state, or federal governmental authority, having or asserting jurisdiction. However, nothing contained in this Agreement shall be construed as a waiver by the Owner or the City of any right to question or contest any law, order, rule, or regulation which may affect the terms and conditions of this Agreement in any foam having jurisdiction, and the Owner and the City each agree to make a good faith effort to support all proposed laws and regulations which would be consistent with the performance of this Agreement in accordance with its terms. No subsequent change in the law regarding annexation shall affect the enforceability of this Agreement or the City's ability to annex the Property pursuant to this Agreement. Section 11— Remedy. The City reserves the right to exercise any right or remedy available to it by law, contract, equity, or otherwise, including without limitation, the right to seek any and all forms of relief in a court of competent jurisdiction. Further, the City shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this Agreement, the former shall control. Section 12 — Public Information. This Agreement is public information. To the extent, if any, that any provision of this Agreement is in conflict with the Texas Public Information Act (Tex. Gov't. Code Ann. Chapter 552 et seq., as amended), the same shall be of no force and effect. Section 13 — Third -Party Beneficiaries. This Agreement only inures to the benefit of, and may only be enforced by, the Owner and the City. No other person or entity shall have any right, title, or interest under this Agreement or otherwise be deemed to be a third -party beneficiary of this Agreement. Section 14 — No Personal Liability & No Joint Venture. Nothing in this Agreement is construed as creating any personal liability on the part of any employee, officer or agent of any public body that may be a party to this Agreement. This Agreement is not intended to, and shall not be construed to, create any joint enterprise between or among the parties. Section 15 — Due Diligence & Force Majeure. The Owner and the City shall use good faith, due diligence, and reasonable care in the performance of the obligations under this Agreement, and time shall be of the essence in such performance. In the event that the Owner or the City is unable to perform its respective obligations under this Agreement, due to any event or circumstance that is not within the reasonable respective control of the Owner or the City that could not have been avoided by either the Owner or the City with the exercise of good faith, due diligence, and reasonable care (a "Force Majeure"), then the obligations affected by the Force Majeure shall be temporarily suspended. Within three (3) business days after the occurrence of a Force Majeure, the Owner or the City shall give notice to each other, including a detailed explanation of the Force Majeure and a description of the action that will be taken to remedy the Force Majeure and resume full performance at the earliest possible time. Ch. 212 Development Agreement In Lieu Of Annexation - 4 1 Section 16 — Enforcement. This Agreement may be enforced by the Owner or the City by any proceeding at law or in equity. Failure to do so shall not be deemed a waiver to enforce the Agreement thereafter. Section 17 — Governmental Powers. It is understood that by execution of this Agreement, the City sloes not waive or surrender any of its governmental powers, except as expressly set forth herein. Section 18 — 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. The Owner acknowledges that each and every owner of the Property must sign this Agreement in order for the Agreement to take full effect. Section 19 — Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be unenforceable for any reason, such unenforceable provision shall be deleted from this Agreement, and the remainder of this Agreement shall remain in full force and effect and shall be interpreted to give effect to the intent of the Owner and the City. Without limiting the generality of the foregoing, if it is determined that, as of the date that this Agreement becomes effective, that any Owner does not own any portion of the Property, then this Agreement shall remain in full force and effect with respect to the remaining portion of the Property that the Owners actually own. Section 20 — Entire Agreement. This Agreement constitutes the entire agreement between the Owner and the City and supersedes all prior agreements, whether oral or written, covering the subject matter of this Agreement. The Owner acknowledges that each and every Owner of the Property must sign this Agreement in order for the Agreement to take full effect. Section 21— Captions & Recitals. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. However, each of the recitals contained herein, by this reference, shall be incorporated into, and deemed a part of, this Agreement. Section 22 — Modification of Agreement. This Agreement cannot be modified or amended except in writing signed by the Owner and the City and attached and made a part of this Agreement. Section 23 — Ch. 212 Agreement in lieu of Ch. 43 Agreement. If the Property is subject to an agricultural exemption, the Owner hereby acknowledges that the City, through the Office of the City Attorney, offered to make a development agreement with the Owner under §43.035 of the Texas Local Government Code. The Owner further acknowledges that the Owner rejected the offer to make a §43.035 Agreement in order to enter in to this §212.172 Agreement. IN WITNESS HEREOF, the pa ties, utually enter this Agreement on this day of 2016. Ch. 212 Development Agreement to Lieu Of Annexation - 5 1 3 .� ., For the CiLf GLEN C. MOBERfSON, MAYOR APPROVES A� CONTENT: r Andrew Paxton, Director of Planning APPROVET) AS TO FORM: For the Owner Irish Acres, Inc., Owner Thomas J. Killian, President Ch. 222 Development Agreement In lieu Of Annexation - 6 11 a g e NOTARIZATION State of Texas § County of Lubbock § Q This instrument was executed before me on D 2016, by , nnre r.wa of the City of Lubbock, a Texas municipal corporation, on behalf of said rl Corporation. ,�t4�� ,tD EA Cz �'0,+I ` �+ a� .OP '_ O No Public : * ' z L, State of Texas § County of Lubbock § This instrument was executed before me on T % 2016, by .�xrntceEra failoettm on behalf of said Owner. When Recorded Return To: City Secretary City of Lubbock, Texas 1625 131h Street Lubbock, Texas 79401 Ch. 212 Development Agreement In Lieu Of Annexation - 7 1 � a � e EXHIBIT A — The Property A thirty (30) acre tract of land out of the North one-half (N/2) of the East one-half (E/2) of Section 90 Block AK, Abstract 161, E.L.R.R. Ry. Co. Survey, Lubbock County, Texas, described by mates and bounds as follower BEGINNING at a found 3/4" pipe in the West line of the East one-half (E/2) of Section 9, Block AK, 660 ft. South of its Northwest corner, for the Northwest and beginning corner of this tract. Said point is the SW corner of the Killian ten (10) acre tract; THENCE East 1340 feet parallel to the North line of Section 9, set 1/2" rod for the Northeast corner, whence a rod and pipe bears West 20 feet; THENCE South 975.23 ft. parallel to the East line of Section 9, set 1/2" rod in field for the Southeast corner of this tract; THENCE West 1340 feet parallel to the North line of this tract, set 1/211 rod in the West line of the East one-half (E/2) of Section 9, for the Southwest corner of this tract; THENCE North 975.23 feet with the West line of the East one-half (E/2) of Section 9 and along East side of turnrow, to the place of beginning, and containing thirty•(30) acres of land. BLK AK SEC 9 AB 161 TR 13 ACS: 30 (Irish Acres -Killian - R120S84) Page 1 of 1 EXHIBIT A —The Property Of �{ 1, '" is 4. '" [This being a ten acre tract out of Sec. 9, Blk AK, Beginning for a starting point at a point approx. 2640 feet West of the NE corner of said Sec. 9, Blk AK, and center of paved road #1585, [gatings] and NW Corner of Dr. Glen Payne's 520 Acres, Going 660 feet, South, Thence East 660 feet; Thence North 660 Feet; Thence West 660 feet to point of beginning.] Save and except the followine 1.033 acre tract: A 1.033 acre tract of land out of the Bast 1/2 of Section 9t Block AK, Certificate 941, Abstract No. 161t E. L. B R. R.RY. Co., Survey, Lubbock County, Texas; and further described by metes and bounds as follows: BEGINNING at a point in the North line of Section 99 Block AK, and in East-West paved road, a distance of 2235 feet West of a railroad spike that marks the Northeast corner of Section 9, B1ock'AK, for the North-- east and beginning corner of this tract. WHENCE A 3/4" iron pipe bears South 40 feet; THENCE West 150 feet with the North line of Section 9, and along paved road set 1/2" iron pipe for the Northwest corner of this tract. Whence a bolt that marks the Northwest corner of the East 1/2 of Section 9, bears West 255 feet and a 3/4" iron pipe bears south 40 feet. THENCE South 300 feet parallel to the East line of Section 99 set 3/4" iron pipe in field for the Southwest corner of this tract; THENCE East 150 feet parallel to the North line of Section 9, set 3/49 4 iron pipe for the Southeast corner of this tract; THENCE North 300 feet parallel to the East line of Section 9, to the Place of Beginning and containing 1.033 acresof land. Ilrish Acres -Killian R121496j Page 1 of 2 BLK AK SEC 9 AB 161 TR 7 ACS: 8.498 FILED AND RECORDED OFFICIAL PUBLIC RECORDS A i !tally Pinlon Co �tY_Clark Lubbock Ccun y 1� 00/23/2016 10:62 E FEE: 62.00 20161517920 Page 2 of 2 tirish Atres-Killian - R121496j CITY OF LUBBOCK OFFICE PICK UP 2016017921 8 PGS AGREE 1111 K MPAPINWI NI A" M 11111 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 REAL PROPERTY RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER CITY OF LUBBOCK CH. 212 DEVELOPMENT AGREEMENT IN LIEU OF ANNEXATION THIS DEVELOPMENT AGREEME T IN LIEU OF ANNEXATION (the "Agreement") is made and effective thisA day of , 2016, and is entered into pursuant to §212.172 of the Texas Local Government Code, by and between the City of Lubbock, Texas, a Texas home rule municipal corporation (the "City"), and the undersigned property owner(s) (the "Owner"), with the term "Owner" including all owners of the Property, and is as follows: RECITALS WHEREAS, the Owner owns a parcel of real property (the "Property") in Lubbock County, Texas, which is more particularly and separately described in the attached Exhibit A; and WHEREAS, the City has instituted annexation proceedings for all portions of the Property and held public hearings regarding the proposed annexation on March 8 and March 10, 2016; and WHEREAS, at the public hearings, the Owner was presented with a service plan for the Property and the Owner was given the opportunity to be heard by the City Council of the City of Lubbock; and WHEREAS, the Owner does not want the Property to be annexed and desires to have the Property remain in the City's extraterritorial jurisdiction, in consideration for which the Owner agrees to enter into this Agreement; and WHEREAS, it is the City's intention to allow the Owner to continue to use the Property as it is being used at the time of this Agreement; and WHEREAS, the Owner and the City acknowledge that this Agreement is binding upon the City and the Owner and their respective successors and assigns for the duration of this Agreement; and WHEREAS, this Agreement is to be recorded in the real property records of Lubbock County, Texas; NOW, THEREFORE, in consideration of the mutual promises contained in this Agreement, the Owner and the City agree as follows: AGREEMENT Section 1 — The Property: Current Status. The City acknowledges that the Property, more particularly described in the attached "Exhibit A," is located within the extraterritorial jurisdiction of the City and is subject to annexation by the City unless this Agreement is signed by the Owner. Section 2 — The Property: Continued Status. In lieu of annexation, the Owner desires that the Property remain in the extraterritorial jurisdiction of the City for the duration of this Agreement. The Ch. 212 Development Agreement to Lieu Of Annexation -1 1 Pi K Owner acknowledges that unless the Property is annexed by the City, the Property is not eligible to receive City services, the Property shall not be included in the City's voting precincts, and the Property shall be immune from City property taxes for the duration of this Agreement. The Owner's use of the Property at the time of this Agreement is "grandfathered" into the acceptable uses of the City, and the City is prohibited from interfering with any uses on the Property that comply with §43.002 of the Texas Local Government Code. The Owner acknowledges that Section 22.03.091(a) of the Code of Ordinances of the City prohibits the City from providing water to any entity outside of the city limits, and acknowledges that the City will not be providing water to the Property unless the Property is annexed into the City. However, if the Property is annexed pursuant to a provision of this Agreement, then the City shall provide services to the Property pursuant to Chapter 43 of the Texas Local Government Code. Subject to the provisions of this Agreement, the City shall not annex the Property, shall not involuntarily institute proceedings to annex the Property, and shall not include the Property in a statutory annexation plan. The Owner authorizes the enforcement by the City of all of the City's regulations and planning authority that do not materially interfere with the use of the Property in the same manner that the City's regulations and planning authority are enforced within the City's boundaries. The City specifically reserves its authority pursuant to Chapter 25I of the Texas Local Government Code to exercise eminent domain over property that is subject to a §2I2.172 development agreement. The City further reserves its regulatory and planning authority in the City's ETI, as such authority has been granted to it by the City Council. Section 3 — The Property: Change In Status. The Owner agrees not to substantially change the use of the Property as it is used on the date of the execution of this Agreement. The Owner agrees not to develop the Property by filing any type of subdivision plat or related development document for the Property with Lubbock County or the City throughout the duration of this Agreement. The Owner acknowledges that if any plat or related development document is filed for the Property, or if the Owner commences any development of the Property other than that which supports the use of the Property as the Property is used on the date of the execution of this Agreement, then this Agreement shall terminate, and in addition to the City's other remedies, such act will constitute a petition for voluntary annexation by the Owner, and the Property will be subject to annexation at the discretion of the City Council. The Owner agrees that such annexation shall be voluntary and the Owner hereby consents to such annexation as though a petition for such annexation had been tendered by the Owner. If annexation proceedings begin pursuant to this Section, then the Owner acknowledges that this Agreement serves as an exception to Local Government Code §43.052, requiring a municipality to use certain statutory procedures under an annexation plan, and as an exception to Local Government Code §43.062 requiring certain statutory procedures as to the Owner to effectuate an annexation. Further, the Owner hereby waives any and all vested rights and claims that it may have under §43.002(a)(2) and Chapter 245 of the Texas Local Govenement Code that would otherwise exist by virtue of any plat or construction the Owner may initiate during the time between the expiration of this Agreement and the institution of annexation proceedings by the City. Section 4 -- The Term. The term of this Agreement (the "Term") shall be twenty (20) years from the date that this Agreement is approved by the City Council of the City of Lubbock. At the end of the Term, the Owner, and all of the Owner's heirs, successors and assigns shall be deemed to have filed Ch. 212 Development Agreement In Lieu Of Annexation - 2 1 P .1 ,� :, a petition for voluntary annexation of the Property, and the Property will be subject to voluntary annexation in accordance with Section 3 of this Agreement. Prior to the end of the Term, the City may continence the voluntary annexation of the Property. Section 5 — Termination. This Agreement will automatically terminate at the end of the Term. This Agreement shall terminate upon the filing of any plat or related development document with the City or with Lubbock County or upon the Owner's failure to prove that it is the sole owner of the Property with the authority to sign this Agreement. The Owner and the City may agree in writing to terminate this Agreement prior to the expiration of the Term of this Agreement. Section b — City Council Approval Required. If the City Council of the City of Lubbock does not affirmatively vote to annex an area that contains the Property, then this Agreement will be null and void in its entirety. Section 7 — Notification. Any person who sells or conveys any portion of the Property shall, prior to such sale or conveyance, give written notice of this Agreement to the prospective purchaser or grantee, and shall give written notice of the sale or conveyance to the City. Further, the Owner and the Owner's heirs, successors, and assigns shall give the City written notice within fourteen (14) days of any change in the status of the Property. A copy of any notice required by this section shall be forwarded to the City at the following address: City of Lubbock With copy to: City of Lubbock Attn: City Secretary Attn: Director of Planning P.O. Box 2000 P.O. Box 2000 Lubbock, Texas 79457 Lubbock, Texas 79457 This Agreement shall run with the Property and be recorded in the real property records of Lubbock County, Texas. Section 8 — Waiver. Any failure by the Owner or the City to insist upon strict performance by either party of any material provision of this Agreement shall not be deemed a waiver thereof, and the Owner or the City shall have the right at any time thereafter to insist upon strict performance of any and all provisions of this Agreement. No provision of this Agreement may be waived except by a written agreement signed by the Owner or the City waiving such provision. Any waiver shall be limited to the specific purposes for which it is given. No waiver by the Owner or the City of any provision of this Agreement shall be deemed or construed to be a waiver of any other provision or subsequent waiver of the same provision. The Parties expressly agree that no provision of this Agreement is in any way intended to constitute a waiver by any Party of any immunity from suit or liability that it may have by operation of law. The Parties agree that the City shall retain all of its governmental immunities. Section 9 — Assurance of Ownership. The Owner hereby expressly affirms that it is the sole owner of the Property and that no other person or entity has a valid claim to any right, title, or ownership in the Property. Should any dispute of right, title, or ownership concerning the Property arise subsequent to the Owner's execution of this Agreement, the Owner hereby agrees to be solely responsible for defending and confirming its absolute right, title, and ownership to the Property. If the Owner cannot Ch. 212 Development Agreement In Lieu Of Annexation - 3 1 i defend or fails to defend its right, title, and ownership to the Property, then this Agreement shall terminate. Section 10 — Governing Law. This Agreement is entered into under and pursuant to, and is to be construed and enforceable in accordance with, the laws of the State of Texas, and all obligations of the Owner and the City are performable in Lubbock County, Texas. Venue for any action to enforce or construe this Agreement shall be Lubbock County, Texas. This Agreement is subject to all applicable federal, state, and local laws and any applicable ordinances, rules, orders and regulations of any local, state, or federal governmental authority, having or asserting jurisdiction. However, nothing contained in this Agreement shall be construed as a waiver by the Owner or the City of any right to question or contest any law, order, rule, or regulation which may affect the terms and conditions of this Agreement in any forum having jurisdiction, and the Owner and the City each agree to make a good faith effort to support all proposed laws and regulations which would be consistent with the performance of this Agreement in accordance with its terms. No subsequent change in the law regarding annexation shall affect the enforceability of this Agreement or the City's ability to annex the Property pursuant to this Agreement. Section I I — Remedy. The City reserves the right to exercise any right or remedy available to it by law, contract, equity, or otherwise, including without limitation, the right to seek any and all forms of relief in a court of competent jurisdiction. Further, the City shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this Agreement, the former shall control. Section 12 — Public Information. This Agreement is public information. To the extent, if any, that any provision of this Agreement is in conflict with the Texas Public Information Act (Tex. Gov't. Code Ann. Chapter 552 et seq., as amended), the same shall be of no force and effect. Section 13 — Third -Party Beneficiaries. This Agreement only inures to the benefit of, and may only be enforced by, the Owner and the City. No other person or entity shall have any right, title, or interest under this Agreement or otherwise be deemed to be a third -party beneficiary of this Agreement. Section 14 — No Personal Liability & No Joint Venture. Nothing in this Agreement is construed as creating any personal liability on the part of any employee, officer or agent of any public body that may be a party to this Agreement. This Agreement is not intended to, and shall not be construed to, create any joint enterprise between or among the parties. Section 15 — Due Diligence & Force Majeure. The Owner and the City shall use good faith, due diligence, and reasonable care in the performance of the obligations under this Agreement, and time shall be of the essence in such performance. In the event that the Owner or the City is unable to perform its respective obligations under this Agreement, due to any event or circumstance that is not within the reasonable respective control of the Owner or the City that could not have been avoided by either the Owner or the City with the exercise of good faith, due diligence, and reasonable care (a "Force Majeure"), then the obligations affected by the Force Majeure shall be temporarily suspended. Within three (3) business days after the occurrence of a Force Majeure, the Owner or the City shall give notice to each other, including a detailed explanation of the Force Majeure and a description of the action that will be taken to remedy the Force Majeure and resume fall performance at the earliest possible time. Ch. 212 Development Agreement In lieu Of Annexation - 4 1 P v g ti Section 16 — Enforcement. This Agreement may be enforced by the Owner or the City by any proceeding at law or in equity. Failure to do so shall not be deemed a waiver to enforce the Agreement thereafter. Section 17 — Governmental Powers. It is understood that by execution of this Agreement, the City does not waive or surrender any of its governmental powers, except as expressly set forth herein. Section 18 — 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. The Owner acknowledges that each and every owner of the Property must sign this Agreement in order for the Agreement to take full effect. Section 19 — Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be unenforceable for any reason, such unenforceable provision shall be deleted from this Agreement, and the remainder of this Agreement shall remain in full force and effect and shall be interpreted to give effect to the intent of the Owner and the City. Without limiting the generality of the foregoing, if it is determined that, as of the date that this Agreement becomes effective, that any Owner does not own any portion of the Property, then this Agreement shall remain in full force and effect with respect to the remaining portion of the Property that the Owners actually own. Section 20 — Entire Agreement. This Agreement constitutes the entire agreement between the Owner and the City and supersedes all prior agreements, whether oral or written, covering the subject matter of this Agreement. The Owner acknowledges that each and every Owner of the Property must sign this Agreement in order for the Agreement to take full effect. Section 21— Captions & Recitals. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. However, each of the recitals contained herein, by this reference, shall be incorporated into, and deemed a part of, this Agreement. Section 22 — Modification of Agreement. This Agreement cannot be modified or amended except in writing signed by the Owner and the City and attached and made a part of this Agreement. Section 23 — Ch. 212 Agreement in lieu of Ch. 43 Agreement. If the Property is subject to an agricultural exemption, the Owner hereby acknowledges that the City, through the Office of the City Attorney, offered to make a development agreement with the Owner under §43.035 of the Texas Local Government Code. The Owner further acknowledges that the Owner rejected the offer to make a §43.035 Agreement in order to enter in to this §212.172 Agreement. IN WITNESS HEREOF, the pa ties_mutually enter this Agreement on this ' O- day of 2016. Ch. 212 Development Agreement In lieu Of Annexation - 5 1 0 i r, - For the City - ., 4 VftEmbN, MAYOR y- ,% , I 4� •'r o■■C ��l T. 6 6 ATTES f,:'a9■ a � J Y YJ 4i 7 . Re a Goki, Seqr# A oV��■°4o4oaS; �rp�� ,� APPROVED A81P6 CONTENT: Andrew Paxton, Director of Planning APPROVED AS TO FORM: For the Owner Thomas X Killihn, Owner Ch. 212 Development Agreement In Lieu Of Annexation • 6 1 NOTARIZATION State of Texas § County of Lubbock § 17<7� This instrument was executed before me or L 0 2)016, by 0.\TE NAJIE of the City of Lubbock, a Texas municipal corporation, on behal f of said 1 ee ,,,ttuntrer,,ryrlrr' corporatio . P R "VA 4r� Public _ 7 � 0 .c�. CF State of Texas § County of Lubbock § This instrument was executed before me on , on behalf of said Owner. Nokfu Public When Recorded Return To: City Secretary City of Lubbock, Texas I625 131h Street Lubbock, Texas 79401 2016, by �ilrt2 ram- _.7`j i/r/1} 7710hL1ti 1. iClLL[AN 014MER E BRAWADSWOMN�yl�iC,SM:(s M# IM37My{;onmOn' Ch. 212 Development Agreement In Lieu Of Annexation - 7 1 P _: r; EXHIBIT A -- The Property A 1.033 acre tract of land out of the East 1/2 of Section 99 Block AKs Certificate 941, Abstract No, 161, E. L. 9 R. R.RY. Co.$ Surveys Lubbock County, Texas; and further described by metes and bounds as follows BEGINNING at a point in the North line of Section 93 Block AK, and in East-West paved road, a distance of 2235 feet West of a railroad spike that marks the Northeast corner of Section 9s Block`AKO for the North— east and beginning corner of this tract. WHENCE A 3/4" iron pipe bears South 40 feet; THOCE West 150 feet with the North line of Section 91p and along paved road set 1/2" iron pipe for the Northwest corner of this tract, Whence a bolt that marks the Northeest corner of the East 1/2 of Section 9, bears West 255 feet and a 3/4" iron pipe bears south 40 feet. THENCE South 300 feet parallel to the East line of Section 9, set 3/4" iron pipe in field for the Southwest corner of this tract; THENCE East 150 feet parallel to the North line of Section 99 set 3/4" iron pipe for the Southeast corner of this tract; THENCE North 300 feet parallel to the East line of Section 91 to the Place of Beginning and containing 1.033 acresof land. BLK AK SEC 9 AB 161 TR 6 ACS:.895 64=%G . n TR 6 81 895 AC `q121334 TR 7 FILED AND RECORDED OFFICIAL PUBLIC RECORDS 4 (Killian - R121334) L Rally Pinion County Cleric Lubbock County TEXAS 05/23/2016 lo:62 AM FEE: gg5g.00 2BiB017B21 CITY OF LUBBOCK OFFICE PICK UP 2016617922 9 PG5 AGREE ■III IA *H%, 1W*AW R%h 11111 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 REAL PROPERTY RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER CITY OF LUBBOCK CH. 212 DEVELOPMENT AGREEMENT IN LIEU OF ANNEXATION THIS DEVELOPMENT AGREEME T IN LIEU OF ANNEXATION (the "Agreement") is made and effective this day o , 2016, and is entered into pursuant to §212.172 of the Texas Local Government Code, by an between the City of Lubbock, Texas, a. Texas home rule municipal corporation (the "City"), and the undersigned property owner(s) (the "Owner"), with the term "Owner" including all owners of the Property, and is as follows: RECITALS WHEREAS, the Owner owns a parcel of real property (the "Property") in Lubbock County, Texas, which is more particularly and separately described in the attached Exhibit A; and WHEREAS, the City has instituted annexation proceedings for all portions of the Property and held public hearings regarding the proposed annexation on March 8 and March 10, 2016; and WHEREAS, at the public hearings, the Owner was presented with a service plan for the Property and the Owner was given the opportunity to be heard by the City Council of the City of Lubbock; and WHEREAS, the Owner does not want the Property to be annexed and desires to have the Property remain in the City's extraterritorial jurisdiction, in consideration for which the Owner agrees to enter into this Agreement; and WHEREAS, it is the City's intention to allow the Owner to continue to use the Property as it is being used at the time of this Agreement; and WHEREAS, the Owner and the City acknowledge that this Agreement is binding upon the City and the Owner and their respective successors and assigns for the duration of this Agreement; and WHEREAS, this Agreement is to be recorded in the real property records of Lubbock County, Texas; NOW, THEREFORE, in consideration of the mutual promises contained in this Agreement, the Owner and the City agree as follows: AGREEMENT Section 1 — The Property: Current Status. The City acknowledges that the Property, more particularly described in the attached "Exhibit A," is located within the extraterritorial jurisdiction of the City and is subject to annexation by the City unless this Agreement is signed by the Owner. Section 2 — The Property: Continued Status. In lieu of annexation, the Owner desires that the Property remain in the extraterritorial jurisdiction of the City for the duration of this Agreement. The Ch. 222 Development Agreement In Lieu Of Annexation -1 1 P a g e Owner acknowledges that unless the Property is annexed by the City, the Property is not eligible to receive City services, the Property shall not be included in the City's voting precincts, and the Property shall be immune from City property taxes for the duration of this Agreement. The Owner's use of the Property at the time of this Agreement is "grandfathered" into the acceptable uses of the City, and the City is prohibited from interfering with any uses on the Property that comply with §43.002 of the Texas Local Government Code. The Owner acknowledges that Section 22.03.091(a) of the Code of Ordinances of the City prohibits the City from providing water to any entity outside of the city limits, and acknowledges that the City will not be providing water to the Property unless the Property is annexed into the City. However, if the Property is annexed pursuant to a provision of this Agreement, then the City shall provide services to the Property pursuant to Chapter 43 of the Texas Local Government Code. Subject to the provisions of this Agreement, the City shall not annex the Property, shall not involuntarily institute proceedings to annex the Property, and shall not include the Property in a statutory annexation plan. The Owner authorizes the enforcement by the City of all of the City's regulations and planning authority that do not materially interfere with the use of the Property in the same manner that the City's regulations and planning authority are enforced within the City's boundaries. The City specifically reserves its authority pursuant to Chapter 251 of the Texas Local Government Code to exercise eminent domain over property that is subject to a §212.172 development agreement. The City further reserves its regulatory and planning authority in the City's ETJ, as such authority has been granted to it by the City Council. Section 3 — The Property: Change In Status. The Owner agrees not to substantially change the use of the Property as it is used on the date of the execution of this Agreement. The Owner agrees not to develop the Property by filing any type of subdivision plat or related development document for the Property with Lubbock County or the City throughout the duration of this Agreement. The Owner acknowledges that if any plat or related development document is filed for the Property, or if the Owner commences any development of the Property other than that which supports the use of the Property as the Property is used on the date of the execution of this Agreement, then this Agreement shall terminate, and in addition to the City's other remedies, such act will constitute a petition for voluntary annexation by the Owner, and the Property will be subject to annexation at the discretion of the City Council. The Owner agrees that such annexation shall be voluntary and the Owner hereby consents to such annexation as though a petition for such annexation had been tendered by the Owner. If annexation proceedings begin pursuant to this Section, then the Owner acknowledges that this Agreement serves as an exception to Local Government Code §43.052, requiring a municipality to use certain statutory procedures under an annexation plan, and as an exception to Local Government Code §43.062 requiring certain statutory procedures as to the Owner to effectuate an annexation. Further, the Owner hereby waives any and all vested rights and claims that it may have under §43.002(a)(2) and Chapter 245 of the Texas Local Government Code that would otherwise exist by virtue of any plat or construction the Owner may initiate during the time between the expiration of this Agreement and the institution of annexation proceedings by the City. Section 4 — The Term. The term of this Agreement (the "Term") shall be twenty (20) years from the date that this Agreement is approved by the City Council of the City of Lubbock. At the end of the Term, the Owner, and all of the Owner's heirs, successors and assigns shall be deemed to have filed Ch. 212 Development Agreement In Lieu Of Annexation - 2 1 P a g e a petition for voluntary annexation of the Property, and the Property will be subject to voluntary annexation in accordance with Section 3 of this Agreement. Prior to the end of the Term, the City may commence the voluntary annexation of the Property. Section 5 — Termination. This Agreement will automatically terminate at the end of the Term. This Agreement shall terminate upon the filing of any plat or related development document with the City or with Lubbock County or upon the Owner's failure to prove that it is the sole owner of the Property with the authority to sign this Agreement. The Owner and the City may agree in writing to terminate this Agreement prior to the expiration of the Term of this Agreement. Section 6 — City Council Approval Required. If the City Council of the City of Lubbock does not affirmatively vote to annex an area that contains the Property, then this Agreement will be null and void in its entirety. Section 7 — Notification. Any person who sells or conveys any portion of the Property shall, prior to such sale or conveyance, give written notice of this Agreement to the prospective purchaser or grantee, and shall give written notice of the sale or conveyance to the City. Further, the Owner and the Owner's heirs, successors, and assigns shall give the City written notice within fourteen (14) days of any change in the status of the Property. A copy of any notice required by this section shall be forwarded to the City at the following address: City of Lubbock With cony to: City of Lubbock Attn: City Secretary Attn: Director of Planning P.O. Box 2000 P.O. Box 2000 Lubbock, Texas 79457 Lubbock, Texas 79457 This Agreement shall run with the Property and be recorded in the real property records of Lubbock County, Texas. Section 8 — Waiver. Any failure by the Owner or the City to insist upon strict performance by either party of any material provision of this Agreement shall not be deemed a waiver thereof, and the Owner or the City shall have the right at any time thereafter to insist upon strict performance of any and all provisions of this Agreement. No provision of this Agreement may be waived except by a written agreement signed by the Owner or the City waiving such provision. Any waiver shall be limited to the specific purposes for which it is given. No waiver by the Owner or the City of any provision of this Agreement shall be deemed or construed to be a waiver of any other provision or subsequent waiver of the same provision. The Parties expressly agree that no provision of this Agreement is in any way intended to constitute a waiver by any Party of any immunity from suit or liability that it may have by operation of law. The Parties agree that the City shall retain all of its governmental immunities. Section 9 — Assurance of Ownership. The Owner hereby expressly affirms that it is the sole owner of the Property and that no other person or entity has a valid claim to any right, title, or ownership in the Property. Should any dispute of right, title, or ownership concerning the Property arise subsequent to the Owner's execution of this Agreement, the Owner hereby agrees to be solely responsible for defending and confirming its absolute right, title, and ownership to the Property. If the Owner cannot Ch. 212 Development Agreement in Lieu Of Annexation - 3 1 P a g e defend or fails to defend its right, title, and ownership to the Property, then this Agreement shall terminate. Section 10 — Governing Law. This Agreement is entered into under and pursuant to, and is to be construed and enforceable in accordance with, the laws of the State of Texas, and all obligations of the Owner and the City are performable in Lubbock County, Texas. Venue for any action to enforce or construe this Agreement shall be Lubbock County, Texas. This Agreement is subject to all applicable federal, state, and local laws and any applicable ordinances, rules, orders and regulations of any local, state, or federal governmental authority, having or asserting jurisdiction. However, nothing contained in this Agreement shall be construed as a waiver by the Owner or the City of any right to question or contest any law, order, rule, or regulation which may affect the terms and conditions of this Agreement in any forum having jurisdiction, and the Owner and the City each agree to make a good faith effort to support all proposed laws and regulations which would be consistent with the performance of this Agreement in accordance with its terms. No subsequent change in the law regarding annexation shall affect the enforceability of this Agreement or the City's ability to annex the Property pursuant to this Agreement. Section 11 — Remedy. The City reserves the right to exercise any right or remedy available to it by law, contract, equity, or otherwise, including without limitation, the right to seek any and all forms of relief in a court of competent jurisdiction. Further, the City shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this Agreement, the former shall control. Section 12 — Public Information. This Agreement is public information. To the extent, if any, that any prevision of this Agreement is in conflict with the Texas Public Information Act (Tex. Gov't. Code Ann. Chapter 552 et seq., as amended), the same shall be of no force and effect. Section 13 —Third-Party Beneficiaries. This Agreement only inures to the benefit of, and may only be enforced by, the Owner and the City. No other person or entity shall have any right, title, or interest under this Agreement or otherwise be deemed to be a third -party beneficiary of this Agreement. Section 14 — No Personal Liability & No Joint Venture. Nothing in this Agreement is construed as creating any personal liability on the part of any employee, officer or agent of any public body that may be a party to this Agreement. This Agreement is not intended to, and shall not be construed to, create any joint enterprise between or among the parties. Section 15 — Due Diligence & Force Majeure. The Owner and the City shall use good faith, due diligence, and reasonable care in the performance of the obligations under this Agreement, and time shall be of the essence in such performance. In the event that the Owner or the City is unable to perform its respective obligations under this Agreement, due to any event or circumstance that is not within the reasonable respective control of the Owner or the City that could not have been avoided by either the Owner or the City with the exercise of good faith, due diligence, and reasonable care (a "Force Majeure"), then the obligations affected by the Force Majeure shall be temporarily suspended. Within three (3) business days after the occurrence of a Force Majeure, the Owner or the City shall give notice to each other, including a detailed explanation of the Force Majeure and a description of the action that will be taken to remedy the Force Majeure and resume full performance at the earliest possible time. Ch. 212 Development Agreement In Lieu Of Annexation - 4 1 P .) g e Section 16 — Enforcement. This Agreement may be enforced by the Owner or the City by any proceeding at law or in equity. Failure to do so shall not be deemed a waiver to enforce the Agreement thereafter. Section 17 — Governmental Powers. It is understood that by execution of this Agreement, the City does not waive or surrender any of its governmental powers, except as expressly set forth herein. Section 18 — 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. The Owner acknowledges that each and every owner of the Property must sign this Agreement in order for the Agreement to take full effect. Section 19 — Severahility. If any provision of this Agreement is determined by a court of competent jurisdiction to be unenforceable for any reason, such unenforceable provision shall be deleted from this Agreement, and the remainder of this Agreement shall remain in full force and effect and shall be interpreted to give effect to the intent of the Owner and the City. Without limiting the generality of the foregoing, if it is determined that, as of the date that this Agreement becomes effective, that any Owner does not own any portion of the Property, then this Agreement shall remain in full force and effect with respect to the remaining portion of the Property that the Owners actually own. Section 20 — Entire Agreement. This Agreement constitutes the entire agreement between the Owner and the City and supersedes all prior agreements, whether oral or written, covering the subject matter of this Agreement. The Owner acknowledges that each and every Owner of the Property must sign this Agreement in order for the Agreement to take full effect. Section 21 — Captions & Recitals. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. However, each of the recitals contained herein, by this reference, shall be incorporated into, and deemed a part of, this Agreement. Section 22 — Modification of Agreement. This Agreement cannot be modified or amended except in writing signed by the Owner and the City and attached and made a part of this Agreement. Section 23 — Ch. 212 Agreement in lieu of Ch. 43 Agreement. If the Property is subject to an agricultural exemption, the Owner hereby acknowledges that the City, through the Office of the City Attorney, offered to make a development agreement with the Owner under §43.035 of the Texas Local Government Code. The Owner further acknowledges that the Owner rejected the offer to make a §43.035 Agreement in order to enter in to this §212.172 Agreement. IN WITNESS HEREOF, the parties 7utually enter this Agreement on thi day of t , 2016. Ch. 212 Development Agreement In Lieu Of Annexation - 5 1 P a g c For the City GLEN C. ROB SO , MAYOR ATTEST; �J Rel c4 GF6za,�City Sedeta* .� `tl,. .� pdoa°e�ty APPR6'uED A&='I f1LCONTENT: Andrew Paxton, Director of Planning APPROVED AS TO FORM: Justin Pr4itt As istan City Att rney For the Owner 7B Building & Development, LLC, Owner Chad Merchant, Manager & Agent Ch. 212 Development Agreement In Lieu Of Annexation - 6 1 NOTARIZATION State of Texas § County of Lubbock § � _ This instrument ... was executed before me on 2016, by DAre —' NemEl of the City of Lub ock, a Texas municipal corporation, on behalf of said �p T 1- 1,11111111111,11,'I corporation. �..`�� 50 WDEq c'�,,,� RY C� JAI] 1.1 iK 0 Nlry Public OF State of Texas § County of Lubbock § This instrument was executed before me on Ap�j� i 2016, by ChOd CYIQfftt() � , DATE CHAD MERCHANT, NIANACM A ACENT OF OWNER on behalf of said Owner. s 11 1 1 r r,� t �.• O%AR p �L Notary Public ;b r) = f•off III 1�1, When Recorded Return To: City Secretary City of Lubbock, Texas 1625 131h Street Lubbock, Texas 79401 Ch. 212 Development Agreement In Lieu Of Annexation - 7 1 0 r- EXHIBIT A — The Property (METES AND BOUNDS DESCRIPTION of a 2.906 acre tract of land located in Section 8, Block AK, Lubbock County, Texas, being further described as follows: BEGINNING at a 1/2" iron rod with cap found for the Northwest corner of this tract which bears N. 89112701" E a distance of 1297.39 feet and S. 00*3259" E. a distance of360.00 feet from the Northwest corner of Section 8, Block AK, Lubbock County, Texas; THENCE N. 89027'01" E., at 60.00 feet pass a 1/2" iron rod with cap found for a point of reference, continuing for a total distance of 374.05 feet to a If?" iron rod with cap found for the Northeast corner of this tract; THENCE S. 0003259" E., tit 270.00 feet pass a 1/2" iron rod with cap set for a point of reference, continuing for a total distance of330.00 feet to a 1/2" iron rod with cap set for the Southeast comer of this tract; THENCE S. 890270 W., a distance of 299.05 feet to a point of curvature from whence a 1/2" iron rod with cap set in reference bears S. 89°27'01" W. a distance of 75.00 feet; THENCE Northwesterly along a curve to the right, said curve having a radius of 75.00 feet, a central angle of 90°, tangent lengths of 75.00 feet, a chord distance of 106.07 feet, and a chord bearing of N. 451132'59" W. to a point of tangency from whence said 1/2" iron rod with cap set in reference bears S. 00132*59' E. a distance of 75.00 feet; THENCE N. 00"3T59" W., a distance of255.00 feet to the Point of Beginning. Contains: 122,229 square feet or 2.806 acres HUFFINES BUSINESS PARK TR F 314.05' TR F 0 r~ R322230 C'V CR 7410 CR ' (78 Building & Development [Chad Merchant] — tt322230) Page 1 of 1 FILED AND RECORDED OFFICIAL PUBLIC RECORDS K:lly Plnlan Countyy Clerk Lubbock Goun�y TEXH 05/23/2016 10:62 AM FEE: y34.00 2016017922 CITY OF LUBBOCK OFFICE PICK UP 2016017923 9 PG5 AGREE mill ra, WIMU111 AIIAM UN IWII 11111 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 REAL PROPERTY RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER CITY OF LUBBOCK CH. 212 DEVELOPMENT AGREEMENT IN LIEU OF ANNEXATION THIS DEVELOPMENT AGREEME T IN LIEU OF ANNEXATION (the "Agreement") is made and effective this day of , 2016, and is entered into pursuant to §212.172 of the Texas Local Government Code, by W between the City of Lubbock, Texas, a Texas home rule municipal corporation (the "City"), and the undersigned property owner(s) (the "Owner"), with the term "Owner" including all owners of the Property, and is as follows: RECITALS WHEREAS, the Owner owns a parcel of real property (the "Property") in Lubbock County, Texas, which is more particularly and separately described in the attached Exhibit A; and WHEREAS, the City has instituted annexation proceedings for all portions of the Property and held public hearings regarding the proposed annexation on March 8 and March 10, 2016; and WHEREAS, at the public hearings, the Owner was presented with a service plan for the Property and the Owner was given the opportunity to be heard by the City Council of the City of Lubbock; and WHEREAS, the Owner does not want the Property to be annexed and desires to have the Property remain in the City's extraterritorial jurisdiction, in consideration for which the Owner agrees to enter into this Agreement; and WHEREAS, it is the City's intention to allow the Owner to continue to use the Property as it is being used at the time of this Agreement; and WHEREAS, the Owner and the City acknowledge that this Agreement is binding upon the City and the Owner and their respective successors and assigns for the duration of this Agreement; and WHEREAS, this Agreement is to be recorded in the real property records of Lubbock County, Texas; NOW, THEREFORE, in consideration of the mutual promises contained in this Agreement, the Owner and the City agree as follows: ffH:VDJ-DJu Dra-J Section 1 — The Property: Current Status. The City acknowledges that the Property, more particularly described in the attached "Exhibit A," is located within the extraterritorial jurisdiction of the City and is subject to annexation by the City unless this Agreement is signed by the Owner. Section 2 — The Property: Continued Status. In lieu of annexation, the Owner desires that the Property remain in the extraterritorial jurisdiction of the City for the duration of this Agreement. The Ch. 212 Development Agreement In Ueu Of Annexation -1 1 P a g e Owner acknowledges that unless the Property is annexed by the City, the Property is not eligible to receive City services, the Property shall not be included in the City's voting precincts, and the Property shall be immune from City property taxes for the duration of this Agreement. The Owner's use of the Property at the time of this Agreement is "grand fathered" into the acceptable uses of the City, and the City is prohibited from interfering with any uses on the Property that comply with §43.002 of the Texas Local Government Code. The Owner acknowledges that Section 22.03.091(a) of the Code of Ordinances of the City prohibits the City from providing water to any entity outside of the city limits, and acknowledges that the City will not be providing water to the Property unless the Property is annexed into the City. However, if the Property is annexed pursuant to a provision of this Agreement, then the City shall provide services to the Property pursuant to Chapter 43 of the Texas Local Government Code. Subject to the provisions of this Agreement, the City shall not annex the Property, shall not involuntarily institute proceedings to annex the Property, and shall not include the Property in a statutory annexation plan. The Owner authorizes the enforcement by the City of all of the City's regulations and planning authority that do not materially interfere with the use of the Property in the same manner that the City's regulations and planning authority are enforced within the City's boundaries. The City specifically reserves its authority pursuant to Chapter 251 of the Texas Local Government Code to exercise eminent domain over property that is subject to a §212.172 development agreement. The City further reserves its regulatory and planning authority in the City's ETJ, as such authority has been granted to it by the City Council. Section 3 —The Property: Change In Status. The Owner agrees not to substantially change the use of the Property as it is used on the date of the execution of this Agreement. The Owner agrees not to develop the Property by filing any type of subdivision plat or related development document for the Property with Lubbock County or the City throughout the duration of this Agreement. The Owner acknowledges that if any plat or related development document is filed for the Property, or if the Owner commences any development of the Property other than that which supports the use of the Property as the Property is used on the date of the execution of this Agreement, then this Agreement shall terminate, and in addition to the City's other remedies, such act will constitute a petition for voluntary annexation by the Owner, and the Property will be subject to annexation at the discretion of the City Council. The Owner agrees that such annexation shall be voluntary and the Owner hereby consents to such annexation as though a petition for such annexation had been tendered by the Owner. If annexation proceedings begin pursuant to this Section, then the Owner acknowledges that this Agreement serves as an exception to Local Government Code §43.052, requiring a municipality to use certain statutory procedures under an annexation plan, and as an exception to Local Government Code §43.062 requiring certain statutory procedures as to the Owner to effectuate an annexation. Further, the Owner hereby waives any and all vested rights and claims that it may have under §43.002(a)(2) and Chapter 245 of the Texas Local Government Code that would otherwise exist by virtue of any plat or construction the Owner may initiate during the time between the expiration of this Agreement and the institution of annexation proceedings by the City. Section 4 — The Term. The term of this Agreement (the "Term") shall be twenty (20) years from the date that this Agreement is approved by the City Council of the City of Lubbock. At the end of the Term, the Owner, and all of the Owner's heirs, successors and assigns shall be deemed to have filed Ch. 212 Development Agreement In Lieu Of Annexation - 2 1 P a g c a petition for voluntary annexation of the Property, and the Property will be subject to voluntary annexation in accordance with Section 3 of this Agreement. Prior to the end of the Term, the City may commence the voluntary annexation of the Property. Section 5 —Termination. This Agreement will automatically terminate at the end of the Term. This Agreement shall terminate upon the filing of any plat or related development document with the City or with Lubbock County or upon the Owner's failure to prove that it is the sole owner of the Property with the authority to sign this Agreement. The Owner and the City may agree in writing to terminate this Agreement prior to the expiration of the Term of this Agreement. Section 6 — City Council Approval Required. If the City Council of the City of Lubbock does not affirmatively vote to annex an area that contains the Property, then this Agreement will be null and void in its entirety. Section 7 — Notification. Any person who sel Is or conveys any portion of the Property shall, prior to such sale or conveyance, give written notice of this Agreement to the prospective purchaser or grantee, and shal I give written notice of the sale or conveyance to the City. Further, the Owner and the Owner's heirs, successors, and assigns shall give the City written notice within fourteen (14) days of any change in the status of the Property. A copy of any notice required by this section shall be forwarded to the City at the following address: City of Lubbock With copy lo: Cityof Lubbock Attn: City Secretary Attn: Director of Planning P.O. Box 2000 P.O. Box 2000 Lubbock, Texas 79457 Lubbock, Texas 79457 This Agreement shall run with the Property and be recorded in the real property records of Lubbock County, Texas. Section 8 — Waiver. Any failure by the Owner or the City to insist upon strict performance by either party of any material provision of this Agreement shall not be deemed a waiver thereof, and the Owner or the City shall have the right at any time thereafter to insist upon strict performance of any and all provisions of this Agreement. No provision of this Agreement may be waived except by a written agreement signed by the Owner or the City waiving such provision. Any waiver shall be limited to the specific purposes for which it is given. No waiver by the Owner or the City of any provision of this Agreement shall be deemed or construed to be a waiver of any other provision or subsequent waiver of the same provision. The Parties expressly agree that no provision of this Agreement is in any way intended to constitute a waiver by any Party of any immunity from suit or liability that it may have by operation of law. The Parties agree that the City shall retain all of its governmental immunities. Section 9 — Assurance of Ownership. The Owner hereby expressly affirms that it is the sole owner of the Property and that no other person or entity has a valid claim to any right, title, or ownership in the Property. Should any dispute of right, title, or ownership concerning the Property arise subsequent to the Owner's execution of this Agreement, the Owner hereby agrees to be solely responsible for defending and confirming its absolute right, title, and ownership to the Property. If the Owner cannot Ch. 212 Development Agreement In Lieu Of Annexation - 3 1 P a g e defend or fails to defend its right, title, and ownership to the Property, then this Agreement shall terminate. Section 10 — Governing Law. This Agreement is entered into under and pursuant to, and is to be construed and enforceable in accordance with, the laws of the State of Texas, and all obligations of the Owner and the City are performable in Lubbock County, Texas. Venue for any action to enforce or construe this Agreement shall be Lubbock County, Texas. This Agreement is subject to all applicable federal, state, and local laws and any applicable ordinances, rules, orders and regulations of any Iocal, state, or federal governmental authority, having or asserting jurisdiction. However, nothing contained in this Agreement shall be construed as a waiver by the Owner or the City of any right to question or contest any law, order, rule, or regulation which may affect the terms and conditions of this Agreement in any forum having jurisdiction, and the Owner and the City each agree to make a good faith effort to support all proposed laws and regulations which would be consistent with the performance of this Agreement in accordance with its terms. No subsequent change in the law regarding annexation shall affect the enforceability of this Agreement or the City's ability to annex the Property pursuant to this Agreement. Section 11 — Remedy. The City reserves the right to exercise any right or remedy available to it by law, contract, equity, or otherwise, including without limitation, the right to seek any and all forms of relief in a court of competent jurisdiction. Further, the City shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this Agreement, the former shall control. Section 12 — Public Information. This Agreement is public information. To the extent, if any, that any provision of this Agreement is in conflict with the Texas Public Information Act (Tex. Gov't. Code Ann. Chapter 552 et seq., as amended), the same shall be of no force and effect. Section 13 — Third -Party Beneficiaries. This Agreement only inures to the benefit of, and may only be enforced by, the Owner and the City. No other person or entity shal I have any right, title, or interest under this Agreement or otherwise be deemed to be a third -party beneficiary of this Agreement. Section 14 — No Personal Liability & No Joint Venture. Nothing in this Agreement is construed as creating any personal liability on the part of any employee, officer or agent of any public body that may be a party to this Agreement. This Agreement is not intended to, and shall not be construed to, create any joint enterprise between or among the parties. Section 15 -- Due Diligence & Force Majeure. The Owner and the City shall use good faith, due diligence, and reasonable care in the performance of the obligations under this Agreement, and time shall be of the essence in such performance. In the event that the Owner or the City is unable to perform its respective obligations under this Agreement, due to any event or circumstance that is not within the reasonable respective control of the Owner or the City that could not have been avoided by either the Owner or the City with the exercise of good faith, due diligence, and reasonable care (a "Force Majeure"), then the obligations affected by the Force Majeure shall be temporarily suspended. Within three (3) business days after the occurrence of a Force Majeure, the Owner or the City shall give notice to each other, including a detailed explanation of the Force Majeure and a description of the action that will be taken to remedy the Force Majeure and resume full performance at the earliest possible time. Ch. 212 Development Agreement In Lieu Of Annexation - 4 1 P a P e Section 16 — Enforcement. This Agreement may be enforced by the Owner or the City by any proceeding at law or in equity. Failure to do so shall not be deemed a waiver to enforce the Agreement thereafter. Section 17 — Governmental Powers. It is understood that by execution of this Agreement, the City does not waive or surrender any of its governmental powers, except as expressly set forth herein. Section 18 — 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. The Owner acknowledges that each and every owner of the Property must sign this Agreement in order for the Agreement to take full effect. Section 14 — Severability. if any provision of this Agreement is determined by a court of competent jurisdiction to be unenforceable for any reason, such unenforceable provision shall be deleted from this Agreement, and the remainder of this Agreement shall remain in full force and effect and shall be interpreted to give effect to the intent of the Owner and the City. Without limiting the generality of the foregoing, if it is determined that, as of the date that this Agreement becomes effective, that any Owner does not own any portion of the Property, then this Agreement shall remain in full force and effect with respect to the remaining portion of the Property that the Owners actually own. Section 20 — Entire Agreement. This Agreement constitutes the entire agreement between the Owner and the City and supersedes all prior agreements, whether oral or written, covering the subject matter of this Agreement. The Owner acknowledges that each and every Owner of the Property must sign this Agreement in order for the Agreement to take full effect. Section 21 — Captions & Recitals. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. However, each of the recitals contained herein, by this reference, shall be incorporated into, and deemed a part of, this Agreement. Section 22 — Modification of Agreement. This Agreement cannot be modified or amended except in writing signed by the Owner and the City and attached and made a part of this Agreement. Section 23 — Ch. 212 Agreement in lieu of Ch. 43 Agreement. If the Property is subject to an agricultural exemption, the Owner hereby acknowledges that the City, through the Office of the City Attorney, offered to make a development agreement with the Owner under §43.035 of the Texas Local Government Code. The Owner further acknowledges that the Owner rejected the offer to make a §43.035 Agreement in order to enter in to this §212.172 Agreement. IN WITNESS HEREOF, the VAL s mutually enter this Agreement on this �ay of, 2016. Ch. 212 Development Agreement In Ueu Of Annexation - 5 1 P a ;; e For the City GLEN C. BAER MAYOR Qoao+jb AT TEST'i °v e�y Mk`7r T1f✓✓✓� 'a APPROVMATO'CONTENT: Andrew Paxton, Director of Planning APPROVED AS TO FORM: JustinlPruilt, 4ssis(ant City Attorney For the Owner da r Vyv Sch e t e weer Diana Schwede, Mnd Ch. 212 Development Agreement In Lieu Of Annexation - 6 1 P a g e NOTARIZATION State of Texas § County of Lubbock § This instrument was executed before me on 2016, by, GATE NAME of the City of Lubbock,,,, j" Im icipal corporation, on behalf of said rrry ,,�`' F ; 4 Ffj corporation. u `•��` •........... � c� 7=;0 : Z` M r7 Not PubliOF State of Texas § ±�-2$-2OA County of Lubbock § f This instrument was executed before me on 2016, by pA7E sClIWCAE- 41Y!1ER on behalf of said Owner. VENITA WADSWORTH N" Pft, S0 dTeMS Notary 0#10ii37 IR No y Pub l is _ �Iy CanxnEsSiori Fames t,2s1.2o24 State of Texas § County of Lubbock § This instrument was executed before me on 2016, by ' WE tiFANA on behalf of said Owner. VENITA WADSWORTh; 01 Notary Pd*, SWdTezas -7: is N" IDi 10fi370�6 9v� 'Z'�z • Icy Comiai dm *28-20? When Recorded Return To: City Secretary City of Lubbock, Texas 1625 13`h Street Lubbock, Texas 79401 Ch. 212 Development Agreement In Lieu Of Annexation - 7 1 P a g e EXHIBIT A — The Property PROPERTY: All that certain 5.00 acres, more or less, being Tract One (1), Frankford Fares, more fully described in the Warranty Deed to the Veterans Land Board dated August 8, 1989, recorded in Volume 3149, Page 94 and rerecorded in Volume 3177, Page 26 of the Records of Lubbock County, Texaal and further described in that Contract of Sale and Purchase dated August 9, 1989, recorded in Volume 3149, Page 88 and rerecorded in Volume 3177, Page 90 of the Records of Lubbock County, Texas FRANKFORD FARMS TR 1 b +c r— (Sehwede — R68386) Page 1 of 1 FILED AND RECORDED OFFICIAL PUBLIC RECORDS Ks11y Pinion Counly Clerk Lubbock Coun�y TEXAS 05/23/2016 10:62 AM FEE: $54.00 2016017923 CITY OF LUBBOCK OFFICE PICK UP 2916017924 9 PG5 AGREE mill K NKTA11111MV K1MMM 11111 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 REAL PROPERTY RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER CITY OF LUBBOCK CH. 212 DEVELOPMENT AGREEMENT IN LIEU OF ANNEXATION THIS DEVELOPMEN GGREEMENT IN LIEU OF ANNEXATION (the "Agreement") is made and effective this day o 2016, and is entered into pursuant to §212.172 of the Texas Local Government Code, by d between the City of Lubbock, Texas, a Texas home rule municipal corporation (the "City"), and the undersigned property owner(s) (the "Owner"), with the term "Owner" including all owners of the Property, and is as follows: RECITALS WHEREAS, the Owner owns a parcel of real property (the "Property") in Lubbock County, Texas, which is more particularly and separately described in the attached Exhibit A; and WHEREAS, the City has instituted annexation proceedings for all portions of the Property and held public hearings regarding the proposed annexation on March 8 and March I0, 2016; and WHEREAS, at the public hearings, the Owner was presented with a service plan for the Property and the Owner was given the opportunity to be heard by the City Council of the City of Lubbock; and WHEREAS, the Owner does not want the Property to be annexed and desires to have the Property remain in the City's extraterritorial jurisdiction, in consideration for which the Owner agrees to enter into this Agreement; and WHEREAS, it is the City's intention to allow the Owner to continue to use the Property as it is being used at the time of this Agreement; and WHEREAS, the Owner and the City acknowledge that this Agreement is binding upon the City and the Owner and their respective successors and assigns for the duration of this Agreement; and WHEREAS, this Agreement is to be recorded in the real property records of Lubbock County, Texas; NOW, THEREFORE, in consideration of the mutual promises contained in this Agreement, the Owner and the City agree as follows: AGREEMENT Section I — The Property: Current Status. The City acknowledges that the Property, more particularly described in the attached "Exhibit A," is located within the extraterritorial jurisdiction of the City and is subject to annexation by the City unless this Agreement is signed by the Owner. Section 2 — The Property: Continued Status. In lieu of annexation, the Owner desires that the Property remain in the extraterritorial jurisdiction of the City for the duration of this Agreement. The Ch. 212 Development Agreement In Lieu Of Annexation -1 1 P a g e Owner acknowledges that unless the Property is annexed by the City, the Property is not eligible to receive City services, the Property shall not be included in the City's voting precincts, and the Property shall be immune from City property taxes for the duration of this Agreement. The Owner's use of the Property at the time of this Agreement is "grand fathered" into the acceptable uses of the City, and the City is prohibited from interfering with any uses on the Property that comply with §43.002 of the Texas Local Government Code. The Owner acknowledges that Section 22.03.091(a) of the Code of Ordinances of the City prohibits the City from providing water to any entity outside of the city limits, and acknowledges that the City will not be providing water to the Property unless the Property is annexed into the City. However, if the Property is annexed pursuant to a provision of this Agreement, then the City shall provide services to the Property pursuant to Chapter 43 of the Texas Local Government Code. Subject to the provisions of this Agreement, the City shall not annex the Property, shall not involuntarily institute proceedings to annex the Property, and shall not include the Property in a statutory annexation plan. The Owner authorizes the enforcement by the City of all of the City's regulations and planning authority that do not materially interfere with the use of the Property in the same manner that the City's regulations and planning authority are enforced within the City's boundaries. The City specifically reserves its authority pursuant to Chapter 251 of the Texas Local Government Code to exercise eminent domain over property that is subject to a §212.172 development agreement. The City further reserves its regulatory and planning authority in the City's ETJ, as such authority has been granted to it by the City Council. Section 3 — The Property: Change In Status. The Owner agrees not to substantially change the use of the Property as it is used on the date of the execution of this Agreement. The Owner agrees not to develop the Property by filing any type of subdivision plat or related development document for the Property with Lubbock County or the City throughout the duration of this Agreement. The Owner acknowledges that if any plat or related development document is filed for the Property, or if the Owner commences any development of the Property other than that which supports the use of the Property as the Property is used on the date of the execution of this Agreement, then this Agreement shall terminate, and in addition to the City's other remedies, such act will constitute a petition For voluntary annexation by the Owner, and the Property will be subject to annexation at the discretion of the City Council. The Owner agrees that such annexation shall be voluntary and the Owner hereby consents to such annexation as though a petition for such annexation had been tendered by the Owner. If annexation proceedings begin pursuant to this Section, then the Owner acknowledges that this Agreement serves as an exception to Local Government Code §43.052, requiring a municipality to use certain statutory procedures under an annexation plan, and as an exception to Local Government Code §43.062 requiring certain statutory procedures as to the Owner to effectuate an annexation. Further, the Owner hereby waives any and all vested rights and claims that it may have under §43.002(a)(2) and Chapter 245 of the Texas Local Government Code that would otherwise exist by virtue of any plat or construction the Owner may initiate during the time between the expiration of this Agreement and the institution of annexation proceedings by the City. Section 4 —The Term. The term of this Agreement (the "Term") shall be twenty (20) years from the date that this Agreement is approved by the City Council of the City of Lubbock. At the end of the Term, the Owner, and all of the Owner's heirs, successors and assigns shall be deemed to have filed Ch. 212 Development Agreement In Lieu Of Annexation - 2 1 P a g e a petition for voluntary annexation of the Property, and the Property will be subject to voluntary annexation in accordance with Section 3 of this Agreement. Prior to the end of the Term, the City may commence the voluntary annexation of the Property. Section 5—Termination. This Agreement will automatically terminate at the end of the Term. This Agreement shall terminate upon the filing of any plat or related development document with the City or with Lubbock County or upon the Owner's failure to prove that it is the sole owner of the Property with the authority to sign this Agreement. The Owner and the City may agree in writing to terminate this Agreement prior to the expiration of the Term of this Agreement. Section 5 — City Council Approval Required. If the City Council of the City of Lubbock does not affirmatively vote to annex an area that contains the Property, then this Agreement will be null and void in its entirety. Section 7 — Notification. Any person who sells or conveys any portion of the Property shall, prior to such sale or conveyance, give written notice of this Agreement to the prospective purchaser or grantee, and shall give written notice of the sale or conveyance to the City. Further, the Owner and the Owner's heirs, successors, and assigns shall give the City written notice within fourteen (14) days of any change in the status of the Property. A copy of any notice required by this section shall be forwarded to the City at the following address: City of Lubbock _With copy to: City of Lubbock Attn: City Secretary Attn: Director of Planning P.O. Box 2000 P.O. Box 2000 Lubbock, Texas 79457 Lubbock, Texas 79457 This Agreement shall run with the Property and be recorded in the real property records of Lubbock County, Texas. Section 8 — Waiver. Any failure by the Owner or the City to insist upon strict performance by either party of any material provision of this Agreement shall not be deemed a waiver thereof, and the Owner or the City shall have the right at any time thereafter to insist upon strict performance of any and all provisions of this Agreement. No provision of this Agreement may be waived except by a written agreement signed by the Owner or the City waiving such provision. Any waiver shall be limited to the specific purposes for which it is given. No waiver by the Owner or the City of any provision of this Agreement shall be deemed or construed to be a waiver of any other provision or subsequent waiver of the same provision. The Parties expressly agree that no provision of this Agreement is in any way intended to constitute a waiver by any Party of any immunity from suit or liability that it may have by operation of law. The Parties agree that the City shall retain all of its governmental immunities. Section 9 — Assurance of Ownership. The Owner hereby expressly affirms that it is the sole owner of the Property and that no other person or entity has a valid claim to any right, title, or ownership in the Property. Should any dispute of right, title, or ownership concerning the Property arise subsequent to the Owner's execution of this Agreement, the Owner hereby agrees to be solely responsible for defending and confirming its absolute right, title, and ownership to the Property. If the Owner cannot Ch. 212 Development Agreement In Lieu Of Annexation - 3 1 P a g e defend or fails to defend its right, title, and ownership to the Property, then this Agreement shall terminate. Section 10 -- Governing Law. This Agreement is entered into under and pursuant to, and is to be construed and enforceable in accordance with, the laws of the State of Texas, and all obligations of the Owner and the City are performable in Lubbock County, Texas. Venue for any action to enforce or construe this Agreement shall be Lubbock County, Texas. This Agreement is subject to all applicable federal, state, and local laws and any applicable ordinances, rules, orders and regulations of any local, state, or federal governmental authority, having or asserting jurisdiction. However, nothing contained in this Agreement shall be construed as a waiver by the Owner or the City of any right to question or contest any law, order, rule, or regulation which may affect the terms and conditions of this Agreement in any forum having jurisdiction, and the Owner and the City each agree to make a good faith effort to support all proposed laws and regulations which would be consistent with the performance of this Agreement in accordance with its terms. No subsequent change in the law regarding annexation shall affectthe enforceability of this Agreement or the City's ability to annex the Property pursuant to this Agreement. Section 11 — Remedy. The City reserves the right to exercise any right or remedy available to it by law, contract, equity, or otherwise, including without limitation, the right to seek any and all forms of relief in a court of competent jurisdiction. Further, the City shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this Agreement, the former shall control. Section 12 — Public Information. This Agreement is public information. To the extent, if any, that any provision of this Agreement is in conflict with the Texas Public Information Act (Tex. Gov't. Code Ann. Chapter 552 et seq., as amended), the same shall be of no force and effect. Section 13 — Third -Party Beneficiaries. This Agreement only inures to the benefit of, and may only be enforced by, the Owner and the City. No other person or entity shall have any right, title, or interest under this Agreement or otherwise be deemed to be a third -party beneficiary of this Agreement. Section 14 — No Personal Liability & No Joint Venture. Nothing in this Agreement is construed as creating any personal liability on the part of any employee, officer or agent of any public body that may be a party to this Agreement. This Agreement is not intended to, and shall not be construed to, create any joint enterprise between or among the parties. Section 15 — Due Diligence & Force Majeure. The Owner and the City shall use good faith, due diligence, and reasonable care in the performance of the obligations under this Agreement, and time shall be of the essence in such performance. In the event that the Owner or the City is unable to perform its respective obligations under this Agreement, due to any event or circumstance that is not within the reasonable respective control of the Owner or the City that could not have been avoided by either the Owner or the City with the exercise of good faith, due diligence, and reasonable care (a "Force Majeure"), then the obligations affected by the Force Majeure shall be temporarily suspended. Within three (3) business days after the occurrence of a Force Majeure, the Owner or the City shall give notice to each other, including a detailed explanation of the Force Majeure and a description of the action that will be taken to remedy the Force Majeure and resume full performance at the earliest possible time. Ch. 212 Development Agreement In Lieu Of Annexation - 4 1 P1 a e c Section lb — Enforcement. This Agreement may be enforced by the Owner or the City by any proceeding at law or in equity. Failure to do so shall not be deemed a waiver to enforce the Agreement thereafter. Section 17 — Governmental Powers. It is understood that by execution of this Agreement, the City does not waive or surrender any of its governmental powers, except as expressly set forth herein. Section 18 — 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. The Owner acknowledges that each and every owner of the Property must sign this Agreement in order for the Agreement to take full effect. Section 19 — Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be unenforceable for any reason, such unenforceable provision shall be deleted from this Agreement, and the remainder of this Agreement shall remain in full force and effect and shall be interpreted to give effect to the intent of the Owner and the City. Without limiting the generality of the foregoing, if it is determined that, as of the date that this Agreement becomes effective, that any Owner does not own any portion of the Property, then this Agreement shall remain in full force and effect with respect to the remaining portion of the Property that the Owners actually own. Section 20 — Entire Agreement. This Agreement constitutes the entire agreement between the Owner and the City and supersedes all prior agreements, whether oral or written, covering the subject matter of this Agreement. The Owner acknowledges that each and every Owner of the Property must sign this Agreement in order for the Agreement to take full effect. Section 21 — Captions & Recitals. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. However, each of the recitals contained herein, by this reference, shall be incorporated into, and deemed a part of, this Agreement. Section 22 — Modification of Agreement. This Agreement cannot be modified or amended except in writing signed by the Owner and the City and attached and made a part of this Agreement. Section 23 — Ch. 212 Agreement in lieu of Ch. 43 Agreement. If the Property is subject to an agricultural exemption, the Owner hereby acknowledges that the City, through the Office of the City Attorney, offered to make a development agreement with the Owner under §43.035 of the Texas Local Government Code. The Owner further acknowledges that the Owner rejected the offer to make a §43.035 Agreement in order to enter in to this §212.172 Agreement. IN WITNESS HEREOF, the p rties mutually enter this Agreement on this �ay of -� , 2016. Ch. 212 Development Agreement In Lieu Of Annexation - 5 1 N a g e For the City GLEN C. ROAIgRfSdN, MAYOR ATTE9Tz�� 3te _4cca a, City Skretary * - ty � APPROVVE uig&CONTENT: r` - An rew Paxton, director of Planning APPROVED AS TO FORM: N / tf Justin/Pr�itt, Msistaht City Attorney For the Owner 'Q' B #1 0 0, J�e'r ary c ede,� 1A For Owner Ch. 222 Development Agreement In Lieu Of Annexation - 6 1 P a g e NOTARIZATION State of Texas § County of Lubbock § This instrument was executed before me on 2016, by r )ATC NAME Y+ of the City of Lubbock, a Tcp&+mul}jcipal corporation, on behalf of said V Ti[t r A�, �QW�9 corporation.� of in Not a Public p nPV ••ems-n.�.��: _; State of Texas County of Lubbock § "+rrrrrrrrnw' This instrument was executed before me on .� 2016, by - BAT. scTIWE' FoR PWpER on behalf of said Owner. Y aVENITA WADSWORTH Wttary P�,iliC, 5'late t# texas N*q IN 1053105•fi No Public MY Canxnslon EzpKes Ur28 2(120 When Recorded Return To: City Secretary City of Lubbock, Texas 1625 13`h Street Lubbock, Texas 79401 Ch. 212 Development Agreement In Lieu Of Annexation - 7 1 P a g e EXHIBIT A — The Property 5.00 Acres, being Tract Two (2), Prankford Farms, a Subdivision as shown on plat thereof rec %rded '-n Volume 3016, Page 219 of the steal Property Records of Lubbock County, Texas, also being out of the SV 1/4 of Section 24, Block R-2, Certificate No. 1869, L.A. Patillo Original Grantee, Lubbock County, Texas. FRANKFORD FARMS TR 2 (LESS BLDG ONLY) (Schwede [VLB #136000] - R68412) Page 1 of 1 FILED AND RECORDED OFFICIAL PUBLIC RECORDS cr- Kelly Plnion Gauntyy�Cigrk Lubbock County TE)(A5 05/23/2016 10:62 AM 2016017924 LUBBOCKzeisot7sze to Qcs acaEF CITY OF _` _° OFFICE PICK mill K MKI,1191AN011'1i ,1111 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 REAL PROPERTY RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER CITY OF LUBBOCK CH. 212 DEVELOPMENT AGREEMENT IN LIEU OF ANNEXATION THIS DEVELOPMENT AG)EMENT IN LIEU OF ANNEXATION (the "Agreement") is made and effective this.J^&�Jayjof , 2016, and is entered into pursuant to §212.172 of the Texas Local Government Code, by and between the City of Lubbock, Texas, a Texas home rule municipal corporation (the "City"), and the undersigned property owner(s) (the "Owner"), with the tern "Owner" including all owners of the Property, and is as follows: RECITALS WHEREAS, the Owner owns a parcel of real property (the "Property") in Lubbock County, Texas, which is more particularly and separately described in the attached Exhibit A; and WHEREAS, the City has instituted annexation proceedings for all portions of the Property and held public hearings regarding the proposed annexation on March 8 and March 10, 2016; and WHEREAS, at the public hearings, the Owner was presented with a service plan for the Property and the Owner was given the opportunity to be heard by the City Council of the City of Lubbock; and WHEREAS, the Owner does not want the Property to be annexed and desires to have the Property remain in the City's extraterritorial jurisdiction, in consideration for which the Owner agrees to enter into this Agreement; and WHEREAS, it is the City's intention to allow the Owner to continue to use the Property as it is being used at the time of this Agreement; and WHEREAS, the Owner and the City acknowledge that this Agreement is binding upon the City and the Owner and their respective successors and assigns for the duration of this Agreement; and WHEREAS, this Agreement is to be recorded in the real property records of Lubbock County, Texas; NOW, THEREFORE, in consideration of the mutual promises contained in this Agreement, the Owner and the City agree as follows: AGREEMENT Section 1 — The Property: Current Status. The City acknowledges that the Property, more particularly described in the attached "Exhibit A," is located within the extraterritorial jurisdiction of the City and is subject to annexation by the City unless this Agreement is signed by the Owner. Section 2 — The Property: Continued Status. In lieu of annexation, the Owner desires that the Property remain in the extraterritorial jurisdiction of the City far the duration of this Agreement. The Ch. 212 Development Agreement In Lieu Of Annexation -1 1 P a g e Owner acknowledges that unless the Property is annexed by the City, the Property is not eligible to receive City services, the Property shall not be included in the City's voting precincts, and the Property shall be immune from City property taxes for the duration of this Agreement. The Owner's use of the Property at the time of this Agreement is "grandfathered" into the acceptable uses of the City, and the City is prohibited from interfering with any uses on the Property that comply with §43.002 of the Texas Local Government Code. The Owner acknowledges that Section 22.03.091(a) of the Code of Ordinances of the City prohibits the City from providing water to any entity outside of the city limits, and acknowledges that the City will not be providing water to the Property unless the Property is annexed into the City. However, if the Property is annexed pursuant to a provision of this Agreement, then the City shall provide services to the Property pursuant to Chapter 43 of the Texas Local Government Code. Subject to the provisions of this Agreement, the City shall not annex the Property, shall not involuntarily institute proceedings to annex the Property, and shall not include the Property in a statutory annexation plan. The Owner authorizes the enforcement by the City of all of the City's regulations and planning authority that do not materially interfere with the use of the Property in the same manner that the City's regulations and planning authority are enforced within the City's boundaries. The City specifically reserves its authority pursuant to Chapter 251 of the Texas Local Government Code to exercise eminent domain over property that is subject to a §212.172 development agreement. The City further reserves its regulatory and planning authority in the City's ETJ, as such authority has been granted to it by the City Council. Section 3 -- The Property: Change In Status. The Owner agrees not to substantially change the use of the Property as it is used on the date of the execution of this Agreement. The Owner agrees not to develop the Property by filing any type of subdivision plat or related development document for the Property with Lubbock County or the City throughout the duration of this Agreement. The Owner acknowledges that if any plat or related development document is filed for the Property, or if the Owner commences any development of the Property other than that which supports the use of the Property as the Property is used on the date of the execution of this Agreement, then this Agreement shall terminate, and in addition to the City's other remedies, such act will constitute a petition for voluntary annexation by the Owner, and the Property will be subject to annexation at the discretion of the City Council. The Owner agrees that such annexation shall be voluntary and the Owner hereby consents to such annexation as though a petition for such annexation had been tendered by the Owner. If annexation proceedings begin pursuant to this Section, then the Owner acknowledges that this Agreement serves as an exception to Local Government Code §43.052, requiring a municipality to use certain statutory procedures under an annexation plan, and as an exception to Local Government Code §43.062 requiring certain statutory procedures as to the Owner to effectuate an annexation. Further, the Owner hereby waives any and all vested rights and claims that it may have under §43.002(a)(2) and Chapter 245 of the Texas Local Government Code that would otherwise exist by virtue of any plat or construction the Owner may initiate during the time between the expiration of this Agreement and the institution of annexation proceedings by the City. Section 4 — The Term. The term of this Agreement (the "Term") shall be twenty (20) years from the date that this Agreement is approved by the City Council of the City of Lubbock. At the end of the Term, the Owner, and all of the Owner's heirs, successors and assigns shall be deemed to have filed Ch. 212 Development Agreement In Lieu Of Annexation - 2 1 P a g e a petition for voluntary annexation of the Property, and the Property will be subject to voluntary annexation in accordance with Section 3 of this Agreement. Prior to the end of the Term, the City may commence the voluntary annexation of the Property. Section 5—Termination. This Agreement will automatically terminate at the end of the Term. This Agreement shall terminate upon the filing of any plat or related development document with the City or with Lubbock County or upon the Owner's failure to prove that it is the sole owner of the Property with the authority to sign this Agreement. The Owner and the City may agree in writing to terminate this Agreement prior to the expiration of the Tenn of this Agreement. Section b — City Council Approval Required. if the City Council of the City of Lubbock does not affirmatively vote to annex an area that contains the Property, then this Agreement will be null and void in its entirety. Section 7 — Notification. Any person who sells or conveys any portion of the Property shall, prior to such sale or conveyance, give written notice of this Agreement to the prospective purchaser or grantee, and shall give written notice of the sale or conveyance to the City. Further, the Owner and the Owner's heirs, successors, and assigns shall give the City written notice within fourteen (14) days of any change in the status of the Property. A copy of any notice required by this section shall be forwarded to the City at the following address: City of Lubbock With cw to: City of Lubbock Attn: City Secretary Attn: Director of Planning P.O. Box 2000 F.O. Box 2000 Lubbock, Texas 79457 Lubbock, Texas 79457 This Agreement shall run with the Property and be recorded in the real property records of Lubbock County, Texas, Section S — Waiver. Any failure by the Owner or the City to insist upon strict performance by either party of any material provision of this Agreement shall not be deemed a waiver thereof, and the Owner or the City shall have the right at any time thereafter to insist upon strict performance of any and al provisions of this Agreement. No provision of this Agreement may be waived except by a written agreement signed by the Owner or the City waiving such provision. Any waiver shall be limited to the specific purposes for which it is given. No waiver by the Owner or the City of any provision of this Agreement shall be deemed or construed to be a waiver of any other provision or subsequent waiver of the same provision. The Parties expressly agree that no provision of this Agreement is in any way intended to constitute a waiver by any Party of any immunity from suit or liability that it may have by operation of law. The Parties agree that the City shall retain all of its governmental immunities. Section 9 — Assurance of Ownership. The Owner hereby expressly affirms that it is the sole owner of the Property and that no other person or entity has a valid claim to any right, title, or ownership in the Property. Should any dispute of right, title, or ownership concerning the Property arise subsequent to the Owner's execution of this Agreement, the Owner hereby agrees to be solely responsible for defending and confirming its absolute right, title, and ownership to the Property. If the Owner cannot Ch. 212 Development Agreement In Lieu Of Annexation - 3 1 P a g e defend or fails to defend its right, title, and ownership to the Property, then this Agreement shall terminate. Section 10 — Governing Law. This Agreement is entered into under and pursuant to, and is to be construed and enforceable in accordance with, the laws of the State of Texas, and all obligations of the Owner and the City are performable in Lubbock County, Texas. Venue for any action to enforce or construe this Agreement shall be Lubbock County, Texas. This Agreement is subject to all applicable federal, state, and local Iaws and any applicable ordinances, rules, orders and regulations of any local, state, or federal governmental authority, having or asserting jurisdiction. However, nothing contained in this Agreement shall be construed as a waiver by the Owner or the City of any right to question or contest any law, order, rule, or regulation which may affect the terms and conditions of this Agreement in any forum having jurisdiction, and the Owner and the City each agree to make a good faith effort to support all proposed laws and regulations which would be consistent with the performance of this Agreement in accordance with its terms. No subsequent change in the law regarding annexation shall affect the enforceability of this Agreement or the City's ability to annex the Property pursuant to this Agreement. Section II — Remedy. The City reserves the right to exercise any right or remedy available to it by law, contract, equity, or otherwise, including without limitation, the right to seek any and all forms of relief in a court of competent jurisdiction. Further, the City shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this Agreement, the former shall control. Section 12 — Public Information. This Agreement is public information. To the extent, if any, that any provision of this Agreement is in conflict with the Texas Public Information Act (Tex. Gov't. Code Ann. Chapter 552 et seq., as amended), the same shall be of no force and effect. Section 13 — Third -Party Beneficiaries. This Agreement only inures to the benefit of, and may only be enforced by, the Owner and the City. No other person or entity shall have any right, title, or interest under this Agreement or otherwise be deemed to be a third -party beneficiary of this Agreement. Section 14 -- No Personal Liability & No Joint Venture. Nothing in this Agreement is construed as creating any personal liability on the part of any employee, officer or agent of any public body that may be a party to this Agreement. This Agreement is not intended to, and shall not be construed to, create any joint enterprise between or among the parties. Section 15 — Due Diligence & Force Majeure. The Owner and the City shall use good faith, due diligence, and reasonable care in the performance of the obligations under this Agreement, and time shall be of the essence in such performance. In the event that the Owner or the City is unable to perform its respective obligations under this Agreement, due to any event or circumstance that is not within the reasonable respective control of the Owner or the City that could not have been avoided by either the Owner or the City with the exercise of good faith, due diligence, and reasonable care (a "Force Majeure"), then the obligations affected by the Force Majeure shall be temporarily suspended. Within three (3) business days after the occurrence of a Force Majeure, the Owner or the City shall give notice to each other, including a detailed explanation of the Force Majeure and a description of the action that will be taken to remedy the Force Majeure and resume full performance at the earliest possible time. Ch. 212 Development Agreement in lieu Of Annexation - 4 1 P a g e Section 16 — Enforcement. This Agreement may be enforced by the Owner or the City by any proceeding at law or in equity. Failure to do so shall not be deemed a waiver to enforce the Agreement thereafter. Section 17 — Governmental Powers. It is understood that by execution of this Agreement, the City does not waive or surrender any of its governmental powers, except as expressly set forth herein. Section 18 — 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. The Owner acknowledges that each and every owner of the Property must sign this Agreement in order for the Agreement to take full effect. Section 19 — Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be unenforceable for any reason, such unenforceable provision shall be deleted from this Agreement, and the remainder of this Agreement shall remain in full force and effect and shall be interpreted to give effect to the intent of the Owner and the City. Without limiting the generality of the foregoing, if it is determined that, as of the date that this Agreement becomes effective, that any Owner does not own any portion of the Property, then this Agreement shall remain in full force and effect with respect to the remaining portion of the Property that the Owners actually own. Section 20 — Entire Agreement. This Agreement constitutes the entire agreement between the Owner and the City and supersedes all prior agreements, whether oral or written, covering the subject matter of this Agreement. The Owner acknowledges that each and every Owner of the Property must sign this Agreement in order for the Agreement to take full effect. Section 21— Captions & Recitals. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. However, each of the recitals contained herein, by this reference, shall be incorporated into, and deemed a part of, this Agreement. Section 22 — Modification of Agreement. This Agreement cannot be modified or amended except in writing signed by the Owner and the City and attached and made a part of this Agreement. Section 23 — Ch. 212 Agreement in lieu of Ch. 43 Agreement. if the Property is subject to an agricultural exemption, the Owner hereby acknowledges that the City, through the Office of the City Attorney, offered to make a development agreement with the Owner under §43.035 of the Texas Local Government Code. The Owner further acknowledges that the Owner rejected the offer to make a §43.035 Agreement in order to enter in to this §212. l 72 Agreement. IN WITNESS HEREOF, the pa 'es mutually enter this Agreement on this'hday of , 2016. Ch. 212 Development Agreement In Lieu Of Annexation - 5 1 P a g e For the City For the Owner U GLEN C. R?WT95N, MAYOR 1041h & Frankford / Affordable Skorage, Inc., Owner Michael Postar, President Q dl��,y4�11 �i GOggawOo�oo+�` Y� 4 \ w. O e r o rl� t a cca Gsr, Cip�i�y Secrets '°Qv tt APPROVED) AS TO CONTENT: Andrew Paxton, Director of Planning APPROVED AS TO FORM: Just' P id, A sistant City Attorney Ch. 212 Development Agreement In lieu Of Annexation - 6 1 P a g e NOTARIZATION State of Texas § County of Lubbock § 1,[ This instrument was executed before me on _ 2016, by QATG M�MG of the City of Lubbock, a Texas municipal corporation, on behalf of said corporation. ;�stty*0 1,577L1.1A1iYillOtto i No y Public" -01 /lYfY1ilYl lltl{ State of Texas § County of Lubbock § This instrument was executed before me on -2016, by ' n�TG M "ctlaGL PQST�A. PAL5towr ov ownGe on behalf of sal er LIDVENNNDa WADSWOM I�Vala11 IOi 1053IOr6 Public MY f,�f�ited11529.2020 When Recorded Return To: City Secretary City of Lubbock, Texas 1625 131h Street Lubbock, Texas 79401 Ch. 212 Development Agreement In Lieu Of Annexation - 7 1 P a v e EXHIBIT A — The Property METES AND BOUNDS DESCRIPTION of a 10.427 acre tract of land out of a 15.1930 acre: tract of land describer) in County Clerk File Number 2012017781 of the OMcial Public Records of Lubbock County, Texas, located in Section 8, Block AK, Lubbock County, Texas, being further described as follows: BEGINNING at a W imn rod with cap set for the Nortliamsi corner of a 4 824 acre in. of Innd described in County Clark File Number 2011019267 of the Official Public Records of Lubbock County, Texas, in The Soudiem boundary o fa 19.949 acre tract of land described in County Clerk File N, umber 2010041487 of the Official Public Records of Lubbock County, Texas, in the Nonhem boundary of said 15.1930 acre Traci and the Northwest comer of this tract which bears S. OW 10'52" N. a distance of 660.05 feet and N. 89"27'01" E. a distance of 977,93 feet from the Northwest corner of Section 8, Block AK, Lubbock County, Texas; THENCE N. 89'27'01" E , along die Southern boundary of said 19.949 acre: tract and the Northern boundary of Said 15 1930 acre tract, a distance of 332.88 feet to a %N Iron rod with cap set for a point of intcrsecilan, for The most Northerly Northeast corner ofthis tract; THENCE Southeasterly, along a curve to left, said curve having a radius of 75 00 feet, a central angle of 41'35143", tangent lengths of "_8.49 feet, a chord distauicc of 53 26 feet and a tfiord bating ofS. 58` 13'03" F. to a h" iron rod Leith cap set for a point of intersection TH ENCE S. 00'33' 59" E a distance of 308 06 feet to a'✓," iron rota with cap set for a corner of this tract; THENCE N. 89'27VI" E. a distance of 611.09 feet to a `h" iron rod with cap set for the most Easterly Northeast corner of this tract, THMCE S. 00'32' 59" E. a distance of 326119 feet ro a i;" iron rod With cap set in the North right -of --way line of 134th Street dedicated by plat n=rded in Volume 3281, Page 106 of the Real Property Records of Lubbock County, Texas, far the Southeast comer of this tract; 11•1 ENCE S. 89'3111" W , along said Norilt right•of--way line, a distance a f 1007A I feet to a iron rot! with cap found at The Southeast corner of said 4 824 acre tract and the southwest corner of this in, THENCE N. 00 10'52" E . along the Fasiern boundary of said 4 824 acre in, ci, a distance of 661 28 fact to the Point of Beginning. CONTAINS: 454.201 srl fi or 10-427 acres (104th & Frankford Affordable Storage (Michael Postarl - R322225) Page 1 of 2 BLK AK SEC 8 AB 959 TR E1 OF Nl2 OF NW/4 AC; 10.427 (104th & Frankford Affordable Storage (Michael Postar) - R322225) Page 2 of 2 EXHIBIT A —The Property METES AND (BOUNDS DESCRIP110N of a IOA27 acre tract of land out ora t 5.1930 acre tract of land described in County Clerk File Number 2012017781 of the Official Public Records of Lubbock County; Texas, located in Section 8, Block AK, Lubbock County, 'texas, being further described as Follows: BEGINNING at a W iron rod with cap set for the Northeast corner of a 4 $24 acre Irtict of Innd described in County Clerk File Number 2011019267 orthe OtTciat Public Records or Lubbock County, Texas, to the Southem boundary o f a 19.949 acre tract orland described in County Clerk File Number 2010041487 of the Official Public Records of Lubbock County, Texas, in the Northernboundary of said 15.1930 acre tract and the Northwest corner of this tract which bears S, 00' 10'52" W. a distance of660,05 feet and N. 89'27'01" E. a distance or 977.93 feel rmm the Northwest corner or Section 8, Block AK, Lubbock County, Texas; THENCE N. 89'27'01" E, along die Southern boundary of said 19.949 acre tract and the Northern boundary orsaid 15 1930 acre tract, a distance of 332 88 feel to a 14" Iran rod with cap set far n point of imerseclion. for the most Northerly Northeast corner of this tract, THENCE Southeasterly, along a curve to Ieft, said curve having a radius of75 00 feet, a central angle of 41'35'43", tangent lengths of 28.49 reel, a chord distance o F 53 26 feel anti a chord bearing ofS. 58' 13'03" E. to a W iron rod with cap set for a point oriniersection THENCE S. 00'32' 59" E a distance or308 06 Fret to a %," iron rod with cap set for a comer of this tract; THENCE N. 99'27'01" E a distance of 621.09 rest to a'li" iron rod with cap set for the most Easlerly Northeast corner of this tract, THENCE S. 00'32'59" E. a distancror326 09 rcct tea :f" iron rod with caapset in the North right -or --way line of 134th Street dcdicaird by plat mcorded in Volume 3281, Page 106 orthe Kcal Property Records of Lubbock County, Texas, For the Southeast comer of this tract; TH CNCE S. 89'3 I'S i" W., along said North right -of-way line, a distance of 1007.41 frci to a ;'.-,iron rod with cap found ut the Southeast corner orsaid 4.824 acre tract and the Southwest curnrer orthis in, THENCE N 00 10'53" C , along the Fmiern boundary orsaid 4 824 acre in. a distance or661 2S fret to the Point orBeginninb. CONTAINS: 454.201 sq rt. or 10.427 acres (104th & Frankford Affordable Storage (Michael Postar) - R32222S) Page 1 of 2 BLK AK SEC S AB 959 TR E1 OF N/2 OF NW/4 AC; 10.427 (104th & Frankford Affordable Storage (Michael Postar) - R322225) Page 2 of 2 EXHIBIT A -- The Property METES AND HOUNDS DESCRIPTION of a 2.079 acre tract of land being a portion of a 14,541 acre tract of land as described under County Clerk File No. (CCFN) 2013048239 of the Official Public Records of Lubbock County, Texas, (OPRLCT) located in Section 8, Block AK, Lubbock County, Texas, being further described as follows: BEGINNING at a I f2" iron rod with cap found in the Western boundary of said 14.541 acre tract, a corner of a 10.427 acre tract of land as described under CCFN 2012021983, OPKL.CT, the Southeast comer of a 1.517 acre tract of land as described under CCFN 2013012811, OPRLCT and the Nortb%vest corner of this tract which bears N. 89'270 t" E. a distance of 1968.48 feet and S. 00*32,59" E. a distance of 996.55 feet from the Northwest corner of Section 8, € lock AK. Lubbock County, Texas; THENCE N 89'2701" E. a distance of295 72 feet to a Ii2" iron rod with cap found at the Noriheast corner of this tract; THENCE S, 00'32`59" E. a distance of 306.51 feet to a 1/2" Iron rod with cap found a1 the Southeast corner of this tract; THENCE S. 89'31'51" W. a distance of295.72 feet to a If3" iron rod with cap set in the Western boundary of said 14.541 acre tract and the Eastern boundary of said 10.427 acre tract, for the SoutliNvest corner of this tract; THENCE N. GIM59" W., along the Western boundary of said 14.541 acre tract and the Eastern boundary of said 10.427 acre tract, a distance of 306.09 feet to the Point of Beginning. CONTAINS: 90,578 square feet. 1104th & Frankford Affordable Storage [Michael Postarl - R3131272j Page 2 of 2 BLK AK SEC S AB 959 BAL OF N/2 OF NW/4 AC: 2.079 a o o0 CY? U BAL OF N/2 OF NW/4 2.979 AC FI, 1_._ 295.711 FILED AND RECORDED OFFICIAL PUBLIC RECORDS LA Kelly pindon countyClerk I.ubboek County TEXAS 05/23/2915 10:�2 AM FEE: 74.00 20i i7925 0 0 co I (104th & frankford Affordable Storage [Michael Postar) - R3131272) Page 2 of 2 CITY OF LUBBOCK OFFICE PICK UP 2@a6017M7 9 PG5 ACME mill 11111 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 REAL PROPERTY RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER CITY OF LUBBOCK CH. 212 DEVELOPMENT AGREEMENT IN LIEU OF ANNEXATION THIS DEVELOPMENT AG E NT IN LIEU OF ANNEXATION (the "Agreement") is made and effective this of ,SIX 2016, and is entered into pursuant to §212.172 of the Texas Local Government Code, by and between the City of Lubbock, Texas, a Texas home rule municipal corporation (the "City"), and the undersigned property owner(s) (the "Owner"), with the term "Owner" including all owners of the Property, and is as follows: RECITALS WHEREAS, the Owner owns a parcel of real property (the "Property' } in Lubbock County, Texas, which is more particularly and separately described in the attached Exhibit A; and WHEREAS, the City has instituted annexation proceedings for all portions of the Property and held public hearings regarding the proposed annexation on March 8 and March 10, 2016; and WHEREAS, at the public hearings, the Owner was presented with a service plan for the Property and the Owner was given the opportunity to be heard by the City Council of the City of Lubbock; and WHEREAS, the Owner does not want the Property to be annexed and desires to have the Property remain in the City's extraterritorial jurisdiction, in consideration for which the Owner agrees to enter into this Agreement; and WHEREAS, it is the City's intention to allow the Owner to continue to use the Property as it is being used at the time of this Agreement; and WHEREAS, the Owner and the City acknowledge that this Agreement is binding upon the City and the Owner and their respective successors and assigns for the duration of this Agreement; and WHEREAS, this Agreement is to be recorded in the real property records of Lubbock County, Texas; NOW, THEREFORE, in consideration of the mutual promises contained in this Agreement, the Owner and the City agree as follows: AGREEMENT Section 1 — The Property: Current Status. The City acknowledges that the Property, more particularly described in the attached "Exhibit A," is located within the extraterritorial jurisdiction of the City and is subject to annexation by the City unless this Agreement is signed by the Owner. Section 2 — The Property: Continued Status. In lieu of annexation, the Owner desires that the Property remain in the extraterritorial jurisdiction of the City for the duration of this Agreement. The Ch. 212 Development Agreement In Lieu Of Annexation -1 J P a g e Owner acknowledges that unless the Property is annexed by the City, the Property is not eligible to receive City services, the Property shall not be included in the City's voting precincts, and the Property shall be immune from City property taxes for the duration of this Agreement. The Owner's use of the Property at the time of this Agreement is "grandfathered" into the acceptable uses of the City, and the City is prohibited from interfering with any uses on the Property that comply with §43.002 of the Texas Local Government Code. The Owner acknowledges that Section 22.03.091(a) of the Code of Ordinances of the City prohibits the City from providing water to any entity outside of the city limits, and acknowledges that the City will not be providing water to the Property unless the Property is annexed into the City. However, if the Property is annexed pursuant to a provision of this Agreement, then the City shall provide services to the Property pursuant to Chapter 43 of the Texas Local Government Code. Subject to the provisions of this Agreement, the City shall not annex the Property, shall not involuntarily institute proceedings to annex the Property, and shall not include the Property in a statutory annexation plan. The Owner authorizes the enforcement by the City of all of the City's regulations and planning authority that do not materially interfere with the use of the Property in the same manner that the City's regulations and planning authority are enforced within the City's boundaries. The City specifically reserves its authority pursuant to Chapter 251 of the Texas Local Government Code to exercise eminent domain over property that is subject to a §212. 172 development agreement. The City further reserves its regulatory and planning authority in the City's ETJ, as such authority has been granted to it by the City Council. Section 3 — The Property: Change In Status. The Owner agrees not to substantially change the use of the Property as it is used on the date of the execution of this Agreement. The Owner agrees not to develop the Property by filing any type of subdivision plat or related development document for the Property with Lubbock County or the City throughout the duration of this Agreement. The Owner acknowledges that if any plat or related development document is filed for the Property, or if the Owner commences any development of the Property other than that which supports the use of the Property as the Property is used on the date of the execution of this Agreement, then this Agreement shall terminate, and in addition to the City's other remedies, such act will constitute a petition for voluntary annexation by the Owner, and the Property will be subject to annexation at the discretion of the City Council. The Owner agrees that such annexation shall be voluntary and the Owner hereby consents to such annexation as though a petition for such annexation had been tendered by the Owner. If annexation proceedings begin pursuant to this Section, then the Owner acknowledges that this Agreement serves as an exception to Local Government Code §43.052, requiring a municipality to use certain statutory procedures under an annexation plan, and as an exception to Local Government Code §43.062 requiring certain statutory procedures as to the Owner to effectuate an annexation. Further, the Owner hereby waives any and all vested rights and claims that it may have under §43.002(a)(2) and Chapter 245 of the Texas Local Government Code that would otherwise exist by virtue of any plat or construction the Owner may initiate during the time between the expiration of this Agreement and the institution of annexation proceedings by the City. Section 4 — The Term. The term of this Agreement (the "Term") shaIl be twenty (20) years from the date that this Agreement is approved by the City Council of the City of Lubbock. At the end of the Term, the Owner, and all of the Owner's heirs, successors and assigns shall be deemed to have filed Ch. 212 Development Agreement In Lieu Of Annexation - 2 1 p a g e a petition for voluntary annexation of the Property, and the Property will be subject to voluntary annexation in accordance with Section 3 of this Agreement. Prior to the end of the Term, the City may commence the voluntary annexation of the Property. Section 5 — Termination. This Agreement will automatically terminate at the end of the Term. This Agreement shall terminate upon the filing of any plat or related development document with the City or with Lubbock County or upon the Owner's failure to prove that it is the sole owner of the Property with the authority to sign this Agreement. The Owner and the City may agree in writing to terminate this Agreement prior to the expiration of the Term of this Agreement. Section 6 — City Council Approval Required. if the City Council of the City of Lubbock does not affirmatively vote to annex an area that contains the Property, then this Agreement will be null and void in its entirety. Section 7 — Notification. Any person who sells or conveys any portion of the Property shall, prior to such sale or conveyance, give written notice of this Agreement to the prospective purchaser or grantee, and shall give written notice of the sale or conveyance to the City. Further, the Owner and the Owner's heirs, successors, and assigns shall give the City written notice within fourteen (14) days of any change in the status of the Property. A copy of any notice required by this section shall be forwarded to the City at the following address: City of Lubbock With copy to: City of Lubbock Attn: City Secretary Attn: Director of Planning P.O. Box 2000 P.O. Box 2000 Lubbock, Texas 79457 Lubbock, Texas 79457 This Agreement shall run with the Property and be recorded in the real property records of Lubbock County, Texas. Section 8 — Waiver. Any failure by the Owner or the City to insist upon strict performance by either party of any material provision of this Agreement shall not be deemed a waiver thereof, and the Owner or the City shall have the right at any time thereafter to insist upon strict performance of any and all provisions of this Agreement. No provision of this Agreement may be waived except by a written agreement signed by the Owner or the City waiving such provision. Any waiver shall be limited to the specific purposes for which it is given. No waiver by the Owner or the City of any provision of this Agreement shall be deemed or construed to be a waiver of any other provision or subsequent waiver of the same provision. The Parties expressly agree that no provision of this Agreement is in any way intended to constitute a waiver by any Party of any immunity from suit or liability that it may have by operation of law. The Parties agree that the City shall retain all of its governmental immunities. Section 9 — Assurance of Ownership. The Owner hereby expressly affirms that it is the sole owner of the Property and that no other person or entity has a valid claim to any right, title, or ownership in the Property. Should any dispute of right, title, or ownership concerning the Property arise subsequent to the Owner's execution of this Agreement, the Owner hereby agrees to be solely responsible for defending and confirming its absolute right, title, and ownership to the Property. If the Owner cannot Ch. 212 Development Agreement In Lieu Of Annexation - 3 1 P a g e defend or fails to defend its right, title, and ownership to the Property, then this Agreement shall terminate. Section 10 — Governing Law. This Agreement is entered into under and pursuant to, and is to be construed and enforceable in accordance with, the laws of the State of Texas, and all obligations of the Owner and the City are performable in Lubbock County, Texas. Venue for any action to enforce or construe this Agreement shall be Lubbock County, Texas. This Agreement is subject to all applicable federal, state, and local laws and any applicable ordinances, rules, orders and regulations of any local, state, or federal governmental authority, having or asserting jurisdiction. However, nothing contained in this Agreement shall be construed as a waiver by the Owner or the City of any right to question or contest any law, order, rule, or regulation which may affect the terms and conditions of this Agreement in any forum having jurisdiction, and the Owner and the City each agree to make a good faith effort to support all proposed laws and regulations which would be consistent with the performance of this Agreement in accordance with its terms. No subsequent change in the law regarding annexation shall affect the enforceability of this Agreement or the City's ability to annex the Property pursuant to this Agreement. Section 11 — Remedy. The City reserves the right to exercise any right or remedy available to it by law, contract, equity, or otherwise, including without limitation, the right to seek any and all forms of relief in a court of competent jurisdiction. Further, the City shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this Agreement, the former shall control. Section 12 — Public Information. This Agreement is public information. To the extent, if any, that any provision of this Agreement is in conflict with the Texas Public Information Act (Tex. Gov't. Code Ann. Chapter 552 et seq., as amended), the same shall be of no force and effect. Section 13 — Third -Party Beneficiaries. This Agreement only inures to the benefit of, and may only be enforced by, the Owner and the City. No other person or entity shall have any right, title, or interest under this Agreement or otherwise be deemed to be a third -party beneficiary of this Agreement. Section 14 — No Personal Liability & No Joint Venture. Nothing in this Agreement is construed as creating any personal liability on the part of any employee, officer or agent of any public body that may be a party to this Agreement. This Agreement is not intended to, and shall not be construed to, create any joint enterprise between or among the parties. Section 15 — Due Diligence & Force Majeure. The Owner and the City shall use good faith, due diligence, and reasonable care in the performance of the obligations under this Agreement, and time shall be of the essence in such performance. In the event that the Owner or the City is unable to perform its respective obligations under this Agreement, due to any event or circumstance that is not within the reasonable respective control of the Owner or the City that could not have been avoided by either the Owner or the City with the exercise of good faith, due diligence, and reasonable care (a "Force Majeure"), then the obligations affected by the Force Majeure shall be temporarily suspended. Within three (3) business days after the occurrence of a Force Majeure, the Owner or the City shall give notice to each other, including a detailed explanation of the Force Majeure and a description of the action that will be taken to remedy the Force Majeure and resume full performance at the earliest possible time. Ch. 212 Development Agreement In Lieu Of Annexation - 4 1 P a g e Section 16 — Enforcement. This Agreement may be enforced by the Owner or the City by any proceeding at law or in equity. Failure to do so shall not be deemed a waiver to enforce the Agreement thereafter. Section 17 — Governmental Powers. It is understood that by execution of this Agreement, the City does not waive or surrender any of its governmental powers, except as expressly set forth herein. Section 18 — 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. The Owner acknowledges that each and every owner of the Property must sign this Agreement in order for the Agreement to take full effect. Section 19 — Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be unenforceable for any reason, such unenforceable provision shall be deleted from this Agreement, and the remainder of this Agreement shall remain in full force and effect and shall be interpreted to give effect to the intent of the Owner and the City. Without limiting the generality of the foregoing, if it is determined that, as of the date that this Agreement becomes effective, that any Owner does not own any portion of the Property, then this Agreement shall remain in full force and effect with respect to the remaining portion of the Property that the Owners actually own. Section 20 — Entire Agreement. This Agreement constitutes the entire agreement between the Owner and the City and supersedes all prior agreements, whether oral or written, covering the subject matter of this Agreement. The Owner acknowledges that each and every Owner of the Property must sign this Agreement in order for the Agreement to take full effect. Section 21— Captions & Recitals. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. However, each of the recitals contained herein, by this reference, shall be incorporated into, and deemed a part of, this Agreement. Section 22 — Modification of Agreement. This Agreement cannot be modified or amended except in writing signed by the Owner and the City and attached and made a part of this Agreement. Section 23 — Ch. 212 Agreement in lieu of Ch. 43 Agreement. If the Property is subject to an agricultural exemption, the Owner hereby acknowledges that the City, through the Office of the City Attorney, offered to make a development agreement with the Owner under §43.035 of the Texas Local Government Code. The Owner further acknowledges that the Owner rejected the offer to make a §43.035 Agreement in order to enter in to this §212.172 Agreement. IN WITNESS HEREOF, the p rugs mutually enter this Agreement on this VAny of , 2016. Ch. 212 Development Agreement In Lieu Of Annexation - 5 1 P a g e For the City '14*//r GLEN C. R BER ON, MAYOR pp, e 0 ATTE': Re Ica G�q, City Seceetary APPROVED AS TO CONTENT: Andrew Paxton, Director of Planning APPROVED AS TO FORM: Justrunt, A_ . istant City Attorney For the Owner 1400 Street & S1ide'Road, Inc., Owner Michael Postar, President Ch. 212 Development Agreement in Veu Of Annexation - 6 1 P a g e NOTARIZATION State of Texas § County of Lubbock § This instrument was executed before me on Ar 2016, by o#tt NAME ' of the City of Lubbock, a Texas municipal corporation. on behalf of said �C corporation. ,%"%"Y k SOW,(]rjl���firi j bco Si 4j�jj'& VL4 Co z S No ry Pub is 3ID State of Texas § County of Lubbock § r This instrument was executed before me on 2016, by , AA7C ROiaT#1l N on behalf of said Owner. VENRA WADSWORTH°�'' "0 No Public kV=W s05'*2d20 When Recorded Return To: City Secretary City of Lubbock, Texas 1625 13'h Street Lubbock, Texas 79401 Ch. 212 Development Agreement In Ueu Of Annexation - 7 1 P a g e EXHIBIT A — The Property METES AND BOUNDS DESCRIPTION of It t7 320 sae tract of land located to Semon 5, Block A & Lubbock County,'facss, being that same tract dambed to Volume 4748, Page 130 of dmPt al Property Rmorifs of Lubbock County, Texas, being further d=bed as follows. AEGl1v`NING at a'4" elan and fautid at the Southwed camcr of Section 5. Block AK, Lubbock County, Texas, Snag the Southwest coma of this tiara; TFiENC[; N 00'0ft18" E (hood calls Noah), *rtg the Wrist lute ofsatd Section S, a &= of660 00 feet to a cotton spindle w4b washer found at the most Westaly Scuthuzst caner of s 615 8 =e trace m desaibed unda County Clerk file Number 011011733 of the Official Public Records of Lubbodt Coutity,Tew and Ihr~ N%nhwest =ntrof Ibis tt c4 nOCE S. 897 E, along the Southern houndaly of said 615.8 mac tract, at 40.00 fea pass a !.0 iron rod with cap found in dtc East line of 40 foot nghl tf wsy easement as described m Valrtme 624, Page 564 of the Decd Records of Lubbock Co", Tim cortttm ing for a toW dish of 1143.15 fees to A W imn rod wadi mp set for the Nmthwrxt earner of z 4.0 acne tract as dcscr,w in Volunna 1459, Page 717 of the Decd Records of Lubbock County,'F= and the Northeast comer of th{s tract„ TIM CE S. p0W 18" fldetd calls: South), alo Uie Western boundary ofscid 4 0 xcm tract, at 635 00 fea pass a %" iron rmd found m reference, continuing for a total distance of 660,000 feato a 318" Iron rod frxtnd w the Sad lttteof scud Section 5, at the Southwest coma ofsud 4.0 acre tract and the Southew comer of this aact, THENCE N 89'57 W, along the Salute )me, ofs ud Serb mt S, at 1103.15 feet pass o "cross batch" anti with washy found in said East easement fins cmttinclmg for a fatal dlztancc of 114315 feet to dt Pomt of Beginning Cw ms 754,479 square feet (146th Street & Slide Road Inc. [Michael Postar] — R129250) Page 1 of 2 BLK AK SEC 5 AB 163 TR A ACS: 16.71 i r1r, I or,, RILED AND RECORDED OFFICIAL PUBLIC RECORDS c_. K*11y Pinion County_Clsrk Lubbock County TEXAS 05/23/2015 10:62 AM FEE: 53.00 2016017927 1146th Street & Slide Road Inc. (Michael Postar] — R129250) Page 2 of 2 CITY OF LUBBOCK OFFICE PICK UP 2016017926 9 PGS AGREE mill Ira, nN.Y�m III" WIN 1113h 11111 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 REAL PROPERTY RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER CITY OF LUBBOCK CH. 212 DEVELOPMENT AGREEMENT IN LIEU OF ANNEXATION THIS DEVELOPMENT AGREEMEi'IT IN LIEU OF ANNEXATION (the "Agreement") is made and effective this ' day of 1z ) .. , 2016, and is entered into pursuant to §212.172 of the Texas Local Government Code, by and between the City of Lubbock, Texas, a Texas home rule municipal corporation (the "City"), and the undersigned property owner(s) (the "Owner"), with the term "Owner" including all owners of the Property, and is as follows: RECITALS WHEREAS, the Owner owns a parcel of real property (the "Property") in Lubbock County, Texas, which is more particularly and separately described in the attached Exhibit A; and WHEREAS, the City has instituted annexation proceedings for all portions of the Property and held public hearings regarding the proposed annexation on March 8 and March 10, 2016; and WHEREAS, at the public hearings, the Owner was presented with a service plan for the Property and the Owner was given the opportunity to be heard by the City Council of the City of Lubbock; and WHEREAS, the Owner does not want the Property to be annexed and desires to have the Property remain in the City's extraterritorial jurisdiction, in consideration for which the Owner agrees to enter into this Agreement; and WHEREAS, it is the City's intention to allow the Owner to continue to use the Property as it is being used at the time of this Agreement; and WHEREAS, the Owner and the City acknowledge that this Agreement is binding upon the City and the Owner and their respective successors and assigns for the duration of this Agreement; and WHEREAS, this Agreement is to be recorded in the real property records of Lubbock County, Texas; NOW, THEREFORE, in consideration of the mutual promises contained in this Agreement, the Owner and the City agree as follows: AGREEMENT Section 1 -- The Property: Current Status. The City acknowledges that the Property, more particularly described in the attached "Exhibit A," is located within the extraterritorial jurisdiction of the City and is subject to annexation by the City unless this Agreement is signed by the Owner. Section 2 — The Property: Continued Status. In lieu of annexation, the Owner desires that the Property remain in the extraterritorial jurisdiction of the City for the duration of this Agreement. The Ch. 212 Development Agreement In Ueu Of Annexation -1 1 P a g e Owner acknowledges that unless the Property is annexed by the City, the Property is not eligible to receive City services, the Property shall not be included in the City's voting precincts, and the Property shall be immune from City property taxes for the duration of this Agreement. The Owner's use of the Property at the time of this Agreement is "grand fathered" into the acceptable uses of the City, and the City is prohibited from interfering with any uses on the Property that comply with §43.002 of the Texas Local Government Code. The Owner acknowledges that Section 22.03.091(a) of the Code of Ordinances of the City prohibits the City from providing water to any entity outside of the city limits, and acknowledges that the City will not be providing water to the Property unless the Property is annexed into the City. However, if the Property is annexed pursuant to a provision of this Agreement, then the City shall provide services to the Property pursuant to Chapter 43 of the Texas Local Government Code. Subject to the provisions of this Agreement, the City shall not annex the Property, shall not involuntarily institute proceedings to annex the Property, and shall not include the Property in a statutory annexation plan. The Owner authorizes the enforcement by the City of all of the City's regulations and planning authority that do not materially interfere with the use of the Property in the same manner that the City's regulations and planning authority are enforced within the City's boundaries. The City specifically reserves its authority pursuant to Chapter 251 of the Texas Local Government Code to exercise eminent domain over property that is subject to a §212.172 development agreement. The City further reserves its regulatory and planning authority in the City's ETJ, as such authority has been granted to it by the City Council. Section 3 —The Property: Change In Status. The Owner agrees not to substantially change the use of the Property as it is used on the date of the execution of this Agreement. The Owner agrees not to develop the Property by filing any type of subdivision plat or related development document for the Property with Lubbock County or the City throughout the duration of this Agreement. The Owner acknowledges that if any plat or related development document is filed for the Property, or if the Owner commences any development of the Property other than that which supports the use of the Property as the Property is used on the date of the execution of this Agreement, then this Agreement shall terminate, and in addition to the City's other remedies, such act will constitute a petition for voluntary annexation by the Owner, and the Property will be subject to annexation at the discretion of the City Council. The Owner agrees that such annexation shall be voluntary and the Owner hereby consents to such annexation as though a petition for such annexation had been tendered by the Owner. If annexation proceedings begin pursuant to this Section, then the Owner acknowledges that this Agreement serves as an exception to Local Government Code §43.052, requiring a municipality to use certain statutory procedures under an annexation plan, and as an exception to Local Government Code §43.062 requiring certain statutory procedures as to the Owner to effectuate an annexation. Further, the Owner hereby waives any and all vested rights and claims that it may have under §43.002(a)(2) and Chapter 245 of the Texas Local Government Code that would otherwise exist by virtue of any plat or construction the Owner may initiate during the time between the expiration of this Agreement and the institution of annexation proceedings by the City. Section 4 — The Term. The term of this Agreement (the "Term") shaIl be twenty (20) years from the date that this Agreement is approved by the City Council of the City of Lubbock. At the end of the Term, the Owner, and all of the Owner's heirs, successors and assigns shall be deemed to have fled Ch. 212 Development Agreement In Lieu Of Annexation - 2 1 P a g e a petition for voluntary annexation of the Property, and the Property will be subject to voluntary annexation in accordance with Section 3 of this Agreement. Prior to the end of the Term, the City may commence the voluntary annexation of the Property. Section 5 —Termination. This Agreement will automatically terminate at the end of the Term. This Agreement shall terminate upon the filing of any plat or related development document with the City or with Lubbock County or upon the Owner's failure to prove that it is the sole owner of the Property with the authority to sign this Agreement. The Owner and the City may agree in writing to terminate this Agreement prior to the expiration of the Term of this Agreement. Section 6 — City Council Approval Required.. If the City Council of the City of Lubbock does not affirmatively vote to annex an area that contains the Property, then this Agreement will be null and void in its entirety. Section 7 — Notification. Any person who sells or conveys any portion of the Property shall, prior to such sale or conveyance, give written notice of this Agreement to the prospective purchaser or grantee, and shall give written notice of the sale or conveyance to the City. Further, the Owner and the Owner's heirs, successors, and assigns shall give the City written notice within fourteen (I 4) days of any change in the status of the Property. A copy of any notice required by this section shall be forwarded to the City at the following address: City of Lubbock With copy to: City of Lubbock Attn: City Secretary Attn: Director of Planning P.O. Box 2000 P.O. Box 2000 Lubbock, Texas 79457 Lubbock, Texas 79457 This Agreement shall run with the Property and be recorded in the real property records of Lubbock County, Texas. Section 8 — Waiver. Any failure by the Owner or the City to insist upon strict performance by either party of any material provision of this Agreement shall not be deemed a waiver thereof, and the Owner or the City shall have the right at any time thereafter to insist upon strict performance of any and all provisions of this Agreement. No provision of this Agreement may be waived except by a written agreement signed by the Owner or the City waiving such provision. Any waiver shall be limited to the specific purposes for which it is given. No waiver by the Owner or the City of any provision of this Agreement shall be deemed or construed to be a waiver of any other provision or subsequent waiver of the same provision. The Parties expressly agree that no provision of this Agreement is in any way intended to constitute a waiver by any Party of any immunity from suit or liability that it may have by operation of law. The Parties agree that the City shall retain all of its governmental immunities. Section 9 — Assurance of Ownership. The Owner hereby expressly affirms that it is the sole owner of the Property and that no other person or entity has a valid claim to any right, title, or ownership in the Property. Should any dispute of right, title, or ownership concerning the Property arise subsequent to the Owner's execution of this Agreement, the Owner hereby agrees to be solely responsible for defending and confirming its absolute right, title, and ownership to the Property. If the Owner cannot Ch. 212 Development Agreement In Lieu Of Annexation - 3 1 P a g e defend or fails to defend its right, title, and ownership to the Property, then this Agreement shall terminate. Section 10 — Governing Law. This Agreement is entered into under and pursuant to, and is to be construed and enforceable in accordance with, the laws of the State of Texas, and all obligations of the Owner and the City are performable in Lubbock County, Texas. Venue for any action to enforce or construe this Agreement shall be Lubbock County, Texas. This Agreement is subject to all applicable federal, state, and local laws and any applicable ordinances, rules, orders and regulations of any local, state, or federal governmental authority, having or asserting jurisdiction. However, nothing contained in this Agreement shall be construed as a waiver by the Owner or the City of any right to question or contest any law, order, rule, or regulation which may affect the terns and conditions of this Agreement in any forum having jurisdiction, and the Owner and the City each agree to make a good faith effort to support all proposed laws and regulations which would be consistent with the performance of this Agreement in accordance with its terms. No subsequent change in the law regarding annexation shall affect the enforceability of this Agreement or the City's ability to annex the Property pursuant to this Agreement. Section 11 — Remedy. The City reserves the right to exercise any right or remedy available to it by law, contract, equity, or otherwise, including without limitation, the right to seek any and all forms of relief in a court of competent jurisdiction. Further, the City shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this Agreement, the former shall control. Section 12 — Public Information. This Agreement is public information. To the extent, if any, that any provision of this Agreement is in conflict with the Texas Public Information Act (Tex. Gov't. Code Ann. Chapter 552 et seq., as amended), the same shall be of no force and effect. Section 13 — Third -Party Beneficiaries. This Agreement only inures to the benefit of, and may only be enforced by, the Owner and the City. No other person or entity shall have any right, title, or interest under this Agreement or otherwise be deemed to be a third -party beneficiary of this Agreement. Section 14 — No Personal Liability & No Joint Venture. Nothing in this Agreement is construed as creating any personal liability on the part of any employee, officer or agent of any public body that may be a party to this Agreement. This Agreement is not intended to, and shall not be construed to, create any joint enterprise between or among the parties. Section 15 — Due Diligence & Force Majeure. The Owner and the City shall use good faith, due diligence, and reasonable care in the performance of the obligations under this Agreement, and time shall be of the essence in such performance. In the event that the Owner or the City is unable to perform its respective obligations under this Agreement, due to any event or circumstance that is not within the reasonable respective control of the Owner or the City that could not have been avoided by either the Owner or the City with the exercise of good faith, due diligence, and reasonable care (a "Force Majeure"), then the obligations affected by the Force Majeure shall be temporarily suspended. Within three (3) business days after the occurrence of a Force Majeure, the Owner or the City shall give notice to each other, including a detailed explanation of the Force Majeure and a description of the action that will be taken to remedy the Force Majeure and resume full performance at the earliest possible time. Ch. 212 Development Agreement In Lieu Of Annexation - 4 1 P a g e Section 16 — Enforcement. This Agreement may be enforced by the Owner or the City by any proceeding at law or in equity. Failure to do so shall not be deemed a waiver to enforce the Agreement thereafter. Section 17 — Governmental Powers. It is understood that by execution of this Agreement, the City does not waive or surrender any of its governmental powers, except as expressly set forth herein. Section 18 — 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. The Owner acknowledges that each and every owner of the Property must sign this Agreement in order for the Agreement to take full effect. Section 19 — Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be unenforceable for any reason, such unenforceable provision shall be deleted from this Agreement, and the remainder of this Agreement shall remain in full force and effect and shall be interpreted to give effect to the intent of the Owner and the City. Without limiting the generality of the foregoing, if it is determined that, as of the date that this Agreement becomes effective, that any Owner does not own any portion of the Property, then this Agreement shall remain in full force and effect with respect to the remaining portion of the Property that the Owners actually own. Section 20 -- Entire Agreement. This Agreement constitutes the entire agreement between the Owner and the City and supersedes all prior agreements, whether oral or written, covering the subject matter of this Agreement. The Owner acknowledges that each and every Owner of the Property must sign this Agreement in order for the Agreement to take full effect. Section 21— Captions & Recitals. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. However, each of the recitals contained herein, by this reference, shall be incorporated into, and deemed a part of, this Agreement. Section 22 — Modification of Agreement. This Agreement cannot be modified or amended except in writing signed by the Owner and the City and attached and made a part of this Agreement. Section 23 — Ch. 212 Agreement in lieu of Ch. 43 Agreement. if the Property is subject to an agricultural exemption, the Owner hereby acknowledges that the City, through the Office of the City Attorney, offered to make a development agreement with the Owner under §43.035 of the Texas Local Government Code. The Owner further acknowledges that the Owner rejected the offer to make a §43.035 Agreement in order to enter in to this §212.172 Agreement. IN WITNESS HEREOF, the ps rties mutually enter this Agreement on this f'day of , 2016. Ch. 212 Development Agreement In Lieu Of Annexation - 5 1 P a g e For the City GLEN C.�RTSON, MAYOR R p4um a r ,;," 6 1 AWTI S 's b O Rebtcc.'-Qarza, Cltyr Secret APPROVED AS TO CONTENT: 2�' Andrew Paxton, Director of Planning F Justin Prui t, lAssistant Cit . Attorney For the Owner Evelyn Graves, O er Ch. 212 Development Agreement In Lieu Of Annexation - 6 1 P a g e NOTARIZATION State of Texas § County of Lubbock § This instrument was executed before me o 2016, by A4 GATE NAJ of the City of Lubbock, a Texas municipal corporation, on behalf of said TCTL& corporation. Nota Public ,I,Ip1111111,,,T! .o•�`FS'¢ SOyrp'•'' z OF State of Texas § County of Lubbock § f l This instrument was executed before me on DATE on behalf of said Owner. D16 411111, ^t 2016, by 1rX NC ; C S -EVELVNGRA 0WNLN KOREY MILLER 0 Oft 1: Notary Pub ic, Stole cat lexcas .a: r. .', Comm. Exp ies 08-26,2017 NotaryPublic ., .. 4��. ""%.,`�A;,`,� Notnoy ID 124539357 To: Ch. 212 Development Agreement In Lieu Of Annexation • 7 1 P a g e When Recorded Return City Secretary City of Lubbock, Texas 1625 131h Street Lubbock, Texas 79401 EXHIBIT A — The Property All that certain 5.00 acres, more or less, in the Frankford Farms, Tract 3, a Subdivision out of the Southwest 1/4 of Section 24, Block E-2, Lubbock County, Texas, more fully described in the Warranty Deed to the Veterans Land Board dated May 9,1989, recorded in Volume 3078, Page 10, Official Real Property Records of Lubbock County, Texas; and further described in that Contract of Sale and Purchase dated May 9,1.989, recorded in Volume 3078, Page 4, Official Real Property Records of Lubbock County, Texas. FRANKFORD FARMS TR 3 (LESS BLDG ONLY) R----740&------ (Graves - R68440) Page 1 of 1 FILED AND RECORDED OFFICIAL PUBLIC RECORDS Kelly Plnian Countyy Clark Lubbock County TEf(F15 05/23/2016 10:62 AM 2016017926 CITY OF LUBBOCK OFFICE PICK UP 201601792B 9 PGS AGREE mill ri, WINV � WIN WE K Ith 11111 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 REAL PROPERTY RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER CITY OF LUBBOCK CH. 212 DEVELOPMENT AGREEMENT IN LIEU OF ANNEXATION THIS DEVELOPMENT AGREEME-w IN LIEU OF ANNEXATION (the "Agreement") is made and effective this ay of , 2016, and is entered into pursuant to §212.172 of the Texas Local Govern ent Code, by and between the City of Lubbock, Texas, a Texas home rule municipal corporation (the "City"), and the undersigned property owner(s) (the "Owner"), with the term "Owner" including all owners of the Property, and is as follows: RECITALS WHEREAS, the Owner owns a parcel of real property (the "Property') in Lubbock County, Texas, which is more particularly and separately described in the attached Exhibit A; and WHEREAS, the City has instituted annexation proceedings for all portions of the Property and held public hearings regarding the proposed annexation on March 8 and March 10, 2016; and WHEREAS, at the public hearings, the Owner was presented with a service plan for the Property and the Owner was given the opportunity to be heard by the City Council of the City of Lubbock; and WHEREAS, the Owner does not want the Property to be annexed and desires to have the Property remain in the City's extraterritorial jurisdiction, in consideration for which the Owner agrees to enter into this Agreement; and WHEREAS, it is the City's intention to allow the Owner to continue to use the Property as it is being used at the time of this Agreement; and WHEREAS, the Owner and the City acknowledge that this Agreement is binding upon the City and the Owner and their respective successors and assigns for the duration of this Agreement; and WHEREAS, this Agreement is to be recorded in the real property records of Lubbock County, Texas; NOW, THEREFORE, in consideration of the mutual promises contained in this Agreement, the Owner and the City agree as follows: AGREEMENT Section I — The Property: Current Status. The City acknowledges that the Property, more particularly described in the attached "Exhibit A," is Iocated within the extraterritorial jurisdiction of the City and is subject to annexation by the City unless this Agreement is signed by the Owner. Section 2 — The Property: Continued Status. In lieu of annexation, the Owner desires that the Property remain in the extraterritorial jurisdiction of the City for the duration of this Agreement. The Ch. 212 Development Agreement In Lieu Of Annexation -1 1 P p; Owner acknowledges that unless the Property is annexed by the City, the Property is not eligible to receive City services, the Property shall not be included in the City's voting precincts, and the Property shall be immune from City property taxes for the duration of this Agreement. The Owner's use of the Property at the time of this Agreement is "grand fathered" into the acceptable uses of the City, and the City is prohibited from interfering with any uses on the Property that comply with §43.002 of the Texas Local Government Code. The Owner acknowledges that Section 22.03.091(a) of the Code of Ordinances of the City prohibits the City from providing water to any entity outside of the city limits, and acknowledges that the City will not be providing water to the Property unless the Property is annexed into the City. However, if the Property is annexed pursuant to a provision of this Agreement, then the City shall provide services to the Property pursuant to Chapter 43 of the Texas Local Government Code. Subject to the provisions of this Agreement, the City shall not annex the Property, shall not involuntarily institute proceedings to annex the Property, and shall not include the Property in a statutory annexation plan. The Owner authorizes the enforcement by the City of all of the City's regulations and planning authority that do not materially interfere with the use of the Property in the same manner that the City's regulations and planning authority are enforced within the City's boundaries. The City specifically reserves its authority pursuant to Chapter 251 of the Texas Local Government Code to exercise eminent domain over property that is subject to a §212.172 development agreement. The City further reserves its regulatory and planning authority in the City's ETJ, as such authority has been granted to it by the City Council. Section 3 — The Property: Change In Status. The Owner agrees not to substantially change the use of the Property as it is used on the date of the execution of this Agreement. The Owner agrees not to develop the Property by filing any type of subdivision plat or related development document for the Property with Lubbock County or the City throughout the duration of this Agreement. The Owner acknowledges that if any plat or related development document is filed for the Property, or if the Owner commences any development of the Property other than that which supports the use of the Property as the Property is used on the date of the execution of this Agreement, then this Agreement shall terminate, and in addition to the City's other remedies, such act will constitute a petition for voluntary annexation by the Owner, and the Property will be subject to annexation at the discretion of the City Council. The Owner agrees that such annexation shall be voluntary and the Owner hereby consents to such annexation as though a petition for such annexation had been tendered by the Owner. If annexation proceedings begin pursuant to this Section, then the Owner acknowledges that this Agreement serves as an exception to Local Government Code §43.052, requiring a municipality to use certain statutory procedures under an annexation plan, and as an exception to Local Government Code §43.062 requiring certain statutory procedures as to the Owner to effectuate an annexation. Further, the Owner hereby waives any and all vested rights and claims that it may have under §43.002(a)(2) and Chapter 245 of the Texas Local Government Code that would otherwise exist by virtue of any plat or construction the Owner may initiate during the time between the expiration of this Agreement and the institution of annexation proceedings by the City. Section 4 — The Term. The term of this Agreement (the "Terri ') shall be twenty (20) years from the date that this Agreement is approved by the City Council of the City of Lubbock. At the end of the Term, the Owner, and all of the Owner's heirs, successors and assigns shall be deemed to have filed Ch. 212 Development Agreement In Lieu Of Annexation - 2 1 P a r, e a petition for voluntary annexation of the Property, and the Property will be subject to voluntary annexation in accordance with Section 3 of this Agreement. Prior to the end of the Term, the City may commence the voluntary annexation of the Property. Section 5 — Termination. This Agreement will automatically terminate at the end of the Term. This Agreement shall terminate upon the Fling of any plat or related development document with the City or with Lubbock County or upon the Owner's failure to prove that it is the sole owner of the Property with the authority to sign this Agreement, The Owner and the City may agree in writing to terminate this Agreement prior to the expiration of the Term of this Agreement. Section 6 +- City Council Approval Required. If the City Council of the City of Lubbock does not affirmatively vote to annex an area that contains the Property, then this Agreement will be null and void in its entirety. Section 7 e- Notification. Any person who sells or conveys any portion of the Property shall, prior to such sale or conveyance, give written notice of this Agreement to the prospective purchaser or grantee, and shal I give written notice of the sale or conveyance to the City. Further, the Owner and the Owner's heirs, successors, and assigns shall give the City written notice within fourteen (14) days of any change in the status of the Property. A copy of any notice required by this section shall be forwarded to the City at the following address: City of Lubbock With copy to: City of Lubbock Attn: City Secretary Attn: Director of Planning P.O. Box 2000 P.O. Box 2000 Lubbock, Texas 79457 Lubbock, Texas 79457 This Agreement shall run with the Property and be recorded in the real property records of Lubbock County, Texas. Section 8 — Waiver. Any failure by the Owner or the City to insist upon strict performance by either party of any material provision of this Agreement shall not be deemed a waiver thereof, and the Owner or the City shall have the right at any time thereafter to insist upon strict performance of any and all provisions of this Agreement. No provision of this Agreement may be waived except by a written agreement signed by the Owner or the City waiving such provision. Any waiver shall be limited to the specific purposes for which it is given. No waiver by the Owner or the City of any provision of this Agreement shall be deemed or construed to be a waiver of any other provision or subsequent waiver of the same provision. The Parties expressly agree that no provision of this Agreement is in any way intended to constitute a waiver by any Party of any immunity from suit or liability that it may have by operation of law. The Parties agree that the City shall retain all of its governmental immunities. Section 9 — Assurance of Ownership. The Owner hereby expressly affirms that it is the sole owner of the Property and that no other person or entity has a valid claim to any right, title, or ownership in the Property. Should any dispute of right, title, or ownership concerning the Property arise subsequent to the Owner's execution of this Agreement, the Owner hereby agrees to be solely responsible for defending and confirming its absolute right, title, and ownership to the Property. If the Owner cannot Ch. 212 Development Agreement In lieu Of Annexation - 3 1 P a g e defend or fails to defend its right, title, and ownership to the Property, then this Agreement shall terminate. Section 10 — Governing Law. This Agreement is entered into under and pursuant to, and is to be construed and enforceable in accordance with, the laws of the State of Texas, and all obligations of the Owner and the City are performable in Lubbock County, Texas. Venue for any action to enforce or construe this Agreement shall be Lubbock County, Texas. This Agreement is subject to all applicable federal, state, and local laws and any applicable ordinances, rules, orders and regulations of any local, state, or federal governmental authority, having or asserting jurisdiction. However, nothing contained in this Agreement shall be construed as a waiver by the Owner or the City of any right to question or contest any law, order, rule, or regulation which may affect the terms and conditions of this Agreement in any forum having jurisdiction, and the Owner and the City each agree to make a good faith effort to support all proposed laws and regulations which would be consistent with the performance of this Agreement in accordance with its terms. No subsequent change in the law regarding annexation shall affect the enforceability of this Agreement or the City's ability to annex the Property pursuant to this Agreement. Section 11 — Remedy. The City reserves the right to exercise any right or remedy available to it by law, contract, equity, or otherwise, including without limitation, the right to seek any and all forms of relief in a court of competent jurisdiction. Further, the City shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this Agreement, the former shall control. Section 12 — Public Information. This Agreement is public information. To the extent, if any, that any provision of this Agreement is in conflict with the Texas Public Information Act (Tex. Gov't. Code Ann. Chapter 552 et seq., as amended), the same shall be of no force and effect. Section 13 — Third -Party Beneficiaries. This Agreement only inures to the benefit of, and may only be enforced by, the Owner and the City. No other person or entity shal I have any right, title, or interest under this Agreement or otherwise be deemed to be a third -party beneficiary of this Agreement. Section 14 -- No Personal Liability & No Joint Venture. Nothing in this Agreement is construed as creating any personal liability on the part of any employee, officer or agent of any public body that may be a party to this Agreement. This Agreement is not intended to, and shall not be construed to, create any joint enterprise between or among the parties. Section 15 -- Due Diligence & Force Majeure. The Owner and the City shall use good faith, due diligence, and reasonable care in the performance of the obligations under this Agreement, and time shall be of the essence in such performance. In the event that the Owner or the City is unable to perform its respective obligations under this Agreement, due to any event or circumstance that is not within the reasonable respective control of the Owner or the City that could not have been avoided by either the Owner or the City with the exercise of good faith, due diligence, and reasonable care (a "Force Majeure"), then the obligations affected by the Force Majeure shall be temporarily suspended. Within three (3) business days after the occurrence of a Force Majeure, the Owner or the City shall give notice to each other, including a detailed explanation of the Force Majeure and a description of the action that will be taken to remedy the Force Majeure and resume full performance at the earliest possible time. Ch. 212 Development Agreement In Lieu Of Annexation - 4 1 F: -� k, ,_ Section 16 — Enforcement. This Agreement may be enforced by the Owner or the City by any proceeding at law or in equity. Failure to do so shal i not be deemed a waiver to enforce the Agreement thereafter. Section 17 — Governmental Powers. It is understood that by execution of this Agreement, the City does not waive or surrender any of its governmental powers, except as expressly set forth herein. Section 18 — 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. The Owner acknowledges that each and every owner of the Property must sign this Agreement in order for the Agreement to take full effect. Section 19 — Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be unenforceable for any reason, such unenforceable provision shall be deleted from this Agreement, and the remainder of this Agreement shall remain in full force and effect and shall be interpreted to give effect to the intent of the Owner and the City. Without limiting the generality of the foregoing, if it is determined that, as of the date that this Agreement becomes effective, that any Owner does not own any portion of the Property, then this Agreement shall remain in full force and effect with respect to the remaining portion of the Property that the Owners actually own. Section 20 -- Entire Agreement. This Agreement constitutes the entire agreement between the Owner and the City and supersedes all prior agreements, whether oral or written, covering the subject matter of this Agreement. The Owner acknowledges that each and every Owner of the Property must sign this Agreement in order for the Agreement to take full effect. Section 21— Captions & Recitals. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. However, each of the recitals contained herein, by this reference, shall be incorporated into, and deemed a part of, this Agreement. Section 22 — Modification of Agreement. This Agreement cannot be modified or amended except in writing signed by the Owner and the City and attached and made a part of this Agreement. Section 23 — Ch. 212 Agreement in lieu of Ch. 43 Agreement. If the Property is subject to an agricultural exemption, the Owner hereby acknowledges that the City, through the Office of the City Attorney, offered to make a development agreement with the Owner under §43.035 of the Texas Local Government Code. The Owner further acknowledges that the Owner rejected the offer to make a §43.035 Agreement in order to enter in to this §212.172 Agreement. IN WPTNESS HEREOF, the par#ies mutually enter this Agreement on this ay of , 2016. Ch. 212 Development Agreement In Lieu Of Annexation - 5 1 P a e e For the g GLEN'IOCBERIFKON, MAYOR + R + r j � vi pu3>>n0o�-� *'1 TEST- Keb cca G rza^ $ecreta 1 al ']9 a � _ s APPROYEV AS TO CONTENT: Andrew Paxton, Director of Planning APPROVED AS TO FORM: Justin Xssislant City Attorney For the Owner C Michael AeG-4 Owner (VLB #132185) ��' � �- t tz: Lynnflon, Owner (VLB #132185) Ch. 212 Development Agreement In Lieu Of Annexation - 6 1 P a g e NOTARIZATION State of Texas § County of Lubbock § , This instrument was executed before me on LO 2016, by 4f DATE lIAI11E jb of the City of Lubbock, a Texas municipal corporation, on behalf of said F ``,}117N11 t111ryE,EI, corporation. ��.���SCMDER P'U 2� a'Z n No a y Public State of Texas § r %�s 28-2O,°``'��� I,lMae lk County of Lubbock § This instrument was executed before me on 2016, by ATE � Ir11AELAL-tt>n-a1vNE>l on behalf of said Owner. VENITA WADSWORTH Nary Public, Stela olTaxes Notary M# 105370% N Public Myco mnissim BON 05-28.2a State of Texas § County of Lubbock § This instrument was executed before me on 2016, by , OASE LYN"ALT .'_pwryER. ;onbehalf of er.VENITA WADSWORTHW, ata olxasNotary 01 I053M6 Pub) is MyCamm6sion BON S28�2020 When Recorded Return To: City Secretary City of Lubbock, Texas 1625 131" Street Lubbock, Texas 79401 Ch. 212 Development Agreement In Lieu Of Annexation - 7 1 P a g e EXHIBIT A — The Property .�evised Plat of PiUe� rvhe 40iNort racy' of Trart 13. Frnnkford arms South, a au division of t f: oulh /2 bf the Northt+eal 'of' Section 8. Block A—K. Lubbock County. Texas as shown by plat recorded in Volume 3201. Pego 109, Real Properly Records. Lubbock County, Texas 16'�It'LfJaTM_Rt:^ a r b R Tract 13 5.0 Acres a a Y O n In.m lbb petpt the SW Cornor of ffR a .1 Sosuos m be 7.�0W. 831.Om' Pa11¢dS•L s eT ea- 4r T assJafe' att.4d, . TrmWord Forms mouth ICI 7rt I e.r I l-' I Ir.I I•e 117T]I" 1*1d 11"1 adst f' - 30M r $•k J/C Rad Jtori:a Ua ch t 00Inc T3R7J1 MTO of a 11.9 a.re Treat .f Toad out of U. feuth S/V .1 the Narth"rt I^ of ffecUsa e. Rlsok A -St', Lubbock Cously. Terr�ietllaety �i�er"strl�id .a va.ariod � Whim. =Al. Psm. 1tlm. Ms1 i7aryertl Jeewr6s, Lubbock Cauall. !ws nod b.lFw more 9CCU utuO at a IT red out kit th. Nortb ROT of l3ath cheek for the 6outhrert oera.r of thtp sur'++'I from rhonso the iswth..at earner .f the Narrh-rot !/a of 7orataa m b.srs s Sir OS' 4T V. m3l.9V end s Q JS' ar . 4*.O; THENZ K V it' 3W T s dlataaw of 918.11W is a 1/C red aot For the Porthroet osruar of tkl, Furry:, T1== N dV OW afr S a dlstanes of 75340' to a J/r rod ask for the Northeast earner d this aurMr. T'IMM a O 11' t'r C a dtatance of all mt' to a S/C rod aat b the North ROT of Mth stradt for The s.awseat carver of Ih1a ou".g. TI=Ct S Of fq' SY W. olonc the Nonh ROT of MOM street. it d"L ace of M215' 1s the piece of Mflna1n5 Lad tontsJ.lsd m.m _area of Lead. Dovctu SURMING Cc. •- MONUMENTS PLACED AS SHOWN BY PLAT �-SHf}4!?f AS SURVEYED ON SE (GROUND 1001-C 95TH STREETEXHIBIT i (moo) 744-11:40 DON H. DOUM AS dxzced-t LAND SURVEYOR F4579 ENGR i DAT1E I C ', Ft La SIMI! Of 111 AS It x 4 t F! C .: COUNTY or tulswcx J-JL 34 P • iS .tCOa7la..w. wl.«.-/r•F .IM OF�...F 4.F n.I-'M CCtnrti CSfJK (Acton — R85502) Page 1 of 2 F FRANrKFORD FARMS SOUTH TR 13 FILED AND RECORDED OFFICIAL PUBLIC RECORDS 10 c.- Krlly Plnlan county Clark Lubbock County iE1(R5 05/23/2016 10:�2 AM FEE: 58.00 201027928 page 2of2 (Acton — R86502) CITY OF LUBBOCK OFFICE PICK UP 2016017929 9 PG5 AGREE millrg 10011A IAAMLivin 11111 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 REAL PROPERTY RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER CITY OF LUBBOCK CH. 212 DEVELOPMENT AGREEMENT IN LIEU OF ANNEXATION THIS DEVELOPMENT AGM&MENT IN LIEU OF ANNEXATION (the "Agreement") is made and effective this��1 y of APro'- � , 20I6, and is entered into pursuant to §212.172 of the Texas Local Government Code, by and between the City of Lubbock, Texas, a Texas home rule municipal corporation (the "City"), and the undersigned property owner(s) (the "Owner"), with the term "Owner" including all owners of the Property, and is as follows: RECITALS WHEREAS, the Owner owns a parcel of real property (the "Property") in Lubbock County, Texas, which is more particularly and separately described in the attached Exhibit A; and WHEREAS, the City has instituted annexation proceedings for all portions of the Property and held public hearings regarding the proposed annexation on March 8 and March 10, 2016; and WHEREAS, at the public hearings, the Owner was presented with a service plan for the Property and the Owner was given the opportunity to be heard by the City Council of the City of Lubbock; and WHEREAS, the Owner does not want the Property to be annexed and desires to have the Property remain in the City's extraterritorial jurisdiction, in consideration for which the Owner agrees to enter into this Agreement; and WHEREAS, it is the City's intention to allow the Owner to continue to use the Property as it is being used at the time of this Agreement; and WHEREAS, the Owner and the City acknowledge that this Agreement is binding upon the City and the Owner and their respective successors and assigns for the duration of this Agreement; and WHEREAS, this Agreement is to be recorded in the real property records of Lubbock County, Texas; NOW, THEREFORE, in consideration of the mutual promises contained in this Agreement, the Owner and the City agree as follows: AGREEMENT Section 1 — The Property: Current Status. The City acknowledges that the Property, more particularly described in the attached "Exhibit A," is located within the extraterritorial jurisdiction of the City and is subject to annexation by the City unless this Agreement is signed by the Owner. Section 2 — The Property: Continued Status. In lieu of annexation, the Owner desires that the Property remain in the extraterritorial jurisdiction of the City for the duration of this Agreement. The Ch. 212 Development Agreement In Lieu Of Annexation -1 1 Owner acknowledges that unless the Property is annexed by the City, the Property is not eligible to receive City services, the Property shall not be included in the City's voting precincts, and the Property shall be immune from City property taxes for the duration of this Agreement. The Owner's use of the Property at the time of this Agreement is "grandfathered" into the acceptable uses of the City, and the City is prohibited from interfering with any uses on the Property that comply with §43.002 of the Texas Local Government Code. The Owner acknowledges that Section 22.03.091(a) of the Code of Ordinances of the City prohibits the City from providing water to any entity outside of the city limits, and acknowledges that the City will not be providing water to the Property unless the Property is annexed into the City. However, if the Property is annexed pursuant to a provision of this Agreement, then the City shall provide services to the Property pursuant to Chapter 43 of the Texas Local Government Code. Subject to the provisions of this Agreement, the City shall not annex the Property, shall not involuntarily institute proceedings to annex the Property, and shall not include the Property in a statutory annexation plan. The Owner authorizes the enforcement by the City of all of the City's regulations and planning authority that do not materially interfere with the use of the Property in the same manner that the City's regulations and planning authority are enforced within the City's boundaries. The City specifically reserves its authority pursuant to Chapter 251 of the Texas Local Goverment Code to exercise eminent domain over property that is subject to a §212.172 development agreement. The City further reserves its regulatory and planning authority in the City's ET1, as such authority has been granted to it by the City Council. Section 3 -- The Property: Change In Status. The Owner agrees not to substantially change the use of the Property as it is used on the date of the execution of this Agreement. The Owner agrees not to develop the Property by filing any type of subdivision plat or related development document for the Property with Lubbock County or the City throughout the duration of this Agreement. The Owner acknowledges that if any plat or related development document is filed for the Property, or if the Owner commences any development of the Property other than that which supports the use of the Property as the Property is used on the date of the execution of this Agreement, then this Agreement shall terminate, and in addition to the City's other remedies, such act will constitute a petition for voluntary annexation by the Owner, and the Property will be subject to annexation at the discretion of the City Council. The Owner agrees that such annexation shall be voluntary and the Owner hereby consents to such annexation as though a petition for such annexation had been tendered by the Owner. If annexation proceedings begin pursuant to this Section, then the Owner acknowledges that this Agreement serves as an exception to Local Government Code §43.052, requiring a municipality to use certain statutory procedures under an annexation plan, and as an exception to Local Government Code §43.062 requiring certain statutory procedures as to the Owner to effectuate an annexation. Further, the Owner hereby waives any and all vested rights and claims that it may have under §43.002(a)(2) and Chapter 245 of the Texas Local Government Code that would otherwise exist by virtue of any plat or construction the Owner may initiate during the time between the expiration of this Agreement and the institution of annexation proceedings by the City. Section 4 — The Term. The term of this Agreement (the "Term") shall be twenty (20) years from the date that this Agreement is approved by the City Council of the City of Lubbock. At the end of the Term, the Owner, and all of the Owner's heirs, successors and assigns shall be deemed to have filed Ch. 212 Development Agreement In Lieu Of Annexation - 2 1 a petition for voluntary annexation of the Property, and the Property will be subject to voluntary annexation in accordance with Section 3 of this Agreement. Prior to the end of the Term, the City may commence the voluntary annexation of the Property. Section 5 — Termination. This Agreement will automatically terminate at the end of the Term. This Agreement shall terminate upon the filing of any plat or related development document with the City or with Lubbock County or upon the Owner's failure to prove that it is the sole owner of the Property with the authority to sign this Agreement. The Owner and the City may agree in writing to terminate this Agreement prior to the expiration of the Term of this Agreement. Section 6 — City Council Approval Required. If the City Council of the City of Lubbock does not affirmatively vote to annex an area that contains the Property, then this Agreement will be null and void in its entirety. Section 7 — Notification. Any person who sells or conveys any portion of the Property shall, prior to such sale or conveyance, give written notice of this Agreement to the prospective purchaser or grantee, and shall give written notice of the sale or conveyance to the City. Further, the Owner and the Owner's heirs, successors, and assigns shall give the City written notice within fourteen (14) days of any change in the status of the Property. A copy of any notice required by this section shall be forwarded to the City at the following address: City of Lubbock With cony to: City of Lubbock Attn: City Secretary Attn: Director of Planning P.Q. Box 2000 P.Q. Box 2000 Lubbock, Texas 79457 Lubbock, Texas 79457 This Agreement shall run with the Property and be recorded in the real property records of Lubbock County, Texas. Section 8 — Waiver. Any failure by the Owner or the City to insist upon strict performance by either party of any material provision of this Agreement shall not be deemed a waiver thereof, and the Owner or the City shall have the right at any time thereafter to insist upon strict performance of any and all provisions of this Agreement. No provision of this Agreement may be waived except by a written agreement signed by the Owner or the City waiving such provision. Any waiver shall be limited to the specific purposes for which it is given. No waiver by the Owner or the City of any provision of this Agreement shall be deemed or construed to be a waiver of any other provision or subsequent waiver of the same provision. The Parties expressly agree that no provision of this Agreement is in any way intended to constitute a waiver by any Party of any immunity from suit or liability that it may have by operation of law. The Parties agree that the City shall retain all of its governmental immunities. Section 9 — Assurance of Ownership. The Owner hereby expressly affirms that it is the sole owner of the Property and that no other person or entity has a valid claim to any right, title, or ownership in the Property. Should any dispute of right, title, or ownership concerning the Property arise subsequent to the Owner's execution of this Agreement, the Owner hereby agrees to be solely responsible for defending and confirming its absolute right, title, and ownership to the Property. If the Owner cannot Ch. 212 Development Agreement In Lieu Of Annexation - 3 1 defend or fails to defend its right, title, and ownership to the Property, then this Agreement shall terminate. Section 10 — Governing Law. This Agreement is entered into under and pursuant to, and is to be construed and enforceable in accordance with, the laws of the State of Texas, and all obligations of the Owner and the City are performable in Lubbock County, Texas. Venue for any action to enforce or construe this Agreement shall be Lubbock County, Texas. This Agreement is subject to all applicable federal, state, and local laws and any applicable ordinances, rules, orders and regulations of any local, state, or federal governmental authority, having or asserting jurisdiction. However, nothing contained in this Agreement shall be construed as a waiver by the Owner or the City of any right to question or contest any law, order, rule, or regulation which may affect the germs and conditions of this Agreement in any forum having jurisdiction, and the Owner and the City each agree to make a good faith effort to support all proposed laws and regulations which would be consistent with the performance of this Agreement in accordance with its terms. No subsequent change in the law regarding annexation shall affect the enforceability ofthis Agreement or the City's ability to annex the Property pursuant to this Agreement. Section 11— Remedy. The City reserves the right to exercise any right or remedy available to it by law, contract, equity, or otherwise, including without limitation, the right to seek any and all forms of relief in a court of competent jurisdiction. Further, the City shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this Agreement, the former shall control. Section 12 — Public Information. This Agreement is public information. To the extent, if any, that any provision of this Agreement is in conflict with the Texas Public Information Act (Tex. Gov't. Code Ann. Chapter 552 et seq., as amended), the same shall be of no force and effect. Section 13 — Third -Party Beneficiaries. This Agreement only inures to the benefit of, and may only be enforced by, the Owner and the City. No other person or entity shall have any right, title, or interest under this Agreement or otherwise be deemed to be a third -party beneficiary of this Agreement. Section 14 — No Personal Liability & No Joint Venture. Nothing in this Agreement is construed as creating any personal liability on the part of any employee, officer or agent of any public body that may be a party to this Agreement. This Agreement is not intended to, and shall not be construed to, create any joint enterprise between or among the parties. Section 15 — Due Diligence & Force Majeure. The Owner and the City shall use good faith, due diligence, and reasonable care in the performance of the obligations under this Agreement, and time shall be of the essence in such performance. In the event that the Owner or the City is unable to perform its respective obligations under this Agreement, due to any event or circumstance that is not within the reasonable respective control of the Owner or the City that could not have been avoided by either the Owner or the City with the exercise of good faith, due diligence, and reasonable care (a "Force Majeure"), then the obligations affected by the Force Majeure shall be temporarily suspended. Within three (3) business days after the occurrence of a Force Majeure, the Owner or the City shall give notice to each other, including a detailed explanation of the Force Majeure and a description of the action that will be taken to remedy the Force Majeure and resume full performance at the earliest possible time. Ch. 212 Development Agreement In Lieu Of Annexation - 4 1 Section 16 — Enforcement. This Agreement may be enforced by the Owner or the City by any proceeding at law or in equity. Failure to do so shall not be deemed a waiver to enforce the Agreement thereafter. Section 17 — Governmental Powers. It is understood that by execution of this Agreement, the City does not waive or surrender any of its governmental powers, except as expressly set forth herein. Section 18 — 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. The Owner acknowledges that each and every owner of the Property must sign this Agreement in order for the Agreement to take full effect. Section 19 — Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be unenforceable for any reason, such unenforceable provision shall be deleted from this Agreement, and the remainder of this Agreement shall remain in full force and effect and shall be interpreted to give effect to the intent of the Owner and the City. Without limiting the generality of the foregoing, if it is determined that, as of the date that this Agreement becomes effective, that any Owner does not own any portion of the Property, then this Agreement shall remain in full force and effect with respect to the remaining portion of the Property that the Owners actually own. Section 20 — Entire Agreement. This Agreement constitutes the entire agreement between the Owner and the City and supersedes all prior agreements, whether oral or written, covering the subject matter of this Agreement. The Owner acknowledges that each and every Owner of the Property must sign this Agreement in order for the Agreement to take full effect. Section 21— Captions & Recitals. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. However, each of the recitals contained herein, by this reference, shall be incorporated into, and deemed a part of, this Agreement. Section 22 — Modification of Agreement. This Agreement cannot be modified or amended except in writing signed by the Owner and the City and attached and made a part of this Agreement. Section 23 — Ch. 212 Agreement in lieu of Ch. 43 Agreement. If the Property is subject to an agricultural exemption, the Owner hereby acknowledges that the City, through the Office of the City Attorney, offered to make a development agreement with the Owner under §43.035 of the Texas Local Government Code. The Owner Rather acknowledges that the Owner rejected the offer to make a §43.035 Agreement in order to enter in to this §212.172 Agreement. IN WITNESS HEREOF, the parti mutually enter this Agreement on this `day of�r�t _ , 2016. Y Ch. 212 Development Agreement In lieu Of Annexation - 5 1 For the City GLL . ROB9kTSON, MAYOR ti �aQnoa Daps _ ATTES�' r� ° l;5�'ln r Re t cj Gam, City, C* o tact'; , �400nuep°� - fir€fig APPROVED AS TO CONTENT: Andrew Paxton, Director of Planning APPROVED AS TO FORM: Justin P sis t City Attorney For the Owner J, ,.e- -in Ludwig Baum Trust, Owner David Rost, Trustee CIS. 212 Development Agreement In Lieu Of Annexation - 6 1 NOTARIZATION State of Texas § County of Lubbock § 4This instrument was cxecuted before me on 2016, by "hAA awn n uri of the City of Lubbock, a Tewl "OW&I nrporation, on behalf of said FtY . corporation. : zQPU �N .- -t Na Public g OF State of Tozas § County of Lubbock § "BALM Ge:ACt( This instrument was executed before me on (L 2-2016, by �DU 0 A C C) oan uAvm goer, �saents FOR owngcR on behalf.�a,�s'aid Owner. NIDAMORWMED a.: MY COMaMISSION # FF051512 EXPIRFS September 5, 2017 Notary ublic `R'.t 9cnjcd Thru ?htary R. Urtye wa::er5 When Recorded Return To: City Secretary City of Lubbock, Texas 1625 131h Street Lubbock, Texas 79401 Ch. 212 Development Agreement In Lieu Of Annexation - 7 1 EXHIBIT A — The Property BEGINNING at a found RR spike set in the East line of Section 8, Block AK in Lubbock County, Texas, and in the Center of Farm -to. market Hwy. No. 1730 (from whence a found 3/Bths" iron rod marking the Southeast Corner of said Sectian 8 bear South 365,221); THENCE South 690 30" 40' Vast 1,320' to a 1/2" Iron rod not for the Southeast and BEGINNING CORNER of this tract:; THENCE North 00 5' 350 East a distance of 990' to a 1/2" Iron rod sec for the Northeast Corner of this tract; THENCE South 890 301, 40" West 1,332.21 to the Northwest Corner of this tract; THENCE South Oo 5' 35" West 990, to the Southwest Corner of this tract; THENCE North 890 30, 40" East 1,332.20 to the PLACE OF BEGINNING, containing 27.923 acres, more or less (herein, the "property"), BLK AK SEC 8 AB 959 TR E3 OF E/2 ACS: 27.923 (Ludwig Baum Trust - R316986) FILED AND RECORDED OFFICIAL PUBLIC RECORDS Kelly Rlnion Coonlyy Clerk Lubboek Co,c9ty TEX' S 03/23/2016 10:62 AM FEE: 04.00 2016@17929 CITY OF LUBBOCK 2026017930 s uaaus , AGREE OFFICE PICK UP ,III ri rO 1016 MAP U RI 11111 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 REAL PROPERTY RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER CITY OF LUBBOCK CH. 212 DEVELOPMENT AGREEMENT IN LIEU OF ANNEXATION THIS DEVELOPMENT AGREEME T IN LIEU OF ANNEXATION (the "Agreement") is made and effective this 11k day of , 2016, and is entered into pursuant to §212.172 of the Texas Local Government Code, by W between the City of Lubbock, Texas, a Texas home rule municipal corporation (the "City"), and the undersigned property owner(s) (the "Owner"), with the term "Owner" including all owners of the Property, and is as follows: RECITALS WHEREAS, the Owner owns a parcel of real property (the "Property") in Lubbock County, Texas, which is more particularly and separately described in the attached Exhibit A; and WHEREAS, the City has instituted annexation proceedings for all portions of the Property and held public hearings regarding the proposed annexation on March S and March 10, 2016; and WHEREAS, at the public hearings, the Owner was presented with a service plan for the Property and the Owner was given the opportunity to be heard by the City Council of the City of Lubbock; and WHEREAS, the Owner does not want the Property to be annexed and desires to have the Property remain in the City's extraterritorial jurisdiction, in consideration for which the Owner agrees to enter into this Agreement; and WHEREAS, it is the City's intention to allow the Owner to continue to use the Property as it is being used at the time of this Agreement; and WHEREAS, the Owner and the City acknowledge that this Agreement is binding upon the City and the Owner and their respective successors and assigns for the duration of this Agreement; and WHEREAS, this Agreement is to be recorded in the real property records of Lubbock County, Texas; NOW, THEREFORE, in consideration of the mutual promises contained in this Agreement, the Owner and the City agree as follows: AGREEMENT Section I — The Property: Current Status. The City acknowledges that the Property, more particularly described in the attached "Exhibit A," is located within the extraterritorial jurisdiction of the City and is subject to annexation by the City unless this Agreement is signed by the Owner. Section 2 — The Property: Continued Status. In lieu of annexation, the Owner desires that the Property remain in the extraterritorial jurisdiction of the City for the duration of this Agreement. The Ch. 212 Development Agreement to Lieu Of Annexation -1 I Owner acknowledges that unless the Property is annexed by the City, the Property is not eligible to receive City services, the Property shall not be included in the City's voting precincts, and the Property shall be immune from City property taxes for the duration of this Agreement. The Owner's use of the Property at the time of this Agreement is "grand fathered" into the acceptable uses of the City, and the City is prohibited from interfering with any uses on the Property that comply with §43.002 of the Texas Local Government Code. The Owner acknowledges that Section 22.03.091(a) of the Code of Ordinances of the City prohibits the City from providing water to any entity outside of the city limits, and acknowledges that the City will not be providing water to the Property unless the Property is annexed into the City. However, if the Property is annexed pursuant to a provision of this Agreement, then the City shall provide services to the Property pursuant to Chapter 43 of the Texas Local Government Code. Subject to the provisions of this Agreement, the City shall not annex the Property, shall not involuntarily institute proceedings to annex the Property, and shall not include the Property in a statutory annexation plan. The Owner authorizes the enforcement by the City of all of the City's regulations and planning authority that do not materially interfere with the use of the Property in the same manner that the City's regulations and planning authority are enforced within the City's boundaries. The City specifically reserves its authority pursuant to Chapter 251 of the Texas Local Government Code to exercise eminent domain over property that is subject to a §212.172 development agreement. The City further reserves its regulatory and planning authority in the City's ETJ, as such authority has been granted to it by the City Council. Section 3 — The Property: Change In Status. The Owner agrees not to substantially change the use of the Property as it is used on the date of the execution of this Agreement. The Owner agrees not to develop the Property by filing any type of subdivision plat or related development document for the Property with Lubbock County or the City throughout the duration of this Agreement. The Owner acknowledges that if any plat or related development document is filed for the Property, or if the Owner commences any development of the Property other than that which supports the use of the Property as the Property is used on the date of the execution of this Agreement, then this Agreement shall terminate, and in addition to the City's other remedies, such act will constitute a petition for voluntary annexation by the Owner, and the Property will be subject to annexation at the discretion of the City Council. The Owner agrees that such annexation shall be voluntary and the Owner hereby consents to such annexation as though a petition for such annexation had been tendered by the Owner. If annexation proceedings begin pursuant to this Section, then the Owner acknowledges that this Agreement serves as an exception to Local Government Code §43.052, requiring a municipality to use certain statutory procedures under an annexation plan, and as an exception to Local Government Code §43.062 requiring certain statutory procedures as to the Owner to effectuate an annexation. Further, the Owner hereby waives any and all vested rights and claims that it may have under §43.002(a)(2) and Chapter 245 of the Texas Local Government Code that would otherwise exist by virtue of any plat or construction the Owner may initiate during the time between the expiration of this Agreement and the institution of annexation proceedings by the City. Section 4 — The Term. The term of this Agreement (the "Term") shall be twenty (20) years from the date that this Agreement is approved by the City Council of the City of Lubbock. At the end of the Term, the Owner, and all of the Owner's heirs, successors and assigns shall be deemed to have filed Ch. 212 Development Agreement In Lieu Of Annexation - 2 1 a petition for voluntary annexation of the Property, and the Property will be subject to voluntary annexation in accordance with Section 3 of this Agreement. Prior to the end of the Term, the City may commence the voluntary annexation of the Property. Section 5 — Termination. This Agreement will automatically terminate at the end of the Term. This Agreement shall terminate upon the tiling of any plat or related development document with the City or with Lubbock County or upon the Owner's failure to prove that it is the sole owner of the Property with the authority to sign this Agreement. The Owner and the City may agree in writing to terminate this Agreement prior to the expiration of the Term of this Agreement. Section 6 — City Council Approval Required. If the City Council of the City of Lubbock does not affirmatively vote to annex an area that contains the Property, then this Agreement will be null and void in its entirety. Section 7 -- Notification. Any person who sells or conveys any portion of the Property shall, prior to such sale or conveyance, give written notice of this Agreement to the prospective purchaser or grantee, and shall give written notice of the sale or conveyance to the City. Further, the Owner and the Owner's heirs, successors, and assigns shall give the City written notice within fourteen ( 14) days of any change in the status of the Property. A copy of any notice required by this section shall be forwarded to the City at the following address: City of Lubbock With copy to: City of Lubbock Attn: City Secretary Attn: Director of Planning P.O. Box 2000 P.O. Box 2000 Lubbock, Texas 79457 Lubbock, Texas 79457 This Agreement shall run with the Property and be recorded in the real property records of Lubbock County, Texas. Section 8 — Waiver. Any failure by the Owner or the City to insist upon strict performance by either party of any material provision of this Agreement shall not be deemed a waiver thereof, and the Owner or the City shall have the right at any time thereafter to insist upon strict performance of any and all provisions of this Agreement. No provision of this Agreement may be waived except by a written agreement signed by the Owner or the City waiving such provision. Any waiver shall be limited to the specific purposes for which it is given. No waiver by the Owner or the City of any provision of this Agreement shall be deemed or construed to be a waiver of any other provision or subsequent waiver of the same provision. The Parties expressly agree that no provision of this Agreement is in any way intended to constitute a waiver by any Party of any immunity from suit or liability that it may have by operation of law. The Parties agree that the City shall retain all of its governmental immunities. Section 9 — Assurance of Ownership. The Owner hereby expressly affirms that it is the sole owner of the Property and that no other person or entity has a valid claim to any right, title, or ownership in the Property. Should any dispute of right, title, or ownership concerning the Property arise subsequent to the Owner's execution of this Agreement, the Owner hereby agrees to be solely responsible for defending and confirming its absolute right, title, and ownership to the Property. If the Owner cannot Ch. 212 Development Agreement In Lieu Of Annexation - 3 1 defend or fails to defend its right, title, and ownership to the Property, then this Agreement shall terminate. Section 10 — Governing Law. This Agreement is entered into under and pursuant to, and is to be construed and enforceable in accordance with, the laws of the State of Texas, and all obligations of the Owner and the City are performable in Lubbock County, Texas. Venue for any action to enforce or construe this Agreement shall be Lubbock County, Texas. This Agreement is subject to all applicable federal, state, and local laws and any applicable ordinances, rules, orders and regulations of any local, state, or federal governmental authority, having or asserting jurisdiction. However, nothing contained in this Agreement shall be construed as a waiver by the Owner or the City of any right to question or contest any law, order, rule, or regulation which may affect the terms and conditions of this Agreement in any forum having jurisdiction, and the Owner and the City each agree to make a good faith effort to support all proposed laws and regulations which would be consistent with the performance of this Agreement in accordance with its terns. No subsequent change in the law regarding annexation shall affect the enforceability of this Agreement or the City's ability to annex the Property pursuant to this Agreement. Section l 1 — Remedy. The City reserves the right to exercise any right or remedy available to it by law, contract, equity, or otherwise, including without limitation, the right to seek any and all forms of relief in a court of competent jurisdiction. Further, the City shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this Agreement, the former shall control. Section 12 — Public Information. This Agreement is public information. To the extent, if any, that any provision of this Agreement is in conflict with the Texas Public Information Act (Tex. Gov't. Code Ann. Chapter 552 et seq., as amended), the same shall be of no force and effect. Section 13 — Third -Party Beneficiaries. This Agreement only inures to the benefit of, and may only be enforced by, the Owner and the City. No other person or entity shall have any right, title, or interest under this Agreement or otherwise be deemed to be a third -party beneficiary of this Agreement. Section 14 — No Personal Liability & No .Taint Venture. Nothing in this Agreement is construed as creating any personal liability on the part of any employee, officer or agent of any public body that may be a party to this Agreement. This Agreement is not intended to, and shall not be construed to, create any joint enterprise between or among the parties. Section 15 — Due Diligence & Force Majeure. The Owner and the City shall use good faith, due diligence, and reasonable care in the performance of the obligations under this Agreement, and time shall be of the essence in such performance. In the event that the Owner or the City is unable to perform its respective obligations under this Agreement, due to any event or circumstance that is not within the reasonable respective control of the Owner or the City that could not have been avoided by either the Owner or the City with the exercise of good faith, due diligence, and reasonable care (a "Force Majeure"), then the obligations affected by the Force Majeure shall be temporarily suspended. Within three (3) business days after the occurrence of a Force Majeure, the Owner or the City shall give notice to each other, including a detailed explanation of the Force Majeure and a description of the action that will be taken to remedy the Force Majeure and resume full performance at the earliest possible time. Ch. 212 Development Agreement In Ueu Of Annexation - 4 1 Section 16 — Enforcement. This Agreement may be enforced by the Owner or the City by any proceeding at law or in equity. Failure to do so shall not be deemed a waiver to enforce the Agreement thereafter. Section 17 — Governmental Powers. It is understood that by execution of this Agreement, the City does not waive or surrender any of its governmental powers, except as expressly set forth herein. Section 18 — 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. The Owner acknowledges that each and every owner of the Property must sign this Agreement in order for the Agreement to take full effect. Section 19 — Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be unenforceable for any reason, such unenforceable provision shall be deleted from this Agreement, and the remainder of this Agreement shall remain in full force and effect and shall be interpreted to give effect to the intent of the Owner and the City. Without limiting the generality of the foregoing, if it is determined that, as of the date that this Agreement becomes effective, that any Owner does not own any portion of the Property, then this Agreement shall remain in full force and effect with respect to the remaining portion of the Property that the Owners actually own. Section 20 — Entire Agreement. This Agreement constitutes the entire agreement between the Owner and the City and supersedes all prior agreements, whether oral or written, covering the subject matter of this Agreement. The Owner acknowledges that each and every Owner of the Property must sign this Agreement in order for the Agreement to take full effect. Section 21— Captions & Recitals. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. However, each of the recitals contained herein, by this reference, shall be incorporated into, and deemed a part of, this Agreement. Section 22 — Modification of Agreement. This Agreement cannot be modified or amended except in writing signed by the Owner and the City and attached and made a part of this Agreement. Section 23 — Ch. 212 Agreement in lieu of Ch. 43 Agreement. If the Property is subject to an agricultural exemption, the Owner hereby acknowledges that the City, through the Office of the City Attorney, offered to make a development agreement with the Owner under §43.035 of the Texas Local Government Code. The Owner further acknowledges that the Owner rejected the offer to make a §43.035 Agreement in order to enter in to this §212.172 Agreement. IN WITNESS HER F, the p rties mutually enter this Agreement on this day of ; l , 2016. Ch. 212 Development Agreement In Lieu Of Annexation - 5 1 For the City v , 1"W'k GLEE R45BERtSON, MAYOR v z 1 Op � 0 '• O �_� II a� ' � r ff� •� Re ecea ttptSoretary APPROVED AS TO CONTENT: Y Andrew Paxton, Director of Planning APPROVED AS TO FORM: Y Justin zt tt, Msisfant City Attorney For the Owner r , Ray on Wilkins, Owner Ch. 212 Development Agreement In Lieu Of Annexation - 6 1 State of Texas County of Lubbock This instrument was execute MA corporation. NOTARIZATION {f d before me on 2016, by l 6,5Ti 4.'SA[t of the City of Lubbock %Xqg� municipal oration, on behalf of said .•''�555Owl) 0 "j"''�., N � PAY ,.P��'���� Not ry Fublic OF w�` 28-20'6 State of Texas § County of Lubbock § This instrument was executed before me on _ v�tf. 2016, by hit v n'1 VI i k� r,5, DATE M on beha of said Owner.. Ao—ta-ry'AWfic When Recorded Return To: City Secretary City of Lubbock, Texas 1625 131h Street Lubbock, Texas 79401 SYLVIA T. JUAREZ NdayptiW80dTon MyWenhdM Bpkvs 11,21,20111 Ch. 212 Development Agreement In Lieu OF Annexation - 7 1 EXHIBIT A -- The Property Wcst 182.25'of Tnu:t 3 of Frarikfurd Fbrnuf South Subdivision, S/2 NW/4 Scutwn 8, Block AK, Lubbock County, Texas. Land being 182.25 feet by 618.75 feet, as shown by Plat recorded in Volume 3281, Page 109, Lubbock County Official Real Property Records. FRANKFORD FARMS SOUTH W182.310F TR 3 (LESS BLDG ONLY) 182 3' W 182.3 OFTR3 R8Fa? 07 o° 2.59 AC r Cfl F (Mlkins — R86207) Page 1 of 1 FILED AND RECORDED OFFICIAL PUBLIC RECORDS . G. Kelly Plnlan County Clark Lubbock County TEXAS 05/23/2816 10:62 All PEE: $54.00 2016017930 CITY OF LUBBOCK OFFICE PICK UP M 5817931 9 PG5 AGIME 1111 K W601W AWL WAN W411II1 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 REAL PROPERTY RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER CITY OF LUBBOCK CH. 212 DEVELOPMENT AGREEMENT IN LIEU OF ANNEXATION THIS DEVELOPMENT AGREEMEr IN LIEU OF ANNEXATION (the "Agreement") is made and effective this day of , 2016, and is entered into pursuant to §212.172 of the Texas Local Government Code, by anh between the City of Lubbock, Texas, a Texas home rule municipal corporation (the "City"), and the undersigned property owner(s) (the "Owner"), with the term "Owner" including all owners of the Property, and is as follows: RECITALS WHEREAS, the Owner owns a parcel of real property (the "Property") in Lubbock County, Texas, which is more particularly and separately described in the attached Exhibit A; and WHEREAS, the City has instituted annexation proceedings for all portions of the Property and held public hearings regarding the proposed annexation on March 8 and March 10, 2016; and WHEREAS, at the public hearings, the Owner was presented with a service plan for the Property and the Owner was given the opportunity to be heard by the City Council of the City of Lubbock; and WHEREAS, the Owner does not want the Property to be annexed and desires to have the Property remain in the City's extraterritorial jurisdiction, in consideration for which the Owner agrees to enter into this Agreement; and WHEREAS, it is the City's intention to allow the Owner to continue to use the Property as it is being used at the time of this Agreement; and WHEREAS, the Owner and the City acknowledge that this Agreement is binding upon the City and the Owner and their respective successors and assigns for the duration of this Agreement; and WHEREAS, this Agreement is to be recorded in the real property records of Lubbock County, Texas; NOW, THEREFORE, in consideration of the mutual promises contained in this Agreement, the Owner and the City agree as follows: AGREEMENT Section 1 — The Property: Current Status. The City acknowledges that the Property, more particularly described in the attached "Exhibit A," is located within the extraterritorial jurisdiction of the City and is subject to annexation by the City unless this Agreement is signed by the Owner. Section 2 — The Property: Continued Status. In lieu of annexation, the Owner desires that the Property remain in the extraterritorial jurisdiction of the City for the duration of this Agreement. The Ch. 212 Development Agreement In Lieu Of Annexation -1 1 Owner acknowledges that unless the Property is annexed by the City, the Property is not eligible to receive City services, the Property shall not be included in the City's voting precincts, and the Property shall be immune from City property taxes for the duration of this Agreement. The Owner's use of the Property at the time of this Agreement is "grand fathered" into the acceptable uses of the City, and the City is prohibited from interfering with any uses on the Property that comply with §43.002 of the Texas Local Government Code. The Owner acknowledges that Section 22.03.091(a) of the Code of Ordinances of the City prohibits the City from providing water to any entity outside of the city limits, and acknowledges that the City will not be providing water to the Property unless the Property is annexed into the City. However, if the Property is annexed pursuant to a provision of this Agreement, then the City shall provide services to the Property pursuant to Chapter 43 of the Texas Local Government Code. Subject to the provisions of this Agreement, the City shall not annex the Property, shall not involuntarily institute proceedings to annex the Property, and shall not include the Property in a statutory annexation plan. The Owner authorizes the enforcement by the City of all of the City's regulations and planning authority that do not materially interfere with the use of the Property in the same manner that the City's regulations and planning authority are enforced within the City's boundaries. The City specifically reserves its authority pursuant to Chapter 251 of the Texas Local Government Code to exercise eminent domain over property that is subject to a §212.172 development agreement. The City further reserves its regulatory and planning authority in the City's ETJ, as such authority has been granted to it by the City Council. Section 3 — The Property: Change In Status. The Owner agrees not to substantially change the use of the Property as it is used on the date of the execution of this Agreement. The Owner agrees not to develop the Property by filing any type of subdivision plat or related development document for the Property with Lubbock County or the City throughout the duration of this Agreement. The Owner acknowledges that if any plat or related development document is filed for the Property, or if the Owner commences any development of the Property other than that which supports the use of the Property as the Property is used on the date of the execution of this Agreement, then this Agreement shall terminate, and in addition to the City's other remedies, such act will constitute a petition for voluntary annexation by the Owner, and the Property will be subject to annexation at the discretion of the City Council. The Owner agrees that such annexation shall be voluntary and the Owner hereby consents to such annexation as though a petition for such annexation had been tendered by the Owner. If annexation proceedings begin pursuant to this Section, then the Owner acknowledges that this Agreement serves as an exception to Local Govemment Code §43.052, requiring a municipality to use certain statutory procedures under an annexation plan, and as an exception to Local Government Code §43.062 requiring certain statutory procedures as to the Owner to effectuate an annexation. Further, the Owner hereby waives any and all vested rights and claims that it may have under §43.002(a)(2) and Chapter 245 of the Texas Local Government Code that would otherwise exist by virtue of any plat or construction the Owner may initiate during the time between the expiration of this Agreement and the institution of annexation proceedings by the City. Section 4 —The Term. The term of this Agreement (the "Term") shall be twenty (20) years from the date that this Agreement is approved by the City Council of the City of Lubbock. At the end of the Term, the Owner, and all of the Owner's heirs, successors and assigns shall be deemed to have filed Ch. 212 Development Agreement In lieu Of Annexation - 2 1 a petition for voluntary annexation of the Property, and the Property will be subject to voluntary annexation in accordance with Section 3 of this Agreement. Prior to the end of the Tenn, the City may commence the voluntary annexation of the Property. Section 5 —Termination. This Agreement will automatically terminate at the end of the Term. This Agreement shall terminate upon the filing of any plat or related development document with the City or with Lubbock County or upon the Owner's failure to prove that it is the sole owner of the Property with the authority to sign this Agreement. The Owner and the City may agree in writing to terminate this Agreement prior to the expiration of the Term of this Agreement. Section 6 — City Council Approval Required. If the City Council of the City of Lubbock does not affirmatively vote to annex an area that contains the Property, then this Agreement will be null and void in its entirety. Section 7 — Notification. Any person who sells or conveys any portion of the Property shall, prior to such sale or conveyance, give written notice of this Agreement to the prospective purchaser or grantee, and shall give written notice of the sale or conveyance to the City. Further, the Owner and the Owner's heirs, successors, and assigns shall give the City written notice within fourteen ( 14) days of any change in the status of the Property. A copy of any notice required by this section shall be forwarded to the City at the following address: City of Lubbock Wish cQpv to: City of Lubbock Attn: City Secretary Attn: Director of Planning P.O. Box 2000 P.O. Box 2000 Lubbock, Texas 79457 Lubbock, Texas 79457 This Agreement shall run with the Property and be recorded in the real property records of Lubbock County, Texas. Section S — Waiver. Any failure by the Owner or the City to insist upon strict performance by either party of any material provision of this Agreement shall not be deemed a waiver thereof, and the Owner or the City shall have the right at any time thereafter to insist upon strict performance of any and all provisions of this Agreement. No provision of this Agreement may be waived except by a written agreement signed by the Owner or the City waiving such provision. Any waiver shall be limited to the specific purposes for which it is given. No waiver by the Owner or the City of any provision of this Agreement shall be deemed or construed to be a waiver of any other provision or subsequent waiver of the same provision. The Parties expressly agree that no provision of this Agreement is in any way intended to constitute a waiver by any Party of any immunity from suit or liability that it may have by operation of Iaw. The Parties agree that the City shall retain all of its governmental immunities. Section 9 — Assurance of Ownership. The Owner hereby expressly affirms that it is the sole owner of the Property and that no other person or entity has a valid claim to any right, title, or ownership in the Property. Should any dispute of right, title, or ownership concerning the Property arise subsequent to the Owner's execution of this Agreement, the Owner hereby agrees to be solely responsible for defending and confirming its absolute right, title, and ownership to the Property. If the Owner cannot Ch. 212 Development Agreement to lieu Of Annexation - 3 1 defend or fails to defend its right, title, and ownership to the Property, then this Agreement shall terminate. Section 10 — Governing Law. This Agreement is entered into under and pursuant to, and is to be construed and enforceable in accordance with, the laws of the State of Texas, and all obligations of the Owner and the City are performable in Lubbock County, Texas. Venue for any action to enforce or construe this Agreement shall be Lubbock County, Texas. This Agreement is subject to all applicable federal, state, and local laws and any applicable ordinances, rules, orders and regulations of any local, state, or federal governmental authority, having or asserting jurisdiction. However, nothing contained in this Agreement shall be construed as a waiver by the Owner or the City of any right to question or contest any law, order, rule, or regulation which may affect the terns and conditions of this Agreement in any forum having jurisdiction, and the Owner and the City each agree to make a good faith effort to support all proposed laws and regulations which would be consistent with the performance of this Agreement in accordance with its terms. No subsequent change in the law regarding annexation shall affect the enforceability of this Agreement or the City's ability to annex the Property pursuant to this Agreement. Section 11 — Remedy. The City reserves the right to exercise any right or remedy available to it by law, contract, equity, or otherwise, including without limitation, the right to seek any and all forms of relief in a court of competent jurisdiction. Further, the City shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this Agreement, the former shall control. Section 12 — Public Information. This Agreement is public information. To the extent, if any, that any provision of this Agreement is in conflict with the Texas Public Information Act (Tex. Gov't. Code Ann. Chapter 552 et seq., as amended), the same shall be of no force and effect. Section 13 — Third -Party Beneficiaries. This Agreement only inures to the benefit of, and may only be enforced by, the Owner and the City. No other person or entity shall have any right, title, or interest under this Agreement or otherwise be deemed to be a third -party beneficiary of this Agreement. Section 14 — No Personal Liability & No Joint Venture. Nothing in this Agreement is construed as creating any personal liability on the part of any employee, officer or agent of any public body that may be a party to this Agreement. This Agreement is not intended to, and shall not be construed to, create any joint enterprise between or among the parties. Section 15 — Due Diligence & Force Majeure. The Owner and the City shall use good faith, due diligence, and reasonable care in the performance of the obligations under this Agreement, and time shall be of the essence in such performance. In the event that the Owner or the City is unable to perform its respective obligations under this Agreement, due to any event or circumstance that is not within the reasonable respective control of the Owner or the City that could not have been avoided by either the Owner or the City with the exercise of good faith, due diligence, and reasonable care (a "Force Majeure"), then the obligations affected by the Force Majeure shall be temporarily suspended. Within three (3) business days after the occurrence of a Force Majeure, the Owner or the City shall give notice to each other, including a detailed explanation of the Force Majeure and a description of the action that will be taken to remedy the Force Majeure and resume full performance at the earliest possible time. Ch. 212 Development Agreement In Ueu Of Annexation - 4 1 Section 16 — Enforcement. This Agreement may be enforced by the Owner or the City by any proceeding at law or in equity. Failure to do so shall not be deemed a waiver to enforce the Agreement thereafter. Section 17 — Governmental Powers. It is understood that by execution of this Agreement, the City does not waive or surrender any of its governmental powers, except as expressly set forth herein. Section IS — 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. The Owner acknowledges that each and every owner of the Property must sign this Agreement in order for the Agreement to take full effect. Section 19 — Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be unenforceable for any reason, such unenforceable provision shall be deleted from this Agreement, and the remainder of this Agreement shall remain in full force and effect and shall be interpreted to give effect to the intent of the Owner and the City. Without limiting the generality of the foregoing, if it is determined that, as of the date that this Agreement becomes effective, that any Owner does not own any portion of the Property, then this Agreement shall remain in full force and effect with respect to the remaining portion of the Property that the Owners actually own. Section 20 — Entire Agreement. This Agreement constitutes the entire agreement between the Owner and the City and supersedes all prior agreements, whether oral or written, covering the subject matter of this Agreement. The Owner acknowledges that each and every Owner of the Property must sign this Agreement in order for the Agreement to take full effect. Section 21 — Captions & Recitals. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. However, each of the recitals contained herein, by this reference, shall be incorporated into, and deemed a part of, this Agreement. Section 22 Modification of Agreement. This Agreement cannot be modified or amended except in writing signed by the Owner and the City and attached and made a part of this Agreement. Section 23 — Ch. 212 Agreement in lieu of Ch. 43 Agreement. If the Property is subject to an agricultural exemption, the Owner hereby acknowledges that the City, through the Office of the City Attorney, offered to make a development agreement with the Owner under §43.035 of the Texas Local Government Code. The Owner further acknowledges that the Owner rejected the offer to make a §43.035 Agreement in order to enter in to this §212.172 Agreement. IN WITNESS HE OF, the pa ies mptually enter this Agreement on this day of A9 2016. r Ch. 212 Development Agreement In Lieu Of Annexation - 5 1 For the City , 4 � . '/'/, GLEN C. ROARtSbNf, MAYOR ATTEST: r ` v Re ca' tga, City .ecretaCry a APPROVEa'AS_T.O CONTENT: Andrew Pax[on, Director of Planning APPROVED AS TO FORM: eitt,Juxtis stant City Attorney For the Owner Jai Barraza, Owner Ch. 212 Development Agreement In Lieu Of Annexation - 6 1 NOTARIZATION State of Texas § County of Lubbock § This instrument was executed before me on 2016, by , o.�tE - k I Ab&ME of the City of Lubbock, a Texas municipal corporation, on behalf of said IME corporation. State of Texas § County of Lubbock § This instrument was executed before me on 2016, by TaI Mt In r're�- at - 0.\TE JAIn1E BARIULL 01AWEA on beha of said Owner. f- tary/1 is When Recorded Return To: City Secretary City of Lubbock, Texas 1625 13`h Street Lubbock, Texas 79401 SYLVIA T. JUARQ Nogdy ftk$M0lTM IllyC=*d ttF.0M11-1419 Ch. 212 Development Agreement In lieu Of Annexation - 7 1 EXHIBIT A — The Property METES AND BOUNDS DESCRIPTION' of a 1317 acre tract of land located in Section 8, Block AK, Lubbock County, Texas, being further described as follows: BEGINNING at a %," iron rod with capset for the Northwest cornerofthis tract which bears N. 89'27'01" E. a distance of 1752.89 feet and S. 00'32'59" E. a distance of 690.00 feet from the Northwest corner of Section 8, Block AK, Lubbock County, Texas; THENCE N 89'2T01" E. a distance of 215.59 feet to a'/2" iron rod with cap found at the Northeast corner of this tract, THENCE S 00'32'59" E. a distance of 306.55 feet to a 2 iron rod with cap found in the Northern boundary of that tract of land as described under County Clerk rile Number 2012021983 of the Official Public Records of Lubbock County, Texas, for the Southeast corner of this tract; THENCE S. 89'27'01" W., along said Northern boundary, a distance of 215.59 feet to a'h" iron rod with cap set for the Southwest corner of this tract; THENCE N. 00'3259" W. a distance of 306.55 feet to the Point of Beginning. HUFFINES BUSINESS PARK TR J (Barraza - R322224) FILED AND RECORDED OFFICIAL PUBLIC RECORDS Kelly pinlon County Clerk Lubbock County TEXAS 63/23/2016 T62 AA FEE: $54.00 2016017931 CITY OF LUBBOCK OFFICE PICK UP 2016017932 9 PGs AGREE 1111 fra *0100I 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 REAL PROPERTY RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER CITY OF LUBBOCK CH. 212 DEVELOPMENT AGREEMENT IN LIEU OF ANNEXATION THIS DEVELOPMENT ;.�GAIEEMENT IN LIEU OF ANNEXATION (the "Agreement") is made and effecti=Zent 'ay of 2016, and is entered into pursuant to §212.172 of the Texas Local Code, by aig between the City of Lubbock, Texas, a Texas home rule municipal corporation (the "City), and the undersigned property owner(s) (the "Owner"), with the term "Owner" including all owners of the Property, and is as follows: RECITALS WHEREAS, the Owner owns a parcel of real property (the "Property") in Lubbock County, Texas, which is more particularly and separately described in the attached Exhibit A; and WHEREAS, the City has instituted annexation proceedings for all portions of the Property and held public hearings regarding the proposed annexation on March 8 and March 10, 2016; and WHEREAS, at the public hearings, the Owner was presented with a service plan for the Property and the Owner was given the opportunity to be heard by the City Council of the City of Lubbock; and WHEREAS, the Owner does not want the Property to be annexed and desires to have the Property remain in the City's extraterritorial jurisdiction, in consideration for which the Owner agrees to enter into this Agreement; and WHEREAS, it is the City's intention to allow the Owner to continue to use the Property as it is being used at the time of this Agreement; and WHEREAS, the Owner and the City acknowledge that this Agreement is binding upon the City and the Owner and their respective successors and assigns for the duration of this Agreement; and WHEREAS, this Agreement is to be recorded in the real property records of Lubbock County, Texas; NOW, THEREFORE, in consideration of the mutual promises contained in this Agreement, the Owner and the City agree as follows: AGREEMENT Section 1 — The Property: Current Status. The City acknowledges that the Property, more particularly described in the attached "Exhibit A," is located within the extraterritorial jurisdiction of the City and is subject to annexation by the City unless this Agreement is signed by the Owner. Section 2 — The Property: Continued Status. In lieu of annexation, the Owner desires that the Property remain in the extraterritorial jurisdiction of the City for the duration of this Agreement. The Ch. 212 Development Agreement In Lieu Of Annexation -1 I P a g e Owner acknowledges that unless the Property is annexed by the City, the Property is not eligible to receive City services, the Property shall not be included in the City's voting precincts, and the Property shall be immune from City property taxes for the duration of this Agreement. The Owner's use of the Property at the time of this Agreement is "grandfathered" into the acceptable uses of the City, and the City is prohibited from interfering with any uses on the Property that comply with §43.002 of the Texas Local Government Code. The Owner acknowledges that Section 22.03.091(a) of the Code of Ordinances of the City prohibits the City from providing water to any entity outside of the city limits, and acknowledges that the City will not be providing water to the Property unless the Property is annexed into the City. However, if the Property is annexed pursuant to a provision of this Agreement, then the City shall provide services to the Property pursuant to Chapter 43 of the Texas Local Government Code. Subject to the provisions of this Agreement, the City shall not annex the Property, shall not involuntarily institute proceedings to annex the Property, and shall not include the Property in a statutory annexation plan. The Owner authorizes the enforcement by the City of all of the City's regulations and planning authority that do not materially interfere with the use of the Property in the same manner that the City's regulations and planning authority are enforced within the City's boundaries. The City specifically reserves its authority pursuant to Chapter 251 of the Texas Local Government Code to exercise eminent domain over property that is subject to a §212.172 development agreement. The City further reserves its regulatory and planning authority in the City's ET], as such authority has been granted to it by the City Council. Section 3 — The Property: Change In Status. The Owner agrees not to substantially change the use of the Property as it is used on the date of the execution of this Agreement. The Owner agrees not to develop the Property by filing any type of subdivision plat or related development document for the Property with Lubbock County or the City throughout the duration of this Agreement. The Owner acknowledges that if any plat or related development document is filed for the Property, or if the Owner commences any development of the Property other than that which supports the use of the Property as the Property is used on the date of the execution of this Agreement, then this Agreement shall terminate, and in addition to the City's other remedies, such act will constitute a petition for voluntary annexation by the Owner, and the Property will be subject to annexation at the discretion of the City Council. The Owner agrees that such annexation shall be voluntary and the Owner hereby consents to such annexation as though a petition for such annexation had been tendered by the Owner. If annexation proceedings begin pursuant to this Section, then the Owner acknowledges that this Agreement serves as an exception to Local Government Code §43.052, requiring a municipality to use certain statutory procedures under an annexation plan, and as an exception to Local Government Code §43.062 requiring certain statutory procedures as to the Owner to effectuate an annexation. Further, the Owner hereby waives any and all vested rights and claims that it may have under §43.002(a)(2) and Chapter 245 of the Texas Local Government Code that would otherwise exist by virtue of any plat or construction the Owner may initiate during the time between the expiration of this Agreement and the institution of annexation proceedings by the City. Section 4 — The Term. The term of this Agreement (the "Term") shall be twenty (20) years from the date that this Agreement is approved by the City Council of the City of Lubbock. At the end of the Term, the Owner, and all of the Owner's heirs, successors and assigns shall be deemed to have filed Ch. 212 Development Agreement In Lieu Of Annexation - 2 1 P a g e a petition for voluntary annexation of the Property, and the Property will be subject to voluntary annexation in accordance with Section 3 of this Agreement. Prior to the end of the Term, the City may commence the voluntary annexation of the Property. Section 5 — Termination. This Agreement will automatically terminate at the end of the Term. This Agreement shall terminate upon the filing of any plat or related development document with the City or with Lubbock County or upon the Owner's failure to prove that it is the sole owner of the Property with the authority to sign this Agreement. The Owner and the City may agree in writing to terminate this Agreement prior to the expiration of the Term of this Agreement. Section 6 — City Council Approval Required. If the City Council of the City of Lubbock does not affirmatively vote to annex an area that contains the Property, then this Agreement will be null and void in its entirety. Section 7 — Notification. Any person who sells or conveys any portion of the Property shall, prior to such sale or conveyance, give written notice of this Agreement to the prospective purchaser or grantee, and shall give written notice of the sale or conveyance to the City. Further, the Owner and the Owner's heirs, successors, and assigns shall give the City written notice within fourteen (14) days of any change in the status of the Property. A copy of any notice required by this section shall be forwarded to the City at the following address: City of Lubbock With copy to: City of Lubbock Attn: City Secretary Attn: Director of Planning P.O. Box 2000 P.O. Box 2000 Lubbock, Texas 79457 Lubbock, Texas 79457 This Agreement shall run with the Property and be recorded in the real property records of Lubbock County, Texas. Section S — Waiver. Any failure by the Owner or the City to insist upon strict performance by either party of any material provision of this Agreement shall not be deemed a waiver thereof, and the Owner or the City shall have the right at any time thereafter to insist upon strict performance of any and all provisions of this Agreement. No provision of this Agreement may be waived except by a written agreement signed by the Owner or the City waiving such provision. Any waiver shall be limited to the specific purposes for which it is given. No waiver by the Owner or the City of any provision of this Agreement shall be deemed or construed to be a waiver of any other provision or subsequent waiver of the same provision. The Parties expressly agree that no provision of this Agreement is in any way intended to constitute a waiver by any Party of any immunity from suit or liability that it may have by operation of law. The Parties agree that the City shall retain all of its governmental immunities. Section 9 — Assurance of Ownership. The Owner hereby expressly affirms that it is the sole owner of the Property and that no other person or entity has a valid claim to any right, title, or ownership in the Property. Should any dispute of right, title, or ownership concerning the Property arise subsequent to the Owner's execution of this Agreement, the Owner hereby agrees to be solely responsible for defending and confirming its absolute right, title, and ownership to the Property. If the Owner cannot Ch. 212 Development Agreement In Lieu Of Annexation - 3 1 P a g e defend or fails to defend its right, title, and ownership to the Property, then this Agreement shall terminate. Section 10 — Governing Law. This Agreement is entered into under and pursuant to, and is to be construed and enforceable in accordance with, the laws of the State of Texas, and all obligations of the Owner and the City are performable in Lubbock County, Texas. Venue for any action to enforce or construe this Agreement shall be Lubbock County, Texas. This Agreement is subject to all applicable federal, state, and local laws and any applicable ordinances, rules, orders and regulations of any local, state, or federal governmental authority, having or asserting jurisdiction. However, nothing contained in this Agreement shall be construed as a waiver by the Owner or the City of any right to question or contest any law, order, rule, or regulation which may affect the terms and conditions of this Agreement in any forum having jurisdiction, and the Owner and the City each agree to make a good faith effort to support all proposed laws and regulations which would be consistent with the performance of this Agreement in accordance with its terms. No subsequent change in the law regarding annexation shall affect the enforceability of this Agreement or the City's ability to annex the Property pursuant to this Agreement. Section 11 — Remedy. The City reserves the right to exercise any right or remedy available to it by law, contract, equity, or otherwise, including without limitation, the right to seek any and all forms of relief in a court of competent jurisdiction. Further, the City shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this Agreement, the former shall control. Section 12 — Public Information. This Agreement is public information. To the extent, if any, that any provision of this Agreement is in conflict with the Texas Public Information Act (Tex. Gov't. Code Ann. Chapter 552 et seq., as amended), the same shall be of no force and effect. Section 13 — Third -Party Beneficiaries. This Agreement only inures to the benefit of, and may only be enforced by, the Owner and the City. No other person or entity shall have any right, title, or interest under this Agreement or otherwise be deemed to be a third -party beneficiary of this Agreement. Section 14 — No Personal Liability & No Joint Venture. Nothing in this Agreement is construed as creating any personal liability on the part of any employee, officer or agent of any public body that may be a party to this Agreement. This Agreement is not intended to, and shall not be construed to, create any joint enterprise between or among the parties. Section 15 — Due Diligence & Force Majeure. The Owner and the City shall use good faith, due diligence, and reasonable care in the performance of the obligations under this Agreement, and time shall be of the essence in such performance. In the event that the Owner or the City is unable to perform its respective obligations under this Agreement, due to any event or circumstance that is not within the reasonable respective control of the Owner or the City that could not have been avoided by either the Owner or the City with the exercise of good faith, due diligence, and reasonable care (a "Force Majeure"), then the obligations affected by the Force Majeure shall be temporarily suspended. Within three (3) business days after the occurrence of a Force Majeure, the Owner or the City shall give notice to each other, including a detailed explanation of the Force Majeure and a description of the action that will be taken to remedy the Force Majeure and resume full performance at the earliest possible time. Ch. 222 Development Agreement In Lieu Of Annexation - 4 1 P a g e Section lb — Enforcement. This Agreement may be enforced by the Owner or the City by any proceeding at law or in equity. Failure to do so shall not be deemed a waiver to enforce the Agreement thereafter. Section 17 — Governmental Powers. It is understood that by execution of this Agreement, the City does not waive or surrender any of its governmental powers, except as expressly set forth herein. Section 18 — 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. The Owner acknowledges that each and every owner of the Property must sign this Agreement in order for the Agreement to take full effect. Section 19 — Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be unenforceable for any reason, such unenforceable provision shall be deleted from this Agreement, and the remainder of this Agreement shall remain in full force and effect and shall be interpreted to give effect to the intent of the Owner and the City. Without limiting the generality of the foregoing, if it is determined that, as of the date that this Agreement becomes effective, that any Owner does not own any portion of the Property, then this Agreement shall remain in full force and effect with respect to the remaining portion of the Property that the Owners actually own. Section 20 — Entire Agreement. This Agreement constitutes the entire agreement between the Owner and the City and supersedes all prior agreements, whether oral or written, covering the subject matter of this Agreement. The Owner acknowledges that each and every Owner of the Property must sign this Agreement in order for the Agreement to take full effect. Section 21— Captions & Recitals. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. However, each of the recitals contained herein, by this reference, shall be incorporated into, and deemed a part of, this Agreement. Section 22 — Modification of Agreement. This Agreement cannot be modified or amended except in writing signed by the Owner and the City and attached and made a part of this Agreement. Section 23 — Ch. 212 Agreement in lieu of Ch. 43 Agreement. I€ the Property is subject to an agricultural exemption, the Owner hereby acknowledges that the City, through the Office of the City Attorney, offered to make a development agreement with the Owner under §43.035 of the Texas Local Government Code. The Owner further acknowledges that the Owner rejected the offer to make a §43.035 Agreement in order to enter in to this §212.172 Agreement. IN WITNESS FIE F, the pa 'es mutually enter this Agreement on this day of [:' r , 2016. Ch. 212 Development Agreement In Lieu Of Annexation - 5 1 P i g e For the City 10* GLEN C.ROBEfftSON, MAYOR p0u4H• �Jr. ,:: :rrOp •a�"^YCCCCC i5C1 r1 �. Y , •. /� 1 Y 1. M APPROVED AS TO CONTENT: r - Andrew Paxton, Director of Planning APPROVED AS TO FORM: t Justin IfAitt, k4stant City Attorney For the Owner 57 arl L. Johnson, Ow Ch. 212 Development Agreement In Lieu Of Annexation - 6 1 NOTARIZATION State of Texas § County of Lubbock § 4 Jfi1 4 This instrument was executed before me on _ 2016, by OAit NATI[ Iry of the City of Lubbock, a Texas municipal corporation, on behalf of said Rp rL corporation. 4'ot5�u'1b)41C "Evi P011r)r too State of 'ficvw § County of In*hfiock § This instrument was executed before me on r � �-` 2016 by ��Y L -- � Lln5°V t DAtL CARL L JUH.."U.W.OWNER * on behal of said Owner. . _•. r...r��,, r �V y _ �f OFFICIAL SEAL Mandy Day -�, �A,�1' NOTARY PUj3UC Notary Public STATE OF.IEW_kt} M When Recorded Return To: City Secretary City of Lubbock, Texas 1625 131h Street Lubbock, Texas 79401 Ch. 212 Development Agreement In Lieu Of Annexation - 7 1 p a g e EXHIBIT A — The Property 1v1ETES AND BOUNDS DESCRIPTION ofa 2.311 acre tract ofland located in Section 8, Block Alt, Lubbock County, Trams, being further described as follows: BEGINNING at a 1 r?" iron rod with cap found at the Northeast comerofa comer ofa 1.917 acre tract of land as described under County Clerk File No. (CCFN) 2013024406 of the Official Public Records of Lubbock County, Texas, (OPRLCT), the Southeast corner ofTract "E" of Tracts "A" through "E". Huflines Business Paris, a subdivision located in Section 8, Block A& Lubbock County, Texas, according to the map, plat and/or dedication deed thereof recorded under CCFN 20t2040870, OPRLCT. the Southwest comer of a 5.455 acre tract of land as described under CCFN 2013045199. OPRLCT, the Northwest comer of a 14.541 acre tract as described under CCFN 201304B239, OPRLCT and the Northwest comerof this tract which bears N. 89'27'01 " E. a distance of 1976.17 feet and S. 00*05'18" W. a distance of 360.02 feet from the Northwest comer of Section 8, Block A1C, Lubbock County, Texas; THENCE N. 89627'01" E., along, the Southern boundary of said 5.455 acre tract and the Northern boundary of said 14.541 acre tract, a distance of 292.04 feet to a 102" iron rod with cap found at the Northeast comer of this tract; THENCE S. 00'32'59" E., at 310.72 feet pass a 1/2" iron rod with cap set in reference, continuing for a total distance of 373.06 fcct to a 1/3" iron rod with rap Set for the Southeast comer of this tract; THENCE N. 74'48'01" W. a distance of 65.99 feet to a 1Ft" iron rod with cap set for a point of curvature; THENCE Northwesterly, along a curve to the left, said curve having a radius of670.00 feet, a central ankle of 15'44'58", tangent lengths of91.67 feet, a chord distance of 183.59 feet and a chord bearing of N. 82'40'30" W. to a IPT' iron rod writh cap set for a point of tangency; THENCE S. 89'27'01` W. a distance of 50.35 feet to a 17" iron rod with cap found in the Western boundary of said 14.541 acre tract, at the Southeast comer of County Road 7410 as dedicated by plat recorded under CCFN 2013043704, OPRLCT, the Northeast corner of a 1.517 acre tract of land as described under CCFN 2013012811, OPRLCT and the Southwest corner of this tract; THENCE N. 00'05'18" E., along the Western boundary of said 14,541 acre Imet, at 60,00 feet pass a 1/2" iron rod with cap found at the Northeast corner of said County Road 7410 and the Southeast corner of said 1.917 acre tract, continuing along the Wcstcrn boundary of said 14.541 acre tract and the Etistem boundary of said 1.917 acre tract for a total distance of 330.02 feet to the Point of Beginning. CONTAINS: 100,659 square feet. (McQueen [Carl L. Johnson] — R325702) Page 1 of 2 HUFFOES BUSMSS PARK TR L 292.041 JF� N TR L O 0 ti N R 32 5702 FILED AND RECORDED OFFICIAL PUBLIC RECORDS 4 Kelly Pinion County Clark Lubbock County TEXAS 05/23/2016 10:02 AM FF.E : 88.00 2016al7832 (McQueen [Carl L. Johnson] — R325702) Page 2 of 2 CITY OF LUBBOCK OFFICE PICK UP 2016017933 10 PGS AGREE ■ll{ I� Key 11�f`i'�I��h+1�1� 11 II I 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 REAL PROPERTY RECORDS: YOUR SOCL4L SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER CITY OF LUBBOCK CH. 212 DEVELOPMENT AGREEMENT IN LIEU OF ANNEXATION THIS DEVELOPMENT AG EMEN IN IEU OF ANNEXATION (the "Agreement") is made and effective ay of _ , 2016, and is entered into pursuant to §212.172 of the Texas Local Gove ent Code, by between the City of Lubbock, Texas, a Texas home rule municipal corporation (the "City"), and the undersigned property owner(s) (the "Owner"), with the term "Owner" including all owners of the Property, and is as follows: RECITALS WHEREAS, the Owner owns a parcel of real property (the "Property") in Lubbock County, Texas, which is more particularly and separately described in the attached Exhibit A; and WHEREAS, the City has instituted annexation proceedings for all portions of the Property and held public hearings regarding the proposed annexation on March 8 and March 10, 2016; and WHEREAS, at the public hearings, the Owner was presented with a service plan for the Property and the Owner was given the opportunity to be heard by the City Council of the City of Lubbock; and WHEREAS, the Owner does not want the Property to be annexed and desires to have the Property remain in the City's extraterritorial jurisdiction, in consideration for which the Owner agrees to enter into this Agreement; and WHEREAS, it is the City's intention to allow the Owner to continue to use the Property as it is being used at the time of this Agreement; and WHEREAS, the Owner and the City acknowledge that this Agreement is binding upon the City and the Owner and their respective successors and assigns for the duration of this Agreement; and WHEREAS, this Agreement is to be recorded in the real property records of Lubbock County, Texas; NOW, THEREFORE, in consideration of the mutual promises contained in this Agreement, the Owner and the City agree as follows: AGREEMENT Section 1 — The Property: Current Status. The City acknowledges that the Property, more particularly described in the attached "Exhibit A," is located within the extraterritorial jurisdiction of the City and is subject to annexation by the City unless this Agreement is signed by the Owner. Section 2 — The Property: Continued Status. In lieu of annexation, the Owner desires that the Property remain in the extraterritorial jurisdiction of the City for the duration of this Agreement. The Ch. 212 Development Agreement In Lieu Of Annexation -1 I P a g e Owner acknowledges that unless the Property is annexed by the City, the Property is not eligible to receive City services, the Property shall not be included in the City's voting precincts, and the Property shall be immune from City property taxes for the duration of this Agreement. The Owner's use of the Property at the time of this Agreement is "grandfathered" into the acceptable uses of the City, and the City is prohibited from interfering with any uses on the Property that comply with §43.002 of the Texas Local Government Code. The Owner acknowledges that Section 22.03.091(a) of the Code of Ordinances of the City prohibits the City from providing water to any entity outside of the city limits, and acknowledges that the City will not be providing water to the Property unless the Property is annexed into the City. However, if the Property is annexed pursuant to a provision of this Agreement, then the City shall provide services to the Property pursuant to Chapter 43 of the Texas Local Government Code. Subject to the provisions of this Agreement, the City shall not annex the Property, shall not involuntarily institute proceedings to annex the Property, and shall not include the Property in a statutory annexation plan. The Owner authorizes the enforcement by the City of all of the City's regulations and planning authority that do not materially interfere with the use of the Property in the same manner that the City's regulations and planning authority are enforced within the City's boundaries. The City specifically reserves its authority pursuant to Chapter 251 of the Texas Local Government Code to exercise eminent domain over property that is subject to a §212.172 development agreement. The City further reserves its regulatory and planning authority in the City's ETJ, as such authority has been granted to it by the City Council. Section 3 --- The Property: Change In Status. The Owner agrees not to substantially change the use of the Property as it is used on the date of the execution of this Agreement. The Owner agrees not to develop the Property by filing any type of subdivision plat or related development document for the Property with Lubbock County or the City throughout the duration of this Agreement. The Owner acknowledges that if any plat or related development document is filed for the Property, or if the Owner commences any development of the Property other than that which supports the use of the Property as the Property is used on the date of the execution of this Agreement, then this Agreement shall terminate, and in addition to the City's other remedies, such act will constitute a petition for voluntary annexation by the Owner, and the Property will be subject to annexation at the discretion of the City Council. The Owner agrees that such annexation shall be voluntary and the Owner hereby consents to such annexation as though a petition for such annexation had been tendered by the Owner. If annexation proceedings begin pursuant to this Section, then the Owner acknowledges that this Agreement serves as an exception to Local Government Code §43.052, requiring a municipality to use certain statutory procedures under an annexation plan, and as an exception to Local Government Code §43.062 requiring certain statutory procedures as to the Owner to effectuate an annexation. Further, the Owner hereby waives any and all vested rights and claims that it may have under §43.002(a)(2) and Chapter 245 of the Texas Local Government Code that would otherwise exist by virtue of any plat or construction the Owner may initiate during the time between the expiration of this Agreement and the institution of annexation proceedings by the City. Section 4 — The Term. The term of this Agreement (the "Term") shall be twenty (20) years from the date that this Agreement is approved by the City Council of the City of Lubbock. At the end of the Term, the Owner, and all of the Owner's heirs, successors and assigns shall be deemed to have filed Ch. 212 Development Agreement In lieu Of Annexation - 2 1 P a g e a petition for voluntary annexation of the Property, and the Property will be subject to voluntary annexation in accordance with Section 3 of this Agreement. Prior to the end of the Term, the City may commence the voluntary annexation of the Property. Section 5 — Termination. This Agreement will automatically terminate at the end of the Term. This Agreement shall terminate upon the filing of any plat or related development document with the City or with Lubbock County or upon the Owner's failure to prove that it is the sole owner of the Property with the authority to sign this Agreement. The Owner and the City may agree in writing to terminate this Agreement prior to the expiration of the Term of this Agreement. Section 6 -- City Council Approval Required. If the City Council of the City of Lubbock does not affirmatively vote to annex an area that contains the Property, then this Agreement will be null and void in its entirety. Section 7 — Notification. Any person who sells or conveys any portion of the Property shall, prior to such sale or conveyance, give written notice of this Agreement to the prospective purchaser or grantee, and shall give written notice of the sale or conveyance to the City. Further, the Owner and the Owner's heirs, successors, and assigns shall give the City written notice within fourteen (14) days of any change in the status of the Property. A copy of any notice required by this section shall be forwarded to the City at the following address: City of Lubbock With copy to: City of Lubbock Attn: City Secretary Attn: Director of Planning P.O. Box 2000 P.O. Box 2000 Lubbock, Texas 79457 Lubbock, Texas 79457 This Agreement shall run with the Property and be recorded in the real property records of Lubbock County, Texas. Section 8 -- Waiver. Any failure by the Owner or the City to insist upon strict performance by either party of any material provision of this Agreement shall not be deemed a waiver thereof, and the Owner or the City shall have the right at any time thereafter to insist upon strict performance of any and all provisions of this Agreement. No provision of this Agreement may be waived except by a written agreement signed by the Owner or the City waiving such provision. Any waiver shall be limited to the specific purposes for which it is given. No waiver by the Owner or the City of any provision of this Agreement shall be deemed or construed to be a waiver of any other provision or subsequent waiver of the same provision. The Parties expressly agree that no provision of this Agreement is in any way intended to constitute a waiver by any Party of any immunity from suit or liability that it may have by operation of law. The Parties agree that the City shall retain all of its governmental immunities. Section 9 — Assurance of Ownership. The Owner hereby expressly affirms that it is the sole owner of the Property and that no other person or entity has a valid claim to any right, title, or ownership in the Property. Should any dispute of right, title, or ownership concerning the Property arise subsequent to the Owner's execution of this Agreement, the Owner hereby agrees to be solely responsible for defending and confirming its absolute right, title, and ownership to the Property. If the Owner cannot Ch. 212 Development Agreement In Lieu Of Annexation - 3 1 P a g e defend or fails to defend its right, title, and ownership to the Property, then this Agreement shall terminate. Section 10 — Governing Law. This Agreement is entered into under and pursuant to, and is to be construed and enforceable in accordance with, the laws of the State of Texas, and all obligations of the Owner and the City are performable in Lubbock County, Texas. Venue for any action to enforce or construe this Agreement shall be Lubbock County, Texas. This Agreement is subject to all applicable federal, state, and local laws and any applicable ordinances, rules, orders and regulations of any local, state, or federal governmental authority, having or asserting jurisdiction. However, nothing contained in this Agreement shall be construed as a waiver by the Owner or the City of any right to question or contest any law, order, rule, or regulation which may affect the terms and conditions of this Agreement in any forum having jurisdiction, and the Owner and the City each agree to make a good faith effort to support all proposed laws and regulations which would be consistent with the performance of this Agreement in accordance with its teams. No subsequent change in the law regarding annexation shall affect the enforceability of this Agreement or the City's ability to annex the Property pursuant to this Agreement. Section 11 — Remedy. The City reserves the right to exercise any right or remedy available to it by law, contract, equity, or otherwise, including without limitation, the right to seek any and all forms of relief in a court of competent jurisdiction. Further, the City shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this Agreement, the former shall control. Section 12 -- Public Information. This Agreement is public information. To the extent, if any, that any provision of this Agreement is in conflict with the Texas Public Information Act (Tex. Gov't. Code Ann. Chapter 552 et seq., as amended), the same shall be of no force and effect. Section 13 -- Third -Party Beneficiaries. This Agreement only inures to the benefit of, and may only be enforced by, the Owner and the City. No other person or entity shall have any right, title, or interest under this Agreement or otherwise be deemed to be a third -party beneficiary of this Agreement. Section 14 — No Personal Liability & No Joint Venture. Nothing in this Agreement is construed as creating any personal liability on the part of any employee, officer or agent of any public body that may be a party to this Agreement. This Agreement is not intended to, and shall not be construed to, create any joint enterprise between or among the parties. Section 15 — Due Diligence & Force Majeure. The Owner and the City shall use good faith, due diligence, and reasonable care in the performance of the obligations under this Agreement, and time shall be of the essence in such performance. In the event that the Owner or the City is unable to perform its respective obligations under this Agreement, due to any event or circumstance that is not within the reasonable respective control of the Owner or the City that could not have been avoided by either the Owner or the City with the exercise of good faith, due diligence, and reasonable care (a "Force Majeure"), then the obligations affected by the Force Majeure shall be temporarily suspended. Within three (3) business days after the occurrence of a Force Majeure, the Owner or the City shall give notice to each other, including a detailed explanation of the Force Majeure and a description of the action that will be taken to remedy the Force Majeure and resume full performance at the earliest possible time. Ch. 212 Development Agreement In Lieu Of Annexation - 4 1 P a g e Section lb — Enforcement. This Agreement may be enforced by the Owner or the City by any proceeding at law or in equity. Failure to do so shall not be deemed a waiver to enforce the Agreement thereafter. Section 17 -- Governmental Powers. It is understood that by execution of this Agreement, the City does not waive or surrender any of its governmental powers, except as expressly set forth herein. Section 18 — 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. The Owner acknowledges that each and every owner of the Property must sign this Agreement in order for the Agreement to take full effect. Section 19 — Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be unenforceable for any reason, such unenforceable provision shall be deleted from this Agreement, and the remainder of this Agreement shall remain in full force and effect and shall be interpreted to give effect to the intent of the Owner and the City. Without limiting the generality of the foregoing, if it is determined that, as of the date that this Agreement becomes effective, that any Owner does not own any portion of the Property, then this Agreement shall remain in full force and effect with respect to the remaining portion of the Property that the Owners actually own. Section 20 — Entire Agreement. This Agreement constitutes the entire agreement between the Owner and the City and supersedes all prior agreements, whether oral or written, covering the subject matter of this Agreement. The Owner acknowledges that each and every Owner of the Property must sign this Agreement in order for the Agreement to take full effect. Section 21— Captions & Recitals. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. However, each of the recitals contained herein, by this reference, shall be incorporated into, and deemed a part of, this Agreement. Section 22 — Modification of Agreement This Agreement cannot be modified or amended except in writing signed by the Owner and the City and attached and made a part of this Agreement. Section 23 — Ch. 212 Agreement in lieu of Ch. 43 Agreement. If the Property is subject to an agricultural exemption, the Owner hereby acknowledges that the City, through the Office of the City Attorney, offered to make a development agreement with the Owner under §43.035 of the Texas Local Government Code. The Owner further acknowledges that the Owner rejected the offer to make a §43.035 Agreement in order to enter in to this §212.172 Agreement. IN WITNESS HERF�OF, the parties mutually enter this Agreement on th�day of .2016. U" Ch. 212 Development Agreement In Lieu of Annexation - 5 1 P a g e For the City GLEN C. PA9E1ifS6N, MAYOR APPROVED AS TO CONTENT: A-VZI/zz - Andrew Paxton, Director of Planning APPROVED AS TO FORM: Justi Pru tt, ssi t City Xttomey For the Owner Barbara Weaver Johnson Trust, Owner Barbara Johnson, Trustee Ch. 212 Development Agreement In Lieu Of Annexation - 6 1 P a g e NOTARIZATION State of Texas § County of Lubbock § This instrument was executed before me on 2016, by y 214, A. RAW _ of the City of Lubbock, a Texas municipal corporation, on behalf of said TI'T 11114 off a f, f corporation. ,s��+%,���if�:��/� `* �0 *Y Not y Public Sr,tr ► v F 4 GAP AAvxtfp County ofeL�adck § This instrument was executed before me on 1'+ _ � 2016, byhajLhayr- o f DATC BARBARA "k!%N0!4TLLKnr Grawitft on behalf of said Owner. r let s4-ee. O-�—' CAW nef- r--My ►� OFFICIAL SEAL MandyDay Notary Public IN NOTARY PUBLIC STATE OF N ME7{ -o ommlu cin Exivroa• 7— c- r a When Recorded Return To: City Secretary City of Lubbock, Texas 1625 I P Street Lubbock, Texas 79401 Ch. 212 Development Agreement In Lieu Of Annexation - 7 1 P a g e EXHIBIT A — The Property TRAa 1- METES AND BOUNDS DISCRIPTION of a 2.758 acre tract of land located in Section 6, Brock AK, Lubbock-, County, Texas, being that same tract of land dcsmbcd under County Clerk File Number 2DO8029359 of the Official Public Records of Lubbock County, Texas, bang further described as Follows - BEGINNING at a 112" iron rod found to the North line of Section 6, Block AK, at the Northwest corner of a 3.0 acre tract as described undrrCounty Clerk File Number201 DOI 1374 of the Official Public Rccords of Lubbock County, Texas and the Northeast comer of this tract which bears S 89'5T E a distance of 415 09 feet (Deed calls 415 00 feet) from a IX iron rod found at the Northwest corner of Section 6, Block AK, Lubbock County, Texas; 'H f E:NCF. South, along the Western boundary of said 3.0 acre tract, of 30.00 feet pass a 1P" iron rod found in reference, continuing for a total distance of 320.38 feet (Deed calls: 320.50 feet) to a I P" iron rod found at the Northeast corner of a 1.7 acre tract as described under County Clerk 1:ticNumber 2011 G44651 of the Official Public Records ofLubbock Counry, Tacos tend the Southeast corner of this tract, TI IENCL N 99*56*21" %V.. along the Northern boundary of said 1.7 acre tract, a distance of 375 02 feet (Deed calls: N. 89'37 W_ 375 40 feet) to a 1/2" iron rod found in the East line ofa 40 foot right-of-way easement as described in Volume 625, Page i5o of the Deed Records of Lubbock-- County, 'rexas, at the Northwest corner of said 1.7 acre tract and the Southwest comer of this tract, THENCE N. 00'O0'42" W , along said easement line. at 290.31 feet pass a IP_" iron rod found in rcferentx, continuing for a total dastnncc of 320 31 feet (Deed calls. N. 00'OS'19" E. 320.50 fed) to a "cross hatch" nail with washer set in the North dine of said Section 6. Block AK, for the Northwest corner of this tract; TH ENCE S 89-57' E., along the North line of said Section 6, Block AK, a distance of 375.09 Text (Deed calls. 374.90 feat) to the Point of Beginning. CONTAINS' 120,147 square fret TfL%C-r 2: AIETES AND BOUNDS DESCRIPTION ofa 1 721 acre ima of land located in Section 6, Block AK. Lubbock County'i'ewas, being that same tract of land described under County Clerk File Number 201 I&W657 of the Official Public Records of Lubbock County, Texas, being further described as follows: HL:G(NNttiG at a iP" Iron rod found in the Western boundary of a 3.0 acre tract as described under County Clerk; Nile Number 2010011374 of the Official Public Records of Lubbock County, Texas, at the Northeast comerof a 1.7 acre tract as described under County Clerk File Number 2007027248 of the Official Public Records of Lubbock County, Texas and the Southeast comer of this tract which bears S. 89'37' & a distance of 415 09 feet (Deed calls: 415.00 feet) and South a distance of 520.3) feet (Deed calls° 520 50 foci) from a 112" iron rod found at the Northwest comet of Section 6, Block AK, Lubbock County, Texas; T14ENCE N 89'53AR W , along the Nonhcm boundary of said 1.7 am tract, a distance of 374.98 feet (Deed calls: N. 89'57' W. 375 70 fret) in a I /?" iron rod with cap found in the Cast line ofa 40 foot righi-of--way easement as described in Volume 625, Page 151) of the Deed Records of Lubbock County, Texas, at the Northwest corner of said 1.7 acre tract and the Southwest comer of this MCI, TI ILNCE N 00'00'42" W., along said easement line, a distance of 199 87 fret (Deed calls. N 00*05'19" E. 200.00 foci) to a IP' iron rod Ibund at the Southwest corner of a 2.8 acre tract as described under County Clerk-: File Number 2008028358 of dic Official Public Records of Lubbock County, Texas and the Northwest corner of this tract; TI IFNCf: S 89'3621" C , along the Southern boundary of suid 2.8 acre track-, a distance of 375 02 foot (Deed calls. S. 89'57' E. 375 40 frctl Ina 112" iron rod found in the Western boundary of said 3.0 acre tract, at the Southwest cumLr of said 2 8 acre tract and the Northeast corner of this tract: TI IfTCF South, along the Western boundary of said 3 O nerc tract, a distance of 199.93 fix:t (feed calls. 200.00 feet) to dic Point of Beginning CONTAINS 74,963 squarc feel (McQueen (Barbara Weaver Johnson living Trust] — R96656 & R60225) Page 1 of 2 BLK AK SEC 6 AB 760 TRS 1 OF N30 AC OF W220 AC: 2.482 AND BLK AK SEC 6 AB 760 TR 2 OF N30 AC OF'W220 AC: 1.724 L1 I in (McQueen [Barbara Weaver Johnson Living Trust] — R96656 & R60225) Page 2 of 2 FILED AND RECORDED OFFICIAL PUBLIC RECORDS Kelly Plnlan County Clerk Lubbock County TEXAS 03/23/2016 10:62 AM FEE: $*50.00 2026017933 CITV OF LUBBOCK OFFICE PICK UP 2016017934 9 PGS AGREE mill ri, PON& 1411w, V11 tit h 11111 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 REAL PROPERTY RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER CITY OF LUBBOCK CH. 212 DEVELOPMENT AGREEMENT IN LIEU OF ANNEXATION THIS DEVELOPMENT AGREEMENT l[N LIEU OF ANNEXATION (the "Agreement") is made and effective this �W day of , 2016, and is entered into pursuant to §212.172 of the Texas Local Government Code, by and between the City of Lubbock, Texas, a Texas home rule municipal corporation (the "City"), and the undersigned property owner(s) (the "Owner"), with the term "Owner" including all owners of the Property, and is as follows: RECITALS WHEREAS, the Owner owns a parcel of real property (the "Property") in Lubbock County, Texas, which is more particularly and separately described in the attached Exhibit A; and WHEREAS, the City has instituted annexation proceedings for all portions of the Property and held public hearings regarding the proposed annexation on March 8 and March 10, 2016; and WHEREAS, at the public hearings, the Owner was presented with a service plan for the Property and the Owner was given the opportunity to be heard by the City Council of the City of Lubbock; and WHEREAS, the Owner does not want the Property to be annexed and desires to have the Property remain in the City's extraterritorial jurisdiction, in consideration for which the Owner agrees to enter into this Agreement; and WHEREAS, it is the City's intention to allow the Owner to continue to use the Property as it is being used at the time of this Agreement; and WHEREAS, the Owner and the City acknowledge that this Agreement is binding upon the City and the Owner and their respective successors and assigns for the duration of this Agreement; and WHEREAS, this Agreement is to be recorded in the real property records of Lubbock County, Texas; NOW, THEREFORE, in consideration of the mutual promises contained in this Agreement, the Owner and the City agree as follows: AGREEMENT Section I — The Property: Current Status. The City acknowledges that the Property, more particularly described in the attached "Exhibit A," is located within the extraterritorial jurisdiction of the City and is subject to annexation by the City unless this Agreement is signed by the Owner. Section 2 — The Property: Continued Status. In lieu of annexation, the Owner desires that the Property remain in the extraterritorial jurisdiction of the City for the duration of this Agreement. The Ch. 212 Development Agreement In Lieu Of Annexation - i I P a g e Owner acknowledges that unless the Property is annexed by the City, the Property is not eligible to receive City services, the Property shall not be included in the City's voting precincts, and the Property shall be immune from City property taxes for the duration of this Agreement. The Owner's use of the Property at the time of this Agreement is "grandfathered" into the acceptable uses of the City, and the City is prohibited from interfering with any uses on the Property that comply with §43.002 of the Texas Local Government Code. The Owner acknowledges that Section 22.03.091(a) of the Code of Ordinances of the City prohibits the City from providing water to any entity outside of the city limits, and acknowledges that the City will not be providing water to the Property unless the Property is annexed into the City. However, if the Property is annexed pursuant to a provision of this Agreement, then the City shall provide services to the Property pursuant to Chapter 43 of the Texas Local Government Code. Subject to the provisions of this Agreement, the City shall not annex the Property, shall not involuntarily institute proceedings to annex the Property, and shall not include the Property in a statutory annexation plan. The Owner authorizes the enforcement by the City of all of the City's regulations and planning authority that do not materially interfere with the use of the Property in the same manner that the City's regulations and planning authority are enforced within the City's boundaries. The City specifically reserves its authority pursuant to Chapter 251 of the Texas Local Government Code to exercise eminent domain over property that is subject to a §2 I 2.172 development agreement. The City further reserves its regulatory and planning authority in the City's ETJ, as such authority has been granted to it by the City Council. Section 3 — The Property: Change In Status. The Owner agrees not to substantially change the use of the Property as it is used on the date of the execution of this Agreement. The Owner agrees not to develop the Property by filing any type of subdivision plat or related development document for the Property with Lubbock County or the City throughout the duration of this Agreement. The Owner acknowledges that if any plat or related development document is filed for the Property, or if the Owner commences any development of the Property other than that which supports the use of the Property as the Property is used on the date of the execution of this Agreement, then this Agreement shall terminate, and in addition to the City's other remedies, such act will constitute a petition for voluntary annexation by the Owner, and the Property will be subject to annexation at the discretion of the City Council. The Owner agrees that such annexation shall be voluntary and the Owner hereby consents to such annexation as though a petition for such annexation had been tendered by the Owner. If annexation proceedings begin pursuant to this Section, then the Owner acknowledges that this Agreement serves as an exception to Local Government Code §43.052, requiring a municipality to use certain statutory procedures under an annexation plan, and as an exception to Local Government Code §43.062 requiring certain statutory procedures as to the Owner to effectuate an annexation. Further, the Owner hereby waives any and all vested rights and claims that it may have under §43.002(a)(2) and Chapter 245 of the Texas Local Government Code that would otherwise exist by virtue of any plat or construction the Owner may initiate during the time between the expiration of this Agreement and the institution of annexation proceedings by the City. Section 4 — The Term. The term of this Agreement (the "Term") shalI be twenty (20) years from the date that this Agreement is approved by the City Council of the City of Lubbock. At the end of the Term, the Owner, and all of the Owner's heirs, successors and assigns shall be deemed to have filed Ch. 212 Development Agreement In Lieu Of Annexation - 2 1 P a g e a petition for voluntary annexation of the Property, and the Property will be subject to voluntary annexation in accordance with Section 3 of this Agreement. Prior to the end of the Term, the City may commence the voluntary annexation of the Property. Section 5 — Termination. This Agreement will automatically terminate at the end of the Term. This Agreement shall terminate upon the filing of any plat or related development document with the City or with Lubbock County or upon the Owner's failure to prove that it is the sole owner of the Property with the authority to sign this Agreement. The Owner and the City may agree in writing to terminate this Agreement prior to the expiration of the Term of this Agreement. Section b — City Council Approval Required. If the City Council of the City of Lubbock does not affirmatively vote to annex an area that contains the Property, then this Agreement will be null and void in its entirety. Section 7 — Notification. Any person who sells or conveys any portion of the Property shall, prior to such sale or conveyance, give written notice of this Agreement to the prospective purchaser or grantee, and shall give written notice of the sale or conveyance to the City. Further, the Owner and the Owner's heirs, successors, and assigns shall give the City written notice within fourteen (14) days of any change in the status of the Property. A copy of any notice required by this section shall be forwarded to the City at the following address: City of Lubbock With copylo: City of Lubbock Attn: City Secretary Attn.- Director of Planning P.O. Box 2000 P.O. Box 2000 Lubbock, Texas 79457 Lubbock, Texas 79457 This Agreement shall run with the Property and be recorded in the real property records of Lubbock County, Texas. Section 8 — Waiver. Any failure by the Owner or the City to insist upon strict performance by either party of any material provision of this Agreement shall not be deemed a waiver thereof, and the Owner or the City shall have the right at any time thereafter to insist upon strict performance of any and all provisions of this Agreement. No provision of this Agreement may be waived except by a written agreement signed by the Owner or the City waiving such provision. Any waiver shall be limited to the specific purposes for which it is given. No waiver by the Owner or the City of any provision of this Agreement shall be deemed or construed to be a waiver of any other provision or subsequent waiver of the same provision. The Parties expressly agree that no provision of this Agreement is in any way intended to constitute a waiver by any Party of any immunity from suit or liability that it may have by operation of law. The Parties agree that the City shall retain all of its governmental immunities. Section 9 — Assurance of Ownership. The Owner hereby expressly affirms that it is the sole owner of the Property and that no other person or entity has a valid claim to any right, title, or ownership in the Property. Should any dispute of right, title, or ownership concerning the Property arise subsequent to the Owner's execution of this Agreement, the Owner hereby agrees to be solely responsible for defending and confirming its absolute right, title, and ownership to the Property. If the Owner cannot Ch. 212 Development Agreement In Lieu Of Annexation - 3 1 P a g e defend or fails to defend its right, title, and ownership to the Property, then this Agreement shall terminate. Section 10 — Governing Law. This Agreement is entered into under and pursuant to, and is to be construed and enforceable in accordance with, the laws of the State of Texas, and all obligations of the Owner and the City are performable in Lubbock County, Texas. Venue for any action to enforce or construe this Agreement shall be Lubbock County, Texas. This Agreement is subject to all applicable federal, state, and local laws and any applicable ordinances, rules, orders and regulations of any local, state, or federal governmental authority, having or asserting jurisdiction. However, nothing contained in this Agreement shall be construed as a waiver by the Owner or the City of any right to question or contest any law, order, rule, or regulation which may affect the terms and conditions of this Agreement in any forum having jurisdiction, and the Owner and the City each agree to make a good faith effort to support all proposed laws and regulations which would be consistent with the performance of this Agreement in accordance with its terms. No subsequent change in the law regarding annexation shall affect the enforceability of this Agreement or the City's ability to annex the Property pursuant to this Agreement. Section 11 — Remedy. The City reserves the right to exercise any right or remedy available to it by law, contract, equity, or otherwise, including without limitation, the right to seek any and all forms of relief in a court of competent jurisdiction. Further, the City shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this Agreement, the former shall control. Section 12 — Public Information. This Agreement is public information. To the extent, if any, that any provision of this Agreement is in conflict with the Texas Public Information Act (Tex. Gov't. Code Ann. Chapter 552 et seq., as amended), the same shall be of no force and effect. Section 13 — Third -Party Beneficiaries. This Agreement only inures to the benefit of, and may only be enforced by, the Owner and the City. No other person or entity shall have any right, title, or interest under this Agreement or otherwise be deemed to be a third -party beneficiary of this Agreement. Section 14 — No Personal Liability & No Joint Venture. Nothing in this Agreement is construed as creating any personal liability on the part of any employee, officer or agent of any public body that may be a party to this Agreement. This Agreement is not intended to, and shall not be construed to, create any joint enterprise between or among the parties. Section 15 — Due Diligence & Force Majeure. The Owner and the City shall use good faith, due diligence, and reasonable care in the performance of the obligations under this Agreement, and time shall be of the essence in such performance. In the event that the Owner or the City is unable to perform its respective obligations under this Agreement, due to any event or circumstance that is not within the reasonable respective control of the Owner or the City that could not have been avoided by either the Owner or the City with the exercise of good faith, due diligence, and reasonable care (a "Force Majeure"), then the obligations affected by the Force Majeure shall be temporarily suspended. Within three (3) business days after the occurrence of a Force Majeure, the Owner or the City shall give notice to each other, including a detailed explanation of the Force Majeure and a description of the action that will be taken to remedy the Force Majeure and resume full performance at the earliest possible time. Ch. 212 Development Agreement In Lieu Of Annexation - 4 1 P a g e Section 16 — Enforcement. This Agreement may be enforced by the Owner or the City by any proceeding at law or in equity. Failure to do so shall not be deemed a waiver to enforce the Agreement thereafter. Section 17 — Governmental Powers. It is understood that by execution of this Agreement, the City does not waive or surrender any of its governmental powers, except as expressly set forth herein. Section 18 — 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. The Owner acknowledges that each and every owner of the Property must sign this Agreement in order for the Agreement to take full effect. Section 19 — Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be unenforceable for any reason, such unenforceable provision shall be deleted from this Agreement, and the remainder of this Agreement shall remain in full force and effect and shall be interpreted to give effect to the intent of the Owner and the City. Without limiting the generality of the foregoing, if it is detenmined that, as of the date that this Agreement becomes effective, that any Owner does not own any portion of the Property, then this Agreement shall remain in full force and effect with respect to the remaining portion of the Property that the Owners actually own. Section 20 — Entire Agreement. This Agreement constitutes the entire agreement between the Owner and the City and supersedes all prior agreements, whether oral or written, covering the subject matter of this Agreement. The Owner acknowledges that each and every Owner of the Property must sign this Agreement in order for the Agreement to take full effect. Section 21— Captions & Recitals. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. However, each of the recitals contained herein, by this reference, shall be incorporated into, and deemed a part of, this Agreement. Section 22 — Modification of Agreement. This Agreement cannot be modified or amended except in writing signed by the Owner and the City and attached and made a part of this Agreement. Section 23 -- Ch. 212 Agreement in lieu of Ch. 43 Agreement. If the Property is subject to an agricultural exemption, the Owner hereby acknowledges that the City, through the Office of the City Attorney, offered to make a development agreement with the Owner under §43.035 of the Texas Local Government Code. The Owner further acknowledges that the Owner rejected the offer to make a §43.035 Agreement in order to enter in to this §212.172 Agreement. IN WITNESS HER EOF, the parties, mutually enter this Agreement on this sYD day of AD 2016. Ch. 212 Development Agreement In Lieu Of Annexation - 5 1 P a g e For the City GLE . OBER ON, MAYOR ti r 7; ATTESTUou o Rebe LC a Garzh, City Secre'ta11-1 APPROVED AS TO CONTENT: Andrew�Paxton, Director of Planning APPROVED AS TO FORM: Ju tin .ru tt, Assistant City Attorney For the Owner /�� &'61 PNCT La d, KLC, O er Terry Crofoot, Mana er Ch. 212 Development Agreement In Lieu Of Annexation - 6 1 P a g e NOTARIZATION State of Texas § County of Lubbock § This instrument was executed before me on L112016, by , 114're N�b1E of the City of Lubbock, a Texas municipal corporation, on behalf of said rttu iiiit Atli i liltt"'r corporation. �''a�F�P Sc1V°p''",,.. Not y Public - 201f� ,•i` State of Texas § County of Lubbock § This instrument was executed before me on .lam L c 2016, by oAU \01%11111wo, Tully''? T.MANAGUAGF01MNta 0\' on behalf of said Owner. HAUSk6r •�4.��,RY PUBli�`.. ��� Notdy s Public ��.. ._ EX�tct�s .• �� When Recorded Return To: City Secretary City of Lubbock, Texas 1625 131h Street Lubbock, Texas 79401 Ch. 212 Development Agreement In Lieu Of Annexation - 7 1 P a g e EXHIBIT A — The Property METES AND BOLDS DESCRIPTION ofa 3.058 acre tract of land located in Section 8, Block AFC, Lubbock County, Texas, being further described as follows: BEGINNING at a point in the North line of Section 8, Block AK, at the Northwest comer of this tract which bears N. 89'2701" E. a distance of 2264.20 fret from the Northwest comer of Section 8, Block AK, Lubbock County, Texas; T1-lENCE N. 89'27'01" E., along the North line of said Section 8, Block AK, adistance of 371.97 feet to a cotton spindle found at the Northwest comer of a tract of land As described under County Clerk File No. (CCFN), 2010011616, Official Public Records of Lubbock County, Texas (OPRLCT), at the Northeast comer of this tract; THENCE S. 00'05'18" W., along the Western boundary of said trnct dr-scribcd under CCFN 2010011616, at 60.00 feet pass a Yz" iron rod with cap found at the Southeast comer of a 60 foot right- of-way casement as described under CCFN 2012015698, OPRLCT, continuing along said Western boundary for a total distance of 360.02 feet to a'/x" iron rod with cap set for the Southeast corner of this tract; THENCE S. 89'27'01" W., at 32.00 feel pass a'/P iron rod with cap set in reference, continuing for a total distance of367.96 feet to a W' iron rod with rap set for the Southwest corner of this tract; THENCE N. 00'3259" W., at 300.00 feet pass a'A" rod with cap set in the South line of said right-of- way casement, continuing for a total distance of 360.00 feet to the Point of Beginning. HUFFINES BUSINESS PARK TR N 3 (McQueen [PNCT Land, LLCJ — R324100) Page 1 of 1 FILED AND RECORDED OFFICIAL PUBLIC RECORDS c� K!11y Pinion Countyy Clerk Lubbock County TEXFIS 05/23/2916 10:6Z Aft FEE: $54.00 20160i7934 CITY OF LUBBOCK OFFICE PICK UP 2016017935 10 PGS AGREE ■III FA N1% a WNW, W?Wft 11111 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 REAL PROPERTY RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER CITY OF LUBBOCK CH. 212 DEVELOPMENT AGREEMENT IN LIEU OF ANNEXATION THIS DEVELOPMENT GREEMENT IN LIEU OF ANNEXATION (the "Agreement") is made and effective this day of r: 2015, and is entered into pursuant to §212.172 of the Texas Local Governmen ode, by an between the City of Lubbock, Texas, a Texas home rule municipal corporation (the "City"), and the undersigned property owner(s) (the "Owner"), with the term "Owner" including all owners of the Property, and is as follows: RECITALS WHEREAS, the Owner owns a parcel of real property (the "Property") in Lubbock County, Texas, which is more particularly and separately described in the attached Exhibit A; and WHEREAS, the City has instituted annexation proceedings for all portions of the Property and held public hearings regarding the proposed annexation on March 8 and March 10, 2016; and WHEREAS, at the public hearings, the Owner was presented with a service plan for the Property and the Owner was given the opportunity to be heard by the City Council of the City of Lubbock; and WHEREAS, the Owner does not want the Property to be annexed and desires to have the Property remain in the City's extraterritorial jurisdiction, in consideration for which the Owner agrees to enter into this Agreement; and WHEREAS, it is the City's intention to allow the Owner to continue to use the Property as it is being used at the time of this Agreement; and WHEREAS, the Owner and the City acknowledge that this Agreement is binding upon the City and the Owner and their respective successors and assigns for the duration of this Agreement; and WHEREAS, this Agreement is to be recorded in the real property records of Lubbock County, Texas; NOW, THEREFORE, in consideration of the mutual promises contained in this Agreement, the Owner and the City agree as follows: AGREEMENT Section I — The Property: Current Status. The City acknowledges that the Property, more particularly described in the attached "Exhibit A," is located within the extraterritorial jurisdiction of the City and is subject to annexation by the City unless this Agreement is signed by the Owner. Section 2 -- The Property: Continued Status. In lieu of annexation, the Owner desires that the Property remain in the extraterritorial jurisdiction of the City for the duration of this Agreement. The Ch, 212 Development Agreement In Lieu Of Annexation -1 1 P a g e Owner acknowledges that unless the Property is annexed by the City, the Property is not eligible to receive City services, the Property shall not be included in the City's voting precincts, and the Property shall be immune from City property taxes for the duration of this Agreement. The Owner's use of the Property at the time of this Agreement is "grand fathered" into the acceptable uses of the City, and the City is prohibited from interfering with any uses on the Property that comply with §43.002 of the Texas Local Government Code. The Owner acknowledges that Section 22.03.091(a) of the Code of Ordinances of the City prohibits the City from providing water to any entity outside of the city limits, and acknowledges that the City will not be providing water to the Property unless the Property is annexed into the City. However, if the Property is annexed pursuant to a provision of this Agreement, then the City shall provide services to the Property pursuant to Chapter 43 of the Texas Local Government Code. Subject to the provisions of this Agreement, the City shall not annex the Property, shall not involuntarily institute proceedings to annex the Property, and shall not include the Property in a statutory annexation plan. The Owner authorizes the enforcement by the City of all of the City's regulations and planning authority that do not materially interfere with the use of the Property in the same manner that the City's regulations and planning authority are enforced within the City's boundaries. The City specifically reserves its authority pursuant to Chapter 251 of the Texas Local Government Code to exercise eminent domain over property that is subject to a §212.172 development agreement. The City further reserves its regulatory and planning authority in the City's ETJ, as such authority has been granted to it by the City Council. Section 3 — The Property: Change In Status. The Owner agrees not to substantially change the use of the Property as it is used on the date of the execution of this Agreement. The Owner agrees not to develop the Property by filing any type of subdivision plat or related development document for the Property with Lubbock County or the City throughout the duration of this Agreement. The Owner acknowledges that if any plat or related development document is fled for the Property, or if the Owner commences any development of the Property other than that which supports the use of the Property as the Property is used on the date of the execution of this Agreement, then this Agreement shall terminate, and in addition to the City's other remedies, such act will constitute a petition for voluntary annexation by the Owner, and the Property will be subject to annexation at the discretion of the City Council. The Owner agrees that such annexation shall be voluntary and the Owner hereby consents to such annexation as though a petition for such annexation had been tendered by the Owner. If annexation proceedings begin pursuant to this Section, then the Owner acknowledges that this Agreement serves as an exception to Local Government Code §43.052, requiring a municipality to use certain statutory procedures under an annexation plan, and as an exception to Local Government Code §43.062 requiring certain statutory procedures as to the Owner to effectuate an annexation. Further, the Owner hereby waives any and all vested rights and claims that it may have under §43.002(a)(2) and Chapter 245 of the Texas Local Government Code that would otherwise exist by virtue of any plat or construction the Owner may initiate during the time between the expiration of this Agreement and the institution of annexation proceedings by the City. Section 4 — The Term. The term of this Agreement (the "Term") shall be twenty (20) years from the date that this Agreement is approved by the City Council of the City of Lubbock. At the end of the Term, the Owner, and all of the Owner's heirs, successors and assigns shall be deemed to have filed Ch. 212 Development Agreement In Lieu Of Annexation - 2 1 P a g e a petition for voluntary annexation of the Property, and the Property will be subject to voluntary annexation in accordance with Section 3 of this Agreement. Prior to the end of the Term, the City may commence the voluntary annexation of the Property. Section 5 —Termination. This Agreement will automatically terminate at the end of the Term. This Agreement shall terminate upon the filing of any plat or related development document with the City or with Lubbock County or upon the Owner's failure to prove that it is the sole owner of the Property with the authority to sign this Agreement. The Owner and the City may agree in writing to terminate this Agreement prior to the expiration of the Term of this Agreement. Section 6 — City Council Approval Required. If the City Council of the City of Lubbock does not affirmatively vote to annex an area that contains the Property, then this Agreement will be null and void in its entirety. Section 7 — Notification. Any person who sells or conveys any portion of the Property shall, prior to such sale or conveyance, give written notice of this Agreement to the prospective purchaser or grantee, and shall give written notice of the sale or conveyance to the City. Further, the Owner and the Owner's heirs, successors, and assigns shall give the City written notice within fourteen (14) days of any change in the status of the Property. A copy of any notice required by this section shall be forwarded to the City at the following address: City of Lubbock With copy to: City of Lubbock Attn: City Secretary Attn: Director of Planning P.O. Box 2000 P.O. Box 2000 Lubbock, Texas 79457 Lubbock, Texas 79457 This Agreement shall run with the Property and be recorded in the real property records of Lubbock County, Texas. Section 8 — Waiver. Any failure by the Owner or the City to insist upon strict performance by either party of any material provision of this Agreement shall not be deemed a waiver thereof, and the Owner or the City shall have the right at any time thereafter to insist upon strict performance of any and all provisions of this Agreement. No provision of this Agreement may be waived except by a written agreement signed by the Owner or the City waiving such provision. Any waiver shall be limited to the specific purposes for which it is given. No waiver by the Owner or the City of any provision of this Agreement shall be deemed or construed to be a waiver of any other provision or subsequent waiver of the same provision. The Parties expressly agree that no provision of this Agreement is in any way intended to constitute a waiver by any Party of any immunity from suit or liability that it may have by operation of law. The Parties agree that the City shall retain all of its governmental immunities. Section 9 — Assurance of Ownership. The Owner hereby expressly affirms that it is the sole owner of the Property and that no other person or entity has a valid claim to any right, title, or ownership in the Property. Should any dispute of right, title, or ownership concerning the Property arise subsequent to the Owner's execution of this Agreement, the Owner hereby agrees to be solely responsible for defending and confirming its absolute right, title, and ownership to the Property. If the Owner cannot Ch. 212 Development Agreement In Lieu Of Annexation - 3 1 P a g e defend or fails to defend its right, title, and ownership to the Property, then this Agreement shall terminate. Section 10 — Governing Law. This Agreement is entered into under and pursuant to, and is to be construed and enforceable in accordance with, the laws of the State of Texas, and all obligations of the Owner and the City are performable in Lubbock County, Texas. Venue for any action to enforce or construe this Agreement shall be Lubbock County, Texas. This Agreement is subject to all applicable federal, state, and local laws and any applicable ordinances, rules, orders and regulations of any local, state, or federal governmental authority, having or asserting jurisdiction. However, nothing contained in this Agreement shall be construed as a waiver by the Owner or the City of any right to question or contest any law, order, rule, or regulation which may affect the terms and conditions of this Agreement in any forum having jurisdiction, and the Owner and the City each agree to make a good faith effort to support all proposed laws and regulations which would be consistent with the performance of this Agreement in accordance with its terms. No subsequent change in the law regarding annexation shall affect the enforceability of this Agreement or the City's ability to annex the Property pursuant to this Agreement. Section 11— Remedy. The City reserves the right to exercise any right or remedy available to it by law, contract, equity, or otherwise, including without limitation, the right to seek any and all forms of relief in a court of competent jurisdiction. Further, the City shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this Agreement, the former shall control. Section 12 — Public Information. This Agreement is public information. To the extent, if any, that any provision of this Agreement is in conflict with the Texas Public Information Act (Tex. Gov't. Code Ann. Chapter 552 et seq., as amended), the same shall be of no force and effect. Section 13 — Third -Party Beneficiaries. This Agreement only inures to the benefit of, and may only be enforced by, the Owner and the City. No other person or entity shall have any right, title, or interest under this Agreement or otherwise be deemed to be a third -party beneficiary of this Agreement. Section 14 — No Personal Liability & No Joint Venture. Nothing in this Agreement is construed as creating any personal liability on the part of any employee, officer or agent of any public body that may be a party to this Agreement. This Agreement is not intended to, and shall not be construed to, create any joint enterprise between or among the parties. Section 15 — Due Diligence & Force Majeure. The Owner and the City shall use good faith, due diligence, and reasonable care in the performance of the obligations under this Agreement, and time shall be of the essence in such performance. In the event that the Owner or the City is unable to perform its respective obligations under this Agreement, due to any event or circumstance that is not within the reasonable respective control of the Owner or the City that could not have been avoided by either the Owner or the City with the exercise of good faith, due diligence, and reasonable care (a "Force Majeure"), then the obligations affected by the Force Majeure shall be temporarily suspended. Within three (3) business days after the occurrence of a Force Majeure, the Owner or the City shall give notice to each other, including a detailed explanation of the Force Majeure and a description of the action that will be taken to remedy the Force Majeure and resume full performance at the earliest possible time. Ch. 212 Development Agreement in Lieu Of Annexation - 4 1 P a g e Section 16 — Enforcement. This Agreement may be enforced by the Owner or the City by any proceeding at law or in equity. Failure to do so shall not be deemed a waiver to enforce the Agreement thereafter. Section 17 — Governmental Powers. It is understood that by execution of this Agreement, the City does not waive or surrender any of its governmental powers, except as expressly set forth herein. Section 18— 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. The Owner acknowledges that each and every owner of the Property must sign this Agreement in order for the Agreement to take full effect. Section 19 — Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be unenforceable for any reason, such unenforceable provision shall be deleted from this Agreement, and the remainder of this Agreement shall remain in full force and effect and shall be interpreted to give effect to the intent of the Owner and the City. Without limiting the generality of the foregoing, if it is determined that, as of the date that this Agreement becomes effective, that any Owner does not own any portion of the Property, then this Agreement shall remain in full force and effect with respect to the remaining portion of the Property that the Owners actually own. Section 20 — Entire Agreement. This Agreement constitutes the entire agreement between the Owner and the City and supersedes all prior agreements, whether oral or written, covering the subject matter of this Agreement. The Owner acknowledges that each and every Owner of the Property must sign this Agreement in order for the Agreement to take full effect. Section 21— Captions & Recitals. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. However, each of the recitals contained herein, by this reference, shall be incorporated into, and deemed a part of, this Agreement. Section 22 — Modification of Agreement. This Agreement cannot be modified or amended except in writing signed by the Owner and the City and attached and made a part of this Agreement. Section 23 — Ch. 212 Agreement in lieu of Ch. 43 Agreement. If the Property is subject to an agricultural exemption, the Owner hereby acknowledges that the City, through the Office of the City Attorney, offered to make a development agreement with the Owner under §43.035 of the Texas Local Government Code. The Owner further acknowledges that the Owner rejected the offer to make a §43.035 Agreement in order to enter in to this §212.172 Agreement. IN WITNESS HER MF, the parties mutually enter this Agreement on this /ey of I'AKIZ 2016. Ch. 212 Development Agreement In Lieu Of Annexation - 5 1 P a g e For the City GLEN C. OBER ON, MAYOR ATTEST;, PL '3.000 a.} mot' 1 APPROVED AS TO CONTENT: Andrew Paxton, Director of Planning �'-- //q, 1, - Justin P i , AA_is ant CRt ttorney For the Owner a4tm,q Amy L. ng, Owne Ch. 212 Development Agreement In Lieu Of Annexation - 6 1 P a g e NOTARIZATION (FOR CITY) State of Texas § County of Lubbock § This instrument was executed before me on 4qjY4T 1016, by l -, GATE NAML of the City of i.ubbock, a Texas municipal corporation, on behalf of said corporation. g01% OWDEq�;',0, Not -a Public f- Of (FOR State of Texas § County of Lubbock § This instrument was executed before me on 2016, by PATE ■ E. IU on behalf of said Owner. CMICEMATIWO 00, A (-& WCOMMISSION EXPIRES Notary Public (FOR OWNER) State of Texas § County of Lubbock § This instrument was executed before me on d/ "Ar 2016, by • ►•H r) , DATE Y L E11Wi - ONTIE! on behalf of said Owner. 'Z'1610P 0�� .1 CANQICE MA1'Tt M MY COMMISSION EXPIRES Notary Publicrze,zate To: Ch. 212 Development Agreement In Lieu Of Annexation - 7 1 P a C e Return When Recorded City Secretary City of Lubbock, Texas 1625 13" Street Lubbock, Texas 79401 EXHIBIT A -- The Property TRACT 1: TRACT NINETEEN (19). FRANiCFORD FAMIS, a Subdivision out of lbe'Southwest Ounrtcr (SW/4) of Section 24, Biork E-3, Lubbock County, Texas, according to the Map, Plat and/or Dedication Deed thereof recorded in Volume 3033, Page 242, corrected in Volume 3176, Page 340 of the Real Property Records of Lubbock County, Texas, and more fully described in the Warranty Deed to the Veterans Land hoard dated September 21, 1989, recorded in Volume 3193, rage 136. Real Property Records of Lubbock County, Texas; and further described in that Contract of Safe and purchase dated September 22, 1989, recorded in Volume 3183, Page 138, Real Property Records of Lubbock County, Texas, SAVE AND EXCEPT THE NORTH 150 FEET THEREOF. AND ACT IC A tract of land being the South part of TRACT 20, F&ANKFORD FARMS. a Subdivision in Lubbock County, Texas, as shown on ilia Map, Plat and/or Dedication Det-d thereof accorded in Volume 3176, Page 340 of the Real Property Records or Lubbock County, Texas, and further described as follows: BEGINNING at a''A" iron rod found at the Southeast corner of said Tract 20 for the Southeast comer of this tract; THENCE S 89a04'23" W, along the South line of said Tract 20, a distance of 231.46 fact to a IW4 iron rod with cap set at the Southwest comer orsaid Tract 20 for the Southwest comer of this tract; THENCE N 0028' 13" W. along the West line of said Tract 10, a distance of 318.50 feet to a Va" iron rod with cap set for the Northwest corner of this tract; THENCE N 990HY14" E a distance or231.45 feet to a %" iron rod with cap set in the East line of said Tract 20 for the Northeast comer of this tract; THENCE 5 0°28'13" E, along the East line or said Tract 20. a distance of 317.50 feet to the Place of Beginning (King, Brad & Amy - R305652 & R174802) Page 1 of 2 FRANIKFORD FARMS S791.29 OF TR 19 FRA.NKFORD FARMS S3181OF TR 20 nzp .rf"< (King, Bred & Amy - R3D5652 & R174802) Page 2 of 2 FILED AND RECORDED OFFICIAL PUBLIC RECORDS ' L Kelly Plnlon Count��yy Clsrk Lubbock County TE7iR5 05/23/2026 10:62 AM FEE: $58.00 2016 17935 CITY OF LUBBOCK OFFICE PICK UP 2016017936 9 PGS AGREE 0111 K M011M. iOW KICK 11111 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 REAL PROPERTY RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER CITY OF LUBBOCK CH. 212 DEVELOPMENT AGREEMENT IN LIEU OF ANNEXATION THIS DEVELOPMENT AGREEMErfT IN LIEU OF ANNEXATION (the "Agreement") is made and effective this day of5dnOZa 2016, and is entered into pursuant to §212.172 of the Texas Local Government Code, by an between the City of Lubbock, Texas, a Texas home rule municipal corporation (the "City"), and the undersigned property owner(s) (the "Owner"), with the term "Owner" including all owners of the Property, and is as follows: RECITALS WHEREAS, the Owner owns a parcel of real property (the "Property") in Lubbock County, Texas, which is more particularly and separately described in the attached Exhibit A; and WHEREAS, the City has instituted annexation proceedings for all portions of the Property and held public hearings regarding the proposed annexation on March 8 and March 10, 2016; and WHEREAS, at the public hearings, the Owner was presented with a service plan for the Property and the Owner was given the opportunity to be heard by the City Council of the City of Lubbock; and WHEREAS, the Owner does not want the Property to be annexed and desires to have the Property remain in the City's extraterritorial jurisdiction, in consideration for which the Owner agrees to enter into this Agreement; and WHEREAS, it is the City's intention to allow the Owner to continue to use the Property as it is being used at the time of this Agreement; and WHEREAS, the Owner and the City acknowledge that this Agreement is binding upon the City and the Owner and their respective successors and assigns for the duration of this Agreement; and WHEREAS, this Agreement is to be recorded in the real property records of Lubbock County, Texas; NOW, THEREFORE, in consideration of the mutual promises contained in this Agreement, the Owner and the City agree as follows: AGREEMENT Section 1 — The Property: Current Status. The City acknowledges that the Property, more particularly described in the attached `Exhibit A," is Iocated within the extraterritorial jurisdiction of the City and is subject to annexation by the City unless this Agreement is signed by the Owner. Section 2 — The Property: Continued Status. In lieu of annexation, the Owner desires that the Property remain in the extraterritorial jurisdiction of the City for the duration of this Agreement. The Ch. 212 Development Agreement In Lieu Of Annexation -1 I P a g e Owner acknowledges that unless the Property is annexed by the City, the Property is not eligible to receive City services, the Property shall not be included in the City's voting precincts, and the Property shall be immune from City property taxes for the duration of this Agreement. The Owner's use of the Property at the time of this Agreement is "grandfathered" into the acceptable uses of the City, and the City is prohibited from interfering with any uses on the Property that comply with §43.002 of the Texas Local Government Code. The Owner acknowledges that Section 22.03.091(a) of the Code of Ordinances of the City prohibits the City from providing water to any entity outside of the city limits, and acknowledges that the City will not be providing water to the Property unless the Property is annexed into the City. However, if the Property is annexed pursuant to a provision of this Agreement, then the City shall provide services to the Property pursuant to Chapter 43 of the Texas Local Government Code. Subject to the provisions of this Agreement, the City shall not annex the Property, shall not involuntarily institute proceedings to annex the Property, and shall not include the Property in a statutory annexation plan. The Owner authorizes the enforcement by the City of all of the City's regulations and planning authority that do not materially interfere with the use of the Property in the same manner that the City's regulations and planning authority are enforced within the City's boundaries. The City specifically reserves its authority pursuant to Chapter 251 of the Texas Local Government Code to exercise eminent domain over property that is subject to a §212.172 development agreement. The City further reserves its regulatory and planning authority in the City's ETJ, as such authority has been granted to it by the City Council. Section 3 — The Property: Change In Status. The Owner agrees not to substantivally change the use of the Property as it is used on the date of the execution of this Agreement. The Owner agrees not to develop the Property by filing any type of subdivision plat or related development document for the Property with Lubbock County or the City throughout the duration of this Agreement. The Owner acknowledges that if any plat or related development document is filed for the Property, or if the Owner commences any development of the Property other than that which supports the use of the Property as the Property is used on the date of the execution of this Agreement, then this Agreement shall terminate, and in addition to the City's other remedies, such act will constitute a petition for voluntary annexation by the Owner, and the Property will be subject to annexation at the discretion of the City Council. The Owner agrees that such annexation shall be voluntary and the Owner hereby consents to such annexation as though a petition for such annexation had been tendered by the Owner. If annexation proceedings begin pursuant to this Section, then the Owner acknowledges that this Agreement serves as an exception to Local Government Code §43.052, requiring a municipality to use certain statutory procedures under an annexation plan, and as an exception to Local Government Code §43.062 requiring certain statutory procedures as to the Owner to effectuate an annexation. Further, the Owner hereby waives any and all vested rights and claims that it may have under §43.002(a)(2) and Chapter 245 of the Texas Local Government Code that would otherwise exist by virtue of any plat or construction the Owner may initiate during the time between the expiration of this Agreement and the institution of annexation proceedings by the City. Section 4 — The Term. The term of this Agreement (the "Term") shall be twenty (20) years from the date that this Agreement is approved by the City Council of the City of Lubbock. At the end of the Term, the Owner, and all of the Owner's heirs, successors and assigns shall be deemed to have filed Ch. 212 Development Agreement In Lieu Of Annexation - 2 1 P a g e a petition for voluntary annexation of the Property, and the Property will be subject to voluntary annexation in accordance with Section 3 of this Agreement. Prior to the end of the Term, the City may commence the voluntary annexation of the Property. Section 5 — Termination. This Agreement will automatically terminate at the end of the Term. This Agreement shall terminate upon the filing of any plat or related development document with the City or with Lubbock County or upon the Owner's failure to prove that it is the sole owner of the Property with the authority to sign this Agreement. The Owner and the City may agree in writing to terminate this Agreement prior to the expiration of the Term of this Agreement. Section 6 — City Council Approval Required. If the City Council of the City of Lubbock does not affirmatively vote to annex an area that contains the Property, then this Agreement will be null and void in its entirety. Section 7 — Notification. Any person who sells or conveys any portion of the Property shall, prior to such sale or conveyance, give written notice of this Agreement to the prospective purchaser or grantee, and shall give written notice of the sale or conveyance to the City. Further, the Owner and the Owner's heirs, successors, and assigns shall give the City written notice within fourteen (14) days of any change in the status of the Property. A copy of any notice required by this section shall be forwarded to the City at the following address: City of Lubbock With copy to: City of Lubbock Attn: City Secretary Attn: Director of Planning P.O. Box 2000 P.O. Box 2000 Lubbock, Texas 79457 Lubbock, Texas 79457 This Agreement shall run with the Property and be recorded in the real property records of Lubbock County, Texas. Section 8 — Waiver. Any failure by the Owner or the City to insist upon strict performance by either party of any material provision of this Agreement shall not he deemed a waiver thereof, and the Owner or the City shall have the right at any time thereafter to insist upon strict performance of any and all provisions of this Agreement. No provision of this Agreement may be waived except by a written agreement signed by the Owner or the City waiving such provision. Any waiver shall be limited to the specific purposes for which it is given. No waiver by the Owner or the City of any provision of this Agreement shall be deemed or construed to be a waiver of any other provision or subsequent waiver of the same provision. The Parties expressly agree that no provision of this Agreement is in any way intended to constitute a waiver by any Party of any immunity from suit or liability that it may have by operation of Iaw. The Parties agree that the City shall retain all of its governmental immunities. Section 9 — Assurance of Ownership. The Owner hereby expressly affirms that it is the sole owner of the Property and that no other person or entity has a valid claim to any right, title, or ownership in the Property. Should any dispute of right, title, or ownership concerning the Property arise subsequent to the Owner's execution of this Agreement, the Owner hereby agrees to be solely responsible for defending and confirming its absolute right, title, and ownership to the Property. If the Owner cannot Ch. 212 Development Agreement In Lieu Of Annexation - 3 1 P a g e defend or fails to defend its right, tide, and ownership to the Property, then this Agreement shall terminate. Section 10 — Governing Law. This Agreement is entered into under and pursuant to, and is to be construed and enforceable in accordance with, the laws of the State of Texas, and all obligations of the Owner and the City are performable in Lubbock County, Texas. Venue for any action to enforce or construe this Agreement shall be Lubbock County, Texas. This Agreement is subject to all applicable federal, state, and local laws and any applicable ordinances, rules, orders and regulations of any Iocal, state, or federal governmental authority, having or asserting jurisdiction. However, nothing contained in this Agreement shall be construed as a waiver by the Owner or the City of any right to question or contest any law, order, rule, or regulation which may affect the terms and conditions of this Agreement in any forum having jurisdiction, and the Owner and the City each agree to make a good faith effort to support all proposed laws and regulations which would be consistent with the performance of this Agreement in accordance with its terms. No subsequent change in the law regarding annexation shall affect the enforceability of this Agreement or the City's ability to annex the Property pursuant to this Agreement. Section 11 — Remedy. The City reserves the right to exercise any right or remedy available to it by law, contract, equity, or otherwise, including without limitation, the right to seek any and all forms of relief in a court of competent jurisdiction. Further, the City shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this Agreement, the farmer shall control. Section 12 — Public Information. This Agreement is public information. To the extent, if any, that any provision of this Agreement is in conflict with the Texas Public Information Act (Tex. Gov't. Code Ann. Chapter 552 et seq., as amended), the same shall be of no force and effect. Section 13 — Third -Party Beneficiaries. This Agreement only inures to the benefit of, and may only be enforced by, the Owner and the City. No other person or entity shall have any right, title, or interest under this Agreement or otherwise be deemed to be a third -party beneficiary of this Agreement. Section 14 — No Personal Liability & No Joint Venture. Nothing in this Agreement is construed as creating any personal liability on the part of any employee, officer or agent of any public body that may be a party to this Agreement. This Agreement is not intended to, and shall not be construed to, create any joint enterprise between or among the parties. Section 15 — Due Diligence & Force Majeure. The Owner and the City shall use good faith, due diligence, and reasonable care in the performance of the obligations under this Agreement, and time shall be of the essence in such performance. In the event that the Owner or the City is unable to perform its respective obligations under this Agreement, due to any event or circumstance that is not within the reasonable respective control of the Owner or the City that could not have been avoided by either the Owner or the City with the exercise of good faith, due diligence, and reasonable care (a "Force Majeure"), then the obligations affected by the Force Majeure shall be temporarily suspended. Within three (3) business days after the occurrence of a Force Majeure, the Owner or the City shall give notice to each other, including a detailed explanation of the Force Majeure and a description of the action that will be taken to remedy the Force Majeure and resume full performance at the earliest possible time. Ch. 212 Development Agreement In Lieu Of Annexation - 4 1 P a g e Section 16 — Enforcement. This Agreement may be enforced by the Owner or the City by any proceeding at law or in equity. Failure to do so shall not be deemed a waiver to enforce the Agreement thereafter. Section 17 — Governmental Powers. It is understood that by execution of this Agreement, the City does not waive or surrender any of its governmental powers, except as expressly set forth herein. Section 18 — 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. The Owner acknowledges that each and every owner of the Property must sign this Agreement in order for the Agreement to take full effect. Section 19 — Severabi ity. If any provision of this Agreement is determined by a court of competent. jurisdiction to be unenforceable for any reason, such unenforceable provision shall be deleted from this Agreement, and the remainder of this Agreement shall remain in full force and effect and shall be interpreted to give effect to the intent of the Owner and the City. Without limiting the generality of the foregoing, if it is determined that, as of the date that this Agreement becomes effective, that any Owner does not own any portion of the Property, then this Agreement shall remain in full force and effect with respect to the remaining portion of the Property that the Owners actually own. Section 20 — Entire Agreement. This Agreement constitutes the entire agreement between the Owner and the City and supersedes all prior agreements, whether oral or written, covering the subject matter of this Agreement. The Owner acknowledges that each and every Owner of the Property must sign this Agreement in order for the Agreement to take full effect. Section 21 — Captions & Recitals. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. However, each of the recitals contained herein, by this reference, shalt be incorporated into, and deemed a part of, this Agreement. Section 22 — Modification of Agreement. This Agreement cannot be modified or amended except in writing signed by the Owner and the City and attached and made a part of this Agreement. Section 23 — Ch. 212 Agreement in lieu of Ch. 43 Agreement. If the Property is subject to an agricultural exemption, the Owner hereby acknowledges that the City, through the Office of the City Attomey, offered to make a development agreement with the Owner under §43.035 of the Texas Local Government Code. The Owner funfher acknowledges that the Owner rejected the offer to make a §43.035 Agreement in order to enter in to this §212.172 Agreement. IN WITNESS II(E EOF, the p rties mutually enter this Agreement on this ay of 2016. Ch. 212 development Agreement In Lieu Of Annexation - 5 1 P a g e For the City GLEN C. 06BEROON, MAYOR ATTEST: 1\G 44p 1l DiFl4 1 �i\N APPRO)AS,TO �C'`p NT: drew Paxton, Director of Planning APPROVED AS TO FORM: JusPlitt, A istant City Attorney For the Owner Longshot artners, LLC, Owner Cindy Smith, Manager Ch. 212 Development Agreement In Lieu Of Annexation - 6 1 P a g e State of Texas County of Lubbock This instrument was executes i)nuAw-1-. NOTARIZATION t before me on 2016, by , 4 ��qL- 44 N "u " of the City of Lubbock, a Texas municipal corporation, on behalf of said r btu :� �. ��•. � No ubIic �' # s� * State of Texas ��' County of L= § This instrument was executed before me on r; 12 2016, by COIA4 Srns 4- DAii aMM9� KNAMA=0?0"9k on behalf of said Owner. Notary Public When Recorded Return To: City Secretary City of Lubbock, Texas 1625 131h Street Lubbock, Texas 79401 ErANABEL RESENOEZ W. Notary Public. State of TexaCommission Expireso,� 58 Nmbsr 10, 2016 Ch. 212 Development Agreement In Lieu Of Annexatlon - 7 1 P a g e EXHIBIT A — The Property METES AND BOLWDS DFSCRIPTION ofa 2.397 acre tract of land located in Section 8, Block AK, Lubbock County, Texas, being further described as follows: BEGINNING at a "cross hatch" nail with washer found in the North line of Section 8, Block AK, at the Northwest comer of this tract which bears N. 89'2701" E. a distance of 1976.17 feet from the Northwest comer of Section 8, Block AK, Lubbock County, Texas; THENCE N. 89'27'01" E., along the North line of said Section 8, BIock AK, a distance of 288.03 feet to a point for the Northeast corner of this tract; THENCE S. 00'32'59" E., at 60.00 feet pass a'A" iron rod with cap found set in the South line of a 60 foot right-of-way casement as describcd under CCFN 2012015698 OPRLCT, continuing for a total distance of 360.00 feet to a %2" iron rod with cap set for the Southeast comer of this tract; THENCE S. 89'27'01" W., a diamcc of 292.04 feet to a M? iron rod with cap found at the Northeast corner of a 1.917 acre tract of land as described under CCFN 2013024406, OPRLCT, the Southeast comer of Tract "E" of Tracts "A" through "E•", Ilufhnes Business Park, a subdivision located in Section 8, Block AK, Lubbock County, Texas. according to the map, plat and/or dedication deed thereof recorded under County Clerk File No. (CCFN), 2012040870 of the Official Public Records of Lubbock County, Texas (OPRLCT) and the Southwest comer of this tract; THENCE N. 00'05' 18" E., along the Eastern boundary of said Tract "E", at 300.02 feet pass a W' iron rod with cap found at the Northeast corner of said Tract "E" and the South line of said right-of-way easement, continuing for a toWl distance of 360.02 feet to the Point of Beginning. BLK AK SEC 8 AB 959 TR F1 OF N/2 OF NW/4 AC: 2 TR F-1 OF N/2 OF N W/4 R3241 01 2 AC h 7a'> nA l i r (Longshot Partners, LLC [Smith, ion & Cindy] - R324101) Page 1 of 1 FILED AND RECORDED OFFICIAL. PUBLIC RECORDS c- Kelly Plnlon Ccuntyy Clnrk Lubbock Caun�y 7SXA5 05/23/2916 10:62 AM FEE: $54.80 2016017936 CITY OF LUBBOCK OFFICE PICK UP 2915017937 9 M AGREE mill r., aimv. AKINOVh it 111 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 REAL PROPERTY RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER CITY OF LUBBOCK CH. 212 DEVELOPMENT AGREEMENT IN LIEU OF ANNEXATION THIS DEVELOPMENT_ GREEM NT I LIEU OF ANNEXATION (the "Agreement") is made and effective this day off. � w 2016, and is entered into pursuant to §212. l 72 of the Texas Local Governor e, by and between the City of Lubbock, Texas, a Texas home rule municipal corporation (the "City"), and the undersigned property owner(s) (the "Owner"), with the term "Owner" including all owners of the Property, and is as follows: RECITALS WHEREAS, the Owner owns a parcel of real property (the "Property") in Lubbock County, Texas, which is more particularly and separately described in the attached Exhibit A; and WHEREAS, the City has instituted annexation proceedings for all portions of the Property and held public hearings regarding the proposed annexation on March 8 and March 10, 2016; and WHEREAS, at the public hearings, the Owner was presented with a service plan for the Property and the Owner was given the opportunity to be heard by the City Council of the City of Lubbock; and WHEREAS, the Owner does not want the Property to be annexed and desires to have the Property remain in the City's extraterritorial jurisdiction, in consideration for which the Owner agrees to enter into this Agreement; and WHEREAS, it is the City's intention to allow the Owner to continue to use the Property as it is being used at the time of this Agreement; and WHEREAS, the Owner and the City acknowledge that this Agreement is binding upon the City and the Owner and their respective successors and assigns for the duration of this Agreement; and WHEREAS, this Agreement is to be recorded in the real property records of Lubbock County, Texas; NOW, THEREFORE, in consideration of the mutual promises contained in this Agreement, the Owner and the City agree as follows: AGREEMENT Section 1 — The Property: Current Status. The City acknowledges that the Property, more particularly described in the attached "Exhibit A," is located within the extraterritorial jurisdiction of the City and is subject to annexation by the City unless this Agreement is signed by the Owner. Section 2 — The Property: Continued Status. In lieu of annexation, the Owner desires that the Property remain in the extraterritorial jurisdiction of the City for the duration of this Agreement. The Ch. 212 Development Agreement In Lieu Of Annexation -1 1 P a g e Owner acknowledges that unless the Property is annexed by the City, the Property is not eligible to receive City services, the Property shall not be included in the City's voting precincts, and the Property shall be immune from City property taxes for the duration of this Agreement. The Owner's use of the Property at the time of this Agreement is "grand fathered" into the acceptable uses of the City, and the City is prohibited from interfering with any uses on the Property that comply with §43,002 of the Texas Local Government Code. The Owner acknowledges that Section 22.03.091(a) of the Code of Ordinances of the City prohibits the City from providing water to any entity outside of the city limits, and acknowledges that the City will not be providing water to the Property unless the Property is annexed into the City. However, if the Property is annexed pursuant to a provision of this Agreement, then the City shall provide services to the Property pursuant to Chapter 43 of the Texas Local Government Code. Subject to the provisions of this Agreement, the City shall not annex the Property, shall not involuntarily institute proceedings to annex the Property, and shall not include the Property in a statutory annexation plan. The Owner authorizes the enforcement by the City of all of the City's regulations and planning authority that do not materially interfere with the use of the Property in the same manner that the City's regulations and planning authority are enforced within the City's boundaries. The City specifically reserves its authority pursuant to Chapter 251 of the Texas Local Government Code to exercise eminent domain over property that is subject to a §212.172 development agreement. The City further reserves its regulatory and planning authority in the City's ETJ, as such authority has been granted to it by the City Council. Section 3 -- The Property: Change In Status. The Owner agrees not to substantially change the use of the Property as it is used on the date of the execution of this Agreement. The Owner agrees not to develop the Property by filing any type of subdivision plat or related development document for the Property with Lubbock County or the City throughout the duration of this Agreement. The Owner acknowledges that if any plat or related development document is filed for the Property, or if the Owner commences any development of the Property other than that which supports the use of the Property as the Property is used on the date of the execution of this Agreement, then this Agreement shall terminate, and in addition to the City's other remedies, such act will constitute a petition for voluntary annexation by the Owner, and the Property will be subject to annexation at the discretion of the City Council. The Owner agrees that such annexation shall be voluntary and the Owner hereby consents to such annexation as though a petition for such annexation had been tendered by the Owner. If annexation proceedings begin pursuant to this Section, then the Owner acknowledges that this Agreement serves as an exception to Local Government Code §43.052, requiring a municipality to use certain statutory procedures under an annexation plan, and as an exception to Local Government Code §43.062 requiring certain statutory procedures as to the Owner to effectuate an annexation. Further, the Owner hereby waives any and all vested rights and claims that it may have under §43.002(a)(2) and Chapter 245 of the Texas Local Government Code that would otherwise exist by virtue of any plat or construction the Owner may initiate during the time between the expiration of this Agreement and the institution of annexation proceedings by the City. Section 4 — The Term. The term of this Agreement (the "Term") shall be twenty (20) years from the date that this Agreement is approved by the City Council of the City of Lubbock. At the end of the Term, the Owner, and all of the Owner's heirs, successors and assigns shall be deemed to have filed Ch. 212 Development Agreement In Lieu Of Annexation - 2 1 a petition for voluntary annexation of the Property, and the Property will be subject to voluntary annexation in accordance with Section 3 of this Agreement. Prior to the end of the Term, the City may commence the voluntary annexation of the Property. Section 5 — Termination. This Agreement will automatically terminate at the end of the Term. This Agreement shall terminate upon the filing of any plat or related development document with the City or with Lubbock County or upon the Owner's failure to prove that it is the sole owner of the Property with the authority to sign this Agreement. The Owner and the City may agree in writing to terminate this Agreement prior to the expiration of the Term of this Agreement. Section 6 — City Council Approval Required. If the City Council of the City of Lubbock does not affirmatively vote to annex an area that contains the Property, then this Agreement will be null and void in its entirety. Section 7 — Notification. Any person who sells or conveys any portion of the Property shall, prior to such sale or conveyance, give written notice of this Agreement to the prospective purchaser or grantee, and shall give written notice of the sale or conveyance to the City. Further, the Owner and the Owner's heirs, successors, and assigns shall give the City written notice within fourteen (I4) days of any change in the status of the Property. A copy of any notice required by this section shall be forwarded to the City at the following address: City of Lubbock IN& cony to: City of Lubbock Attn: City Secretary Attn: Director of Planning P.O. Box 2000 P.Q. Box 2000 Lubbock, Texas 79457 Lubbock, Texas 79457 This Agreement shall run with the Property and be recorded in the real property records of Lubbock County, Texas. Section 8 — Waiver. Any failure by the Owner or the City to insist upon strict performance by either party of any material provision of this Agreement shall not be deemed a waiver thereof, and the Owner or the City shall have the right at any time thereafter to insist upon strict performance of any and all provisions of this Agreement. No provision of this Agreement may be waived except by a written agreement signed by the Owner or the City waiving such provision. Any waiver shall be limited to the specific purposes for which it is given. No waiver by the Owner or the City of any provision of this Agreement shall be deemed or construed to be a waiver of any other provision or subsequent waiver of the same provision. The Parties expressly agree that no provision of this Agreement is in any way intended to constitute a waiver by any Party of any immunity from suit or liability that it may have by operation of law. The Parties agree that the City shall retain all of its governmental immunities. Section 9 — Assurance of Ownership. The Owner hereby expressly affirms that it is the sole owner of the Property and that no other person or entity has a valid claim to any right, title, or ownership in the Property. Should any dispute of right, title, or ownership concerning the Property arise subsequent to the Owner's execution of this Agreement, the Owner hereby agrees to be solely responsible for defending and confirming its absolute right, title, and ownership to the Property. If the Owner cannot Ch. 212 Development Agreement In Lieu Of Annexation - 3 defend or fails to defend its right, title, and ownership to the Property, then this Agreement shall terminate. Section 10 — Governing Law. This Agreement is entered into under and pursuant to, and is to be construed and enforceable in accordance with, the laws of the State of Texas, and all obligations of the Owner and the City are performable in Lubbock County, Texas. Venue for any action to enforce or construe this Agreement shall be Lubbock County, Texas. This Agreement is subject to all applicable federal, state, and local laws and any applicable ordinances, rules, orders and regulations of any local, state, or federal governmental authority, having or asserting jurisdiction. However, nothing contained in this Agreement shall be construed as a waiver by the Owner or the City of any right to question or contest any law, order, rule, or regulation which may affect the terms and conditions of this Agreement in any forum having jurisdiction, and the Owner and the City each agree to make a good faith effort to support all proposed laws and regulations which would be consistent with the performance of this Agreement in accordance with its terms. No subsequent change in the law regarding annexation shall affect the enforceability of this Agreement or the City's ability to annex the Property pursuant to this Agreement. Section 11 — Remedy. The City reserves the right to exercise any right or remedy available to it by law, contract, equity, or otherwise, including without limitation, the right to seek any and all forms of relief in a court of competent jurisdiction. Further, the City shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this Agreement, the former shall control. Section 12 — Public information. This Agreement is public information. To the extent, if any, that any provision of this Agreement is in conflict with the Texas Public Information Act (Tex. Gov't. Code Ann. Chapter 552 et seq., as amended), the same shall be of no force and effect. Section 13 — Third -Party Beneficiaries. This Agreement only inures to the benefit of, and may only be enforced by, the Owner and the City. No other person or entity shall have any right, title, or interest under this Agreement or otherwise be deemed to be a third -party beneficiary of this Agreement. Section 14 — No Personal Liability & No Joint Venture. Nothing in this Agreement is construed as creating any personal liability on the part of any employee, officer or agent of any public body that may be a party to this Agreement. This Agreement is not intended to, and shall not be construed to, create any joint enterprise between or among the parties. Section 15 — Due Diligence & Force Majeure. The Owner and the City shall use good faith, due diligence, and reasonable care in the performance of the obligations under this Agreement, and time shall be of the essence in such performance. In the event that the Owner or the City is unable to perform its respective obligations under this Agreement, due to any event or circumstance that is not within the reasonable respective control of the Owner or the City that could not have been avoided by either the Owner or the City with the exercise of good faith, due diligence, and reasonable care (a "Force Majeure"), then the obligations affected by the Force Majeure shall be temporarily suspended. Within three (3) business days after the occurrence of a Force Majeure, the Owner or the City shall give notice to each other, including a detailed explanation of the Force Majeure and a description of the action that will be taken to remedy the Force Majeure and resume full performance at the earliest possible time. Ch. 212 Development Agreement In Lieu Of Annexation - 4 1 Section 16 — Enforcement. This Agreement may be enforced by the Owner or the City by any proceeding at law or in equity. Failure to do so shall not be deemed a waiver to enforce the Agreement thereafter. Section 17 — Governmental Powers. It is understood that by execution of this Agreement, the City does not waive or surrender any of its governmental powers, except as expressly set forth herein. Section 1S — 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. The Owner acknowledges that each and every owner of the Property must sign this Agreement in order for the Agreement to take full effect. Section 19 — Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be unenforceable for any reason, such unenforceable provision shall be deleted from this Agreement, and the remainder of this Agreement shall remain in full force and effect and shall be interpreted to give effect to the intent of the Owner and the City. Without Iimiting the generality of the foregoing, if it is determined that, as of the date that this Agreement becomes effective, that any Owner does not own any portion of the Property, then this Agreement shall remain in full force and effect with respect to the remaining portion of the Property that the Owners actually own. Section 20 — Entire Agreement. This Agreement constitutes the entire agreement between the Owner and the City and supersedes all prior agreements, whether oral or written, covering the subject matter of this Agreement. The Owner acknowledges that each and every Owner of the Property must sign this Agreement in order for the Agreement to take full effect. Section 21 -- Captions & Recitals. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. However, each of the recitals contained herein, by this reference, shall be incorporated into, and deemed a part of, this Agreement. Section 22 — Modification of Agreement. This Agreement cannot be modified or amended except in writing signed by the Owner and the City and attached and made a part of this Agreement. Section 23 — Ch. 2I2 Agreement in lieu of Ch. 43 Agreement. If the Property is subject to an agricultural exemption, the Owner hereby acknowledges that the City, through the Office of the City Attorney, offered to make a development agreement with the Owner under §43.035 of the Texas Local Government Code. The Owner further acknowledges that the Owner rejected the offer to make a §43.035 Agreement in order to enter in to this §212.172 Agreement. IN WITNESS HE OF, the p rties mutually enter this Agreement on thi day of •r - .2016. Ch. 212 Development Agreement In Lieu Of Annexation - 5 1 For the City For the Owner Of GLEN . ROBERTSON, MAYOR Edward & atsie .lean Sampley rust caner Edward Sampley, Trustee Edward & Pat�tei ,lean Sam ey T st, O�v er Patsie Jean Sampley, Trustee <• ai �ecaaon4*�t�i r � Reb ea Garza, Cc Y �q�rel APPROVED AS TO CONTENT: Andrew Paxton, Director of Planning APPROVED AS TO FORM: /�-� /q- 41 - Justi Z), A sistant City Attorney Ch. 212 Development Agreement In Lieu Of Annexation - 6 17 a g e NOTARIZATION State of Texas § County of Lubbock § This instrument was executed before me on2016, by , DATE NA11C of the City of Lubbock, a Texas municipal corporation, on behalf of said rM corporation E ��.•`��SOUVpF9+���. Y AMJAz* _� �, -4 Notary ublic - + . OF I - State of Texas § County of Lubbock § YrrU', 8'2 06 This instrument was executed before me on RATE EDWARD sht%rLEV. TRUVEZ l-QY N'NER on behalf of said Owner. Notary Public State of Texas § County of Lubbock § �,.; CHERI CASTEEL . Notory PWAC, State of Texas My Commission Expires November 04, 201 A This instrument was executed before me on. I't 11 2016, by r1f-r� te': 1 1" 1.:crr rtrslEmagsftl_v�Er.TRr rEET Rp�+a+Ta on behalf of said Owner. Notary Public When Recorded Return To: City Secretary City of Lubbock, Texas 1625 131h Street Lubbock, Texas 79401 CIV, CHERI CASTEELNotary Public. State of Texas M Y Commission Expires November 04, 2018 Ch. 212 Development Agreement In Lieu Of Annexation - 7 1 , EXHIBIT A — The Property Tract No. Eight (8), FRANKFORD FARMS SOUTH, a subdivision out of the South One- half of the Northwest Quarter of Section 8, Block A-K, Lubbock County, Texas, as shown by the map, plat and/or dedication deed thereof recorded in Volume 3281, page 106 of the Real Property Records of Lubbock County, Texas rM a.wr�.a 0 � ± y i i till r, a U� r (5ampley - R$6347) Pale 1 of 2 FRANKFORD FARMS SOUTH TR 8 0 FILED AND RECORDED OFFICIAL PUBLIC RECORDS i # L Kelly Rinlon County Clark Lubbock Caun�y TEXAS 05/23/2015 10:62 AM FEE: 50.00 2016017937 Page 2 of 2 (Sampley - R86347) CITY OF LUBBOCK OFFICE PICK UP 201601793a 10 PCS AGREE mill R AM 0 htgP1TI4rWl` ?A114 ii III 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 REAL PROPERTY RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER CITY OF LUBBOCK CH. 212 DEVELOPMENT AGREEMENT IN LIEU OF ANNEXATION THIS DEVELOPMENT REEME T IN LIEU OF ANNEXATION (the "Agreement") is made and effective this day of 2016, and is entered into pursuant to §212.172 of the Texas Local Government Code, by Ad between the City of Lubbock, Texas, a Texas home rule municipal corporation (the "City"), and the undersigned property owner(s) (the "Owner"), with the term "Owner" including all owners of the Property, and is as follows: RECITALS WHEREAS, the Owner owns a parcel of real property (the "Property") in Lubbock County, Texas, which is more particularly and separately described in the attached Exhibit A; and WHEREAS, the City has instituted annexation proceedings for all portions of the Property and held public hearings regarding the proposed annexation on March 8 and March 10, 2016; and WHEREAS, at the public hearings, the Owner was presented with a service plan for the Property and the Owner was given the opportunity to be heard by the City Council of the City of Lubbock; and WHEREAS, the Owner does not want the Property to be annexed and desires to have the Property remain in the City's extraterritorial jurisdiction, in consideration for which the Owner agrees to enter into this Agreement; and WHEREAS, it is the City's intention to allow the Owner to continue to use the Property as it is being used at the time of this Agreement; and WHEREAS, the Owner and the City acknowledge that this Agreement is binding upon the City and the Owner and their respective successors and assigns for the duration of this Agreement; and WHEREAS, this Agreement is to be recorded in the real property records of Lubbock County, Texas; NOW, THEREFORE, in consideration of the mutual promises contained in this Agreement, the Owner and the City agree as follows: AGREEMENT Section 1 — The Property: Current Status. The City acknowledges that the Property, more particularly described in the attached "Exhibit A," is Iocated within the extraterritorial jurisdiction of the City and is subject to annexation by the City unless this Agreement is signed by the Owner. Section 2 — The Property: Continued Status. In lieu of annexation, the Owner desires that the Property remain in the extraterritorial jurisdiction of the City for the duration of this Agreement. The Ch. 212 Development Agreement In Lieu Of Annexation -1 1 P a g e Owner acknowledges that unless the Property is annexed by the City, the Property is not eligible to receive City services, the Property shall not be included in the City's voting precincts, and the Property shall be immune from City property taxes for the duration of this Agreement. The Owner's use of the Property at the time of this Agreement is "grandfathered" into the acceptable uses of the City, and the City is prohibited from interfering with any uses on the Property that comply with §43.002 of the Texas Local Government Code. The Owner acknowledges that Section 22.03.091(a) of the Code of Ordinances of the City prohibits the City from providing water to any entity outside of the city limits, and acknowledges that the City will not be providing water to the Property unless the Property is annexed into the City. However, if the Property is annexed pursuant to a provision of this Agreement, then the City shall provide services to the Property pursuant to Chapter 43 of the Texas Local Government Code. Subject to the provisions of this Agreement, the City shall not annex the Property, shall not involuntarily institute proceedings to annex the Property, and shall not include the Property in a statutory annexation plan. The Owner authorizes the enforcement by the City of all of the City's regulations and planning authority that do not materially interfere with the use of the Property in the same manner that the City's regulations and planning authority are enforced within the City's boundaries. The City specifically reserves its authority pursuant to Chapter 251 of the Texas Local Government Code to exercise eminent domain over property that is subject to a §212.172 development agreement. The City further reserves its regulatory and planning authority in the City's ETJ, as such authority has been granted to it by the City Council. Section 3 — The Property: Change In Status. The Owner agrees not to substantially change the use of the Property as it is used on the date of the execution of this Agreement. The Owner agrees not to develop the Property by filing any type of subdivision plat or related development document for the Property with Lubbock County or the City throughout the duration of this Agreement. The Owner acknowledges that if any plat or related development document is filed for the Property, or if the Owner commences any development of the Property other than that which supports the use of the Property as the Property is used on the date of the execution of this Agreement, then this Agreement shall terminate, and in addition to the City's other remedies, such act will constitute a petition for voluntary annexation by the Owner, and the Property will be subject to annexation at the discretion of the City Council. The Owner agrees that such annexation shall be voluntary and the Owner hereby consents to such annexation as though a petition for such annexation had been tendered by the Owner. If annexation proceedings begin pursuant to this Section, then the Owner acknowledges that this Agreement serves as an exception to Local Government Code §43.052, requiring a municipality to use certain statutory procedures under an annexation plan, and as an exception to Local Government Code §43.062 requiring certain statutory procedures as to the Owner to effectuate an annexation. Further, the Owner hereby waives any and all vested rights and claims that it may have under §43.002(a)(2) and Chapter 245 of the Texas Local Government Code that would otherwise exist by virtue of any plat or construction the Owner may initiate during the time between the expiration of this Agreement and the institution of annexation proceedings by the City. Section 4 — The Term. The term of this Agreement (the "Term") shall be twenty (20) years from the date that this Agreement is approved by the City Council of the City of Lubbock. At the end of the Term, the Owner, and all of the Owner's heirs, successors and assigns shall be deemed to have filed Ch. 212 Development Agreement In Lieu Of Annexation - 2 1 to a g e a petition for voluntary annexation of the Property, and the Property will be subject to voluntary annexation in accordance with Section 3 of this Agreement. Prior to the end of the Term, the City may commence the voluntary annexation of the Property. Section 5 — Termination. This Agreement will automatically terminate at the end of the Term. This Agreement shall terminate upon the filing of any plat or related development document with the City or with Lubbock County or upon the Owner's failure to prove that it is the sole owner of the Property with the authority to sign this Agreement. The Owner and the City may agree in writing to terminate this Agreement prior to the expiration of the Term of this Agreement. Section 6 — City Council Approval Required. If the City Council of the City of Lubbock does not affirmatively vote to annex an area that contains the Property, then this Agreement will be null and void in its entirety. Section 7 —Notification. Any person who sells or conveys any portion of the Property shall, prior to such sale or conveyance, give written notice of this Agreement to the prospective purchaser or grantee, and shall give written notice of the sale or conveyance to the City. Further, the Owner and the Owner's heirs, successors, and assigns shall give the City written notice within fourteen (14) days of any change in the status of the Property. A copy of any notice required by this section shall be forwarded to the City at the fallowing address: City of Lubbock With cupv to: City of Lubbock Attn: City Secretary Attn: Director of Planning P.O. Box 2000 P.O. Box 2000 Lubbock, Texas 79457 Lubbock, Texas 79457 This Agreement shall run with the Property and be recorded in the real property records of Lubbock County, Texas. Section 8 — Waiver. Any failure by the Owner or the City to insist upon strict performance by either party of any material provision of this Agreement shall not be deemed a waiver thereof, and the Owner or the City shall have the right at any time thereafter to insist upon strict performance of any and all provisions of this Agreement. No provision of this Agreement may be waived except by a written agreement signed by the Owner or the City waiving such provision. Any waiver shall be limited to the specific purposes for which it is given. No waiver by the Owner or the City of any provision of this Agreement shall be deemed or construed to be a waiver of any other provision or subsequent waiver of the same provision. The Parties expressly agree that no provision of this Agreement is in any way intended to constitute a waiver by any Party of any immunity from suit or liability that it may have by operation of law. The Parties agree that the City shall retain all of its governmental immunities. Section 9 — Assurance of Ownership. The Owner hereby expressly affirms that it is the sole owner of the Property and that no other person or entity has a valid claim to any right, title, or ownership in the Property. Should any dispute of right, title, or ownership concerning the Property arise subsequent to the Owner's execution of this Agreement, the Owner hereby agrees to be solely responsible for defending and confirming its absolute right, title, and ownership to the Property. If the Owner cannot Ch. 212 Development Agreement In Ueu Of Annexation - 3 1 P a g e defend or fails to defend its right, title, and ownership to the Property, then this Agreement shall terminate. Section 10 — Governing Law. This Agreement is entered into under and pursuant to, and is to be construed and enforceable in accordance with, the laws of the State of Texas, and all obligations of the Owner and the City are performable in Lubbock County, Texas. Venue for any action to enforce or construe this Agreement shall be Lubbock County, Texas. This Agreement is subject to all applicable federal, state, and local laws and any applicable ordinances, rules, orders and regulations of any local, state, or federal governmental authority, having or asserting jurisdiction. However, nothing contained in this Agreement shall be construed as a waiver by the Owner or the City of any right to question or contest any law, order, rule, or regulation which may affect the terms and conditions of this Agreement in any forum having jurisdiction, and the Owner and the City each agree to make a good faith effort to support all proposed laws and regulations which would be consistent with the performance of this Agreement in accordance with its terms. No subsequent change in the law regarding annexation shall affect the enforceability of this Agreement or the City's ability to annex the Property pursuant to this Agreement. Section I l — Remedy. The City reserves the right to exercise any right or remedy available to it by law, contract, equity, or otherwise, including without limitation, the right to seek any and all forms of relief in a court of competent jurisdiction. Further, the City shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this Agreement, the former shall control. Section 12 — Public Information. This Agreement is public information. To the extent, if any, that any provision of this Agreement is in conflict with the Texas Public Information Act (Tex. Gov't. Code Ann. Chapter 552 et seq., as amended), the same shall be of no force and effect. Section 13 — Third -Party Beneficiaries. This Agreement only inures to the benefit of, and may only be enforced by, the Owner and the City. No ether person or entity shall have any right, title, or interest under this Agreement or otherwise be deemed to be a third -party beneficiary of this Agreement. Section 14 — No Personal Liability & No Joint Venture. Nothing in this Agreement is construed as creating any personal liability on the part of any employee, officer or agent of any public body that may be a party to this Agreement. This Agreement is not intended to, and shall not be construed to, create any joint enterprise between or among the parties. Section 15 — Due Diligence & Force Majeure. The Owner and the City shall use good faith, due diligence, and reasonable care in the performance of the obligations under this Agreement, and time shall be of the essence in such performance. In the event that the Owner or the City is unable to perform its respective obligations under this Agreement, due to any event or circumstance that is not within the reasonable respective control of the Owner or the City that could not have been avoided by either the Owner or the City with the exercise of good faith, due diligence, and reasonable care (a "Force Majeure"), then the obligations affected by the Force Majeure shall be temporarily suspended. Within three (3) business days after the occurrence of a Force Majeure, the Owner or the City shall give notice to each other, including a detailed explanation of the Force Majeure and a description of the action that will be taken to remedy the Force Majeure and resume full performance at the earliest possible time. Ch. 212 Development Agreement In Lieu Of Annexation - 4 1 P a g e Section 16 — Enforcement. This Agreement may be enforced by the Owner or the City by any proceeding at law or in equity. Failure to do so shall not be deemed a waiver to enforce the Agreement thereafter. Section 17 — Governmental Powers. It is understood that by execution of this Agreement, the City does not waive or surrender any of its governmental powers, except as expressly set forth herein. Section 18 — 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. The Owner acknowledges that each and every owner of the Property must sign this Agreement in order for the Agreement to take full effect. Section 19 — Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be unenforceable for any reason, such unenforceable provision shall be deleted from this Agreement, and the remainder of this Agreement shall remain in full force and effect and shall be interpreted to give effect to the intent of the Owner and the City. Without limiting the generality of the foregoing, if it is determined that, as of the date that this Agreement becomes effective, that any Owner does not own any portion of the Property, then this Agreement shall remain in full force and effect with respect to the remaining portion of the Property that the Owners actually own. Section 20 — Entire Agreement. This Agreement constitutes the entire agreement between the Owner and the City and supersedes all prior agreements, whether oral or written, covering the subject matter of this Agreement. The Owner acknowledges that each and every Owner of the Property must sign this Agreement in order for the Agreement to take full effect. Section 21— Captions & Recitals. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. However, each of the recitals contained herein, by this reference, shall be incorporated into, and deemed a part of, this Agreement. Section 22 — Modification of Agreement. This Agreement cannot be modified or amended except in writing signed by the Owner and the City and attached and made a part of this Agreement. Section 23 — Ch. 212 Agreement in lieu of Ch. 43 Agreement. If the Property is subject to an agricultural exemption, the Owner hereby acknowledges that the City, through the Office of the City Attorney, offered to make a development agreement with the Owner under §43.035 of the Texas Local Government Code. The Owner further acknowledges that the Owner rejected the offer to make a §43.035 Agreement in order to enter in to this §212.172 Agreement. IN WITNESS HEOF, the pa 'es mutually enter this Agreement on this Mday of r ` 2016. Ch. 212 Development Agreement In Lieu Of Annexation - 5 1 P a g e For the City GLEN C OBER SON, MAYOR 'mot -NI. . rDl l , ir APPROVED AS -TO CONTENT: Andrew Paxton, Director of Planning APPROVED AS TO FORM: For the Owner Leon Thomas In"tmenn; LLC, Owner Richard Thomas Dora, Manner CIS. 212 Development Agreement In Lieu Of Annexation - 6 1 P a g e NOTARIZATION State of Texas § County of Lubbock § 7,7 i x This instrument was executed before me on 2015, by t 4 bAT£ NA\I£ of the City of Lubbock, a Texas municipal corporation, on behalf of said corporation. �� .�►��i t� IL':l/11 555 `�(n 555ps�y5n��roerrrr /� ry 5,�� M? [z :. QF -T * 3? n State of Texas § County of Lubbock § f L This instrument was executed before me on , 2416, by &'Z�- 112 /�c PA TlARD MOWS 9cINA.� AC£R OP uvr: ER When Recorded Return To: City Secretary City of Lubbock, Texas 1625 131h Street Lubbock, Texas 79401 YGi A Wfi�lyttOM .�,,l' Ch. 212 Development Agreement In Lieu Of Annexation - 7 1 P a f, EXHIBIT A — The Property Only the northernmost 660' of the following description less any dedication, with such property being only that portion of the property included in the official survey attached to the City of Lubbock Ordinance No. 2016-00054. TRACT 1: SURFACE ESTATE ONLY: A tract of land out of a 9,924 acre tract of land described in County Clerk's File Number 2006037680 of the Official Public Records of Lubbock County, 'Texas, located in Section 6, Block AK, Lubbock County, Texas, being further described ns follows-. BEGINNING at a 1/2" iron rod found in the North line of Suction 6, tit the Northeast turner of a 2 492 arse tract of land previously described under County Clerk's File Number 2008028358 of the Official Public Records of Lubbock County, Texas and the Northwest corner of this tract which bears S. 89*57' C. a distance of 415.00 feet from the Northwest comer of Section 6, Block AK, Lubbock County, Texas, 1 HENCE S. 8905T E , along the North line of Section 6, a distance of 286.48 feet to a 1/2" iron rod found at the Nonhwest corner of a 1 3 acre tract of land previously described under Count), Clerk's 1711c Number 20090 4725 of the Official Public Records of Lubbock County, Texas and the Northeast corner of this tract, THENCE S. 00*5917" E, along the West line of said 1.3 acre tract, at 30.00 feet pass a 1/3" iron rod %vith cap found in reference, continuing for a total distance of #101.88 feet to a I/2" iron rod with cap found at a corner of said 1.3 acre tract and the most Easterly Southeast corner of this tract; I FIENCE S. 54032'44" W., continuing along the West line of said 1.3 acre tract, a distance of 140.55 feet to a 1/2" iron rod with. cap found at it corner of said 13 acre tract and a corner of this tract; THENCE Soutlt, continuing along Cite Nest line of said 1.3 acre tract, a distance of'237.00 feet to a 1/2" iron rod with cap found at the Southwest corner of said 1.3 acre tract, in the North plat limits of Lots 1-8, Tumbleweed Pass Estates, an Addition to the County of Lubbock, Texas, according to the Map. Plat and/or Dedication Deed thereof recorded in Volume 4564, Page 280, Real Property Records of Lubbock County, Texas, and the Southeast corner of this tract; THENCE K 89°57' W, along the North line of Lots 2 and 3 of said furnblewccd Pass Estates, a distance of 178.93 feet to a I+2" iron rod wah cap found at the Southeast corner of a 1.726 acre trau of land previously described under County Clerks File Number 2007027248 of the official Public Records of Lubbock County, 1 cxas and Southwest corner of this tract, THENCE North, along the East line of said 1.726 acre tract and the East I+nc of two tracts of land previously described under County Clerk's Idle Numbers 2007001,128 and 2008028358 of the Official Public Records of Lubbock County, Texas, at 690.1 i feet pars it 1/2" iron rod found in reference, continuing for a total distance of 720,44 feet to the Point of Beginning;. (Leon Thomas Investments, LLC [Tommy Dora] - R154307) Page 1 of 3 TRACT 11: SURFACE ESTATE ONLY: A tract of Land out of a 9,924 acre tract of land described in County Clerk's File Number 2006037680 of the Official Public Records of Lubbock County, Texas, located in Section 6, Block AK, L ubbock County, Texas, being further described as follows; BEGINNING at a 1/2" iron rod found in the North line of Seclion 6, at the Northeast corner of a 1.3 acre tract of land previously described under County Clerk's rile Number 200904.1725 of the Official Public Records of Lubbock County, Texas and the Northwest corner of this tract which bears S. 89°57' E. a distance of 711.48 feet from the North%%tst corner of Section 6, Block AK, Lubbock County, Texas, THENCE S. 89057' E , along the North line of Section 6, a distance of 303.52 feel to a 1/2" iron rod found at the Northwest corner of a 3.17 acre tract of land previously described in Volume 10038, Page 225 of the Official Public Records of Lubbock County, Texas and the Northeast corner ofthis tract; THENCE South, along the West line of said 3.17 acre tract, at 30.00 Net pass a 1/2" iron rod found in reference, continuing for a total distance of 720 47 feet to a I/2" iron rod with cap found at the Southwest corner of said 3.17 acre tract, in the North plat limits of Lots 1.8, Tumblewced pass Estates, an Addition to the County of Lubbock, Texas, according; to the Map, Plat and/or Dedication Deed thereof recorded in Volume 4564, Page 280, Real Property Records of Lubbock County, Texas, at the Southeast corner of this tract; TIIENCE N 89'57' W,, along the North line of Lots 4 and 5 of said Tumblcwced Pass Estates, a distance of 224.07 feet to a IC" iron rod with cap found for the Southwest coiner of said 1.3 acre tract and the Southwest comer of this tract; THENCE North, along the West line of said 1.3 acre tract, a distance of 237.00 feet to a I12" iron rod with cap found at a corner of said 1.3 acre tract and a corner urthis tract; THENCE N 41 `34'49" W., continuing along the West line of said 1 3 acre tract, a distancc of 109 26 feet to a 112" iron rod with cap found at a corner of said 1.3 aLrC Intl and the most Westerly Southwest corner of this tract; THENCE N. 00°5917" W., continuing along the West line ofsaid 1.3 acre tract, at 371.87 feet pass a V2" iron rod with cap found in reference, continuing; fora total distance of 40I A7 feet to the Point of Beginning; (Leon Thomas Investments, LLC [Tommy Dora] - R164307) Page 2 of 3 BLK AK SEC 6 AB 760 TR 4 5 & 6 OF N30 AC OF W220 AC: 8.16 FILED AND RECORDED OFFICIAL PUBLIC RECORDS c�- LubbockiCotoiniyCoTEXRSCIark 05/23/2015 10:62 AM FEE: 62.00 20161017938 {Leon Thomas Investments, LLC [Tommy Dora] - R164307) Page 3 of 3 CITY OF LUBBOCK OFFICE PICK UP 2015017939 1t PGS AGREE mill K N&N11% WKINIIANW, W 11i 111 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 REAL PROPERTY RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER CITY OF LUBBOCK CH. 212 DEVELOPMENT AGREEMENT IN LIEU OF ANNEXATION THIS DEVELOPMENT AGREEMENT jN LIEU OF ANNEXATION (the "Agreement") is made and effective this _�&tay of /r 2016, and is entered into pursuant to §212.172 of the Texas Local Government Code, by and between the City of Lubbock, Texas, a Texas home rule municipal corporation (the "City"), and the undersigned property owner(s) (the "Owner"), with the term "Owner" including all owners of the Property, and is as follows: RECITALS WHEREAS, the Owner owns a parcel of real property (the "Property") in Lubbock County, Texas, which is more particularly and separately described in the attached Exhibit A; and WHEREAS, the City has instituted annexation proceedings for all portions of the Property and held public hearings regarding the proposed annexation on March 8 and March 10, 2016; and WHEREAS, at the public hearings, the Owner was presented with a service plan for the Property and the Owner was given the opportunity to be heard by the City Council of the City of Lubbock; and WHEREAS, the Owner does not want the Property to be annexed and desires to have the Property remain in the City's extraterritorial jurisdiction, in consideration for which the Owner agrees to enter into this Agreement; and WHEREAS, it is the City's intention to allow the Owner to continue to use the Property as it is being used at the time of this Agreement; and WHEREAS, the Owner and the City acknowledge that this Agreement is binding upon the City and the Owner and their respective successors and assigns for the duration of this Agreement; and WHEREAS, this Agreement is to be recorded in the real property records of Lubbock County, Texas; NOW, THEREFORE, in consideration of the mutual promises contained in this Agreement, the Owner and the City agree as follows: AGREEMENT Section 1 — The Property: Current Status. The City acknowledges that the Property, more particularly described in the attached "Exhibit A," is located within the extraterritorial jurisdiction of the City and is subject to annexation by the City unless this Agreement is signed by the Owner. Section 2 — The Property: Continued Status. In lieu of annexation, the Owner desires that the Property remain in the extraterritorial jurisdiction of the City for the duration of this Agreement. The Ch. 212 Development Agreement In Lieu Of Annexation -1 1 P a g e Owner acknowledges that unless the Property is annexed by the City, the Property is not eligible to receive City services, the Property shall not be included in the City's voting precincts, and the Property shall be immune from City property taxes for the duration of this Agreement. The Owner's use of the Property at the time of this Agreement is "grandfathered" into the acceptable uses of the City, and the City is prohibited from interfering with any uses on the Property that comply with §43.002 of the Texas Local Government Code. The Owner acknowledges that Section 22.03.091(a) of the Code of Ordinances of the City prohibits the City from providing water to any entity outside of the city limits, and acknowledges that the City will not be providing water to the Property unless the Property is annexed into the City. However, if the Property is annexed pursuant to a provision of this Agreement, then the City shall provide services to the Property pursuant to Chapter 43 of the Texas Local Government Code. Subject to the provisions of this Agreement, the City shall not annex the Property, shall not involuntarily institute proceedings to annex the Property, and shall not include the Property in a statutory annexation plan. The Owner authorizes the enforcement by the City of all of the City's regulations and planning authority that do not materially interfere with the use of the Property in the same manner that the City's regulations and planning authority are enforced within the City's boundaries. The City specifically reserves its authority pursuant to Chapter 251 of the Texas Local Government Code to exercise eminent domain over property that is subject to a §212.172 development agreement. The City further reserves its regulatory and planning authority in the City's ET.i, as such authority has been granted to it by the City Council. Section 3 — The Property: Change In Status. The Owner agrees not to substantially change the use of the Property as it is used on the date of the execution of this Agreement. The Owner agrees not to develop the Property by filing any type of subdivision plat or related development document for the Property with Lubbock County or the City throughout the duration of this Agreement. The Owner acknowledges that if any plat or related development document is filed for the Property, or if the Owner commences any development of the Property other than that which supports the use of the Property as the Property is used on the date of the execution of this Agreement, then this Agreement shall terminate, and in addition to the City's other remedies, such act will constitute a petition for voluntary annexation by the Owner, and the Property will be subject to annexation at the discretion of the City Council. The Owner agrees that such annexation shall be voluntary and the Owner hereby consents to such annexation as though a petition for such annexation had been tendered by the Owner. If annexation proceedings begin pursuant to this Section, then the Owner acknowledges that this Agreement serves as an exception to Local Government Code §43.052, requiring a municipality to use certain statutory procedures under an annexation plan, and as an exception to Local Government Code §43.062 requiring certain statutory procedures as to the Owner to effectuate an annexation. Further, the Owner hereby waives any and all vested rights and claims that it may have under §43.002(a)(2) and Chapter 245 of the Texas Local Government Code that would otherwise exist by virtue of any plat or construction the Owner may initiate during the time between the expiration of this Agreement and the institution of annexation proceedings by the City. Section 4 —The Term. The term of this Agreement (the "Term") shall be twenty (20) years from the date that this Agreement is approved by the City Council of the City of Lubbock. At the end of the Term, the Owner, and all of the Owner's heirs, successors and assigns shall be deemed to have filed Ch. 212 Development Agreement In Lieu Of Annexation - 2 1 P a g & a petition for voluntary annexation of the Property, and the Property will be subject to voluntary annexation in accordance with Section 3 of this Agreement. Prior to the end of the Term, the City may commence the voluntary annexation of the Property. Section 5 — Termination. This Agreement will automatically terminate at the end of the Term. This Agreement shall terminate upon the filing of any plat or related development document with the City or with Lubbock County or upon the Owner's failure to prove that it is the sole owner of the Property with the authority to sign this Agreement. The Owner and the City may agree in writing to terminate this Agreement prior to the expiration of the Term of this Agreement. Section 6 — City Council Approval Required. If the City Council of the City of Lubbock does not affirmatively vote to annex an area that contains the Property, then this Agreement will be null and void in its entirety. Section 7 — Notification. Any person who sells or conveys any portion of the Property shall, prior to such sale or conveyance, give written notice of this Agreement to the prospective purchaser or grantee, and shall give written notice of the sale or conveyance to the City. Further, the Owner and the Owner's heirs, successors, and assigns shall give the City written notice within fourteen (14) days of any change in the status of the Property. A copy of any notice required by this section shall be forwarded to the City at the following address: City of Lubbock With copy to: City of Lubbock Attn: City Secretary Attn: Director of Planning P.O. Box 2000 P.O. Box 2000 Lubbock, Texas 79457 Lubbock, Texas 79457 This Agreement shall run with the Property and be recorded in the real property records of Lubbock County, Texas. Section 8 — Waiver. Any failure by the Owner or the City to insist upon strict performance by either party of any material provision of this Agreement shall not be deemed a waiver thereof, and the Owner or the City shall have the right at any time thereafter to insist upon strict performance of any and all provisions of this Agreement. No provision of this Agreement may be waived except by a written agreement signed by the Owner or the City waiving such provision. Any waiver shall be limited to the specific purposes for which it is given. No waiver by the Owner or the City of any provision of this Agreement shall be deemed or construed to be a waiver of any other provision or subsequent waiver of the same provision. The Parties expressly agree that no provision of this Agreement is in any way intended to constitute a waiver by any Party of any immunity from suit or liability that it may have by operation of law. The Parties agree that the City shall retain all of its governmental immunities. Section 9 — Assurance of Ownership. The Owner hereby expressly affirms that it is the sole owner of the Property and that no other person or entity has a valid claim to any right, title, or ownership in the Property. Should any dispute of right, title, or ownership conceming the Property arise subsequent to the Owner's execution of this Agreement, the Owner hereby agrees to be solely responsible for defending and confirming its absolute right, title, and ownership to the Property. If the Owner cannot Ch. 212 Development Agreement In Lieu Of Annexation - 3 1 P a g e defend or fails to defend its right, title, and ownership to the Property, then this Agreement shall terminate. Section 10 — Governing Law. This Agreement is entered into under and pursuant to, and is to be construed and enforceable in accordance with, the laws of the State of Texas, and all obligations of the Owner and the City are performable in Lubbock County, Texas. Venue for any action to enforce or construe this Agreement shall be Lubbock County, Texas. This Agreement is subject to all applicable federal, state, and local laws and any applicable ordinances, rules, orders and regulations of any local, state, or federal governmental authority, having or asserting jurisdiction. However, nothing contained in this Agreement shall be construed as a waiver by the Owner or the City of any right to question or contest any law, order, rule, or regulation which may affect the terms and conditions of this Agreement in any forum having jurisdiction, and the Owner and the City each agree to make a good faith effort to support all proposed laws and regulations which would be consistent with the performance of this Agreement in accordance with its terms. No subsequent change in the law regarding annexation shall affect the enforceability of this Agreement or the City's ability to annex the Property pursuant to this Agreement. Section 11 — Remedy. The City reserves the right to exercise any right or remedy available to it by law, contract, equity, or otherwise, including without limitation, the right to seek any and all forms of relief in a court of competent jurisdiction. Further, the City shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this Agreement, the former shall control. Section 12 — Public Information. This Agreement is public information. To the extent, if any, that any provision of this Agreement is in conflict with the Texas Public Information Act (Tex. Gov't. Code Ann. Chapter 552 et seq., as amended), the same shall be of no force and effect. Section 13 — Third -Party Beneficiaries. This Agreement only inures to the benefit of, and may only be enforced by, the Owner and the City. No other person or entity shall have any right, title, or interest under this Agreement or otherwise be deemed to be a third -party beneficiary of this Agreement. Section 14 — No Personal Liability & No Joint Venture. Nothing in this Agreement is construed as creating any personal liability on the part of any employee, officer or agent of any public body that may be a party to this Agreement. This Agreement is not intended to, and shall not be construed to, create any joint enterprise between or among the parties. Section 15 — Due Diligence & Force Majeure. The Owner and the City shall use good faith, due diligence, and reasonable care in the performance of the obligations under this Agreement, and time shall be of the essence in such performance. In the event that the Owner or the City is unable to perform its respective obligations under this Agreement, due to any event or circumstance that is not within the reasonable respective control of the Owner or the City that could not have been avoided by either the Owner or the City with the exercise of good faith, due diligence, and reasonable care (a "Force Majeure"), then the obligations affected by the Force Majeure shall be temporarily suspended. Within three (3) business days after the occurrence of a Force Majeure, the Owner or the City shall give notice to each other, including a detailed explanation of the Force Majeure and a description of the action that will be taken to remedy the Force Majeure and resume full performance at the earliest possible time. Ch. 212 development Agreement In Lieu Of Annexation - 4 1 0 j Section 16 — Enforcement. This Agreement may be enforced by the Owner or the City by any proceeding at Iaw or in equity. Failure to do so shall not be deemed a waiver to enforce the Agreement thereafter. Section 17 — Governmental Powers. It is understood that by execution of this Agreement, the City does not waive or surrender any of its governmental powers, except as expressly set forth herein. Section 18 — 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. The Owner acknowledges that each and every owner of the Property must sign this Agreement in order for the Agreement to take full effect. Section 19 — Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be unenforceable for any reason, such unenforceable provision shall be deleted from this Agreement, and the remainder of this Agreement shall remain in full force and effect and shall be interpreted to give effect to the intent of the Owner and the City. Without limiting the generality of the foregoing, if it is determined that, as of the date that this Agreement becomes effective, that any Owner does not own any portion of the Property, then this Agreement shall remain in full force and effect with respect to the remaining portion of the Property that the Owners actually own. Section 20 —Entire Agreement. This Agreement constitutes the entire agreement between the Owner and the City and supersedes all prior agreements, whether oral or written, covering the subject matter of this Agreement. The Owner acknowledges that each and every Owner of the Property must sign this Agreement in order for the Agreement to take full effect. Section 21— Captions & Recitals. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. However, each of the recitals contained herein, by this reference, shall be incorporated into, and deemed a part of, this Agreement. Section 22 — Modification of Agreement. This Agreement cannot be modified or amended except in writing signed by the Owner and the City and attached and made a part of this Agreement. Section 23 — Ch. 212 Agreement in lieu of Ch. 43 Agreement. if the Property is subject to an agricultural exemption, the Owner hereby acknowledges that the City, through the Office of the City Attorney, offered to make a development agreement with the Owner under §43.035 of the Texas Local Government Code. The Owner further acknowledges that the Owner rejected the offer to make a §43.035 Agreement in order to enter in to this §212.172 Agreement. IN WITNESS HE OF, the part' s rru tually enter this Agreement on this day of , 2016. Ch. 212 Development Agreement In Ueu Of Annexation - 5 1 =" a g e For the Citv GLED(it. ROBkRTSON, MAYOR ATTEST:'," "J " Reb4cc2 is a; ON Sec 0- -Y�- APPROVbl)o�k,� 6 C NTENT; Andrew Paxton, Director of Planning APPROVED AS TO FORM: For the Owner n Lubbock, LLC, Owner Manager Ch. 212 Development Agreement In Ueu Of Annexation - 6 1 'P z E - NOTARIZATION State of Texas § County of Lubbock § - This instrument was executed before me on r 2016, by , PAYE NAME _ of the City of Lubbock, aTek 'itiu*ipal corporation, on behalf of said corporatio e`%q.`' ¢:� z .O of y Public State of Texas § County of Lubbock § This instrument was executed before me on 2016, by Pf?, PAlt F MANAGER FOR OWNER on behalf s 'd Owner. 1'' ` JONNIE WORN =' MY COMMISSION EXPIRES sx:y " July 7, 2016 Notary Pu - i When Recorded Return To: City Secretary City of Lubbock, Texas 1625 13"' Street Lubbock, Texas 79401 Ch. 212 Development Agreement In Eieu Of Annexation - 7 1 P a g. e EXHIBIT A — The Property METES AND BOUNDS DESCRIPTION of a 30 acre tract of land located in the East Half of Section 8, Block AK, Lubbock County, Texas, being further described as follows: BEGINNING at a railroad spike set in the East line of Section 8, Block AK and the center line of F.M. Highway No. 1730 which bears North a distance of 365.22 feet from a '/7" iron rod found at the Southeast corner of Section 8, Block AK, Lubbock County, Texas: THENCE S. 89030'40" W. at 45.00 feet pass a found 3/8" iron rod, continuing for a total distance of 1320.00 feet to a'/i" iron rod found at the Southwest corner of this tract; THENCE North a distance of 990.00 feet to a %" iron rod found at the Northwest corner of this tract; THENCE N. 89030'40" E. at 1275.00 feet pass a set %" iron rod with cap, continuing for a total distance of 1320.00 feet to a railroad spike set in the East line of Section 8, Block AK, and the center line of F.M. Highway 1730 for the Northeast corner of this tract; THENCE South, along the East line of said Section and the center line of said Highway a distance of 990.00 feet to the Point of Beginning; SAVE AND EXCEPT that portion of the above described property conveyed by Gulfstar Communications Lubbock, Inc., a Delaware corporation, to Jerry Smith in Warranty Deed recorded in Volume 5669, Page 119, Real Property Records of Lubbock County, Texas, and described as follows: A tract of land located in the EAST HALF (E/2) of SECTION EIGHT (8), BLOCK AK, Lubbock County, Texas, and being further described as follows: BEGINNING at a 14" iron rod with cap set in the East line of SECTION 8, BLOCK AK, Lubbock County, Texas, and in the center line of F.M. Highway Number 1730 which bears North a distance of 860.72 feet from the Southeast corner of SECTION 8, BLOCK AK, Lubbock County, Texas; THENCE South 89°30'40" West at 45.00 feet pass a set'/z" iron rod with cap, continuing for a total distance of 245.00 feet to a ''/2" iron rod with cap set for the Southwest comer of this tract; THENCE North a distance of 494.50 feet to a '/a" iron rod with cap set for the Northwest corner of this tract; THENCE North 89°30'40" East at 200.00 feet pass a found W' iron rod with cap, continuing for a total distance of 245.00 feet to a railroad spike found in the East line of said Section, and the center line of said Highway, for the Northeast comer of this tract; (Townsquare Media Lubbock, LLC — R113772) Page 1 of 3 THENCE South along the East line of said Section and the center line of said Highway a distance of 494.50 feet to the POINT OF BEGINNING. OR OPTION EXHIBIT B FROM 2010 Legal Description of premises located at 14302B Slide Road, Lubbock County, Lubbock, Texas: A tract of land located in the East half of Section 8, Block AK, Lubbock County, Texas, being further described as follows: BEGINNING at a railroad spike set in the East line of Section 8, Block AK and the center line of F.M. Highway No. 1730 which bears North a distance of 365.22 feet from a 1/2" iron rod found at the Southeast corner of Section 8, Block AK, Lubbock County, Texas; THENCE South 89 degrees 30'40" West at 45.00 feet past a found 3/8" iron rod, continuing for a total distance of 1320.00 feet to a 1/2" iron rod found at the Southwest corner of this tract; THENCE North a distance of 990.00 feet to a 1/2" iron rod found at the Northwest comer of this tract; THENCE N 89 degrees 30'40" East at I275.00 feet past a set 1/2" iron rod with cap, continuing for a total distance of 1320.00 feet to a railroad spike set in the East line of Section 8, Block AK and the center line of F.M. Highway 1730 for the Northeast comer of this tract; "THENCE South, along the East line of said Section and the center line of said Highway a distance of 990.00 feet to the point of beginning: SAVE AND EXCEPT that portion of the above described property conveyed by Gulf Star Communications Lubbock, Inc., to Jerry Smith in Warranty Deed recorded in Volume 5669, Page 1 19, Real Property Records of Lubbock County, Texas, and as described as follows: A tract of land located in the East half (E/2) ol'Section Eight (8). Block AK, Lubbock County, Texas, and being further described as follows: BEGINNING at a 1/2" iron rod with cap set in the East fine of Section 8, Block AK, Lubbock County, Texas, and in the center line of F.M. Highway Number 1730 which bears North a distance of 860.72 feet from the Southeast corner of Section 8, Block A, Lubbock County, Texas; THENCE South 89 degrees 30'40" West at 45.00 feet past a set 1/2" iron rod with cap, continuing for a total distance of 245.00 feet to a 1/2" iron rod with cap set for the Southwest comer of this tract; THENCE North a distance 494.50 feet to a 1/2" iron rod with cap set for the Northwest comer of this tract; (Townsquare Media Lubbock, LLC — R113772) Page 2 of 3 THENCE North 89 degrees 30'40" East at 200.00 feet past a found 1/2 iron rod with cap, continuing for a total distance of 245.00 feet to a railroad spike found in the East line of said Section, and the center line of said Highway, for the Northeast comer of this tract; THENCE South along the East line of said Section and the center line of said Highway a distance of 494.50 feet to the point of beginning. BLK AK SEC S AB 959 TR E3A OF E/2 AC: 25.027 1Townsquare Media Lubbock, LLC — R113772) Page 3 of 3 FILED AND RECORDED OFFICIAL PUBLIC RECORDS Kelly Plnion Countyy Clark t� ML: County TEXAS 05/23/2016 10:62 An FEE: $62.00 2016017939 CITY OF LUBBOCK OFFICE PICK UP 2616017940 1t PGS AGREE mill IMA NVU11111im 10000101 11111 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 REAL PROPERTY RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER CITY OF LUBBOCK CH. 212 DEVELOPMENT AGREEMENT IN LIEU OF ANNEXATION THIS DEVELOP MENGIGI2EEME T IN LIEU OF ANNEXATION (the "Agreement") is made and effective this day of 2016, and is entered into pursuant to §212.172 of the Texas Local Government Code, by an between the City of Lubbock, Texas, a Texas home rule municipal corporation (the "City"), and the undersigned property owner(s) (the "Owner"), with the term "Owner" including all owners of the Property, and is as follows: RECITALS WHEREAS, the Owner owns a parcel of real property (the "Property") in Lubbock County, Texas, which is more particularly and separately described in the attached Exhibit A; and WHEREAS, the City has instituted annexation proceedings for all portions of the Property and held public hearings regarding the proposed annexation on March 8 and March 10, 2016; and WHEREAS, at the public hearings, the Owner was presented with a service plan for the Property and the Owner was given the opportunity to be heard by the City Council of the City of Lubbock; and WHEREAS, the Owner does not want the Property to be annexed and desires to have the Property remain in the City's extraterritorial jurisdiction, in consideration for which the Owner agrees to enter into this Agreement; and WHEREAS, it is the City's intention to allow the Owner to continue to use the Property as it is being used at the time of this Agreement; and WHEREAS, the Owner and the City acknowledge that this Agreement is binding upon the City and the Owner and their respective successors and assigns for the duration of this Agreement; and WHEREAS, this Agreement is to be recorded in the real property records of Lubbock County, Texas; NOW, THEREFORE, in consideration of the mutual promises contained in this Agreement, the Owner and the City agree as follows: AGREEMENT Section 1 — The Property: Current Status. The City acknowledges that the Property, more particularly described in the attached "Exhibit A," is located within the extraterritorial jurisdiction of the City and is subject to annexation by the City unless this Agreement is signed by the Owner. Section 2 — The Property: Continued Status. In lieu of annexation, the Owner desires that the Property remain in the extraterritorial jurisdiction of the City for the duration of this Agreement. The Ch. 212 Development Agreement In Lieu Of Annexation -1 1 P a g e Owner acknowledges that unless the Property is annexed by the City, the Property is not eligible to receive City services, the Property shall not be included in the City's voting precincts, and the Property shall be immune from City property taxes for the duration of this Agreement. The Owner's use of the Property at the time of this Agreement is "grandfathered" into the acceptable uses of the City, and the City is prohibited from interfering with any uses on the Property that comply with §43.002 of the Texas Local Government Code. The Owner acknowledges that Section 22.03.091(a) of the Code of Ordinances of the City prohibits the City from providing water to any entity outside of the city limits, and acknowledges that the City will not be providing water to the Property unless the Property is annexed into the City. However, if the Property is annexed pursuant to a provision of this Agreement, then the City shall provide services to the Property pursuant to Chapter 43 of the Texas Local Government Code. Subject to the provisions of this Agreement, the City shall not annex the Property, shall not involuntarily institute proceedings to annex the Property, and shall not include the Property in a statutory annexation plan. The Owner authorizes the enforcement by the City of all of the City's regulations and planning authority that do not materially interfere with the use of the Property in the same manner that the City's regulations and planning authority are enforced within the City's boundaries. The City specifically reserves its authority pursuant to Chapter 251 of the Texas Local Government Code to exercise eminent domain over property that is subject to a §212.172 development agreement. The City further reserves its regulatory and planning authority in the City's ETJ, as such authority has been granted to it by the City Council. Section 3 — The Property: Change In Status. The Owner agrees not to substantially change the use of the Property as it is used on the date of the execution of this Agreement. The Owner agrees not to develop the Property by filing any type of subdivision plat or related development document for the Property with Lubbock County or the City throughout the duration of this Agreement. The Owner acknowledges that if any plat or related development document is filed for the Property, or if the Owner commences any development of the Property other than that which supports the use of the Property as the Property is used on the date of the execution of this Agreement, then this Agreement shall terminate, and in addition to the City's other remedies, such act will constitute a petition for voluntary annexation by the Owner, and the Property will be subject to annexation at the discretion of the City Council. The Owner agrees that such annexation shall be voluntary and the Owner hereby consents to such annexation as though a petition for such annexation had been tendered by the Owner. If annexation proceedings begin pursuant to this Section, then the Owner acknowledges that this Agreement serves as an exception to Local Government Code §43.052, requiring a municipality to use certain statutory procedures under an annexation plan, and as an exception to Local Government Code §43.062 requiring certain statutory procedures as to the Owner to effectuate an annexation. Further, the Owner hereby waives any and all vested rights and claims that it may have under §43.002(a)(2) and Chapter 245 of the Texas Local Government Code that would otherwise exist by virtue of any plat or construction the Owner may initiate during the time between the expiration of this Agreement and the institution of annexation proceedings by the City. Section 4 — The Term. The term of this Agreement (the "Term") shall be twenty (20) years from the date that this Agreement is approved by the City Council of the City of Lubbock. At the end of the Tenn, the Owner, and all of the Owner's heirs, successors and assigns shall be deemed to have filed Ch. 212 Development Agreement In Lieu Of Annexation - 2 1 P a g e a petition for voluntary annexation of the Property, and the Property will be subject to voluntary annexation in accordance with Section 3 of this Agreement. Prior to the end of the Term, the City may commence the voluntary annexation of the Property. Section 5 — Termination. This Agreement will automatically terminate at the end of the Term. This Agreement shall terminate upon the filing of any plat or related development document with the City or with Lubbock County or upon the Owner's failure to prove that it is the sole owner of the Property with the authority to sign this Agreement. The Owner and the City may agree in writing to terminate this Agreement prior to the expiration of the Term of this Agreement. Section 6 — City Council Approval Required. If the City Council of the City of Lubbock does not affirmatively vote to annex an area that contains the Property, then this Agreement will be null and void in its entirety. Section 7 — Notification. Any person who sells or conveys any portion of the Property shall, prior to such sale or conveyance, give written notice of this Agreement to the prospective purchaser or grantee, and shall give written notice of the sale or conveyance to the City. Further, the Owner and the Owner's heirs, successors, and assigns shall give the City written notice within fourteen (l 4) days of any change in the status of the Property. A copy of any notice required by this section shall be forwarded to the City at the following address: City of Lubbock With copy to: City of Lubbock Attn.- City Secretary Attn: Director of Planning P.O. Box 2000 P.O. Box 2000 Lubbock, Texas 79457 Lubbock, Texas 79457 This Agreement shall run with the Property and be recorded in the real property records of Lubbock County, Texas. Section 8 — Waiver. Any failure by the Owner or the City to insist upon strict performance by either party of any material provision of this Agreement shall not be deemed a waiver thereof, and the Owner or the City shall have the right at any time thereafter to insist upon strict performance of any and all provisions of this Agreement. No provision of this Agreement may be waived except by a written agreement signed by the Owner or the City waiving such provision. Any waiver shall be Iimited to the specific purposes for which it is given. No waiver by the Owner or the City of any provision of this Agreement shall be deemed or construed to be a waiver of any other provision or subsequent waiver of the same provision. The Parties expressly agree that no provision of this Agreement is in any way intended to constitute a waiver by any Party of any immunity from suit or liability that it may have by operation of law. The Parties agree that the City shall retain all of its governmental immunities. Section 9 — Assurance of Ownership. The Owner hereby expressly affirms that it is the sole owner of the Property and that no other person or entity has a valid claim to any right, title, or ownership in the Property. Should any dispute of right, title, or ownership concerning the Property arise subsequent to the Owner's execution of this Agreement, the Owner hereby agrees to be solely responsible for defending and confirming its absolute right, title, and ownership to the Property. If the Owner cannot Ch. 212 Development Agreement In Lieu Of Annexation - 3 1 P a g e defend or fails to defend its right, title, and ownership to the Property, then this Agreement shall terminate. Section 14 — Governing Law. This Agreement is entered into under and pursuant to, and is to be construed and enforceable in accordance with, the laws of the State of Texas, and all obligations of the Owner and the City are performable in Lubbock County, Texas. Venue for any action to enforce or construe this Agreement shall be Lubbock County, Texas. This Agreement is subject to all applicable federal, state, and local laws and any applicable ordinances, rules, orders and regulations of any local, state, or federal governmental authority, having or asserting jurisdiction. However, nothing contained in this Agreement shall be construed as a waiver by the Owner or the City of any right to question or contest any law, order, rule, or regulation which may affect the terms and conditions of this Agreement in any forum having jurisdiction, and the Owner and the City each agree to make a good faith effort to support all proposed laws and regulations which would be consistent with the performance of this Agreement in accordance with its terms. No subsequent change in the law regarding annexation shall affect the enforceability of this Agreement or the City's ability to annex the Property pursuant to this Agreement. Section 11— Remedy. The City reserves the right to exercise any right or remedy available to it by law, contract, equity, or otherwise, including without limitation, the right to seek any and all forms of relief in a court of competent jurisdiction. Further, the City shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this Agreement, the former shall control. Section 12 — Public Information. This Agreement is public information. To the extent, if any, that any provision of this Agreement is in conflict with the Texas Public Information Act (Tex. Gov't. Code Ann. Chapter 552 et seq., as amended), the same shall be of no force and effect. Section 13 — Third -Party Beneficiaries. This Agreement only inures to the benefit of, and may only be enforced by, the Owner and the City. No other person or entity shall have any right, title, or interest under this Agreement or otherwise be deemed to be a third -party beneficiary of this Agreement. Section 14 — No Personal Liability & No Joint Venture. Nothing in this Agreement is construed as creating any personal liability on the part of any employee, officer or agent of any public body that may be a party to this Agreement. This Agreement is not intended to, and shall not be construed to, create any joint enterprise between or among the parties. Section 15 — Due Diligence & Force Majeure. The Owner and the City shall use good faith, due diligence, and reasonable care in the performance of the obligations under this Agreement, and time shall be of the essence in such performance. In the event that the Owner or the City is unable to perform its respective obligations under this Agreement, due to any event or circumstance that is not within the reasonable respective control of the Owner or the City that could not have been avoided by either the Owner or the City with the exercise of good faith, due diligence, and reasonable care (a "Force Majeure"), then the obligations affected by the Force Majeure shall be temporarily suspended. Within three (3) business days after the occurrence of a Force Majeure, the Owner or the City shall give notice to each other, including a detailed explanation of the Force Majeure and a description of the action that will be taken to remedy the Force Majeure and resume full performance at the earliest possible time. Ch. 212 Development Agreement In Lieu Of Annexation - 4 1 p a g e Section 16 — Enforcement. This Agreement may be enforced by the Owner or the City by any proceeding at law or in equity. Failure to do so shall not be deemed a waiver to enforce the Agreement thereafter. Section 17 — Governmental Powers. It is understood that by execution of this Agreement, the City does not waive or surrender any of its governmental powers, except as expressly set forth herein. Section 18 — 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. The Owner acknowledges that each and every owner of the Property must sign this Agreement in order for the Agreement to take full effect. Section 19 — Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be unenforceable for any reason, such unenforceable provision shall be deleted from this Agreement, and the remainder of this Agreement shall remain in full force and effect and shall be interpreted to give effect to the intent of the Owner and the City. Without limiting the generality of the foregoing, if it is determined that, as of the date that this Agreement becomes effective, that any Owner does not own any portion of the Property, then this Agreement shall remain in full force and effect with respect to the remaining portion of the Property that the Owners actually own. Section 20 — Entire Agreement. This Agreement constitutes the entire agreement between the Owner and the City and supersedes all prior agreements, whether oral or written, covering the subject matter of this Agreement. The Owner acknowledges that each and every Owner of the Property must sign this Agreement in order for the Agreement to take full effect. Section 21— Captions & Recitals. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. However, each of the recitals contained herein, by this reference, shall be incorporated into, and deemed a part of, this Agreement. Section 22 — Modification of Agreement. This Agreement cannot be modified or amended except in writing signed by the Owner and the City and attached and made a part of this Agreement. Section 23 — Ch. 212 Agreement in lieu of Ch. 43 Agreement. If the Property is subject to an agricultural exemption, the Owner hereby acknowledges that the City, through the Office of the City Attorney, offered to make a development agreement with the Owner under §43.035 of the Texas Local Government Code. The Owner further acknowledges that the Owner rejected the offer to make a §43.035 Agreement in order to enter in to this §212.172 Agreement. IN WITNESS HEREOF, the pa ties mutually enter this Agreement on this 12�1"y of , 2016. Ch. 212 Development Agreement In Lieu Of Annexation - 5 1 P a g e For the City -.,A,/ GLEN C. OBER ON, MAYOR ;wri.`.�s4S r ATTEST' Ret-ca Gai�a� City"Sec €taty APPROVED AS -TO CONTENT: Andrew 15axZion, Director of Planning APPROVED AS TO FORM: Justin rui , As istart City Attorney For the Owner Ruby P 'ndle, Owner Joni ons, Guardian for Owner Ch. 212 Development Agreement In Lieu Of Annexation - 6 1 P _ e NOTARIZATION City of Lubbock State of Texas § County of Lubbock § This instrument was executed before me on • L(a 2016, by 0 IN, DATE NAME of the City of Lubbock, a Texas municipal corporation, on behalf of said It felt,, corporation. %S9bl/p"'�. No Public = � � n . co _ Signata('y��l�l; State of Texas § County of Nolan § This instrument was executed before me on _ _ 2016, by s S DATE JONICMKSC;Ali "F01t0"ER on behalf of said Owner. �,,,... STACY DOVE Notary Public, State of Texas My Commission Expires c ,{ " ai Ausust 22, 2D19 Notary Public When Recorded Return To: City Secretary City of Lubbock, Texas 1625 131h Street Lubbock, Texas 79401 Ch. 212 Development Agreement In Lieu Of Annexation - 7 1 P a g e EXHIBIT A — The Property MMS AND BOUNDS DESCRIPTION of a 2.954 acre tract of land, being a portionv vt c.. tF of a 9.846 acre tract of land surveyed by J. H. Vilaon on July 13, 1983. located In the Southeast Quarter of Section 1, Block A-K, Lubbock County, Texan, and biting further described as follows: BEGINNING me a point in the North lino of said 9.846 acre tract and the South line of a 10.154 acre tract, For the Northeast corner of this tract, from chance the Northeast corner of the Southeast Quarter of said Section 1, Slock A-K. bears S. a9'56154" E., 1384.49 feet and N. 00'01'49" E., 497.35 feet; THENCE S. 00'00'54" E., parallel to the Waite line of the Southeast Quarter Of said Section 1. a distance of 16Z.42 feet to a 5/8" iron rod with cap net in the South line of said 9.846 acre tract and the North line of a 25.00 acre tract for th• Southeast corner of thin tract; THENCE N. 89'56' 54" W.. and the North line of amid 25.00 acre tract,, distance aofd792.24 feet to!;.1146 acre aat5/8a iron rod with cap met for the Southwest cornnr of this tract; THENCE N. 00000'54" E, parallel to the West line of the Southeast Quarter of said Section 1, a distance of 162.42 feet to a 5/8" iron red with cap sat in the North line of said 9.846 acre tract and the South line of a 10.154 acre tract for the Northwest corner of this tract; THENCE S. 89*56154" E.. along the north line of maid 9.846 acre tract and the South line of said 10.154 acre tract. a distance of 792.24 foot to the Point of Beginning. The 10.154 acre. 9.846 acre and 25.00 acre tracts referred to were surveyed by J. N--WLIson, as Shown on plat dated July 13. 1983. M=S AND BOUNDS DESCRLPTXON of a 3.046 acre trace of land being a portion of 10.154 acre tract of land surveyed by J. M. Wilson an July 13. L983. located in the Southeast Quarter of Section 1, Block A-K, Lubbock County. Texas. and being further described as follows: BEGINNING at ■ point in the South line of said 10.154 acre tract and the North line of a 9.346 acre tract* for the Southeast corner of this tract. from whenc the Northeast corner of the Southeast Quarter of said Section 1s Block A-K. bears S. 89'56154" E., 15B4.49 feat and N. 00'O1'49" E., 497.35 feat; THENCE N. 89'56154" W., along the South line of said 10.154 acre tract and the North line of said 9.846 acre tract, a distance of 792.24 feat t* a point for the Southwest corner of this tract; THENC$ N. 00000254" W.. parallel to the hest line of the Southeast Quarter of said Section 1, a distance of 167.48 feet to a 5/8" iron rod with cap not in the Borth line of said 10.154 acre tract and the South line of a 20.00 acre tract for the Northwest corner of this tract; THENCE S. 89*56154" E.6 along the North line of said 10.134 acre tract and the South line of amid 20.00 acre tract. a distance of 792.24 font to a S/8" Iron rod with cap set for the Northeast corner of this tract; THENCE S. 00000154" E.. parallel to the West line of the Southeast Quarter of said Section 1. a distance of 167.48 feet to the Point of Beginning. The 9.846 acre. 10.154 acre and 20.00 acre tracts referred to were surveyed by J. N. W lson an shown on plat dated July 13, 1993. (Prindle - R74958 & R74988) Page i of 2 BLK AK SEC 1 AB 189 TR A OF BAL OF SE/4 AC: 2.954 AND BLK AK SEC 1 AB 189 TR J OF SEA AC: 3.046 Page 2 of 2 (Prindie — R74958 & R74988) EXHIBIT A — The Property 2.00 ace tract looted In the Southeast Quarter of Section 1, Block AK, Lubbock County, Texas, being Ihrthar described as follows: BEGINNING at a 1/2' iron rod with cap set for the Northeast corner of this tract from whence the Southeast Quarter of said Section 1, Block AK tears S. 99 degm-es 561S4' I- a distance of 1320M feet and N. 00 degree 01'49' E. a distance or 32927 feet; THENCE S. 00 degree 00'S4' E, tt distance of 32990 feet to a 1/2' Iron rod with cap found at the Southeast corner of this tract; THENCE N. 89 dq:mm 56'54' W. a distance of 264A8 feet to o S/8` iron rod with cup round at the Southwest corner or Ibis tract; THENCE N. 00 degree 00'54' W. a distance of 329M rat to a S/S' iron rod found at the Northwest corner or this tract; THENCE S. 89 degrees S6'54' E. a distance or 264.09 feet to the Point or Beginning. BLK AK SEC 1 AB 189 TR B OF SE/4 AC: 2 (Prindle - R38526) FILED AND RECORDED OFFICIAL PUBLIC RECORDS : • l.L4CN K:lly Plnion Countyy Clork Lubb4�k Crsun�y TEXAS 05/23/2016 10:62 AM FEE: 52.00 2016017940 2016017941 R11 PGS AGREE II���� � CITY OF LUBBOCK ■III K ROAMER wxw lwiffi 11 Ill OFFICE PICK UP 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 REAL PROPERTY RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER CITY OF LUBBOCK CH. 212 DEVELOPMENT AGREEMENT IN LIEU OF ANNEXATION THIS DEVELOPMENT AGREEMENT IN LIEU OF ANNEXATION (the "Agreement") is made and effective this day of , 2016, and is entered into pursuant to §212.172 of the Texas Local Government Code, by adebetween the City of Lubbock, Texas, a Texas home rule municipal corporation (the "City"), and the undersigned property owncr(s) (the "Owner"), with the term "Owner" including all owners of the Property, and is as follows: RECITALS WHEREAS, the Owner owns a parcel of real property (the "Property") in Lubbock County, Texas, which is more particularly and separately described in the attached Exhibit A; and WHEREAS, the City has instituted annexation proceedings for all portions of the Property and held public hearings regarding the proposed annexation on March 8 and March 10, 2016; and WHEREAS, at the public hearings, the Owner was presented with a service plan for the Property and the Owner was given the opportunity to be heard by the City Council of the City of Lubbock; and WHEREAS, the Owner does not want the Property to be annexed and desires to have the Property remain in the City's extraterritorial jurisdiction, in consideration for which the Owner agrees to enter into this Agreement; and WHEREAS, it is the City's intention to allow the Owner to continue to use the Property as it is being used at the time of this Agreement; and WHEREAS, the Owner and the City acknowledge that this Agreement is binding upon the City and the Owner and their respective successors and assigns for the duration of this Agreement; and WHEREAS, this Agreement is to be recorded in the real property records of Lubbock County, Texas; NOW, THEREFORE, in consideration of the mutual promises contained in this Agreement, the Owner and the City agree as follows: AGREEMENT Section I — The Property; Current Status. The City acknowledges that the Property, more particularly described in the attached "Exhibit A," is located within the extraterritorial jurisdiction of the City and is subject to annexation by the City unless this Agreement is signed by the Owner. Section 2 — The Property: Continued Status. In lieu of annexation, the Owner desires that the Property remain in the extraterritorial jurisdiction of the City for the duration of this Agreement. The Ch. 212 Development Agreement In Lieu Of Annexation -1 1 P a g e Owner acknowledges that unless the Property is annexed by the City, the Property is not eligible to receive City services, the Property shall not be included in the City's voting precincts, and the Property shall be immune from City property taxes for the duration of this Agreement. The Owner's use of the Property at the time of this Agreement is "grandfathered" into the acceptable uses of the City, and the City is prohibited from interfering with any uses on the Property that comply with §43.002 of the Texas Local Government Code. The Owner acknowledges that Section 22.03.091(a) of the Code of Ordinances of the City prohibits the City from providing water to any entity outside of the city Iimits, and acknowledges that the City will not be providing water to the Property unless the Property is annexed into the City. However, if the Property is annexed pursuant to a provision of this Agreement, then the City shall provide services to the Property pursuant to Chapter 43 of the Texas Local Government Code. Subject to the provisions of this Agreement, the City shall not annex the Property, shall not involuntarily institute proceedings to annex the Property, and shall not include the Property in a statutory annexation plan. The Owner authorizes the enforcement by the City of all of the City's regulations and planning authority that do not materially interfere with the use of the Property in the same manner that the City's regulations and planning authority are enforced within the City's boundaries. The City specifically reserves its authority pursuant to Chapter 251 of the Texas Local Government Code to exercise eminent domain over property that is subject to a §212.172 development agreement. The City further reserves its regulatory and planning authority in the City's ETJ, as such authority has been granted to it by the City Council. Section 3 -- The Property: Change in Status. The Owner agrees not to substantially change the use of the Property as it is used on the date of the execution of this Agreement. The Owner agrees not to develop the Property by filing any type of subdivision plat or related development document for the Property with Lubbock County or the City throughout the duration of this Agreement. The Owner acknowledges that if any plat or related development document is filed for the Property, or if the Owner commences any development of the Property other than that which supports the use of the Property as the Property is used on the date of the execution of this Agreement, then this Agreement shall terminate, and in addition to the City's other remedies, such act will constitute a petition for voluntary annexation by the Owner, and the Property will be subject to annexation at the discretion of the City Council. The Owner agrees that such annexation shall be voluntary and the Owner hereby consents to such annexation as though a petition for such annexation had been tendered by the Owner. If annexation proceedings begin pursuant to this Section, then the Owner acknowledges that this Agreement serves as an exception to Local Government Code §43.052, requiring a municipality to use certain statutory procedures under an annexation plan, and as an exception to Local Government Code §43.062 requiring certain statutory procedures as to the Owner to effectuate an annexation. Further, the Owner hereby waives any and all vested rights and claims that it may have under §43.002(a)(2) and Chapter 245 of the Texas Local Government Code that would otherwise exist by virtue of any plat or construction the Owner may initiate during the time between the expiration of this Agreement and the institution of annexation proceedings by the City. Section 4 — The Term. The term of this Agreement (the "Term") shall be twenty (20) years from the date that this Agreement is approved by the City Council of the City of Lubbock. At the end of the Term, the Owner, and all of the Owner's heirs, successors and assigns shall be deemed to have filed Ch. 212 Development Agreement In Lieu Of Annexation - 2 1 a petition for voluntary annexation of the Property, and the Property will be subject to voluntary annexation in accordance with Section 3 of this Agreement. Prior to the end of the Term, the City may commence the voluntary annexation of the Property. Section 5 —Termination. This Agreement will automatically terminate at the end of the Term. This Agreement shall terminate upon the filing of any plat or related development document with the City or with Lubbock County or upon the Owner's failure to prove that it is the sole owner of the Property with the authority to sign this Agreement. The Owner and the City may agree in writing to terminate this Agreement prior to the expiration of the Term of this Agreement. Section 6 — City Council Approval Required. If the City Council of the City of Lubbock does not affirmatively vote to annex an area that contains the Property, then this Agreement will be null and void in its entirety. Section 7 — Notification. Any person who sells or conveys any portion of the Property shall, prior to such sale or conveyance, give written notice of this Agreement to the prospective purchaser or grantee, and shall give written notice of the sale or conveyance to the City. Further, the Owner and the Owner's heirs, successors, and assigns shall give the City written notice within fourteen ( 14) days of any change in the status of the Property. A copy of any notice required by this section shall be forwarded to the City at the following address: City of Lubbock With copy to: City of Lubbock Attn: City Secretary Attn: Director of Planning P.O. Box 2000 P.O. Box 2000 Lubbock, Texas 79457 Lubbock, Texas 79457 This Agreement shall run with the Property and be recorded in the real property records of Lubbock County, Texas. Section 8 — Waiver. Any failure by the Owner or the City to insist upon strict performance by either party of any material provision of this Agreement shall not be deemed a waiver thereof, and the Owner or the City shall have the right at any time thereafter to insist upon strict performance of any and all provisions of this Agreement. No provision of this Agreement may be waived except by a written agreement signed by the Owner or the City waiving such provision. Any waiver shall be limited to the specific purposes for which it is given. No waiver by the Owner or the City of any provision of this Agreement shall be deemed or construed to be a waiver of any other provision or subsequent waiver of the same provision. The Parties expressly agree that no provision of this Agreement is in any way intended to constitute a waiver by any Party of any immunity from suit or liability that it may have by operation of law. The Parties agree that the City shall retain all of its governmental immunities. Section 9 — Assurance of Ownership. The Owner hereby expressly affirms that it is the sole owner of the Property and that no other person or entity has a valid claim to any right, title, or ownership in the Property. Should any dispute of right, title, or ownership concerning the Property arise subsequent to the Owner's execution of this Agreement, the Owner hereby agrees to be solely responsible for defending and confirming its absolute right, title, and ownership to the Property. If the Owner cannot Ch. 212 Development Agreement In Lieu Of Annexation - 3 1 defend or fails to defend its right, title, and ownership to the Property, then this Agreement shall terminate. Section 10 — Governing Law. This Agreement is entered into under and pursuant to, and is to be construed and enforceable in accordance with, the laws of the State of Texas, and all obligations of the Owner and the City are performable in Lubbock County, Texas. Venue for any action to enforce or construe this Agreement shall be Lubbock County, Texas. This Agreement is subject to all applicable federal, state, and local laws and any applicable ordinances, rules, orders and regulations of any local, state, or federal governmental authority, having or asserting jurisdiction. However, nothing contained in this Agreement shall be construed as a waiver by the Owner or the City of any right to question or contest any law, order, rule, or regulation which may affect the terms and conditions of this Agreement in any forum having jurisdiction, and the Owner and the City each agree to make a good faith effort to support all proposed laws and regulations which would be consistent with the performance of this Agreement in accordance with its terms. No subsequent change in the law regarding annexation shall affect the enforceability of this Agreement or the City's ability to annex the Property pursuant to this Agreement. Section 11 — Remedy. The City reserves the right to exercise any right or remedy available to it by law, contract, equity, or otherwise, including without limitation, the right to seek any and all forms of relief in a court of competent jurisdiction. Further, the City shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this Agreement, the former shall control. Section 12 — Public Information. This Agreement is public information. To the extent, if any, that any provision of this Agreement is in conflict with the Texas Public Information Act (Tex. Gov't. Code Ann. Chapter 552 et seq., as amended), the same shall be of no force and effect. Section 13 — Third -Party Beneficiaries. This Agreement only inures to the benefit of, and may only be enforced by, the Owner and the City. No other person or entity shall have any right, title, or interest under this Agreement or otherwise be deemed to be a third -party beneficiary of this Agreement. Section 14 —No Personal Liability & No Joint Venture. Nothing in this Agreement is construed as creating any personal liability on the part of any employee, officer or agent of any public body that may be a party to this Agreement, This Agreement is not intended to, and shall not be construed to, create any joint enterprise between or among the parties. Section I5 — Due Diligence & Force Majeure. The Owner and the City shall use good faith, due diligence, and reasonable care in the performance of the obligations under this Agreement, and time shall be of the essence in such performance. In the event that the Owner or the City is unable to perform its respective obligations under this Agreement, due to any event or circumstance that is not within the reasonable respective control of the Owner or the City that could not have been avoided by either the Owner or the City with the exercise of good faith, due diligence, and reasonable care (a "Force Majeure"), then the obligations affected by the Force Majeure shall be temporarily suspended. Within three (3) business days after the occurrence of a Force Majeure, the Owner or the City shall give notice to each other, including a detailed explanation of the Force Majeure and a description of the action that will be taken to remedy the Force Majeure and resume full performance at the earliest possible time. Ch. 212 Development Agreement In Lieu Of Annexation - 4 1 Section 16 — Enforcement. This Agreement may be enforced by the Owner or the City by any proceeding at law or in equity. Failure to do so shall not be deemed a waiver to enforce the Agreement thereafter. Section 17 — Governmental Powers. It is understood that by execution of this Agreement, the City does not waive or surrender any of its governmental powers, except as expressly set forth herein. Section 18 — 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. The Owner acknowledges that each and every owner of the Property must sign this Agreement in order for the Agreement to take full effect. Section 19 — Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be unenforceable for any reason, such unenforceable provision shall be deleted from this Agreement, and the remainder of this Agreement shall remain in full force and effect and shall be interpreted to give effect to the intent of the Owner and the City. Without limiting the generality of the foregoing, if it is determined that, as of the date that this Agreement becomes effective, that any Owner does not own any portion of the Property, then this Agreement shall remain in full force and effect with respect to the remaining portion of the Property that the Owners actually own. Section 20 -- Entire Agreement. This Agreement constitutes the entire agreement between the Owner and the City and supersedes all prior agreements, whether oral or written, covering the subject matter of this Agreement. The Owner acknowledges that each and every Owner of the Property must sign this Agreement in order for the Agreement to take full effect. Section 21— Captions & Recitals. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. However, each of the recitals contained herein, by this reference, shall be incorporated into, and deemed a part of, this Agreement. Section 22 — Modification of Agreement. This Agreement cannot be modified or amended except in writing signed by the Owner and the City and attached and made a part of this Agreement. Section 23 — Ch. 212 Agreement in lieu of Ch. 43 Agreement. If the Property is subject to an agricultural exemption, the Owner hereby acknowledges that the City, through the Office of the City Attorney, offered to make a development agreement with the Owner under §43.035 of the Texas Local Government Code. The Owner further acknowledges that the Owner rejected the offer to make a §43.035 Agreement in order to enter in to this §212.172 Agreement. IN WITNESS HEREOF, the p rties mutually enter this Agreement on this may af�' , 2016. Ch. Z12 Development Agreement In Lieu Of Annexation - 5 For the City GLEN OBER ON, MAYOR -U-%% I 0' .00O,ppO papsp¢a AT'I ES'i,9'U %} AwO�;� ;r a � 6 G _ O Re17C C12i �c1IZ1, Ci CCT.�`: yQ APPROVEDW&TOe6NTENT: Andrew Paxton, Director of Planning APPROVED AS TO FORM: Justin Pru sis t y Attorne For the Owner Ch. 212 Development Agreement In lieu Of Annexation - 6 1 NOTARIZATION State of Texas § County of Lubbock § This instrument was executed before me on4016, by . N&M of the City of Lubbock, a Texas municipal corporation, on behalf of said corporation. 01'r�pWDl/r�'�h t� f State of Texas § County of Lubbock § ;•p �: or - This instrument was executed before me on -Z 2016, by t, ukYr i kV FAWvrA ioa uwnsre _ _" When Recorded Return To: City Secretary City of Lubbock, Texas 1625 I3`h Street Lubbock, Texas 7940I VEN A WAMORTH I NuipaW 1 AW*6 ti�ta++ Ch. 212 Development Agreement In Lieu Of Annexation - 7 1 EXHIBIT A -- The Property The South Three Hundred Seventy -Six point Twenty - Nine Feet (S 376.291) of Tract Thirteen (13), Frankford Farms, a Subdivision out of the Southwest Quarter (SW/4) of Section Twenty -Four (24).. Block R-Two (E-2), Lubbock County, Texas, according to the map, plat, and/or dedication deed thereof recorded in Volume 3033, Page 242 and corrected in Volume 3176, Page 340 of the Real Property Records of Lubbock County, Texas; AND 5.00 Acres, being Tract 14, Frankford Farms, a Subdivision out of the S'U/4 of Section 24, Block R-2, Certificate No. 1869, L. A. Patillo Original Grantee, Lubbock County, Texas, as shove by plat recorded in Volume 3033, Page 242, Real Property Records of Lubbock County, Texas. (Fawver - R68717 & R68745) Page 1 of 3 Plat of Survey vm MO PA195 of n 5.0 acre tract of land out of the Southwest 1/4 of Section 24. Block E-2, Certificate No. 1889. L.A. Patillo Original Grantee Lubbock County. Texas North Mr S:/4 Sea. 24 CcoLarllne 122nd Street. b - 122nd Sired - -ia r_ ' S 6If 04' 20' If 2t0 44' ' e 1 5 Acres 14 a a u t■ 6 4� o is n n e b �e r 20' Utility Caeemeat N 07 W V F 201M' DOUGLAS SURM7ING CO. tool-C 34TI1 STI= LUDDOM TEW 70411 {IS05) 744-0540 ouw-1 a . Met 1/2' Nod Fl= Ham, FIELD FUM of a 5 0 men tract of land out of the 31"/4 of Secuon 24, block E-2 CerUfleata No. 1060. LA PaUlla Drtglual Graalee, Lubbock County. Twos and bsing mare parUeularly dderibed as follow. NCCINNING at a f/7' rod scL for the Nlf comer of this survey and in the South It O.X. of 122nd Street from whence the Stt earner of Section 24 Dears S 67 of 29' lf, D50/1' and 5 C of i2' E 2g04.D4'.' TNINCE S C 50. 19' E a distance of /4120' to a 1/2' red ad for the SW corner of this survey. THENCE N Otr 04' 2X E 4 distance of 231.= to a 1/2' rod set ror the SE corner of lhLs surmr. TNEIICE N C 24' bx X a dtstsare of 041-V to a 1/2' rod set In the SeuLh LOX of 122nd Street for the NC corner or this surrey; THENCE S 61' 04' 2:r V. aloes the South N.O.W. of 122nd Waal. a distance of 221.44' to the piece of beginning and Containing &a acres of land. V�iYd PLAT SHOWN AS SU , Di+;/=, GROUND �P DON 11 POUGIJIS Itf:Cla`MIMi PUIIIJC SURVf YOlt J4.679 e-•-saa--s.- -- -- (Famer - R68717 & R68745) Page 2 of 3 FRANIKFORD FARMS S379.29' OF TR 13 (LESS BLDG ONLY) AND FRANKFORD FARMS TR 14 (LESS BLDG ONLY) Page 3 of 3 (Fawner - R68717 & R58745) FILED AND RECORDED OFFICIAL PUBLIC RECORDS �Y Kelly Plnion County Clerk Lubbock Caun�y TEXAS 05/23/2016 10:62 AM FEE: 62.00 2016917941 CITY OF LUBBOCK 2016017942�� ��� ���, `M�� f I, ,� �I �h ,� �� OFFICE PICK UP Mill T [7ii� IN 1 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 REAL PROPERTY RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER CITY OF LUBBOCK CH. 212 DEVELOPMENT AGREEMENT IN LIEU OF ANNEXATION THIS DEVELOPMENAGREEME: T IN LIEU OF ANNEXATION (the "Agreement") is made and effective this day o , 2016, and is entered into pursuant to §212.172 of the Texas Local Government Code, by a d between the City of Lubbock, Texas, a Texas home rule municipal corporation (the "City"), and the undersigned property owner(s) (the "Owner"), with the term "Owner" including all owners of the Property, and is as follows: RECITALS WHEREAS, the Owner owns a parcel of real property (the "Property") in Lubbock County, Texas, which is more particularly and separately described in the attached Exhibit A; and WHEREAS, the City has instituted annexation proceedings for all portions of the Property and held public hearings regarding the proposed annexation on March 8 and March 10, 2016; and WHEREAS, at the public hearings, the Owner was presented with a service plan for the Property and the Owner was given the opportunity to be heard by the City Council of the City of Lubbock; and WHEREAS, the Owner does not want the Property to be annexed and desires to have the Property remain in the City's extraterritorial jurisdiction, in consideration for which the Owner agrees to enter into this Agreement; and WHEREAS, it is the City's intention to allow the Owner to continue to use the Property as it is being used at the time of this Agreement; and WHEREAS, the Owner and the City acknowledge that this Agreement is binding upon the City and the Owner and their respective successors and assigns for the duration of this Agreement; and WHEREAS, this Agreement is to be recorded in the real property records of Lubbock County, Texas; NOW, THEREFORE, in consideration of the mutual promises contained in this Agreement, the Owner and the City agree as follows: AGREEMENT Section 1 — The Property: Current Status. The City acknowledges that the Property, more particularly described in the attached "Exhibit A," is located within the extraterritorial jurisdiction of the City and is subject to annexation by the City unless this Agreement is signed by the Owner. Section 2 — The Property: Continued Status. In lieu of annexation, the Owner desires that the Property remain in the extraterritorial jurisdiction of the City for the duration of this Agreement. The Ch. 212 Development Agreement In lieu Of Annexation -1 1 Owner acknowledges that unless the Property is annexed by the City, the Property is not eligible to receive City services, the Property shall not be included in the City's voting precincts, and the Property shall be immune from City property taxes for the duration of this Agreement. The Owner's use of the Property at the time of this Agreement is "grandfathered" into the acceptable uses of the City, and the City is prohibited from interfering with any uses on the Property that comply with §43.002 of the Texas Local Government Code. The Owner acknowledges that Section 22.03.091(a) of the Code of Ordinances of the City prohibits the City from providing water to any entity outside of the city limits, and acknowledges that the City will not be providing water to the Property unless the Property is annexed into the City. However, if the Property is annexed pursuant to a provision of this Agreement, then the City shall provide services to the Property pursuant to Chapter 43 of the Texas Local Government Code. Subject to the provisions of this Agreement, the City shall not annex the Property, shall not involuntarily institute proceedings to annex the Property, and shall not include the Property in a statutory annexation plan. The Owner authorizes the enforcement by the City of all of the City's regulations and planning authority that do not materially interfere with the use of the Property in the same manner that the City's regulations and planning authority are enforced within the City's boundaries. The City specifically reserves its authority pursuant to Chapter 251 of the Texas Local Government Code to exercise eminent domain over property that is subject to a §2I 2.172 development agreement. The City further reserves its regulatory and planning authority in the City's ETJ, as such authority has been granted to it by the City Council. Section 3 — The Property: Change In Status. The Owner agrees not to substantially change the use of the Property as it is used on the date of the execution of this Agreement. The Owner agrees not to develop the Property by filing any type of subdivision plat or related development document for the Property with Lubbock County or the City throughout the duration of this Agreement. The Owner acknowledges that if any plat or related development document is filed for the Property, or if the Owner commences any development of the Property other than that which supports the use of the Property as the Property is used on the date of the execution of this Agreement, then this Agreement shall terminate, and in addition to the City's other remedies, such act will constitute a petition for voluntary annexation by the Owner, and the Property will be subject to annexation at the discretion of the City Council. The Owner agrees that such annexation shall be voluntary and the Owner hereby consents to such annexation as though a petition for such annexation had been tendered by the Owner. If annexation proceedings begin pursuant to this Section, then the Owner acknowledges that this Agreement serves as an exception to Local Government Code §43.052, requiring a municipality to use certain statutory procedures under an annexation plan, and as an exception to Local Government Code §43.062 requiring certain statutory procedures as to the Owner to effectuate an annexation. Further, the Owner hereby waives any and all vested rights and claims that it may have under §43.002(a)(2) and Chapter 245 of the Texas Local Government Code that would otherwise exist by virtue of any plat or construction the Owner may initiate during the time between the expiration of this Agreement and the institution of annexation proceedings by the City. Section 4 — The Term. The term of this Agreement (the "Term") shall be twenty (20) years from the date that this Agreement is approved by the City Council of the City of Lubbock. At the end of the Term, the Owner, and all of the Owner's heirs, successors and assigns shall be deemed to have filed Ch. 212 Development Agreement In Lieu Of Annexation - 2 1 a petition for voluntary annexation of the Property, and the Property will be subject to voluntary annexation in accordance with Section 3 of this Agreement. Prior to the end of the Term, the City may commence the voluntary annexation of the Property. Section 5 — Termination. This Agreement will automatically terminate at the end of the Term. This Agreement shall terminate upon the filing of any plat or related development document with the City or with Lubbock County or upon the Owner's failure to prove that it is the sole owner of the Property with the authority to sign this Agreement. The Owner and the City may agree in writing to terminate this Agreement prior to the expiration of the Term of this Agreement. Section 6 — City Council Approval Required. If the City Council of the City of Lubbock does not affirmatively vote to annex an area that contains the Property, then this Agreement will be null and void in its entirety. Section 7 — Notification. Any person who sells or conveys any portion of the Property shall, prior to such sale or conveyance, give written notice of this Agreement to the prospective purchaser or grantee, and shall give written notice of the sale or conveyance to the City. Further, the Owner and the Owner's heirs, successors, and assigns shall give the City written notice within fourteen (14) days of any change in the status of the Property. A copy of any notice required by this section shall be forwarded to the City at the following address: City of Lubbock With: City of Lubbock Attn: City Secretary Attn: Director of Planning P.O. Box 2000 P.O. Box 2000 Lubbock, Texas 79457 Lubbock, Texas 79457 This Agreement shall run with the Property and be recorded in the real property records of Lubbock County, Texas. Section 8 — Waiver. Any failure by the Owner or the City to insist upon strict performance by either party of any material provision of this Agreement shall not be deemed a waiver thereof, and the Owner or the City shall have the right at any time thereafter to insist upon strict performance of any and all provisions of this Agreement. No provision of this Agreement may be waived except by a written agreement signed by the Owner or the City waiving such provision. Any waiver shall be limited to the specific purposes for which it is given. No waiver by the Owner or the City of any provision of this Agreement shall be deemed or construed to be a waiver of any other provision or subsequent waiver of the same provision. The Parties expressly agree that no provision of this Agreement is in any way intended to constitute a waiver by any Party of any immunity from suit or IiabiIity that it may have by operation of law. The Parties agree that the City shall retain all of its governmental immunities. Section 9 — Assurance of Ownership. The Owner hereby expressly affirms that it is the sole owner of the Property and that no other person or entity has a valid claim to any right, title, or ownership in the Property. Should any dispute of right, title, or ownership concerning the Property arise subsequent to the Owner's execution of this Agreement, the Owner hereby agrees to be solely responsible for defending and confirming its absolute right, title, and ownership to the Property. If the Owner cannot Ch. 212 Development Agreement In Lieu Of Annexation - 3 1 ' _ defend or fails to defend its right, title, and ownership to the Property, then this Agreement shall terminate. Section 10 — Governing Law. This Agreement is entered into under and pursuant to, and is to be construed and enforceable in accordance with, the laws of the State of Texas, and all obligations of the Owner and the City are performable in Lubbock County, Texas. Venue for any action to enforce or construe this Agreement shall be Lubbock County, Texas. This Agreement is subject to all applicable federal, state, and local laws and any applicable ordinances, rules, orders and regulations of any local, state, or federal governmental authority, having or asserting jurisdiction. However, nothing contained in this Agreement shall be construed as a waiver by the Owner or the City of any right to question or contest any law, order, rule, or regulation which may affect the terms and conditions of this Agreement in any forum having jurisdiction, and the Owner and the City each agree to make a good faith effort to support all proposed laws and regulations which would be consistent with the performance of this Agreement in accordance with its terms. No subsequent change in the law regarding annexation shall affect the enforceability of this Agreement or the City's ability to annex the Property pursuant to this Agreement. Section 11 — Remedy. The City reserves the right to exercise any right or remedy available to it by law, contract, equity, or otherwise, including without limitation, the right to seek any and all forms of relief in a court of competent jurisdiction. Further, the City shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this Agreement, the former shall control. Section 12 — Public Information. This Agreement is public information. To the extent, if any, that any provision of this Agreement is in conflict with the Texas Public Information Act (Tex. Gov't. Code Ann. Chapter 552 et seq., as amended), the same shall be of no force and effect. Section 13 — Third -Party Beneficiaries. This Agreement only inures to the benefit of, and may only be enforced by, the Owner and the City. No other person or entity shall have any right, title, or interest under this Agreement or otherwise be deemed to be a third -party beneficiary of this Agreement. Section 14 -- No Personal Liability & No Joint Venture. Nothing in this Agreement is construed as creating any personal liability on the part of any employee, officer or agent of any public body that may be a party to this Agreement. This Agreement is not intended to, and shall not be construed to, create any joint enterprise between or among the parties. Section 15 — Due Diligence & Force Majeure. The Owner and the City shall use good faith, due diligence, and reasonable care in the performance of the obligations under this Agreement, and time shall be of the essence in such performance. In the event that the Owner or the City is unable to perform its respective obligations under this Agreement, due to any event or circumstance that is not within the reasonable respective control of the Owner or the City that could not have been avoided by either the Owner or the City with the exercise of good faith, due diligence, and reasonable care (a "Force Majeure"), then the obligations affected by the Force Majeure shall be temporarily suspended. Within three (3) business days after the occurrence of a Force Majeure, the Owner or the City shall give notice to each other, including a detailed explanation of the Force Majeure and a description of the action that will be taken to remedy the Force Majeure and resume full performance at the earliest possible time. Ch. 212 Development Agreement In lieu Of Annexation - 4 1 f ° r Section 16 — Enforcement. This Agreement may be enforced by the Owner or the City by any proceeding at law or in equity. Failure to do so shall not be deemed a waiver to enforce the Agreement thereafter. Section 17 — Governmental Powers. It is understood that by execution of this Agreement, the City does not waive or surrender any of its governmental powers, except as expressly set forth herein. Section 18 — 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. The Owner acknowledges that each and every owner of the Property must sign this Agreement in order for the Agreement to take full effect. Section 19 — Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be unenforceable for any reason, such unenforceable provision shall be deleted from this Agreement, and the remainder of this Agreement shall remain in full force and effect and shall be interpreted to give effect to the intent of the Owner and the City. Without limiting the generality of the foregoing, if it is determined that, as of the date that this Agreement becomes effective, that any Owner does not own any portion of the Property, then this Agreement shall remain in full force and effect with respect to the remaining portion of the Property that the Owners actually own. Section 20 — Entire Agreement. This Agreement constitutes the entire agreement between the Owner and the City and supersedes all prior agreements, whether oral or written, covering the subject matter of this Agreement. The Owner acknowledges that each and every Owner of the Property must sign this Agreement in order for the Agreement to take full effect. Section 21 — Captions & Recitals. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. However, each of the recitals contained herein, by this reference, shall be incorporated into, and deemed a part of, this Agreement. Section 22 — Modification of Agreement. This Agreement cannot be modified or amended except in writing signed by the Owner and the City and attached and made a part of this Agreement. Section 23 — Ch. 212 Agreement in lieu of Ch. 43 Agreement. If the Property is subject to an agricultural exemption, the Owner hereby acknowledges that the City, through the Office of the City Attorney, offered to make a development agreement with the Owner under §43.035 of the Texas Local Government Code. The Owner further acknowledges that the Owner rejected the offer to make a §43.035 Agreement in order to enter in to this §212.I72 Agreement. IN WITNESS HEREOF, the pa ties mutually enter this Agreement on this 10day of , 2016. Ch. 212 Development Agreement In Lieu Of Annexation - 5 For the City GLEN OBE SON, MAYOR ic pQaa640;a3���j,�1711 tr � r A — Qa¢0�4.- qk 'SC. " S t ry. APPROVED AS TO CONTENT: Andrew Paxton, Director of Planning APPROVED AS TO FORM: \,--\b"/7Ji Justin ru t, A'si t City Attorney For the Owner DJ , LLC, Owner me eCall, Managing Member Ch. 212 Development Agreement in Lien Of Annexation 6 1 P a g e NOTARIZATION State of Texas § County of Lubbock § This instrument was executed before me on r 2016, by DA7[ M.151[ of the City of Lubbock, a Texas municipal corporation, on behalf of said rr1.E corporation. nn I , 1, "rm h 41, State of Texas § County of Lubbock § 5Y511` `IIII►II of ns-28-2'3N /Ilill YY YY Y5Y5 This instrument was executed before me o .? 1 2016, by & kl°Ca.I I DATE L111 MMUL 16MMOING 71S MER OF 0%%5 1 o behalf of said Owner. Notary Public When Recorded Return To: City Secretary City of Lubbock, Texas 1625 13" Street Lubbock, Texas 79401 O."W'Fartel'-MyComm. DONDI M I�NMANNlic Notary TexaState of Texas Expires 11-04.2019 Ch. 212 Development Agreement In Lieu Of Annexation - 7 1 EXHIBIT A — The Property A tract of land out of Section 1, Block A-K, Lubbock Country, Texas described by metes and bounds as follows: BSanibT t3 at a 1/2 inch iron rod found for the Southeast corner of this tract, the Southeast corner of Section 1 bears South 0001148" West a distance of 1562.93 feet and South 89a59'12" East a distance of 1087.50 feet; THENCE North 89059112" West a distance of 211.33 feet to a 1/2 inch steel rod set for the Southeast corner of a 2 acre tract described in Volume 6493, Page 165, Lubbock County Real Property Records and the Southwest corner of this tract; TII WCE North 0001' 20" West at 352.27 feet pass a 1/2 inch iron rod found in the South line of a &o foot easement continuing a distance of 412.27 feet to a 1/2 inch iron rod found in the South line of a 4 acre tract described in Volume 4625, Page 251, Lubbock County Real Property Records for the Northeast corner of said 2 acre tract and the Northwest corner of this tract; TMWC8 South 89"58'48" East along the North line of said 60 foot easement and the South line of said 4 acre tract a distance of 211.25 feet to a 1/2 inch iron rod found for the Northwest corner of a 2 acre tract described in Volume 3985, Page 178, Lubbock County Real Property Records and the Northeast corner of this tract; TMMCE South 0'01159" East at 60.00 feet pass a 1/2 inch iron rod found in the South line of said easement continuing a distance of 412.26 feet to the POINT OF BEGINNING (the "Property"). JDAOM, I.I.0 [McCall & Fuller] — R75015] Page 1 of 2 BLK AK SEC I AB 189 TR 5A UNIVERSITY SOUTH AC: 2 Page 2of2 (DABM, LLC (McCall & Fuller] — R75015) FILED AND RECORDED OFFICIAL PUBLIC RECORDS K�liy Pinion County Clerk Lubbock Coun�y TEXAS 05/23/2016 10:62 Ail FEE: $58.99 2016017942 CITY OF LUBBOCK OFFICE PICK UP 2016017943 9 PGS AGREE mill Irl, NCR 4 A in WIN 101/1111 NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OF THE FOLLOWING INFORMATION FROM THIS INSTRU4IENT BEFORE IT IS FILED FOR RECORD IN THE REAL PROPERTY RE('ORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER CITY OF LUBBOCK CH. 212 DEVELOPMENT AGREEMENT IN LIEU OF ANNEXATION THIS DEVELOPMENT AGREEME TT IN LIEU OF ANNEXATION (the "Agreement") is made and effective this day of , 2016, and is entered into pursuant to §212.172 of the Texas Local Government Code, by and between the City of Lubbock, Texas, a Texas home rule municipal corporation (the "City"), and the undersigned property owner(s) (the "Owner"), with the term "Owner" including all owners of the Property, and is as follows: RECITALS WHEREAS, the Owner owns a parcel of real property (the "Property") in Lubbock County, Texas, which is more particularly and separately described in the attached Exhibit A, and WHEREAS, the City has instituted annexation proceedings for all portions of the Property and held public hearings regarding the proposed annexation on March 8 and March 10, 20I6; and WHEREAS, at the public hearings, the Owner was presented with a service plan for the Property and the Owner was given the opportunity to be heard by the City Council of the City of Lubbock; and WHEREAS, the Owner does not want the Property to be annexed and desires to have the Property remain in the City's extraterritorial jurisdiction, in consideration for which the Owner agrees to enter into this Agreement; and WHEREAS, it is the City's intention to allow the Owner to continue to use the Property as it is being used at the time of this Agreement; and WHEREAS, the Owner and the City acknowledge that this Agreement is binding upon the City and the Owner and their respective successors and assigns for the duration of this Agreement; and WHEREAS, this Agreement is to be recorded in the real property records of Lubbock County, Texas; NOW, TIIEREFORE, in consideration of the mutual promises contained in this Agreement, the Owner and the City agree as follows: AGREEMENT Section 1 — The Property: Current Status. The City acknowledges that the Property, more particularly described in the attached "Exhibit A," is located within the extraterritorial jurisdiction of the City and is subject to annexation by the City unless this Agreement is signed by the Owner. Section 2 -- The Property: Continued Status. In lieu of annexation, the Owner desires that the Property remain in the extraterritorial jurisdiction of the City for the duration of this Agreement. The Ch. 212 Development Agreement In Lieu Of Annexation -1 1 " Owner acknowledges that unless the Property is annexed by the City, the Property is not eligible to receive City services, the Property shall not be included in the City's voting precincts, and the Property shall be immune from City property taxes for the duration of this Agreement. The Owner's use of the Property at the time of this Agreement is "grandfathered" into the acceptable uses of the City, and the City is prohibited from interfering with any uses on the Property that comply with §43 002 of the Texas Local Government Code. The Owner acknowledges that Section 22.03.091(a) of the Code of Ordinances of the City prohibits the City from providing water to any entity outside of the city limits, and acknowledges that the City will not be providing water to the Property unless the Property is annexed into the City. However, if the Property is annexed pursuant to a provision of this Agreement, then the City shall provide services to the Property pursuant to Chapter 43 of the Texas Local Government Code. Subject to the provisions of this Agreement, the City shall not annex the Property, shall not involuntarily institute proceedings to annex the Property, and shall not include the Property in a statutory annexation plan. The Owner authorizes the enforcement by the City of all of the City's regulations and planning authority that do not materially interfere witli the use of the Property in the same manner that the City's regulations and planning authority are enforced within the City's boundaries. The City specifically reserves its authority pursuant to Chapter 251 of the Texas Local Government Code to exercise eminent domain over property that is subject to a §212.172 development agreement. The City further reserves its regulatory and planning authority in the City's ET.1, as such authority has been :ranted to it by the City Council. Section 3 — The Property: Change In Status. The Owner agrees not to substantially change the use of the Property as it is used on the date of the execution of this Agreement. The Owner agrees not to develop the Property by filing any type of subdivision plat or related development document for the Property with Lubbock County or the City throughout the duration of this Agreement. The Owner acknowledges that if any plat or related development document is bled for the Property, or if the Owner commences any development of the Property other than that which supports the use of the Property as the Property is used on the date of the execution of this Agreement, then this Agreement shall terminate, and in addition to the City's other remedies, such act will constitute a petition for voluntary annexation by the Owner, and the Propert}' will be subject to annexation at the discretion of the City Council. The Owner agrees that such annexation shall be voluntary and the Owner hereby consents to such annexation as though a petition for such annexation had been tendered by the Owner, If annexation proceedings begin pursuant to this Section, then the Owner acknowledges that this Agreement serves as an exception to Local Government Code §43.052, requiring a municipality to use certain statutory procedures under an annexation plan, and as an exception to Local Government Code §43.062 requiring certain statutory procedures as to the Owner to effectuate an annexation. Further, the Owner hereby waives any and all vested rights and claims that it may have under §43.002(a)(2) and Chapter 245 of the Texas Local Government Code that would otherwise exist by virtue of any plat or construction the Owner may initiate during the time between the expiration of this Agreement and the institution of annexation proceedings by the City. Section 4 — The Term. The term of this Agreement (the "Term") shall be twenty (20) years from the date that this Agreement is approved by the City Council of the City of Lubbock. At the end of the Terni, the Owner, and all of the O%vner's heirs, successors and assigns shall be deemed to have filed Ch. 212 Development Agreement In Lieu Of Annexation - 2 1 a petition for voluntary annexation of the Property, and the Property will be subject to voluntary annexation in accordance with Section 3 of this Agreement. Prior to the end of the Term, the City may commence the voluntary annexation of the Property. Section 5 — Termination. This Agreement will automatically terminate at the end of the Term. This Agreement shall terminate upon the filing of any plat or related development document with the City or with Lubbock County or upon the Owner's failure to prove that it is the sole owner of the Property with the authority to sign this Agreement. The Owner and the City may agree in writing to terminate this Agreement prior to the expiration of the Term of this Agreement. Section 6 — City Council Approval Required. If the City Council of the City of Lubbock does not affirmatively vote to annex an area that contains the Property, then this Agreement will be null and void in its entirety. Section 7 — Notification. Any person who sells or conveys any portion of the Property shall, prior to such sale or conveyance, give written notice of this Agreement to the prospective purchaser or grantee, and shall give written notice of the sale or conveyance to the City. Further, the Owner and the Owner's heirs, successors, and assigns shall give the City written notice within fourteen (14) days of any change in the status of the Property. A copy of any notice required by this section shall be forwarded to the City at the following address: City of Lubbock With cgnv to: City of Lubbock Attn: City Secretary Attn: Director of Planning P.O. Box 2000 P.O. Box 2000 Lubbock, Texas 79457 Lubbock, Texas 79457 This Agreement shall run with the Property and be recorded in the real property records of Lubbock County, Texas. Section S — Waiver. Any failure by the Owner or the City to insist upon strict performance by either party of any material provision of this Agreement shall not be deemed a waiver thereof, and the Owner or the City shall have the right at any time thereafter to insist upon strict performance of any and all provisions of this Agreement. No provision of this Agreement may be waived except by a written agreement signed by the Owmer or the City waiving such provision. Any waiver shall be limited to the specific purposes for which it is given. No waiver by the Owner or the City of any provision of this Agreement shall be deemed or construed to be a waiver of any other provision or subsequent waiver of the same provision. The Parties expressly agree that no provision of this Agreement is in any way intended to constitute a waiver by any Party of any immunity from suit or liability that it may have by operation of law. The Parties agree that the City shall retain all of its governmental immunities. Section 9 — Assurance of Ownership. The Owner hereby expressly affirms that it is the sole owner of the Property and that no other person or entity has a valid claim to any right, title, or ownership in the Property. Should any dispute of right, title, or ownership concerning the Property arise subsequent to the Owner's execution of this A.67cement, the Owner hereby agrees to be solely responsible for defending and confirming its absolute right, title, and ownership to the Property. If the Owner cannot Ch. 212 Development Agreement In Lieu Of Annexation - 3 1 - . defend or fails to defend its right, title, and ownership to the Property, then this Agreement shall terminate. Section 10 — Governing Law. This Agreement is entered into under and pursuant to, and is to be construed and enforceable in accordance with, the laws of the State of Texas, and all obligations of the Owner and the City are performable in Lubbock County, Texas. Venue for any action to enforce or construe this Agreement shall be Lubbock County, Texas. This Agreement is subject to all applicable federal, state, and local laws and any applicable ordinances, rules, orders and regulations of any local, state, or federal governmental authority, having or asserting jurisdiction. However, nothing contained in this Agreement shall be construed as a waiver by the Owner or the City of any right to question or contest any law, order, rule, or regulation which may affect the terms and conditions of this Agreement in any forum having jurisdiction, and the Owner and the City each agree to make a good faith effort to support all proposed laws and regulations which would be consistent with the performance of this Agreement in accordance with its terms. No subsequent change in the law regarding annexation shall affect the enforceability of this Agreement or the City's ability to annex the Property pursuant to this Agreement. Section 11— Remedy. The City reserves the right to exercise any right or remedy available to it by law, contract, equity, or otherwise, including without limitation, the right to seek any and all forms of relief in a court of competent jurisdiction. Further, the City shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this Agreement, the former shall control. Section 12 — Public Information. This Agreement is public information. To the extent, if any, that any provision of this Agreement is in conflict with the Texas Public Information Act (Tex. Gov't Code Ann. Chapter 552 et seq., as amended), the same small be of no fbrce and effect. Section 13 — Third -Party Beneficiaries. This Agreement only inures to the benefit of, and may only be enforced by, the Owner and the City. No other person or entity shall have any right, title, or interest under this Agreement or otherwise be deemed to be a third -party beneficiary of this Agreement. Section 14— No Personal Liability & No Joint Venture. Nothing in this Agreement is construed as creating any personal liability on the part of any employee, officer or agent of any public body that may be a party to this Agreement. This Agreement is not intended to, and shall not be construed to, create any joint enterprise between or among the parties. Section 15 — Due Diligence & Force Majeure. The Owner and the City shall use good faith, due diligence, and reasonable care in the performance of the obligations under this Agreement, and time shall be of the essence in such performance. In the event that the Owner or the City is unable to perform its respective obligations under this Agreement, due to any event or circumstance that is not within the reasonable respective control of the Owner or the City that could not have been avoided by either the Owner or the City with the exercise of good faith, due diligence, and reasonable care (a "Force Majeure"), then the obligations affected by the Force Majeure shall be temporarily suspended. Within three (3) business days after the occurrence of a Force Majeure, the Owner or the City shall give notice to each other, including a detailed explanation of the Force Majeure and a description of the action that will be taken to remedy the Force Majeure and resume full performance at the earliest possible time. Ch. 212 Development Agreement In lieu Of Annexation - 4 1 Section 16 — Enforcement. This Agreement may be enforced by the Owner or the City by any proceeding at law or in equity. Failure to do so shall not be deemed a waiver to enforce the Agreement thereafter. Section 17 — Governmental Powers. It is understood that by execution of this Agreement_ the City does not waive or surrender any of its governmental powers, except as expressly set forth herein. Section 18 — 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. The Owner acknowledges that each and every owner of the Property must sign this Agreement in order for the Agreement to take full effect. Section 19 — Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be unenforceable for any reason, such unenforceable provision shall be deleted from this Agreement, and the remainder of this Agreement shall remain in full force and effect and shall be interpreted to give effect to the intent of the Owner and the City. Without limiting the generality of the foregoing, if it is determined that, as of the date that this Agreement becomes effective, that any Owner does not own any portion of the Property, then this Agreement shall remain in full force and effect with respect to the remaining portion of the Property that the Owners actually own. Section 20 -- Entire Agreement. This Agreement constitutes the entire agreement between the Owner and the City and supersedes all prior agreements, whether oral or written, covering the subject matter of this Agreement. The Owner acknowledges that each and every Owner of the Property must sign this Agreement in order for the Agreement to take full effect. Section 21 — Captions & Recitals. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. However, each of the recitals contained herein, by this reference, shall be incorporated into, and deemed a part of, this Agreement. Section 22 — Modification of Agreement. This Agreement cannot be modified or amended except in writing signed by the Owner and the City and attached and made a part of this Agreement. Section 23 — Ch. 212 Agreement in lieu of Ch. 43 Agreement. If the Property is subject to an agricultural exemption, the Owner hereby acknowledges that the City, through the Office of the City Attorney, offered to make a development agreement with the Owner under §43.035 of the Texas Local Government Code. The Owner further acknowledges that the Owner rejected the offer to make a §43.035 Agreement in order to enter in to this §212.172 Agreement. IN WITNESS HEREOF, the p rties mutually enter this Agreement on this .2�—Nlay of , 2016. Ch. 212 Development Agreement In Lieu Of Annexation - 5 1 . For the City — L-" e��Xl GLEN OBE SON, MAYOR A •mod � • AT 4ST, 4 �7 RiJL a za, Ci, /'�k�etg W APPROVED AS TO CONTENT: --Z- �— - — Andrew Paxton, Director of Planning APPROVED AS TO FORM: >�N, /,/,7. J) - Justin' uitt. ssistan Cil r tic ncy For the Owner Andra Jean Sanders, Owner Ch. 212 Development Agreement In lieu Of Annexation - 6 1 " :: o e NOTARIZATION State of Texas § County of Lubbock § This instrument was executed before me on f 2016, by _VJA, nAr� N.ule of the City of Lubbock, a Texas municipal corporation, on behalf of said 7RL[ corporation. �1)111lot 11r�, I State of Texas County of Lubbock § This instrument was executed before me on on behalf of said Owner. No - ublic When Recorded Return To: City Secretary City of Lubbock, Texas 1625 131h Street Lubbock, Texas 79401 ME -2 7 2016, by44Y OATF A,90M JF l.1NO WN R • T VEWA WADSWORTH Ch. 212 Development Agreement in Lieu Of Annexation - 7 1 EXHIBIT A — The Property Only that portion of the property included in the official survey attached to the City of Lubbock Ordinance No. 2016-00054. The l+omla 1.UV acres of 'jia -,jest one-l;alr (:1/2) of Section Three W, Block A -F, ,Lubbock County, Texas, BLK AK SEC 3 AB 188 N100 ACS OF WI2 (Sanders — R112127) Page 1 of 1 FILED AND RECORDED OFFICIAL PUBLIC RECORDS K:t1y Plnlon Countyy Clark iubboek Cpun�y TEXAS 05/23/2026 10;62 RA 2016017943 CITY OF LUBBOCK OFFICE PICK UP 2016017944 9 PGs AGREE mill re, 11111 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 REAL PROPERTY RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER CITY OF LUBBOCK CH. 212 DEVELOPMENT AGREEMENT IN LIEU OF ANNEXATION THIS DEVELOPMENT AGREEME: IN LIEU OF ANNEXATION (the "Agreement") is made and effective this day of ' ,1016, and is entered into pursuant to §212.172 of the Texas Local Government Code, by a between the City of Lubbock, Texas, a Texas home rule municipal corporation (the `City'% and the undersigned property owner(s) (the "Owner"), with the term "Owner" including all owners of the Property, and is as follows: RECITALS WHEREAS, the Owner owns a parcel of real property (the "Property") in Lubbock County, Texas, which is more particularly and separately described in the attached Exhibit A; and WHEREAS, the City has instituted annexation proceedings for all portions of the Property and held public hearings regarding the proposed annexation on March 8 and March 10, 2016; and WHEREAS, at the public hearings, the Owner was presented with a service plan for the Property and the Owner was given the opportunity to be heard by the City Council of the City of Lubbock; and WHEREAS, the Owner does not want the Property to be annexed and desires to have the Property remain in the City's extraterritorial jurisdiction, in consideration for which the Owner agrees to enter into this Agreement; and WHEREAS, it is the City's intention to allow the Owner to continue to use the Property as it is being used at the time of this Agreement; and WHEREAS, the Owner and the City acknowledge that this Agreement is binding upon the City and the Owner and their respective successors and assigns for the duration of this Agreement; and WHEREAS, this Agreement is to be recorded in the real property records of Lubbock County, Texas; NOW, THEREFORE, in consideration of the mutual promises contained in this Agreement, the Owner and the City agree as follows: AGREEMENT Section 1 — The Property: Current Status. The City acknowledges that the Property, more particularly described in the attached "Exhibit A," is located within the extraterritorial jurisdiction of the City and is subject to annexation by the City unless this Agreement is signed by the Owner. Section 2 — The Property: Continued Status. In lieu of annexation, the Owner desires that the Property remain in the extraterritorial jurisdiction of the City for the duration of this Agreement. The Ch. 212 Development Agreement In Lieu Of Annexation -1 1 .1 1 Owner acknowledges that unless the Property is annexed by the City, the Property is not eligible to receive City services, the Property shall not be included in the City's voting precincts, and the Property shall be immune from City property taxes for the duration of this Agreement. The Owner's use of the Property at the time of this Agreement is "grandfathered" into the acceptable uses of the City, and the City is prohibited from interfering with any uses on the Property that comply with §43.002 of the Texas Local Goverment Code. The Owner acknowledges that Section 22.03.091(a) of the Code of Ordinances of the City prohibits the City from providing water to any entity outside of the city limits, and acknowledges that the City will not be providing water to the Property unless the Property is annexed into the City. However, if the Property is annexed pursuant to a provision of this Agreement, then the City shall provide services to the Property pursuant to Chapter 43 of the Texas Local Government Code. Subject to the provisions of this Agreement, the City shall not annex the Property, shall not involuntarily institute proceedings to annex the Property, and shall not include the Property in a statutory annexation plan. The Owner authorizes the enforcement by the City of all of the City's regulations and planning authority that do not materially interfere with the use of the Property in the same manner that the City's regulations and planning authority are enforced within the City's boundaries. The City specifically reserves its authority pursuant to Chapter 251 of the Texas Local Goverment Code to exercise eminent domain over property that is subject to a §212.172 development agreement. The City further reserves its regulatory and planning authority in the City's ET3, as such authority has been granted to it by the City Council. Section 3 — The Property: Change In Status. The Owner agrees not to substantially change the use of the Property as it is used on the date of the execution of this Agreement. The Owner agrees not to develop the Property by filing any type of subdivision plat or related development document for the Property with Lubbock County or the City throughout the duration of this Agreement. The Owner acknowledges that if any plat or related development document is filed for the Property, or if the Owner commences any development of the Property other than that which supports the use of the Property as the Property is used on the date of the execution of this Agreement, then this Agreement shall terminate, and in addition to the City's other remedies, such act will constitute a petition for voluntary annexation by the Owner, and the Property will be subject to annexation at the discretion of the City Council. The Owner agrees that such annexation shall be voluntary and the Owner hereby consents to such annexation as though a petition for such annexation had been tendered by the Owner. If annexation proceedings begin pursuant to this Section, then the Owner acknowledges that this Agreement serves as an exception to Local Government Code §43.052, requiring a municipality to use certain statutory procedures under an annexation plan, and as an -exception to Local Government Code §43.062 requiring certain statutory procedures as to the Owner to effectuate an annexation. Further, the Owner hereby waives any and all vested rights and claims that it may have under §43.002(a)(2) and Chapter 245 of the Texas Local Government Code that would otherwise exist by virtue of any plat or construction the Owner may initiate during the time between the expiration of this Agreement and the institution of annexation proceedings by the City. Section 4 — The Term. The term of this Agreement (the "Term") shall be twenty (20) years from the date that this Agreement is approved by the City Council of the City of Lubbock. At the end of the Term, the Owner, and all of the Owner's heirs, successors and assigns shall be deemed to have filed Ch. 212 Development Agreement in Lieu Of Annexation - 2 1 a petition for voluntary annexation of the Property, and the Property will be subject to voluntary annexation in accordance with Section 3 of this Agreement. Prior to the end of the Term, the City may commence the voluntary annexation of the Property. Section 5 — Termination. This Agreement will automatically terminate at the end of the Term. This Agreement shall terminate upon the filing of any plat or related development document with the City or with Lubbock County or upon the Owner's failure to prove that it is the sole owner of the Property with the authority to sign this Agreement. The Owner and the City may agree in writing to terminate this Agreement prior to the expiration of the Term of this Agreement. Section 6 — City Council Approval Required. If the City Council of the City of Lubbock does not affirmatively vote to annex an area that contains the Property, then this Agreement will be null and void in its entirety. Section 7 — Notification. Any person who sells or conveys any portion of the Property shall, prior to such sale or conveyance, give written notice of this Agreement to the prospective purchaser or grantee, and shall give written notice of the sale or conveyance to the City. Further, the Owner and the Owner's heirs, successors, and assigns shall give the City written notice within fourteen (14) days of any change in the status of the Property. A copy of any notice required by this section shall be forwarded to the City at the following address: City of Lubbock With copy to: City of Lubbock Attn: City Secretary Attn: Director of Planning P.O. Box 2000 P.O. Box 2000 Lubbock, Texas 79457 Lubbock, Texas 79457 This Agreement shall run with the Property and be recorded in the real property records of Lubbock County, Texas. Section 8 Waiver. Any failure by the Owner or the City to insist upon strict performance by either party of any material provision of this Agreement shall not be deemed a waiver thereof, and the Owner or the City shall have the right at any time thereafter to insist upon strict performance of any and all provisions of this Agreement. No provision of this Agreement may be waived except by a written agreement signed by the Owner or the City waiving such provision. Any waiver shall be limited to the specific purposes for which it is given. No waiver by the Owner or the City of any provision of this Agreement shall be deemed or construed to be a waiver of any other provision or subsequent waiver of the same provision. The Parties expressly agree that no provision of this Agreement is in any way intended to constitute a waiver by any Parry of any immunity from suit or liability that it may have by operation of law. The Parties agree that the City shall retain all of its governmental immunities. Section 9 — Assurance of Ownership. The Owner hereby expressly affirms that it is the sole owner of the Property and that no other person or entity has a valid claim to any right, title, or ownership in the Property. Should any dispute of right, title, or ownership concerning the Property arise subsequent to the Owner's execution of this Agreement, the Owner hereby agrees to be solely responsible for defending and confirming its absolute right, title, and ownership to the Property. If the Owner cannot Ch. 212 Development Agreement In lieu Of Annexation - 3 1 defend or fails to defend its right, title, and ownership to the Property, then this Agreement shall terminate. Section 10 — Governing Law. This Agreement is entered into under and pursuant to, and is to be construed and enforceable in accordance with, the laws of the State of Texas, and all obligations of the Owner and the City are performable in Lubbock County, Texas. Venue for any action to enforce or construe this Agreement shall be Lubbock County, Texas. This Agreement is subject to all applicable federal, state, and local laws and any applicable ordinances, rules, orders and regulations of any local, state, or federal governmental authority, having or asserting jurisdiction. However, nothing contained in this Agreement shall be construed as a waiver by the Owner or the City of any right to question or contest any law, order, rule, or regulation which may affect the terms and conditions of this Agreement in any forum having jurisdiction, and the Owner and the City each agree to make a good faith effort to support all proposed laws and regulations which would be consistent with the performance of this Agreement in accordance with its terms. No subsequent change in the law regarding annexation shall affect the enforceability of this Agreement or the City's ability to annex the Property pursuant to this Agreement. Section 11 — Remedy. The City reserves the right to exercise any right or remedy available to it by law, contract, equity, or otherwise, including without limitation, the right to seek any and all forms of relief in a court of competent jurisdiction. Further, the City shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this Agreement, the former shall control. Section 12 — Public Information. This Agreement is public information. To the extent, if any, that any provision of this Agreement is in conflict with the Texas Public Information Act (Tex. Gov't. Code Ann. Chapter 552 et seq., as amended), the same shall be of no force and effect. Section 13 — Third -Party Beneficiaries. This Agreement only inures to the benefit of, and may only be enforced by, the Owner and the City. No other person or entity shall have any right, title, or interest under this Agreement or otherwise be deemed to be a third -party beneficiary of this Agreement. Section 14 — No Personal Liability & No Joint Venture. Nothing in this Agreement is construed as creating any personal liability on the part of any employee, officer or agent of any public body that may be a party to this Agreement. This Agreement is not intended to, and shall not be construed to, create any joint enterprise between or among the parties. Section 15 — Due Diligence & Force Majeure. The Owner and the City shall use good faith, due diligence, and reasonable care in the performance of the obligations under this Agreement, and time shall be of the essence in such performance. In the event that the Owner or the City is unable to perform its respective obligations under this Agreement, due to any event or circumstance that is not within the reasonable respective control of the Owner or the City that could not have been avoided by either the Owner or the City with the exercise of good faith, due diligence, and reasonable care (a "Force Majeure"), then the obligations affected by the Force Majeure shall be temporarily suspended. Within three (3) business days after the occurrence of a Force Majeure, the Owner or the City shall give notice to each other, including a detailed explanation of the Force Majeure and a description of the action that will be taken to remedy the Force Majeure and resume full performance at the earliest possible time. Ch. 212 Development Agreement In Lieu Of Annexation - 4 1 - Section 16 — Enforcement This Agreement may be enforced by the Owner or the City by any proceeding at law or in equity. Failure to do so shall not be deemed a waiver to enforce the Agreement thereafter. Section 17 — Governmental Powers. It is understood that by execution of this Agreement, the City does not waive or surrender any of its governmental powers, except as expressly set forth herein. Section IS — 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. The Owner acknowledges that each and every owner of the Property must sign this Agreement in order for the Agreement to take full effect. Section 19 — Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be unenforceable for any reason, such unenforceable provision shall be deleted from this Agreement, and the remainder of this Agreement shall remain in full force and effect and shall be interpreted to give effect to the intent of the Owner and the City. Without limiting the generality of the foregoing, if it is determined that, as of the date that this Agreement becomes effective, that any Owner does not own any portion of the Property, then this Agreement shall remain in full force and effect with respect to the remaining portion of the Property that the Owners actually own. Section 20 — Entire Agreement. This Agreement constitutes the entire agreement between the Owner and the City and supersedes all prior agreements, whether oral or written, covering the subject matter of this Agreement. The Owner acknowledges that each and every Owner of the Property must sign this Agreement in order for the Agreement to take full effect. Section 21 -- Captions & Recitals. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. However, each of the recitals contained herein, by this reference, shall be incorporated into, and deemed a part of, this Agreement. Section 22 — Modification of Agreement. This Agreement cannot be modified or amended except in writing signed by the Owner and the City and attached and made a part of this Agreement. Section 23 — Ch. 212 Agreement in lieu of Ch. 43 Agreement. If the Property is subject to an agricultural exemption, the Owner hereby acknowledges that the City, through the Office of the City Attorney, offered to make a development agreement with the Owner under §43.035 of the Texas Local Government Code. The Owner further acknowledges that the Owner rejected the offer to make a §43.035 Agreement in order to enter in to this §212.172 Agreement. IN WITNESS HEREOF, the pa ties mutually enter this Agreement on this `"day of , 2016. Ch. 212 Development Agreement In lieu Of Annexation - 5 1 For the City — " 5 &Z, 4� - GLEN C. RqAEftTSON, MAYOR w .,: i 6gyeyllatOpgp ��� 44 �� � a w C" Re ' id dCjarza, C* Soreta °tq t�1 a '000"GO&U, (� �•_ Andrew Maxton, Director of Planning APPROVED AS TO FORM: �j.'Za:tl Justin ru tt,f Ass Istant City Attorney For the Owner Dr. J n C. Key, vner Ch. 212 Development Agreement In Lieu Of Annexation - 6 1 P a g e NOTARIZATION State of Texas § County of Lubbock § This instrument was executed before me on A 20I6, by , GATE N.VNE of the City of Lubbock, a Texas municipal corporation, on behalf of said Tm corporation. °°°R�rj{ SOMI "'F" (�k aj) b Not ublic State of Texas § County of Lubbock § OF I This instrument was executed before me on 2016, by � 1,7 , 4/7 as a xn ow .R When Recorded Return To: City Secretary City of Lubbock, Texas 1625 131h Street Lubbock, Texas 79401 Ch. 212 Development Agreement In Lieu Of Annexation - 7 1 EXHIBIT A — The property BEGINNING at a tack and red cloth set In the asphalt pavement in the canter of an East- West paved road 2,640 ft, W. of the SE comer of Sect. 24, and the SW comer of the SE/4 of Section 24, and the SW and beginning comer of this tract; THENCE North slang the W. One of the E/2 of Sect. 24, at 35 ft. pass a 3/4' iron pipe set, In all 1.222.75 it. to 3/40 Iron pipe, the NW comer of this tract; THENCE North B9a 29' E., parallel to the S. tine of Sect 24. a distance of 1,771.3 ft. to a 3/4' iron pipe replaced by a cedar post, the NE comer of this tract and NW comer of a 20-acre tract to the East; THENCE South 29* 42' W., along the W. Una of the 20•acre tract, at 1,360.92 ft. pass a 3/4' iron pipe replaced by a cedar past, in all 1,408.92 ft. to a nail with red cloth to the S. One of Sect. 24, and the center of the East-West paved road, the SW comer of the 20- acre tract, and the SE comer of this tract; THENCE South 89 a 20' W. along the S. One of Sect. 24, and the center of the East-West paved road 1,079.3 ft. to the place of BEGINNING, containing 40 acres of land; SUBJECT to outstanding O1 and Gas lease to A- E. Gammill. and mineral reservation described In a deed from B. F. Foster, et ux, dated 6-11-56, and recorded in vol. 621, Page 543, Deed Records of Lubbock County, Texas, to which reference is here made for more particular description purposes. BLK E2 SEC 24 AB 1331 TR A ACS: 40 j_h15t�Pb4 I R155P06 41551fJk15170 1 R155E7e t7gn 5r (Key— R87053) FILED AND RECORDED OFFICIAL PUBLIC RECORDS Cr • � Kelly PSnlan Cauntyy Clark Lubbock County TEXAS 05/23/2016 10:42 AM 2016017944 2016017945 9 PGS AGREE CITY OF LUBBOCK OFFICE PICK UP 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 REAL PROPERTY RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER CITY OF LUBBOCK CH. 212 DEVELOPMENT AGREEMENT IN LIEU OF ANNEXATION THIS DEVELOPMENTGREEME T IN LIEU OF ANNEXATION (the "Agreement") is made and effective this RC day of 2016, and is entered into pursuant to §212.172 of the Texas Local Government Code, by between the City of Lubbock, Texas, a Texas home rule municipal corporation (the "City"), and the undersigned property owner(s) (the "Owner"), with the term "Owner" including all owners of the Property, and is as follows: RECITALS WHEREAS, the Owner owns a parcel of real property (the "Property") in Lubbock County, Texas, which is more particularly and separately described in the attached Exhibit A; and WHEREAS, the City has instituted annexation proceedings for all portions of the Property and held public hearings regarding the proposed annexation on March 8 and March 10, 2016; and WHEREAS, at the public hearings, the Owner was presented with a service plan for the Property and the Owner was given the opportunity to be heard by the City Council of the City of Lubbock; and WHEREAS, the Owner does not want the Property to be annexed and desires to have the Property remain in the City's extraterritorial jurisdiction, in consideration for which the Owner agrees to enter into this Agreement; and WHEREAS, it is the City's intention to allow the Owner to continue to use the Property as it is being used at the time of this Agreement; and WHEREAS, the Owner and the City acknowledge that this Agreement is binding upon the City and the Owner and their respective successors and assigns for the duration of this Agreement; and WHEREAS, this Agreement is to be recorded in the real property records of Lubbock County, Texas; NOW, THEREFORE, in consideration of the mutual promises contained in this Agreement, the Owner and the City agree as follows: AGREEMENT Section 1 — The Property: Current Status. The City acknowledges that the Property, more particularly described in the attached "Exhibit A," is located within the extraterritorial jurisdiction of the City and is subject to annexation by the City unless this Agreement is signed by the Owner. Section 2 — The Property: Continued Status. In lieu of annexation, the Owner desires that the Property remain in the extraterritorial jurisdiction of the City for the duration of this Agreement. The Ch. 212 Development Agreement In lieu Of Annexation -1 1 P a g e Owner acknowledges that unless the Property is annexed by the City, the Property is not eligible to receive City services, the Property shall not be included in the City's voting precincts, and the Property shall be immune from City property taxes for the duration of this Agreement. The Owner's use of the Property at the time of this Agreement is "grandfathered" into the acceptable uses of the City, and the City is prohibited from interfering with any uses on the Property that comply with §43.002 of the Texas Local Government Code. The Owner acknowledges that Section 22.03.091(a) of the Code of Ordinances of the City prohibits the City from providing water to any entity outside of the city limits, and acknowledges that the City will not be providing water to the Property unless the Property is annexed into the City. However, if the Property is annexed pursuant to a provision of this Agreement, then the City shall provide services to the Property pursuant to Chapter 43 of the Texas Local Government Code. Subject to the provisions of this Agreement, the City shall not annex the Property, shall not involuntarily institute proceedings to annex the Property, and shall not include the Property in a statutory annexation plan. The Owner authorizes the enforcement by the City of all of the City's regulations and planning authority that do not materially interfere with the use of the Property in the same manner that the City's regulations and planning authority are enforced within the City's boundaries. The City specifically reserves its authority pursuant to Chapter 251 of the Texas Local Government Code to exercise eminent domain over property that is subject to a §212.172 development agreement. The City further reserves its regulatory and planning authority in the City's ETJ, as such authority has been granted to it by the City Council. Section 3 — The Property: Change In Status. The Owner agrees not to substantially change the use of the Property as it is used on the date of the execution of this Agreement. The Owner agrees not to develop the Property by filing any type of subdivision plat or related development document for the Property with Lubbock County or the City throughout the duration of this Agreement. The Owner acknowledges that if any plat or related development document is filed for the Property, or if the Owner commences any development of the Property other than that which supports the use of the Property as the Property is used on the date of the execution of this Agreement, then this Agreement shall terminate, and in addition to the City's other remedies, such act will constitute a petition for voluntary annexation by the Owner, and the Property will be subject to annexation at the discretion of the City Council. The Owner agrees that such annexation shall be voluntary and the Owner hereby consents to such annexation as though a petition for such annexation had been tendered by the Owner. If annexation proceedings begin pursuant to this Section, then the Owner acknowledges that this Agreement serves as an exception to Local Government Code §43.052, requiring a municipality to use certain statutory procedures under an annexation plan, and as an exception to Local Government Code §43.062 requiring certain statutory procedures as to the Owner to effectuate an annexation. Further, the Owner hereby waives any and all vested rights and claims that it may have under §43.002(a)(2) and Chapter 245 of the Texas Local Government Code that would otherwise exist by virtue of any plat or construction the Owner may initiate during the time between the expiration of this Agreement and the institution of annexation proceedings by the City. Section 4 — The Term. The term of this Agreement (the "Term' shall be twenty (20) years from the date that this Agreement is approved by the City Council of the City of Lubbock. At the end of the Term, the Owner, and all of the Owner's heirs, successors and assigns shall be deemed to have filed Ch. 212 Development Agreement in lieu Of Annexation - 2 1 P a g e a petition for voluntary annexation of the Property, and the Property will be subject to voluntary annexation in accordance with Section 3 of this Agreement. Prior to the end of the Term, the City may commence the voluntary annexation of the Property. Section 5 — Termination. This Agreement will automatically terminate at the end of the Term. This Agreement shall terminate upon the filing of any plat or related development document with the City or with Lubbock County or upon the Owner's failure to prove that it is the sole owner of the Property with the authority to sign this Agreement. The Owner and the City may agree in writing to terminate this Agreement prior to the expiration of the Term of this Agreement. Section 6 — City Council Approval Required. If the City Council of the City of Lubbock does not affirmatively vote to annex an area that contains the Property, then this Agreement will be null and void in its entirety. Section 7 -- Notification. Any person who sells or conveys any portion of the Property shall, prior to such sale or conveyance, give written notice of this Agreement to the prospective purchaser or grantee, and shall give written notice of the sale or conveyance to the City. Further, the Owner and the Owner's heirs, successors, and assigns shall give the City written notice within fourteen (14) days of any change in the status of the Property. A copy of any notice required by this section shall be forwarded to the City at the following address: City of Lubbock With coDy to: City of Lubbock Attn: City Secretary Attn: Director of Planning P.Q. Box 2000 P.O. Box 2000 Lubbock, Texas 79457 Lubbock, Texas 79457 This Agreement shall run with the Property and be recorded in the real property records of Lubbock County, Texas. Section 8 — Waiver. Any failure by the Owner or the City to insist upon strict performance by either party of any material provision of this Agreement shall not be deemed a waiver thereof, and the Owner or the City shall have the right at any time thereafter to insist upon strict performance of any and all provisions of this Agreement. No provision of this Agreement may be waived except by a written agreement signed by the Owner or the City waiving such provision. Any waiver shall be limited to the specific purposes for which it is given. No waiver by the Owner or the City of any provision of this Agreement shall be deemed or construed to be a waiver of any other provision or subsequent waiver of the same provision. The Parties expressly agree that no provision of this Agreement is in any way intended to constitute a waiver by any Party of any immunity from suit or liability that it may have by operation of law. The Parties agree that the City shall retain all of its governmental immunities. Section 9 — Assurance of Ownership. The Owner hereby expressly affirms that it is the sole owner of the Property and that no other person or entity has a valid claim to any right, title, or ownership in the Property. Should any dispute of right, title, or ownership concerning the Property arise subsequent to the Owner's execution of this Agreement, the Owner hereby agrees to be solely responsible for defending and confirming its absolute right, title, and ownership to the Property. If the Owner cannot Ch. 212 Development Agreement In lieu Of Annexation - 3 1 P a g e defend or fails to defend its right, title, and ownership to the Property, then this Agreement shall terminate. Section 10 — Governing Law. This Agreement is entered into under and pursuant to, and is to be construed and enforceable in accordance with, the laws of the State of Texas, and all obligations of the Owner and the City are performable in Lubbock County, Texas. Venue for any action to enforce or construe this Agreement shall be Lubbock County, Texas. This Agreement is subject to all applicable federal, state, and local laws and any applicable ordinances, rules, orders and regulations of any local, state, or federal governmental authority, having or asserting jurisdiction. However, nothing contained in this Agreement shall be construed as a waiver by the Owner or the City of any right to question or contest any law, order, rule, or regulation which may affect the terms and conditions of this Agreement in any forum having jurisdiction, and the Owner and the City each agree to make a good faith effort to support all proposed laws and regulations which would be consistent with the performance of this Agreement in accordance with its terms. No subsequent change in the law regarding annexation shall affect the enforceability of this Agreement or the City's ability to annex the Property pursuant to this Agreement. Section I — Remedy. The City reserves the right to exercise any right or remedy available to it by law, contract, equity, or otherwise, including without limitation, the right to seek any and all forms of relief in a court of competent jurisdiction. Further, the City shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this Agreement, the former shall control. Section 12 — Public Information. This Agreement is public information. To the extent, if any, that any provision of this Agreement is in conflict with the Texas Public Information Act (Tex. Gov't. Code Ann. Chapter 552 et sea., as amended), the same shall be of no force and effect. Section 13 — Third -Party Beneficiaries. This Agreement only inures to the benefit of, and may only be enforced by, the Owner and the City. No other person or entity shall have any right, title, or interest under this Agreement or otherwise be deemed to be a third -party beneficiary of this Agreement. Section 14 — No Personal Liability & No Joint Venture. Nothing in this Agreement is construed as creating any personal liability on the part of any employee, officer or agent of any public body that may be a party to this Agreement. This Agreement is not intended to, and shall not be construed to, create any joint enterprise between or among the parties. Section 15 — Due Diligence & Force Majeure. The Owner and the City shall use good faith, due diligence, and reasonable care in the performance of the obligations under this Agreement, and time shall be of the essence in such performance. In the event that the Owner or the City is unable to perform its respective obligations under this Agreement, due to any event or circumstance that is not within the reasonable respective control of the Owner or the City that could not have been avoided by either the Owner or the City with the exercise of good faith, due diligence, and reasonable care (a "Force Majeure'), then the obligations affected by the Force Majeure shall be temporarily suspended. Within three (3) business days after the occurrence of a Force Majeure, the Owner or the City shall give notice to each other, including a detailed explanation of the Force Majeure and a description of the action that will be taken to remedy the Force Majeure and resume full performance at the earliest possible time. Ch. 212 Development Agreement 1n Lieu Of Annexation - 4 1 P a g e Section 16 — Enforcement. This Agreement may be enforced by the Owner or the City by any proceeding at law or in equity. Failure to do so shall not be deemed a waiver to enforce the Agreement thereafter. Section 17 — Governmental Powers. it is understood that by execution of this Agreement, the City does not waive or surrender any of its governmental powers, except as expressly set forth herein. Section 18 — 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. The Owner acknowledges that each and every owner of the Property must sign this Agreement in order for the Agreement to take full effect. Section 19 — Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be unenforceable for any reason, such unenforceable provision shall be deleted from this Agreement, and the remainder of this Agreement shall remain in full force and effect and shall be interpreted to give effect to the intent of the Owner and the City. Without limiting the generality of the foregoing, if it is determined that, as of the date that this Agreement becomes effective, that any Owner does not own any portion of the Property, then this Agreement shall remain in full force and effect with respect to the remaining portion of the Property that the Owners actually own. Section 20 — Entire Agreement. This Agreement constitutes the entire agreement between the Owner and the City and supersedes all prior agreements, whether oral or written, covering the subject matter of this Agreement. The Owner acknowledges that each and every Owner of the Property must sign this Agreement in order for the Agreement to take full effect. Section 21— Captions & Recitals. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. However, each of the recitals contained herein, by this reference, shall be incorporated into, and deemed a part of, this Agreement. Section 22 — Modification of Agreement. This Agreement cannot be modified or amended except in writing signed by the Owner and the City and attached and made a part of this Agreement. Section 23 — Ch. 212 Agreement in lieu of Ch. 43 Agreement. If the Property is subject to an agricultural exemption, the Owner hereby acknowledges that the City, through the Office of the City Attorney, offered to make a development agreement with the Owner under §43.035 of the Texas Local Government Code. The Owner further acknowledges that the Owner rejected the offer to make a §43.035 Agreement in order to enter in to this §212.172 Agreement. IN WITNESS HEREOF, the parties mutually enter this Agreement on this d$ day of &el/ , 2016. Ch. 212 Development Agreement in lieu Of Annexation - 5 1 P a g e For the City -" �'4rez- GLEN C. R09EIUSON, MAYOR wMom' ~,uO baia�•�M a a ATTEST': J0 eb ca APPROVED AS TO CONTENT: Andrew Paxton, Director of PiWaing APPROVED AS TO FORM: Justin Pruitt, Assi an Ci A orney For the Owner homas E. Gilliam, Owner /-- arbara Gilliam, Owner Ch. 212 Development Agreement In Lieu Of Annexation - 6 1 P a g e NOTARIZATION State of Texas County of Lubbock This imsUument was executed before me on�Iyats 4j%W9=-f corporation State of Texas County of Lubbock DATE of the City of Lubbock, a Texas municipal corporation, on behalf of said This instrument was executed before me on on behalf of said Owner. Notary Public .�`' ` "`SFkS040F *. C C-): CO F^ . ".10111100- �p,?r -29 2016, by DATE: f THOMAS L© -OVPfl D EDWINA M. ELLER * Notary Pubtia, Stye of Taw ,,. my Cwainim EVres t}5.24-2Q17 State of Texas § County of Lubbock § This instrument was executed before me on2016, b DATE EANYARAGD.LEAM-UrN' n on behalf of said Owner. EDWINA M. ELLER Notary ftk State of Tom Notary Public klyCarmh mExpirae0544.2017 When Recorded Return To: City Secretary City of Lubbock, Texas 1625 13'1 Street Lubbock, Texas 79401 Ch. 212 Development Agreement In Lieu Of Annexation - 7 1 P a g e EXHIBIT A — The Property vat �$13Pj31 ` EXHIBIT h - Lech. bZSCRlPTioN !METES AND BOUNDS DZSCRIPTiaN of a tract of land located in Section 6, Block M, Lubbock County. Texas, being further described as follows: 88CiNNI"a at a 1/21 irons rod sat for the Northwest corner of this tract said rod bears S. 89*57' E. 1,215.0 fast from the Northwest corner of Section 6, Block U, Lubbock County, Texas; THENCE S. 09.57• Z. a distance of 200.0 fast to a 1/2• Iran rod not for this Northeast corner of this tract) THENCE South at 30.0 feet pass a 1/2` iron rod out in the South right-of-way Tins of a county road, continuing for a total distance of 720.5 fast to a 1/2` iron rod sot for the Southeast corner of this tract) THENCE N. 89•57' W. a distance of 200.0 foot to a 1/20 iron rod not for the southwest corner of this tract) THENCE Borth, at 690.5 fast pass a 1/20 iron rod sat in the South right-of-way line of said county road, continuing for a total distance of 720.5 feet to the Point of Seginainq. BLK AK SEC 6 AB 760 TR 8 OF N30 AC OF W220 AC: 3.17 (Gilliam - R115592) FILED AND RECORDED OFFICIAL PUBLIC RECORDS t Kelly P#n#on Counlyy__Clark Lubbock County TEXAS 05/23/2026 ]0:62 AM FEE: $$54.00 2016017945 CITY OF LUBBOCK 2016017946 10 pG�SJ�RGGREE OFFICE PICK UP gill ri Na'01 iWM:lirhN1&t 11111 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 REAL PROPERTY RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER CITY OF LUBBOCK CH. 212 DEVELOPMENT AGREEMENT IN LIEU OF ANNEXATION THIS DEVELOPMENT A REEM NT IN LIEU OF ANNEXATION (the "Agreement") is made and effective this day of , 2016, and is entered into pursuant to §212.172 of the Texas Local Government Code, by n between the City of Lubbock, Texas, a Texas home rule municipal corporation (the "City"), and the undersigned property owner(s) (the "Owner"), with the term "Owner" including all owners of the Property, and is as follows: RECITALS WHEREAS, the Owner owns a parcel of real property (the "Property") in Lubbock County, Texas, which is more particularly and separately described in the attached Exhibit A; and WHEREAS, the City has instituted annexation proceedings for all portions of the Property and held public hearings regarding the proposed annexation on March 8 and March 10, 2016; and WHEREAS, at the public hearings, the Owner was presented with a service plan for the Property and the Owner was given the opportunity to be heard by the City Council of the City of Lubbock; and WHEREAS, the Owner does not want the Property to be annexed and desires to have the Property remain in the City's extraterritorial jurisdiction, in consideration for which the Owner agrees to enter into this Agreement; and WHEREAS, it is the City's intention to allow the Owner to continue to use the Property as it is being used at the time of this Agreement; and WHEREAS, the Owner and the City acknowledge that this Agreement is binding upon the City and the Owner and their respective successors and assigns for the duration of this Agreement; and WHEREAS, this Agreement is to be recorded in the real property records of Lubbock County, Texas; NOW, THEREFORE, in consideration of the mutual promises contained in this Agreement, the Owner and the City agree as follows: AGREEMENT Section I r The Property: Current Status. The City acknowledges that the Property, more particularly described in the attached "Exhibit A," is located within the extraterritorial jurisdiction of the City and is subject to annexation by the City unless this Agreement is signed by the Owner. Section 2 — The Property: Continued Status. In lieu of annexation, the Owner desires that the Property remain in the extraterritorial jurisdiction of the City for the duration of this Agreement. The Ch. 212 Development Agreement In Lieu Of Annexation -1 1 Owner acknowledges that unless the Property is annexed by the City, the Property is not eligible to receive City services, the Property shall not be included in the City's voting precincts, and the Property shall be immune from City property taxes for the duration of this Agreement. The Owner's use of the Property at the time of this Agreement is "grandfathered" into the acceptable uses of the City, and the City is prohibited from interfering with any uses on the Property that comply with §43.002 of the Texas Local Government Code. The Owner acknowledges that Section 22.03.091(a) of the Code of Ordinances of the City prohibits the City from providing water to any entity outside of the city limits, and acknowledges that the City will not be providing water to the Property unless the Property is annexed into the City. However, if the Property is annexed pursuant to a provision of this Agreement, then the City shall provide services to the Property pursuant to Chapter 43 of the Texas Local Government Code. Subject to the provisions of this Agreement, the City shall not annex the Property, shall not involuntarily institute proceedings to annex the Property, and shall not include the Property in a statutory annexation plan. The Owner authorizes the enforcement by the City of all of the City's regulations and planning authority that do not materially interfere with the use of the Property in the same manner that the City's regulations and planning authority are enforced within the City's boundaries. The City specifically reserves its authority pursuant to Chapter 251 of the Texas Local Government Code to exercise eminent domain over property that is subject to a §212.172 development agreement. The City further reserves its regulatory and planning authority in the City's ETJ, as such authority has been granted to it by the City Council. Section 3 — The Property: Change In Status. The Owner agrees not to substantially change the use of the Property as it is used on the date of the execution of this Agreement. The Owner agrees not to develop the Property by fling any type of subdivision plat or related development document for the Property with Lubbock County or the City throughout the duration of this Agreement. The Owner acknowledges that if any plat or related development document is filed for the Property, or if the Owner commences any development of the Property other than that which supports the use of the Property as the Property is used on the date of the execution of this Agreement, then this Agreement shall terminate, and in addition to the City's other remedies, such act will constitute a petition for voluntary annexation by the Owner, and the Property will be subject to annexation at the discretion of the City Council. The Owner agrees that such annexation shall be voluntary and the Owner hereby consents to such annexation as though a petition for such annexation had been tendered by the Owner. If annexation proceedings begin pursuant to this Section, then the Owner acknowledges that this Agreement serves as an exception to Local Government Code §43.052, requiring a municipality to use certain statutory procedures under an annexation plan, and as an exception to Local Government Code §43.062 requiring certain statutory procedures as to the Owner to effectuate an annexation. Further, the Owner hereby waives any and all vested rights and claims that it may have under §43.002(a)(2) and Chapter 245 of the Texas Local Government Code that would otherwise exist by virtue of any plat or construction the Owner may initiate during the time between the expiration of this Agreement and the institution of annexation proceedings by the City. Section 4 — The Term. The term of this Agreement (the "Term") shall be twenty (20) years from the date that this Agreement is approved by the City Council of the City of Lubbock. At the end of the Term, the Owner, and all of the Owner's heirs, successors and assigns shall be deemed to have filed Ch. 212 Development Agreement In Lieu Of Annexation - 2 1 a petition for voluntary annexation of the Property, and the Property will be subject to voluntary annexation in accordance with Section 3 of this Agreement. Prior to the end of the Term, the City may commence the voluntary annexation of the Property. Section 5 — Termination. This Agreement will automatically terminate at the end of the Term. This Agreement shall terminate upon the filing of any plat or related development document with the City or with Lubbock County or upon the Owner's failure to prove that it is the sole owner of the Property with the authority to sign this Agreement. The Owner and the City may agree in writing to terminate this Agreement prior to the expiration of the Term of this Agreement. Section 6 — City Council Approval Required. If the City Council of the City of Lubbock does not affirmatively vote to annex an area that contains the Property, then this Agreement will be null and void in its entirety. Section 7 — Notification. Any person who sells or conveys any portion of the Property shall, prior to such sale or conveyance, give written notice of this Agreement to the prospective purchaser or grantee, and shall give written notice of the sale or conveyance to the City. Further, the Owner and the Owner's heirs, successors, and assigns shall give the City written notice within fourteen ( 14) days of any change in the status of the Property. A copy of any notice required by this section shall be forwarded to the City at the following address: City of Lubbock With: City of Lubbock Attn: City Secretary Attn: Director of Planning P.O. Box 2000 P.O. Box 2000 Lubbock, Texas 79457 Lubbock, Texas 79457 This Agreement shall run with the Property and be recorded in the real property records of Lubbock County, Texas. Section S — Waiver. Any failure by the Owner or the City to insist upon strict performance by either party of any material provision of this Agreement shall not be deemed a waiver thereof, and the Owner or the City shall have the right at any time thereafter to insist upon strict performance of any and all provisions of this Agreement. No provision of this Agreement may be waived except by a written agreement signed by the Owner or the City waiving such provision. Any waiver shall be limited to the specific purposes for which it is given. No waiver by the Owner or the City of any provision of this Agreement shall be deemed or construed to be a waiver of any other provision or subsequent waiver of the same provision. The Parties expressly agree that no provision of this Agreement is in any way intended to constitute a waiver by any Party of any immunity from suit or liability that it may have by operation of law. The Parties agree that the City shall retain all of its governmental immunities. Section 9 — Assurance of Ownership. The Owner hereby expressly affirms that it is the sole owner of the Property and that no other person or entity has a valid claim to any right, title, or ownership in the Property. Should any dispute of right, title, or ownership concerning the Property arise subsequent to the Owner's execution of this Agreement, the Owner hereby agrees to be solely responsible for defending and confirming its absolute right, title, and ownership to the Property. If the Owner cannot Ch. 212 Development Agreement to Lieu Of Annexation - 3 1 defend or fails to defend its right, title, and ownership to the Property, then this Agreement shall terminate. Section 10 — Governing Law. This Agreement is entered into under and pursuant to, and is to be construed and enforceable in accordance with, the laws of the State of Texas, and all obligations of the Owner and the City are performable in Lubbock County, Texas. Venue for any action to enforce or construe this Agreement shall be Lubbock County, Texas. This Agreement is subject to all applicable federal, state, and local laws and any applicable ordinances, rules, orders and regulations of any local, state, or federal governmental authority, having or asserting jurisdiction. However, nothing contained in this Agreement shall be construed as a waiver by the Owner or the City of any right to question or contest any law, order, rule, or regulation which may affect the terms and conditions of this Agreement in any forum having jurisdiction, and the Owner and the City each agree to make a good faith effort to support all proposed laws and regulations which would be consistent with the performance of this Agreement in accordance with its terms. No subsequent change in the law regarding annexation shall affect the enforceability of this Agreement or the City's ability to annex the Property pursuant to this Agreement. Section 11 — Remedy. The City reserves the right to exercise any right or remedy available to it by law, contract, equity, or otherwise, including without limitation, the right to seek any and all forms of relief in a court of competent jurisdiction. Further, the City shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this Agreement, the former shall control. Section 12 -- Public Information. This Agreement is public information. To the extent, if any, that any provision of this Agreement is in conflict with the Texas Public Information Act (Tex. Gov't. Code Ann. Chapter 552 et seq., as amended), the same shall be of no force and effect. Section 13 — Third -Party Beneficiaries. This Agreement only inures to the benefit of, and may only be enforced by, the Owner and the City. No other person or entity shall have any right, title, or interest under this Agreement or otherwise be deemed to be a third -party beneficiary of this Agreement. Section 14 — No Personal Liability & No Joint Venture. Nothing in this Agreement is construed as creating any personal Iiability on the part of any employee, officer or agent of any public body that may be a party to this Agreement. This Agreement is not intended to, and shall not be construed to, create any joint enterprise between or among the parties. Section 15 — Due Diligence & Force Majeure. The Owner and the City shall use good faith, due diligence, and reasonable care in the performance of the obligations under this Agreement, and time shall be of the essence in such performance. In the event that the Owner or the City is unable to perform its respective obligations under this Agreement, due to any event or circumstance that is not within the reasonable respective control of the Owner or the City that could not have been avoided by either the Owner or the City with the exercise of good faith, due diligence, and reasonable care (a "Force Majeure"), then the obligations affected by the Force Majeure shall be temporarily suspended. Within three (3) business days after the occurrence of a Force Majeure, the Owner or the City shall give notice to each other, including a detailed explanation of the Force Majeure and a description of the action that will be taken to remedy the Force Majeure and resume full performance at the earliest possible time, Ch. 212 Development Agreement In Lieu Of Annexation - 4 1 Section 16 — Enforcement. This Agreement may be enforced by the Owner or the City by any proceeding at law or in equity. Failure to do so shall not be deemed a waiver to enforce the Agreement thereafter. Section 17 — Governmental Powers. It is understood that by execution of this Agreement, the City does not waive or surrender any of its governmental powers, except as expressly set forth herein. Section 18 — 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. The Owner acknowledges that each and every owner of the Property must sign this Agreement in order for the Agreement to take full effect. Section 19 — Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be unenforceable for any reason, such unenforceable provision shall be deleted from this Agreement, and the remainder of this Agreement shall remain in full force and effect and shall be interpreted to give effect to the intent of the Owner and the City. Without limiting the generality of the foregoing, if it is determined that, as of the date that this Agreement becomes effective, that any Owner does not own any portion of the Property, then this Agreement shall remain in full force and effect with respect to the remaining portion of the Property that the Owners actually own. Section 20— Entire Agreement. This Agreement constitutes the entire agreement between the Owner and the City and supersedes all prior agreements, whether oral or written, covering the subject matter of this Agreement. The Owner acknowledges that each and every Owner of the Property must sign this Agreement in order for the Agreement to take full effect. Section 21— Captions & Recitals. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. However, each of the recitals contained herein, by this reference, shall be incorporated into, and deemed a part of, this Agreement. Section 22 — Modification of Agreement. This Agreement cannot be modified or amended except in writing signed by the Owner and the City and attached and made a part of this Agreement. Section 23 — Ch. 212 Agreement in lieu of Ch. 43 Agreement. If the Property is subject to an agricultural exemption, the Owner hereby acknowledges that the City, through the Office of the City Attorney, offered to make a development agreement with the Owner under §43.035 of the Texas Local Government Code. The Owner further acknowledges that the Owner rejected the offer to make a §43.035 Agreement in order to enter in to this §212.172 Agreement. IN WITNESS HEOF, the parties utually enter this Agreement on this ay of , 2016. Ch. 222 Development Agreement In lieu Of Annexation - 5 1 For the City GLEN C11WOBERTSON, MAYOR pip U0 w0 nJd i i+.A yel 9 V ATTEyIi;` Rebe ca GarzaC�t,;§e ,T. I r--u APPROVED AS TO CONTENT: Andrew Paxton, Director of Planning APPROVED AS TO FORM: For the Owner Michael Damron, Owner Frankford Farms, LLC, Member Ch. 212 Development Agreement In lieu Of Annexation - 6 1 I NOTARIZATION State of Texas § County of Lubbock § t�( This instrument was executed before me on �+� 2016, by C._ _. n,rrt n.a�e of the City of Lubbock, a Texas municipal corporation, on behalf of said M11 corporation. "",It45'owbe ' ,r R O NX U) State of Texas § County of Lubbock § This instrument was executed before me on rc 2016, by O.tTC htl�1.LtELb:4t� t. on behalf of said Cl wcr. VENITA WADSWORTH Na1q Pudic, 8ft d Tait Public N" 011 10637M + My Con>mitsion r:i�res 06�7&2020 When Recorded Return To: City Secretary City of Lubbock, Texas 1625 131" Street Lubbock, Texas 79401 Ch. 212 Development Agreement In Lieu Of Annexation - 7 1 EXHIBIT A — The Property Tract Twenty Three (23), FRANKFORD FARMS (Revised Plat), a subdivision out of the SWA of Section 24, Block F-2, Lubbock County, Texas, according to the map, plat and/or dedication deed thereof, recorded in Volume 3033, Page 242, Official Real Property Records, Lubbock County, Texas and corrected in Volume 3176, Page 340, Official Real Property Records, Lubbock County, Texas. (Damron — R69021) Page 1 of 3 177—tTCIMSlk"llru :eb and Tracts 7H. Bn Frankf ord f+ r !: 9u, raplat of Tracts 7. d, & U. "• I.... Farms oRc ....r.r.._.�.,.�......rr�..q - a subdivision out of the 51r/d or Section 2,t, Block E-2. Lubbock County, Texns t .r a' ar . 7awar GOtYU.f 'JUIRCTI1rC C0. IW$-c s.nl crnm MrSOM T97AS 72111 ("6) ,11-bup FRANKFORD FARMS TR 23 FILED AND RECORDED OFFICIAL PUBLIC RECORDS Kelly ;l2j:g Caunlyy �Clor'k Lubhoais Caun�y TEXiis 05/23/2016 19T 2 RM FEE: 62.00 a®I641Y7946 Page 3 of 3 (Damron — R69021)