Loading...
HomeMy WebLinkAboutResolution - 2016-R0135 - Agreements In Lieu Of Annexation - 04/14/2016Resolution No . 2016-R0135 Item No. 6.8 April 14 , 20 16 RESOLUTION WHEREAS, th e C ity Co uncil by R eso luti o n No . 2016-R0026 o n Ja nuary 14 , 2016 directed city staff to prepare a s urvey and a serv ice plan and to draft development agreements for prope rt y owners in ref e re nc e to a proposed a nnexation; a nd WHEREAS , th e propo sed a rea su bj ect to annexation was gene ra ll y described a s 2 ,39 4 acres located b etween one -halfmile ea st ofCR 2200 (Uni vers ity Avenue) a nd approximately CR 1700 (Milwaukee Ave nue), from the existing south ern c it y limits to approx im ate ly 660 feet south of CR 7500 (the ·'proposed a nnexed area"); a nd WHEREAS , notice was sent to th e property owners in the proposed annex area, as require d by C hapte r 4 3 of the Texas Local Governm e nt Cod e , and two public hearin gs we re conducte d b y the C ity Counc il o n March 8 a nd March I 0 , 20 16 a ll p urs uant to s ta te la w; a nd WHEREAS , the C ity C ounc il received input and comment from affected property owners at each public hearing; a nd WHEREAS, the C ity o f Lubbock on or about Marc h 3 , 2016 m ai led , by certified mail return receipt re quested, an offer to make a d eve lopm ent agree m e nt to each p ropert y owner of ag ri c ultura ll y exempt prope rt y in th e proposed a nn exed area as required by Sectio n 43.035 of the Texas Local Gove rnm e nt Cod e; and WHEREAS , th e C it y Co un c il find s tha t each property owne r of agriculturall y exempt prope t1 y as d et ermined by t he Lubbock Centra l Appraisal Di stri c t has been offered a n agreement pursuant to Section 43.03 5 ofthe Texas Local Governme nt Code a nd tha t each own e r has e ither a ccepted the offer or has r ejected the offer; and WHEREAS, on March 28 , 20 16, th e C ity Coun c il by Res o luti o n No . 20 16-RO 122 authorized the C ity Manager a nd staff to offe r agree m ents in li e u of annexati on as a ll o wed und er Section 2 12.172 of the T exas Local Governme nt Code t o a ll e li gibl e property owners in the proposed annexed area for a twent y (20) yea r term; an d WHEREAS, s uch a n agree m e nt is effectiv e o nl y if th e area t ha t is the s ubj ec t of the agreement is affirmati vely annexed by th e C it y Co unc il ; a nd W H EREAS , the C it y Co unc il find s it t o be in the pub li c interes t t o authori z e the Mayor t o execute said agreements if th e C ity Co uncil a ffirmati vely votes to a nnex an a rea that contains the property subj e ct to the agreem ent ; NOW TH EREFORE ; B E IT RESOLVED BY T H E CITY C O UNCI L OF T H E C IT Y OF L U BBOCK: THAT the May or of th e C it y of Lubbock is he reby a utho ri zed a nd dire cted t o execut e for a nd o n be ha lf of th e C ity of Lubbock eac h agree m e nt , a tt ac hed he re to as Ex hi b it "A", purs ua nt t o Section 2 12.17 2 o r Sectio n 4 3.035 of th e Texas Local Government Code , as an agreement in li e u of annexa ti on , co nditi o ned up on t he affirm a ti ve vo te of the City Counc il to annex an area in w hi ch th e prope rt y s ubj ect to sa id ag ree me nt is includ ed . Passed by th e C ity Co un c il on _.:....:A:.r::P.:..:ri~l ..:..1...:..:4 ,L:2::..:0:....:1...::6 _________ _ G L ~SON , MAYO R ATTEST: A PPROVED AS TO FO RM : aJL C had Weaver, Ci t y Att o rn ey cc docs!RE S .Ann cx ation-D evc lopment Ag re ement CITY OF LUBBOCK oFFICE PICK UP 2016017867 9 PGS AGREE 1111 1'.1 rJ(f.~rn~~\ If\~ .r.n~.rw ftlM\~ IIIII 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~4~EM'f\NJ}N LIEU OF ANNEXATION (the "Agreement") is made and effective this day of~· 20 16, and is entered into pursuant to §212 .172 of the Texas Local Government Code, by anet 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 I 0, 20 16; and WHEREAS, at the public hearings, the Owner was presented with a service plan for the Prope1ty 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 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 ofthis 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 "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 Ueu Of Annexation-2 I Page 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 Attn: City Secretary P.O. Box 2000 Lubbock, Texas 79457 With copy to: City of Lubbock Attn: Director of Planning P.O. Box 2000 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 ofthis 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 Jaw. 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 I 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 ll -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 I 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 H;EJW..OF, the ~rties, mutually enter this Agreement on this J.:L:day of 412d \ , 2016. Ch. 212 Development Agreement In Lieu Of Annexation· 5 I P a g e For the City For the Owner GLEN C. ROB~~ APPROVED AS TO FORM: Justin ttorney Ch. 212 Development Agreement In Ueu Of Annexation-6 I Page NOTARIZATION State of Texas § County of Lubbock § State ofTexas § County of Lubbock § This instrument was executed before me on -& Pitt State of Texas § e MAGEN D. MURCHISON Ncory Nlic, Slate of Texas My CommBsion EJpiles 04-03-2017 ) I .. County of Lubbock § This instrument was executed before me on _....:.""/...,{'-~"'==,..--2016, b ~~~±.~~;;{f.~g~~ 'Ci4u ~, When Recorded Return To: City Secretary City of Lubbock, Texas 1625 tJ'h Street Lubbock, Texas 79401 e VENITA WADSWORTH N*Y Nit. Slalt of Texas Nfary 101 1053705-6 My ComlrlGsQI Expires (15.28.2020 Ch. 212 Development Agreement In Ueu Of Annexation -7 I P a g e • -! .. EXHIBIT A -The Property Property (Including any Improvements): A tract of land out of the SE/4 of Section I, Block AK, lubbock County, T.:xas, described by metes 311d boonds as follows: BEGINNING oat a srccl rod set in the Nonh line of a 20 acre tr:lct, for the NE comer of this tract; lhc NE 'orncr of the SE/4, bearsS. 89• 56' 54" E. 792.01 feet and N. o• 0' 54• E. 334.9 feet; THENCE S. o• 0' 54" W. 329.9 feet to a rod set in Lhc South line of said 20 acre tract for theSE comer of this triiCl; THENCE N. 89• 56' 54" W. 518.4 feet to a rod set for theSE comer of the Prindle Tract set by Hugo Reed Surveyors, same being Lhe SW comer of lhis Survc}'; THENCE N. o• 0' 54" E. 329.9 feet to a rod set for the NE comer of the Prindle Tract and for the NW comer of this Survey; THENCE S. 89• 56' S4" E. 518.4 feet to the PI3CC of Beginning. BLK AK SEC 1 AB 189 TR C OF SE/4 AC: 4 TRC R26169 4AC 528.4' ~·'--' I (Henry-R26169) FILED AND RECORDED ·p~~~~ Kelly Pinicn1 County Clerk Lubbock County TEXAS 05/23/2016 10 :,2 AM FEE : $54 .00 2016017867 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 DEVELOPMENf4\~REEMENT .Ir LIEU OF ANNEXATION (the "Agreement") is made and effective this day of.P\W-\ \ . 2016, and is entered into pursuant to §212.172 of the Texas Local Government Code, by ~en 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 ofthe 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, 20 16; 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 Page 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 ofthis 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 ifthe 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 Page 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 Attn: City Secretary P.O. Box 2000 Lubbock, Texas 79457 With copv to: City of Lubbock Attn: Director of Planning P .O. Box 2000 Lubbock,Texas79457 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 I 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 perfonnance 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 infonnation. 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 th is 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 f 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 HE~OF, the Bftie.s\mutually enter this Agreement on this _J~_"c day of (l-1 , 2016. Ch. 212 Development Agreement In Ueu Of Annexation -5 I P a g e For the City For the Owner •' APPROVED AS TO FORM:. Justin Ch. 212 Development Agreement In Lieu Of Annexation -6 I P a g e State of Texas § County of Lubbock § NOTARIZATION This instrument was executed before me on ApJ;1 \ 141 20 16, by ~lJ \.tY\ ( · Bokcl6UV1 , \A ~ ~ ~ M~V of the City of Lubbock, a Texas municipal corporation, on behalf of said corporation . , e MAGEN D. MURCHISON N~aJY Pubic, State of Texas My Commission Expites 04-o3-2017 State of Texas § County of Lubbock § This instrument was executed before me on JA .. 'J J 2016, by~,(_ J t~L?6 ~ EC'-"YL.JO. WNER on behalf of said Owner. When Recorded Return To: City Secretary City of Lubbock, Texas I 625 131h Street Lubbock, Texas 79401 Ch. 212 Development Agreement In Lieu Of Annexation - 7 I P a g e EXHIBIT A -The Property METES AND BOUNDS DESCRIPTION of a 2.003 acre tract ofland, more or Jess, locercd in the Southeast Quarter of Section I, Block AK. Lubbock County, Texas, being funhcr described as follows: BEGINNING at a 112" iron rod with cup found in the North line of a 20 acre tract at the Northeast comer of this tract which bears S. ooaoo• 54" W. a distance of 334.9 feet and N. 89°56'54" W. a distance of263.4 feet from the Northcost comer oflhe Southeast Quarter of Section l,Bio,c:k AK, ~ubbock County, Texas; THENCE S. 00°00'54" W. a distance orJ29.9 feet to a 112" iron rod with cap found in the South line of said 20 acre tract and in the North line of a 60 foot right-of-way ens~ment recorded in Volume 1912, Page 549, Deed Reeords of Lubbock County, Tcxast at the Southeast comer of this tract; THENCE N. 89°56'54" W., along the South line of said 20 acre tract and the North line of said right-of-way casement. a disrancc of264.S feet to a 1/2" iron rod with cap found at the Southwest comer of this tract; THENCE N. 00°00'54" E. a distance of329.9 feet to a 112" iron rod with cap found in the North line of said 20 acre tract at the Northwest comer of this tract; THENCE S. 89°56'54" E., aJong the North line of said 20 acre tract. a distance of 264.S feet to the Point ofBegiMing. (Jones -R155753) Page 1 of2 \ . BLK AK SEC 1 AB 189 TR Hl & I AC: 2 TR H-1 R155753 TRI 2 AC TOTAL 264.51' -I FILED AND RECORDED -~~~~ Kelly Pinion 1 County Clerk Lubbo~k CountY TEXAS 05/23/2016 10:02 AM FEE: $58.1110 2016011868 (Jones-R155753) R 1 Page 2of2 . . 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 TIDS 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 TillS DEVELOPl\fE~!~f.i~El\fENT I~ LIEU OF ANNEXATION (the "Agreement") is made and effective this ~aay of~ 2016, and is entered into pursuant to §212.172 of the Texas Local Government Code, by ~en 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 a Ch. 212 Development Agreement In Lieu Of Annexation - 2 I P a g e 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 Attn: City Secretary P.O. Box 2000 Lubbock, Texas 79457 With copy to: City of Lubbock Attn: Director of Planning P.O. Box 2000 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 J 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 aJl 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 Ch. 212 Development Agreement In Lieu Of Annexation-4 I Page the action that will be taken to remedy the Force Majeure and resume full performance at the earliest possible time. 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 :n:E~OF, the J\rties mutually enter this Agreement on this ~·day orpr?1l '2016. Ch. 212 Development Agreement In Lieu Of Annexation - S I P a g e For the City For the Owner -__::::; GLENC.RO ~.. .. Andrew Paxton, Director of Planning APPROVED AS TO FORM: Ch. 212 Development Agreement In Lieu Of Annexation - 6 I P a g e NOTARIZATION State of Texas § County of Lubbock § This instrument was executed before me on ~il ~J4 1 2016, by ~..£ • ~t~ M~o~ of the City of Lubbock, a Texas municipal corporation, on behalf of said corpO:ioJt? ~lip .Murilub'Ult\ State of Texas § County of Lubbock § This instrument was executed before me on t2;v;J.5 2016, by ____:'41J[.~L.bl!..Jb---.2-­ on behalf of said Owner. &w~r~t<~ Notary Public State of Texas § County of Lubbock § This instrument was executed before me on~ 5 U4n. on behalf of said Owner. When Recorded Return To: City Secretary City of Lubbock, Texas CHARLOTIE K. GODLOVE Notary Pubic, Stale of Texas ~d~ My Commission Expires 02·20-2017 2016,by ~~ .... ~ CHARLOlTE K. GODLOVE Notal}' Pubic, Slate of Texas My Commission Expires 02·20-2017 Ch. 212 Development Agreement In Ueu Of Annexation -7 I P a g e 1625 l3 1h Street Lubbock, Texas 79401 Ch. 212 Development Agreement In lieu Of Annexation - 8 I P a g e EXHIBIT A -The Property METES AND BOUNDS DESCRIPTION of a 2.00 ac:rc tntl of lAnd. more or less. located in Section 1. Bloc:k AK. Lubbock County. Tc:.JW. being funher described AS follows: BECilNNING at a Jlr iron rod found at the Southeast comc::r of this tDct which bears N. 00*01'48 .. E .• a disuncc::of 1562.93 feet :uxl N. 89*.S9•tr W •• a di.sl:lnc:e of241.6S feet from the Southc:sst comer of Section I. Bloc:lc AK. Lubbock Counry. Ta:IS: THENCE N. 89*59'12"' W •• n dlstancc of 211.58 feet co a 11r iron rod with cap found for the Soulhwc:st comer of Ibis uact; THENCE N. 00*01'48" E •• a disuncc of 411.83 feet to a llr iron red with ap found for the Nonhwcst comer of this tract; THENCE S. 89.56'54 .. E •• a dismncc: oflii.SB feet to a llr iron rod found t~t lhc NonhellSt comer of llais tr.sct; THENCE S. 00*01'48 .. W •• a disuncc: of 411.69 feet to lhc: POINT OF BEGINNING. BLK AK SEC 1 AB 189 TR 2 UNIVERSITY SOUTH AC: 2 ........... ··'-'. TR2 R77586 2AC 211 _58' (Macias -R17586) FILED AND RECORDED ep:~~ Kelly Pinion1 County Clerk Lubbock Coun~y TEXAS 05/23/2016 10:62 AM FEE : $58 .00 2016017869 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 DEVELOPMENJ~REE~8tr .1~ 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 ana 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 22.03.09l(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 tenninate, 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 "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 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 J 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 Attn: City Secretary P.O. Box 2000 Lubbock, Texas 79457 With copy to: City of Lubbock Attn: Director of Planning P.O. Box 2000 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 I 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 havingjurisdiction, 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 I 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 H~MOF, the parties.mutually enter this Agreement on this _tE Hay of Apt2.-t \ , 2016. Ch. 212 Development Agreement In lieu Of Annexation -5 I P a g e For the City For the Owner Andrew Paxton, Director of Planning APPROVED AS TO FORM: Ch. 212 Development Agreement In Lieu Of Annexation - 6 I P a g e State of Texas § County of Lubbock § NOTARIZATION This instrument was executed before me on __ -t.· -#-~-::·~~"n:=---2016, b ~~sfi£'j~(") on behalf of said Owner. ® VENITA WADSWORTH Nay Nit, Stall dTaxas NdaqDI1~ r.IJCclllnissb1 &pies u-m When Recorded Return To: City Secretary City of Lubbock, Texas 1625 l31h Street Lubbock, Texas 79401 Ch. 212 Development Agreement In Lieu Of Annexation - 7 I P a g e 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. A tr.Jct of land, bctng the same tract as the tnct dcscnbcd m Volume: 2088, Page 205, Lubbock County Real Property Records and out of Section 6, nlock AK, Lubbock County, Texas, bemg further dcscnbcd by metes :md bounds as follows: BEGINNING at a found W' tron rod for the Nonhwest comer of thrs tract whence a found W' iron rod for the Northwest comer of Scctton 6, Block AK. bears N 89°57' W (Reference De:mng), 1615.15 feet (Called 1615 . feet); THENCE S 89(154'53" E (Called S 89°57 E), w1th the North lmc of Section 6 and County Road 7500, 199.99 feet (Called 200.0 feet) to a found 3/8" 1ron rod for the Northe:1st comer of th1s bilct; THENCE S 00°00'58" W (Callc:d South), wrth the West hnc of the tract dcscnbcd m Volume 177, P;~gc ISO, Lubbock County Deed Records, 720.60 feet (Called 720.50 feet) to a fo11nd 3/4" square tube for the: Southeast comer of thas tract; THENCE N 89°53'41" W (C:~.IIcd N 89°57' W), wath lhc North hne oflo18, Tumbleweed Pass as dcscnbed m Volume 7779, Page 276, Lubbock County Offic•all'ubhc Records (LCOPR), 200.0 feet loa set steel na1l wuh "x" cul on top for the Southwest comer of th1s lt'i1Cl ; THENCE N 00°00'59" E {North), wath the cBst hnc of the tract dcscnbcd m County Clerk Ftle #200706393, LCOPR, 720.50 feet to lhc PIBcc ofBcgmmng. {Underwood-RS0175} Page 1 of2 BLK AK SEC 6 AB 760 TR 10 OF N30 AC OF W220 AC: 3.17 --- R 5Co17S TR 10 3.17 AC R50175 2001 (Underwood -R50175) L(') 0 0') (.0 Page 2 of2 FILED AND RECORDED -~DS~ Kelly Pinion1 County Cle~k Lubbock Coun~y~ TEXAS 05/23/2016 10:~2 AM FEE: J58.00 2016017870 . . 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 DEVELOPMENT 4~REEM 1T lN 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 \VHEREAS, 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 \VHEREAS, 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, 20 16 ; 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 \VHEREAS, the Owner does not want the Property to be annexed and desir~s to have the Property remain in the City's extraterritorial jurisdiction, in consideration for which the Owner a!,rrees to enter into this Agreement; and \VHEREAS, 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 \VHEREAS, this A!,rreement 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 sibrned 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 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 22.03.09l(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 Propert)' 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 Tern1, 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 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 sibrn this Agreement. The Owner and the City may agree in writing to terminate this Abrreement 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 affinuatively 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 Attn: City Secretary P.O. Box 2000 Lubbock, Texas 79457 With com• to: City of Lubbock Attn: Director of Planning P.O. Box 2000 Lubbock,Texas79457 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 perfom1ance 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 Abrreement. 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 I 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 re!,'Ulations 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 0\\ner 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 perfom1ance. 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 I Page 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 \VITNESS H~~J9F, the ~es ~utually enter this Agreement on this J.:t...~ay of 121\ , 2016. Ch. 212 Development Agreement In Lieu Of Annexation - 5 I P a g e For the Citv For the Owner AlldfeWPax ton. Director of Planning APPROVED AS TO FORM: Justin Ch. 212 Development Agreement In lieu Of Annexation -6 I P a g e State of Texas § County of Lubbock § NOTARIZATION This ins" menL was executed before me on ~.J4, 2016, by fAI.e n ,J/. 12-o ~ () of the City of Lubbock, a Texas municipal corporation, on behalf of said ----~~T=In~(~~----- corporation. State of Texas § County of Lubbock § on behalf of said Owner. \Vhen Recorded Return To: City Secretary City of Lubbock, Texas 1625 13'h Street Lubbock, Texas 79401 e MAGEN D. MURCHISON~ NIW)'Niic,StaleofTexas ~ MyCommisskrJ Expires04-03-2017 '. e VENITA WADSWORTH NcayNJk.Siale liT aM f. Nilryb11SJ70H .: ~ Conlnlsibl Elphs 05-28-m l' Ch. 212 Development Agreement In Lieu Of Annexation - 7 I P a g e EXHIBIT A -The Property A 2;00-acre tract located in Section one (1), Block A-K, Lubbock County, Texas, being further described as follows: BEGINNING at a l/2 11 iron rod set which bears North oo•ol 1 48" East a distance of 1562.93 feet and North 89.59 1 12" West a distance of 664.74 feet (rom the Southeast corner of Section 1, Block A-K, Lubbock county, Texas: THENCE North 89'59'12" West a distance of 211.43 feet to a set l/2 .. iron rod; THENCE North 00'01 1 48" East a distance of 412.12 feet to a set 1/211 iron rod1 THENCE South 89.56 1 54" East a distance of 211.43 teat ·to a set 1/2 11 iron rod; THENCE south 00'01 1 48" Heat a distance ot 411.98 feet to the POINT OF BEGINNINGt BLK AK SEC 1 AB 189 TR 4 UNIVERSITY SOUTH AC: 2 264. R 7450 .. .. .. . . ... . .... .. .... --.. --. TR 4 R77644 2 AC 211.43' (Lewis-R77644) FILED AND RECORDED -~D~ Kel l y Pinion 1 County Clerk LubboQk Coun~y~ TEXAS 0S/23/201S 10:~2 AM FEE : SS4 .00 2(1)16(1)17871 CITY OF LUBBOCK OFFICE PICK UP 2016017872 10 PGS AGREE 1111 W• Nl~ .t(l~· ~t~·f~llfrrlr'fflll~ M\' IIIII 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 DEVELOPME ~~GBIEMENT IN LIEU OF ANNEXATION {the "Agreement") is made and effective this ~d-ay 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 I 0, 20 16 ; 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 -11 Page 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 I 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 ofthe 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 shaH 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 nuH and void in its entirety. Section 7-Notification. Any person who sells or conveys any portion of the Property shaH, prior to such sale or conveyance, give written notice of this Agreement to the prospective purchaser or grantee, and shaH give written notice of the sale or conveyance to the City. Further, the Owner and the Owner's heirs, successors, and assigns shaH 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 Attn: City Secretary P.O. Box 2000 Lubbock,Texas79457 With copy to: City of Lubbock Attn: Director of Planning P.O. Box 2000 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 shaH 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 shaH 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 I Page 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 ofTexas, 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 a11 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 I 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 shaH not be deemed a waiver to enforce the Agreement thereafter. Section 17-Governmental Powers. It is understood that by execution ofthis 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 sha11 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 fuH 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 shaH 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 H~}\f::OF, the ~s mutually enter this Agreement on this 1±:_ "day of ~) , 2016. Ch. 212 Development Agreement In Lieu Of Annexation-5 I Page For the City For the Owner GLEN C. ROB Bonnie Bourland, Owner APPROVED AS TO FORM: Ch. 212 Development Agreement In Lieu Of Annexation-6 I Page State of Texas § County of Lubbock § NOTARIZATION This instrument was executed before me on ~f.-i \j 4 1 2016, by G ~ YJ C .. ~ ~ fC-of the City of Lubbock, a Texas municipal corpomtion, on behalf of said corporatton. r ll?f I. '~ ~~~ ~ MA,:'!_M~~~oN l , VVI'ii V\Au u 1 1 ~ My eommm Expires 04-oo-2o1i ~ State of Texas § County of Lubbock § -,i. This instrument was executed before me on -1/zn State of Texas § County of Lubbock § This instrument was executed before me on ------=~--2016, by ----:===-:-:;:-"":=:--- o"n: IIONME IIOIIRLAND ~OWHER on behalf of said Owner. Notary Public When Recorded Return To: City Secretary City of Lubbock, Texas 1625 13 1h Street Lubbock, Texas 79401 Ch. 212 Development Agreement In Lieu Of Annexation • 7 I P a g e STATE OF TEXAS § COUNTY OF LUBBOCK § 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 AFFIDAVIT AS TO SIGNATURE THIS ~J VIT AS TO SIGNATURE (the "Affidavit") is made and effective this day of , 2016, by and between the City of Lubbock, Texas, a Texas home rule municipal corporatio (the "City"), and the undersigned property owner(s) (the "Owner"), and is as follows: AFFIDAVIT 1, ,/ , t/;ulA.J tf,u ;-~c;, ) do hereby swear and affirm that the signature of MATTIIEW BOURLAND Bonnie Bourland (the "Signature") on the attached CH. 212 AGREEMENT IN LIEU OF ANNEXATION (the "Document") is the official Signature of said Bonnie Bourland, and that I saw her affix the Signature was to the Document by her own hand, under no compulsion, duress, or undue influence. Due to Bonnie Bourland's health, she was unable to affix the Signature to the Document in the view of an authorized State of Texas Notary Public, and this Affidavit shall serve as the official authorization of the Signature on the Document. I declare under penalty of perjury that the foregoing is true and correct. State of Texas § County of Lubbock § 2016,by ~'i!l" '&wkd. e VENITA WADSWORTH N(Wy Nlllc. Slate o1 Texas -1011~ My Colmllssb\ Expies~ EXHIBIT A-The Property FXELD NOTES on a 2.00 acre tract of land, mora or le3s, and being the same tract of land as described in Volume 8772, Page 260 of the Official E.'ublic Records of Lubbock County, Texas, and being out of Section One (1), Block AK, Lubbock County, Texas, and baing further described as follows: BEGINNING at a found rod with yellow cap for the Northeaat corner of this tract whence the Northeast corner of the Southeast Quarter (SE/4) of said Section 1 by deed calls bears South 89°56' 54" East, a distance of 527.90 feet and North 00°00'54 10 East, a distance of 334.90 feat; THENCE South 01• 47' 46" West (Texas North CentraJ. Zone Bearing Basis (called South oo•o5'54" We:.t), with the West lino of tho tract of land described in VolWIIe 6332, Page 87 of tho Real Property Records of Lubbock County, Texas, a distance of 329.85 feet (called 329.90 foot) to a found rod with yellow cap for the Southeast corner of this tract; THENCE North 89.09'11'' West (called North 89.56'54" West), along the North line of a 60.00 foot road easement, at 1369.82 feet pass a found 1/2" iron rod, in all, a distance of 263.83 feet (called 264.10 feet) to a found nail with yellow cap for the Southwest corner of this tract: THENCE North 01°47'50" Ea:.t (called North 00°00'54" East), with the East line of the tract of land described in Volume 4625, Page 251 of the Real Property Records of Lubbock County, Texas, a distance of 330.06 feat (called 32 9. 90 feet) to a found rod with yellow cap for tho Northwest corner of this tract; THENCE South ea•o6'28" East (called South 89.56'54" East) I with the South line of the tract of land described in Volume 1822, Page 405 of the Dead Records of Lubbock County, Texas, a distance of 263.83 feet (called 264.10 feet) to the Place of Beginning; (Bourland -Rl40760) . . BLK AK SEC 1 AB 189 TR E & TR H OF SE/4 AC: 2 en o) N ("') FILED AND RECORDED -~~~ Kelly Pinion, County Clerk ~ubbook Coun~Y~ TEXRS eS/23/2016 10:v2 RM FEE: $62.00 2016017872 (Bourland-R140760} TR H 1 AC R140760 TR E 1 AC 264.1' I 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 DEVELOPMEN-.; ~!fREEMENT IN LIEU OF ANNEXATION (the "Agreement") is made and effective this -L:t.!!.'day of -n.p~l -'~ 2016, and is ente red into pursuant to §212.172 o f the Texas Local Government Code, by ~en 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 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 Tenn. 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 Acreement tn Ueu Of Annexation • 2 I 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 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 Attn: City Secretary P.O. Box 2000 Lubbock, Texas 79457 With copy to: City of Lubbock Attn: Director of Planning P.O. Box 2000 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 Ownenhip. 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 Aareement In Ueu Of Annexation -3 I 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 Jaws 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 Jaw, 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 Acreement In Ueu Of Annexation • 4 I 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 ll -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 ll-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 -Cb. lll Agreement in lieu of Cb. 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 Aarti~ mutually enter this Agreement on this 1£.. Clay of p 12-! I , 2016. Ch. 212 Development Aflreement In Ueu Of Annexation • 5 I P a g e Fortbe City For tbe Owner GLENC.R~~ APPROVED AS TO FORM: Ch. 212 Development Agreement In Ueu Of Annexation-6 I P a g e State of Texas § County of Lubbock § NOTARIZATION This in tru~ent was executed before me on ~ ~14 I 2016, by bl:t n L f2.v ~-un -~~~r..;,CJ....;.¥2-___ ofthe City ofLubbock, a Texas municipal corporation, on behalf of said State of Texas § County of Lubbock § This instrument was executed before me on 4L'Zn When Recorded Return To: City Secretary City of Lubbock, Texas 1625 13th Street Lubbock, Texas 79401 e MAG EN D. MURCHISON ~Sf}' Nlic, Stale of Texas MyComrnissioo Expiles 04-()3.2017 Ch. 212 Development Agreement In Ueu Of Annexation - 7 I P a g e EXHIBIT A -The Property TRZ\':1' I: nm SURPliCE E5r1\TE OOLY of a tract of lLWI out of tre SE/4 of Section 9, I Block AK, llbstract 161, E. L. & R. R. Ry. eo. Survey, LulJoock COunty, Texas, descr.ibcd I by rrctcs and l:ounds as folla:1s: : BEGINNING at a [Xlmt in the East line of the SE/4 of Section 9, Block 1\K, a dist:unc:c · of 953.9 foot North of the Southcilst corner of said Section 9, for the Southeast aoo ~:cginning romcr of this tr.:tct; 'niENCE Nest 660 foot along the North bowdary line of a 5 acre tract heretofore CO.ivcyed to G. F. l·Tnite by Deed, recor~ in Volllll"e 1331, Page 80, Dood Records of turJxck County, Texas, to a {XlUtt for the Soutrn·JCSt corner of this tract; THENCE ~orth 165 feet to a FQint for the Nort:h\\-est oomer of this tract; . THE!~CE East 660 feet parallel to the SOuth boundary line of this tract to a p::>lnt in the East line of sect.ion 9, for the Northeast oomer of this tract; 'rnu!CE SOuth 165 feet to t:re Place of Beginning, contai.-ting 2. 5 acres of land, nore or less. BLK AK SEC 9 AB 161 TR 21 ACS: 2.3 IVV I TR 21 R 119803 2.3 AC R11980J (Tucker-R119803) lC) <0 ~ .. EXHIBIT A -The Property TRi'ICl' II: A tract of lan::1 out of the 58/4 of Section 9, Block AK, Abstract 161, E. L. & R. R. Ry. Co. Survey, Lubboc.lt County, Te:-cas, descriliai by tretes ard oounds as follo . .,rs: Bt'Gn~ING at a IX>int in tJ-e East line of tl1e SE/4 of Section 9, Block AK, a distance of 623.9 feet North of the Southeast corner of said Section 9, for tl~ Sou~ast and 1"£giMing corner of this tract; ~CE 1·est 660 feet to a p::>i,t for the Soutl7.oteSt comer of this tract; 'I't£'!0:: North 330 feet to a toint for the North."est corner of this tract; 'niEi'KJ:: East 660 feet parallel to tJ-e South baurdary line of this tract to a p:>int in t.~c East line of Sacticn 9, for the Northeast correr of this tract; TIIEOCE South 330 feet to the Place of Beginning, containing 5 acres of land , nore or less.- BLK AK SEC 9 AB 161 TR 23 ACS: 4.6 TR23 R 120451 4.6AC R 120-l Si (Tucker-R120451) • I - EXHIBIT A -The Property Five Acres of land out of the SE l/4th of Sec. 9, Block AK, Abstract #161 of EL & RR RR co. Survey. in Lubbock County, Texas, described by metes and bounds as follows: 623.9 feet north of the SE corner of said Sec. 9, at a point in its Sec. line and in N-s road, going ~st 660 ft.: THENCE North 330 feet& . THENCE East 660 f~to a point in the East Sec. line and in N-5 public road; THENCE south 330 ft. along road to "" point of beginning, containing 5 acres of land. BLK AK SEC 9 AB 161 TR lS AC: 4.62 TR 15 R120674 4.62 AC R120674 (Tucker-R120674) Page lofl FILED AND RECORDED ·p~~~ Kelly PinJon1 County Clerk Lubbock County~ TEKAS 05/23/2016 10 :u2 AM FEE : $62 .08 2016017873 ' . A Ti81HX3 CITY OF LUBBOCK OFFICE PICK UP 2016017874 9 PGS AGREE lffl ~r .. M'l~·ru~ .~~~~~ ~~ ~L~nl '*' 11 111 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 CU. 43 DEVELOPMENT AGREEMENT IN LIEU OF ANNEXATION THIS DEVELOPMENT AGREEMENT IN LIEU OF ANNEXATION (the "Agreement") is made and effective this l4th day of Uo~ I , 2016, and is entered into pursuant to §43.035 and §212 .172 of the Texas Local Gover~de, by and between the City of Lubbock, Texas (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 I 0, 20 16; 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 C ity 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, is subject to an Agricultural Use tax exemption according to the most recent Lubbock Ch. 43 Development Agreement In lieu Of Annexation·-1 I P a g e County Appraisal District's ad valorem tax appraisal, 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 Owner agrees that the sole use of the Property shall be for agriculture, consistent with Chapter 23 of the Texas Tax Code, except for any existing single-family residential use on the Property. The 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 ofthe 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 22.03.09l(a) of the Code of Ordinances ofthe 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, ifthe 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. Pursuant to §43.035(b )(I )(B) of the Texas Local Government Code, the City is authorized to enforce all of the City's regulations and planning authority that do not materially interfere with the use of the Property for agriculture in the same manner that the regulations 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 Chapter 43 or §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 cease the agricultural use of the Property . 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 or promotes the agricultural use of the Property, 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 Ch. 43 Development Agreement In Lieu Of Annexation -2 I P a g e 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 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, upon the Lubbock County Appraisal District's removal of the agricultural exemption on the Property, 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 ofthis 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 agricultural exemption 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 Attn: City Secretary P.O. Box 2000 Lubbock, Texas 79457 With copv to: City of Lubbock Attn: Director of Planning P.O. Box 2000 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 ofthis 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 Ch. 43 Development Agreement In Ueu Of Annexation - 3 I P a g e 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 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 Ch. 43 Development Agreement In Ueu Of Annexation -4 I P a g e 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. Section 16-Enforcement. Th is 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 g ive effect to the intent of the Owner and the City. Without limiting the generality of the foregoing, if it is determined that, as ofthe 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. Ch . 43 Development Agreement In Lieu Of Annexation-5 I Page 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. IN WITNESS HE ~OF, the Rarti~ mutually enter this Agreement on this ~ day of P..p ~ \ , 2016. For the City For the Owner . \' . . \ . . ·:·' . ' ·' ._. Andrew Paxton, Director of Planning APPROVED AS TO FORM: Ch. 43 Development Agreement In Ueu Of Annexation -6 I Page .. State of Texas § County of Lubbock § NOTARIZATION This instrument was executed before me on Apic J '4, 2016, by U~Y\ [ · R~, II. A DAft !<AM£ _ MO\~~ ofthe City of Lubbock, a Texas municipal corporation, on behalf of said TnL . ... ... corporation. State of Texas § County of Lubbock § e MAGEN D. MURCHISL<; Ndaly POOic, Stale of T exc:s My CommissOI Expires 04-QHO l . . This instrument was executed before me on 1/1.n on behalf of said Owner . When Recorded Return To: City Secretary City of Lubbock, Texas 1625 131h Street Lubbock, Texas 79401 Ch. 43 Development Agreement In Ueu Of Annexation -7 I Page .. EXHIBIT A-The Property PROPERTY: All that certain 5.00 acres. more or lcs.~. in the Frankford Farms, Tract 20 out of the Southwest 1/4 of St.'Ctinn 24, Blnck E·2. more fullY. dcscrihcd In the \Vummty ~Deed ln the Vcter.ms Land Boaru dated JanuarY 17, 1990, rccordcil in Volume 32S9, Page 306, Dct.'tl Records of LUBBOCK County_, _Texas; and further described in that Contract of Sale and Purchase dated JanuarY 17, 1990, recorded in Volume 3259, Page 300, Deed Records of LUBBOCK County, Texas. (King -R68942) FRANKFORD FARMS BAL OF TR 20 LESS 65+HS - r ) 2 31 4A. BALOF 20 FILED AND RECORDED -p~4:~ Kelly Pinion 1 County Cle~k Lubbock Coun~y~ TEXAS 05/23/2016 10:~2 AM FEE : ~54.00 2016017874 • • I CITY OF LUBBOCK OFFICE PICK UP 2016017876 9 PGS AGREE 1111 ~~ DM:~~,.r.•1•~~. N .rl't•. "1M\' If 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 SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER CITY OF LUBBOCK CH. 212 DEVELOPMENT AGREEMENT IN LIEU OF ANNEXATION THIS DEVELOPME~~<f_A\EEMENT IN LIEU OF ANNEXATION (the ""Agreement"") is made and effective this ~d~y of() n I"~ I , 2016, and is entered into pursuant to §2 I 2. I 72 of the Texas Local Government Code, by ~en 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 ofthe 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 tor 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 tiled Ch. 212 Development Agreement In Lieu Of Annexation - 2 I 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 Attn: City Secretary P.O. Box 2000 Lubbock, Texas 79457 With copv to: City of Lubbock Attn: Director of Planning P.O. Box 2000 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 Jaw. 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 tor 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 J 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 infom1ation. 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 Jaw 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~OF, the Aarti~s mutually enter this Agreement on this~ day of ~I , 2016. Ch. 212 Development Agreement In Lieu Of Annexation -5 I P a g e For the Citv For the Owner A'it drew Paxton~f .Pianning APPROVED AS TO FORM: Ch. 212 Development Agreement In Lieu Of Annexation-6 I P a g e State of Texas § County of Lubbock § NOTARIZATION This ins rument was executed before me on ~R.1 tJ 4., 2016, by (A\,( V) ~.;. \2-:0~)Z,tSO Y.l ---1-~~~D=-.....L ___ of the City of Lubbock, a Texas municipal corporation, on behalf of said ~D.MYLuhism Nota Public State of Texas § County of Lubbock § e MAGEN D. MURCHISON Ndaly Pldc, Slate liT lXIII My Commilsilll Expires 04-G3-2017 This instrument was executed before me on A p f: . I 7 20 I 6, by '""'--"1"1'1~~~~....._.___.'-=--·· ~ on behalf of said Owner. MONICA SALAZAR Notary Public, State of Texas IQO.'tll"~'7 My Commission Exp~es03·26-2019 When Recorded Return To: City Secretary City of Lubbock, Texas 1625 13 111 Street Lubbock, Texas 79401 Ch. 212 Development Agreement In Lieu Of Annexation -7 I Page EXHIBIT A-The Property .A tract of land consisting of 1.7 acres out of a 20 acre tract out of tbe SE/4 of Section 1, Block AK, 'Lubbock County, Texas, and more particularly described by metes and bounds as follows: BEGINNING at a steel rod set in the north line of a 20 acre tract for the NE corner o( this survey; the NE corner of the SE/4 bears S. 89N 56' 54 11 E. 40 feet and N. rP 0' 54 't E. 334.9 feet; THENCE S. 0° 0' 54" W. 329.9 feet to a rod set in U1e South line of said 20 acre tract, for the SE comer of this survey; THENCE N. 89° 56' 54" W . 223.4 feet to a rod set for the S\V corner of tbis survey; THENCE N. 0° 0 ' 54" E . 329.9 feet to a rod set for the N\V corner of this survey; THENCE S. 89° 56 ' 54" E. 223.4 feet to the PLACE OF BEGINNING. BLK AK SEC 1 AB 189 TR D OF SE/4 AC: 1.7 40. TR D R 1-10:·20 1. 7 AC 223 .4' I I (Gray, Judy Mcleroy-R140520} Page 1 ofl FILED AND RECORDED -p~~ Kelly Pinion1 County Clerk Lubbock Coun~y~ TEXAS 05/23/2016 10:~2 AM FEE : $54 .00 2016017876 CITY OF LUBBOCK OFFICE PICK UP 2016017876 9 PGS AGREE 1111 ~~ DM:~~,.r.•1•~~. N .rl't•. "1M\' If 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 SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER CITY OF LUBBOCK CH. 212 DEVELOPMENT AGREEMENT IN LIEU OF ANNEXATION THIS DEVELOPME~~<f_A\EEMENT IN LIEU OF ANNEXATION (the ""Agreement"") is made and effective this ~d~y of() n I"~ I , 2016, and is entered into pursuant to §2 I 2. I 72 of the Texas Local Government Code, by ~en 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 ofthe 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 tor 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 tiled Ch. 212 Development Agreement In Lieu Of Annexation - 2 I 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 Attn: City Secretary P.O. Box 2000 Lubbock, Texas 79457 With copv to: City of Lubbock Attn: Director of Planning P.O. Box 2000 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 Jaw. 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 tor 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 J 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 infom1ation. 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 Jaw 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~OF, the Aarti~s mutually enter this Agreement on this~ day of ~I , 2016. Ch. 212 Development Agreement In Lieu Of Annexation -5 I P a g e For the Citv For the Owner A'it drew Paxton~f .Pianning APPROVED AS TO FORM: Ch. 212 Development Agreement In Lieu Of Annexation-6 I P a g e State of Texas § County of Lubbock § NOTARIZATION This ins rument was executed before me on ~R.1 tJ 4., 2016, by (A\,( V) ~.;. \2-:0~)Z,tSO Y.l ---1-~~~D=-.....L ___ of the City of Lubbock, a Texas municipal corporation, on behalf of said ~D.MYLuhism Nota Public State of Texas § County of Lubbock § e MAGEN D. MURCHISON Ndaly Pldc, Slate liT lXIII My Commilsilll Expires 04-G3-2017 This instrument was executed before me on A p f: . I 7 20 I 6, by '""'--"1"1'1~~~~....._.___.'-=--·· ~ on behalf of said Owner. MONICA SALAZAR Notary Public, State of Texas IQO.'tll"~'7 My Commission Exp~es03·26-2019 When Recorded Return To: City Secretary City of Lubbock, Texas 1625 13 111 Street Lubbock, Texas 79401 Ch. 212 Development Agreement In Lieu Of Annexation -7 I Page EXHIBIT A-The Property .A tract of land consisting of 1.7 acres out of a 20 acre tract out of tbe SE/4 of Section 1, Block AK, 'Lubbock County, Texas, and more particularly described by metes and bounds as follows: BEGINNING at a steel rod set in the north line of a 20 acre tract for the NE corner o( this survey; the NE corner of the SE/4 bears S. 89N 56' 54 11 E. 40 feet and N. rP 0' 54 't E. 334.9 feet; THENCE S. 0° 0' 54" W. 329.9 feet to a rod set in U1e South line of said 20 acre tract, for the SE comer of this survey; THENCE N. 89° 56' 54" W . 223.4 feet to a rod set for the S\V corner of tbis survey; THENCE N. 0° 0 ' 54" E . 329.9 feet to a rod set for the N\V corner of this survey; THENCE S. 89° 56 ' 54" E. 223.4 feet to the PLACE OF BEGINNING. BLK AK SEC 1 AB 189 TR D OF SE/4 AC: 1.7 40. TR D R 1-10:·20 1. 7 AC 223 .4' I I (Gray, Judy Mcleroy-R140520} Page 1 ofl FILED AND RECORDED -p~~ Kelly Pinion1 County Clerk Lubbock Coun~y~ TEXAS 05/23/2016 10:~2 AM FEE : $54 .00 2016017876 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 DEVELOPMENJ *REEME~~ LffiU OF ANNEXATION (the "Agreement") is made and effective this 4 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 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 ofthis 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 -Z I 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 Attn: City Secretary P.O. Box 2000 Lubbock, Texas 79457 With copy to: City of Lubbock Attn: Director of Planning P.O. Box 2000 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 I Page 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 Infonnation. 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 I 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 HE~9F, the Pfti~ mutually enter this Agreement on this J±!'day of ~ I , 2016. Ch. 212 Development Agreement In Ueu Of Annexation - 5 I P a g e For the City For the Owner GLENC.RO ··········· A TIEST:···~~· 1f 7 . . ·· ... . l ... -~ . : ...:; ~ ! \ Andrew Paxton. Director of Planning APPROVED AS TO FORM: Ch. 212 Development Agreement In Ueu Of Annexation - 6 I P a g e NOTARIZATION State of Texas § County of Lubbock § This instrument was executed before me on Ap rz.,ioL J4, 2016, by bl '/ VlAb · J2:o ~~DY\ bJ\~~12--of the City of Lubbock, a Texas municipal corporation, on behalf of said corporation. State of Texas § County of Lubbock § This instrument was executed before me on 4l ...... 7 lt~TI ~~ Notary Public When Recorded Return To: City Secretary City of Lubbock, Texas 1625 131h Street Lubbock, Texas 79401 e MAGEN D. MURCHISON N<Ury Nile, S1ale cHilli MyCommSsioo EJpkes 04-03-2017 SENECA LEIGH HOUCHIN Nolaly Public, State of Texas My Commission Expires 05108/2018 10 # 12981290-6 Ch. 212 Development Agreement In Ueu Of Annexation -7 I P a g e EXHIBIT A-The Property R159896-Blk AK SEC 9 AB 161 TR 12B AC .856 TO WIT; 13402 County Road 1800 FIELD NOTES on a .856 acre tract out of Section 9, Block AK. Lubbock County, Tex&~s, further descnoed as foUows: BEGINNING at a found railroad spike near the center of a paved county road (South Frankford Avenue or County Road 1800) for the Northeast comer of this tract which by calls bears South 1358.5 feet from the Nonheast corner of Section 9, Block AK; THENCE S 0 01' 30" W, with said county roa~ 91.54 feet to a point for the Southeast comer of this tract; THENCE N 89 59' 30" W, at SO feet pass a set 1/2" rod with cap, in all406.94 feet to a set 112" rod for the Southwest corner of thls tract; THENCE N 0 00' 30"W, 91.64 feet to a set 112" rod with cap for the Nonhwcst comer of this tract; TIIENCE S 89 59' E, 407.03 feet to the Place of Beginning and containing 0.856 acres including nnv riiZht of wav. , BLK AK SEC 9 AB 161 TR 12B AC: .856 "'1" 407.03' co ,_... TR 12-8 'li::t 0) L() & R159B96 ,_... " 406.94' (j) (n II"'\ (Wilson, Gerald -R159896) Page 1 of 1 EXHIBIT A-The Property a tract of land out of the Northeast l/4 of Section 9, Block AK, Certificate 941, Abstract 161, EL & RR Ry. Co. survey, Lubbock County, Texas, described by metes and bounds as follows: Beqinning at a 1/2 •• iron pipe set in the East line of Section 9, Block AK, a distance of 1358.5 feet South of the Northeast corner of this Section for the Southeast and beginning corner of this tract, from whence a 3/4" iron pipe bears West 20 feet: Thence West 460 feet, parallel to the North line of section 9 to a point for the Southwest corner of this tract; Thence North 95 feet, para~lel to the East line of section 9 · to a point for the Northwest corner of this tract; ·• Thence East 460 feet, parallel to the South line of this tract to a point in the East line of Section 9 in a public road for the Northeast corner of this tract: . . Thence South 95 feet with the East line of Section 9 and along road to the place of beginning; containinq one (1) acre of land, more or less. BLK AK SEC 9 AB 161 TR 2 AC: .916 L 420' 1'71 2 TR2 .91 AC -lO RJ14702 0> L .I I"\ ., "'-" I 4 (Wilson, Gerald -R314702) Page lofl FILED AND RECORDED -~~~ Kelly Pin1on 1 County Cl erk Lubbock Coun~y~ TEXAS 05/23/2016 10 :~2 AM FEE : '58.00 2016017877 . . . 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 DEVELOPME~4tWREE:MENT ~ LmU OF ANNEXATION (the "Agreement") is made and effective this day of ~J _, 2016, and is entered into pursuant to §212.172 of the Texas Local Government Code, by ~en 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 "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 Tenn. 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 Ueu 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 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 Attn: City Secretary P.O. Box 2000 Lubbock, Texas 79457 With copy to: City of Lubbock Attn: Director of Planning P.O. Box 2000 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 tenninate. 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 Ueu Of Annexation - 4 I 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 detennined 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 H~!Jlg9F, the Aarti~ rutually enter this Agreement on this 1-!'day of fF?-t , 2016. Ch. 212 Development Agreement In Lieu Of Annexation -5 1 P a g e For the City For the Owner ~~;t'i'zlL. Edward Doyle Wilso~ Owner Andrew Paxton. Director of Planning APPROVED AS TO FORM: Ch. 212 Development Agreement In Ueu Of Annexation - 6 1 P a g e State of Texas § County of Lubbock § NOTARIZATION This ins ment was executed before me on ~ \ \ 4, 2016, by b\tn c) .. ~'P n f-1=..! DAtt N.UIE ----'-~~~:.....l... ___ of the City of Lubbock, a Texas municipal corporation, on behalf of said State of Texas § County of Lubbock § When Recorded Return To: City Secretary City of Lubbock, Texas 1625 13th Street Lubbock, Texas 79401 e MAGEN D. MURCHISON Ndaly Nile, SC. cHau M Coovnissioo ~:..w-OHG-2017 y ........... e LAURAANGERER NcUiy Pi.Mc, Slale d Texas My~ Expies<&23-2017 10 I 12391821-3 Ch. 212 Development Agreement In Lieu Of Annexation - 7 I P a g e EXHIBIT A -The Property TRACT ONE THE SURFACE ESTATE ONLY OF: ONE (1) ACRE OF LAND OUT OF THE EAST 1/2 OF SECTION 9, BLOCK AK, ABSTRACT 161, Lubbock County, Texas, and being further described by metes and bounds as follows: BEGINNING at a point in the East line of Section 9, Block AK, a distance of 1028.5 feet South of the North- east corner of this Section for the N.E. corner of this tract, whence a 1/2" rod bears West 50 feet; THENCE West 460 feet set red for the Northwest corner of this tract; THENCE South 95 feet set rod for the Southwest CQrner; THENCE East 460 feet to a point in the East line of Section 9 in North-South road for the Southeast corner this tract, whence a. 1/2" rod bears West SO feet; THENCE North 95 feet with the East line of Section 9 and along road to the PLACE OF BEGINNING, and containing one acre of land, more or less. TRACT TWO THE SURFACE ESTATE ONLY OF: A One and one-half (1-1/2) Acre tract of land,more of less, being out of the NE/4 of Section 9, Block AK, Lubbock County, Texas, and described as follows: BEGINNING at a point in the east line of Section 9, Block AK, 1123.5 feet south of its NE corner, and inN-S public road, for the beginning and NE corner of this tract; THENCE West 460 feet, parallel and the same line as the southern line of the .. Edward D. Wilson tract 11 described by metes and bounds at Vol. 1312, Pg. 623, Deed Records of Lubbock County, Texas, to a point; THENCE North 95 feet along the western lines of the "Edward D. Wilson tract" described by metes and bounds at Vol. 1312, Pg. 623r Deed Recordsr Lubbock County, Texas, to a point; THENCE West 200 feet along a line parallel to the northern line of the ''Edward D. Wilson tract" described by metes and bounds at Vol. 1312, Pg. 623, Deed Records, Lubbock County, TX, to a point; THENCE South 165 feet along a line parallel to and the same as the western line of a S acre tract of land des- cribed by metes and bound at Vol. 1425, Pg. 766, Deed Records, Lubbock County, Texas, to a point; THENCE East 660 feet along a line parallel to the northern line of the 5 acre tract of land described at Vol. 1425, Pg. 766, Deed Records, Lubbock County, Texas, and the southern line of the 11 Edward D. W:ilson tract" described by metes and bounds at Vol. 1312, Pg. 623, Deed Records, Lubbock County, Texas, to a point: rHENCE North 70 feet along the east line of Section 9, Block AK, to the PLACE OF BEGINNING. (Wilson -R120607) Page 1 of2 BLK AK SEC 9 AB 161 TR 14 & 22 AC: 2.39 200 ' ~ lO (Q ~ R120607 TR22 FILED AND RECORDED if~s~ Kelly Plnion 1 CountY Cler~ Lubboek Coun~Y~ TEXAS IS/23/211& 11:~2 AM t=EE: ssa.el 201601'7818 (Wilson -R120607) 610' TR14 .984 AC R120C.07 410' 1.5 AC . l!) en 0 J'.. Page 2 of2 CITY OF LUBBOCK OFFICE PICK UP 2016017879 9 PGS AGREE 1111 W-' rl'fiN:r~lfr:tlllr\1 ~~.M ~~ ~~ IIIII 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 DEVELOPMENI j\~REE~T m LIEU OF ANNEXATION (the "Agreement'") is made and effective this 4f day of ~t?A\ , 2016, and is entered into pursuant to §212.172 of the Texas Local Government Code, by anCI 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, 20 16; 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 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 I 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 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 Attn: City Secretary P.O. Box 2000 Lubbock, Texas 79457 With copv to: City of Lubbock Attn: Director of Planning P.O. Box 2000 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. ZlZ Development Agreement In Ueu Of Annexation -3 I 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 Ueu Of Annexation - 4 I 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 ~-REOF, the parti~ L utually enter this Agreement on this -~q y of iprt , 2016. ,t., ' Ch. 212 Development Agreement In Lieu Of Annexation -5 I P a g e For the City For the Owner GLENC.~~YOR Andrew Paxton, Director of Planning APPROVED AS TO FORM: Ch. 212 Development Agreement In Ueu Of Annexation -6 1 P a g e NOTARIZATION State of Texas § County of Lubbock § This i trument was executed before me on ~0-gj \ \1 2016, by ("Ala £ . ~DYl ~ DAlE N.UIE -~~~~......;;;.. ___ of the City of Lubbock, a Texas municipal corporation, on behalf of said corporatio . ~i~· M wAu~ State of Texas § County of Lubbock § This instrument was executed before me on ~) . J !Ml:l When Recorded Return To: City Secretary City of Lubbock, Texas 1625 131h Street Lubbock, Texas 79401 MAGEN D. MURCHISON N<Ury Plillc, Sllle liT lXII MyCornmissm Expias~7 e S ECA LEIGH HOUCHIN Notary Public, Slate of Texas My Commission Expires 0510812018 10 # 1298129().6 Ch. 212 Development Agreement In Ueu Of Annexation ~ 7 1 P a g e EXHIBIT A-The Property . a 1.5 ncre tract of lund~ more or less, being out of the NE/4 of Sect. 9, Block AK., Lubbock County, Texas, described as follows: BEGINNING ot n point in the ean line of Section 9, Block AI<, 1193.5 feet south ofilS NE comer, in the N-S public rood, for the beginning and northeast corner of this'trnct, THENCE west 660 feet, parallel to the southern line of n 5 acre t.mct described by metes and bounds at Vol. 1425, Pg. 766, Deed Records, Lubbock County, Texas, ton point~ lliENCE south 165 feet parallel to and the same line ns the western line of a 5 ac:re tract described by metes and bounds at Vol. 1425, Pg. 766, Deed Records, Lubbock County, Texas, to a point; THENCE enst 200 feet parallel to and the same line as the southern line of a 5 acre troct described by metes and bounds at Vol. 1425, Pg. 766, Deed Records, Lubbock County, Texos, to a point; THENCE nonh 95 feet parallel to nnd the some line us the western line in the ~'Gerold W. Wilson Tract" described by metes Wld bounds ot Vol. 1185, pg. 680, Deed Records. Lubbock County, Texas, lo n point; THENCE east 460 feet nlong n line pnrnJJel to nnd the same as the northern Jine in the uoernld \V. \Vilson Tract" described by metes nnd bounds at Vol. 1185, pg. 680, Deed Records, Lubbock County, Texas, ton point in the east line of Sect. 9, Block AK; 11-IENCE north 70 feet n]ong the east line of Section 9, Block A~ to the PLACE OF BEGINNING. (Hogan & Houk-R118776) Page 1 of2 . ~ BLK AK SEC 9 AB 161 TR 22A AC: 1.5 TR 22-A R119776 1.5 AC R119716 . ll) c.o ,- R3147 2 200' 252.77' FILED AND RECORDED ijp:~~ Kelly Plnlon 1 County_Clerk Lubbock Coun~y TEXAS 15/23/2118 11:.2 AM FEE : ssa .ee 2016017819 (Hogan & Houk-R118776) TR2 R314702 {~ 420' .91 AC 4l17 n~' "'" 1.0 & ... tO l()• m Page 2 of2 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 DEVELOPMENT ~REEMENT lN LIEU OF ANNEXATION (the "Agreement") is made and effective this 14 day of Apet I , 2016, and is entered into pursuant to §212.172 of the Texas Local Government Code, by ana 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, 20 16; 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 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 ofthis Agreement. The Owner's use of the Property at the time of this Agreement is "grandfathered" into the acceptable uses ofthe 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 22.03.09l(a) of the Code of Ordinances of the City prohibits the City from providing water to any entity outside ofthe city limits, and acknowledges that the City will not be providing water to the Property unless the Property is annexed into the City. However, ifthe 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 ofthe execution ofthis Agreement. The Owner agrees not to develop the Property by tiling 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 ofthe 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 Ueu Of Annexation -2 I 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 ofthis 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 ofthe Property. A copy of any notice required by this section shall be forwarded to the City at the following address: City of Lubbock Attn: City Secretary P.O. Box 2000 Lubbock, Texas 79457 With copy to: City of Lubbock Attn: Director of Planning P.O. Box 2000 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 ofthis 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 I P a g e defend or fails to defend its right, title, and ownership to the Property, then this Agreement shall tenninate. 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 perfonnable 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 tenns 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 perfonnance of this Agreement in accordance with its tenns. 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 infonnation. To the extent, if any, that any provision of this Agreement is in conflict with the Texas Public lnfonnation 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 perfonnance of the obligations under this Agreement, and time shall be of the essence in such perfonnance. In the event that the Owner or the City is unable to perfonn 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 ofthe Force Majeure and a description of the action that will be taken to remedy the Force Majeure and resume full perfonnance at the earliest possible time. Ch. 212 Development Agreement In Lieu Of Annexation - 4 I P a 8 e Section 16-Enforcement. This Agreement may be enforced by the Owner or the City by any proceeding at Jaw 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 p~mutually enter this Agreement on this ~~ay of J , 2016. Ch. 212 Development Agreement In Lieu Of Annexation - 5 I P a g e For the City For the Owner GLEN C. • 'L!'\\ "' APPROVED AS TO CONTENT: A~drew Paxton, Director of Planning APPROVED AS TO FORM: Ch. 212 Development Agreement In Ueu Of Annexation -6 I P a g e State of Texas § County of Lubbock § NOTARIZATION This instrument was executed before me on {\pit tJ 4J 2016, by 6J I.eh ~t· J2.o~-v\ ~DF:: of the City of Lubbock, a Te xas mu nidoal · · · ·~..,. ~ id co'l'"ration. {. ·~.-cof1 ~MA=:~: , , VU.o u v \ ~ My~-~u State of Texas § County of Lubbock § .eLl ~I __,- This instrument was executed before me on __ n~z-~7o?-.·T=· __ 20 16, by _ _:~;...;r;....;..:.:I'/?.~~~~M~· ~t,&.=~~t).~VZ"--· " ,.. a. 'JR.tJIIIi!f JACKSON .-.OWNER 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 I Page -. EXHIBIT A -The Property METES AND BOUNDS DESCRIPTION of A 2. 00 acre tract, mora or less, located in Section 1, Block A-K, Lubbock County, Texas, and being the East Half (E/2) of a 4 .00 acre tract surveyed by Hugo Reed And Associates, Inc. , on April 16, 1984, being further described as follows: BEGINNING at a 1/2" iron rod sat with cap which bears North oo·o1'48" East a distance of 1562.93 feet and North 89.S9'12u West a distance of 1087.50 feet from the Southeast corner of Section 1, Block A-K, Lubbock county, Texas; THENCE North oo·o1'48" East a distance of 412.26 feet to a 1/211 iron rod with cap set for the Northwest corner of this tract; THENCE South 89.56'54 11 East a distance of 211.33 feet to a 1/2" iron rod found at the Northeast corner of this tract; THENCE South 00 • 01' 48" West a distance of 412.12 feet to a 2" pipe fence post found at the Southeast corner of this tract; THENCE North 89 • 59 '12" West a distance of 211. 33 feet to the Point of Beginning; BLK AK SEC 1 AB 189 TR 5 UNIVERSITY SOUTH AC: 2 --... ....... ' AT) c . . ,. .... ,._-.. 4 .. TR5 R77674 2AC 211 .32' (Jackson-R77674) FILED AND RECORDED -p~~ Kelly Pt nion 1 County Clerk Lubbock County~ TEXAS 05/23/2016 10 :~2 AM FEE : $!54 . 00 2016017880 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 TIDS DEVELOPMENT tRREE~I~ LIEU OF ANNEXATION (the "Agreement") is made and effective this \4=f 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 ofthe 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 1 0, 201 6; 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 ofthe 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 C ity 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 "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 22.03.09l(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 ofthe 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 tenninate, 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 Tenn. The tenn 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 Tenn, the Owner, and all of the Owner's heirs, successors and assigns shall be deemed to have filed Ch. 212 Development Agreement In Ueu Of Annexation - 2 I 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 ofthis 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 Attn: City Secretary P.O. Box 2000 Lubbock, Texas 79457 With COf!.Y to: City of Lubbock Attn: Director of Planning P.O. Box 2000 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 ofthis 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 affinns 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 I 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 havingjurisdiction, 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 wilt 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 I 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 detennined 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 detennined 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 parties .mutually enter this Agreement on this }1! (fay of ApiU I , 2016. Ch. 212 Development Agreement In Ueu Of Annexation - 5 I P a g e For the City For the Owner 9f0a:£..& usa; P. Stack, Owner A ~drew Paxton , Director of Planning APPROVED AS TO FORM: Ch. 212 Development Agreement In Ueu Of Annexation -6 I P a g e NOTARIZATION State of Texas § County of Lubbock § This instrument was executed before me on ~L.J4 .. 2016, by CallY\ Jd . J2.obtf.tsDYJ ~All, ~W of the City of Lubbock, a Texas municipal corporation, on behalf of said rrrat·o · f\ M ~,.. : ~ MAGEN D. MURCHISON M!~-J!firuttY\ OMy=-~=17 State of Texas § County of Lubbock § This instrument was executed before me on -:t/7 DAn: on behalf of said Owner. When Recorded Return To: City Secretary City of Lubbock, Texas 1625 13th Street Lubbock, Texas 79401 e VENITA WADSWORTH N. Nlt, Slate of Texas Ndary 1011053705-6 I My Convrlmloo Expires Q5-28-21Yl0 Ch. 212 Development Agreement In Ueu Of Annexation - 7 I P a g e EXHIBIT A-The Property ~~ES AND BOUNDS description of a 2.3034-acre tract located in Section 1, Block A-K, Lubbock County, Texas, being further described as follows: aEGINNING at a ~~~ iron rod set which bears North 00 11 01 1 4811 East 1562.93 feet and North 89 1 59 1 12" West 2186,64 feet from the Southeast comer of Section 1, Bloc~.A-K, Lubbock County, Texas; niENCE North 89 11 59' 12" West a~ 32 feet · pass a ~~~ iron rod found in· reference, continuing for .a total distance of 242.90 feet to a ~" iron rod set; TIIENCE North 00'00'54" West a distance of. 413,16 feet to a·~~~ iron rod a~t; . . . lliENCE South 89'56 154'-'.East at 210,9 feet pass a~~~ rod found in reference, continuing for a total distance of 242,90 feet to a ;n rod set; TIIENCE South 00'00'54" East a distance of 41J.OO .feet to the POINT OF BEGINNING; BLK AK SEC 1 AB 189 E210'0F TR 8 & W32'0F TR 7 UNIVERSITY SOUTH AC: 2.3034 E/210 R77753 2.3 AC 210 .9' 32 ' (Stack-R77763) FILED AND RECORDED ·p~~ Kelly P1nion 1 County Clerk Lubbock Coun~y~ TEXAS 05/23/2016 10:~2 AM FEE:_ $54 .00 2016017881 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 DEVELOI'MENT~REEM~Jj~ ~lEU 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 I 0, 20 16; 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 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 ofthe 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 ifthe 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. [f 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 Tenn. 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 Page 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 ofthe 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 Attn: City Secretary P.O. Box 2000 Lubbock, Texas 79457 With copv to: City of Lubbock Attn: Director of Planning P .O . Box 2000 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 C ity 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 I 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 tenns 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 tenns. 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 fonns 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 infonnation. 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 perfonnance 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 I 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 orde r 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, Tutu ally enter this Agreement on this 14+"day of 8pr.z..t , 2016. Ch . 212 Development Agreement In Lieu Of Annexation - 5 I P a g e For the City For the Owner ... • An drew Paxton , Director of Planning APPROVED AS TO FORM: Ch. 212 Development Agreement In Lieu Of Annexation • 6 I P a g e State of Texas § County of Lubbock § NOTARIZATION Thi in trument was executed before me on JA.nwi J r 4, 2016, by 6lm (h tzoblfltsv )1\ Lf!=2 DATE 1 NAME _ _.__~~*""'....._ ___ of the City of Lubbock, a Texas municipal corporation, on behalf of said e MAGEN D. MURCHISON Ndaly Nile. Slate ol Texas My CamRon EJpires 04-03-2017 State of Texas § County of Lubbock § This instrument was executed before me on -~...t.....j.f-~.,w,ou=t __ 20 \6, by ..:::~.3!1'1!:".3o!:W~Lt;.,.f,,.!::A:;.~""'=· '!li.~ow~Nu~"+---' State of Texas § e VENITA WADSWORTH Nay Nile. Slala ciTuas Nlay b1f63705.8 My~ExpiasH-m County of Lubbock § This instrument was executed before me on -~1~/:...~~~Mn=---2016, by ~r-c-~~=~~~~~ When Recorded Return To: City Secretary City of Lubbock , Texas I 625 13 1h Street Lubbock, Texas 79401 e VENIT.. A WADSWORTH Ndlry Nil. Slated Texas N8fiJI1m:J~ . Mro.llol&liii~O Ch. 212 Development Agreement In Lieu Of Annexation - 7 I P a g e & o I EXHIBIT A -The Property FIELD NO'ttS or a l.O acre tnart or land, ma~ or lr:ss, out ar a 4.0 a en trart of taDd aut or Scct.loa 1, Block A·K, Lubbock County, Texas, 1J described Ia Volus:ru: 2363, Page 144, Real Propu1J Rcctlrds or Labbock Count)', Texas , aDd bclaa ma~ partJcularJy ducribcd by mrtes aad bauads u fallcnn : BEGINNING at a fouad 1/l• rod for lhe Southeast corucr or lhls samrla t.be Soulh llae or the abcm desaibcd 4.0 aCR tract, from wht~~a: the Southeast conu:t of Stdloa 1 bean S oe 01' 481 W, JSQ.93' ucl S 89" 59' u• E. tsto.to•, TIIENC£ N 89" 59' u• w. aJoa1 the South ltue or lhe above described 4.0 acre 1tac:t a dlstauu:e or 111 .1r ta 8 Jfl• rod Ht far t.bc Soulhm:st COnla' of lhlJ IUI"YC)1 Tlf£NCE N cr 01' 48" E. a dlslaace or 412.68' to a 1/l" rad set for lhc Nortltwal COrDa' of tills ID"'f abo belna the Nortbwat eoruer of tbe orfgJaal 4.0 acre tract; TII£NCE S W 56' s.t• E. aloq lhc North line or the 4.0 acre tract a dlslaacc of 2UJ8" to a l/2' rad let Ia lhc North llae or the aboYC described 4.0 am: tract for the Northeast eoroer or lhb nnq; TIIENCE S 0'" 01' 48' W, a dlslaac:c or 411.54' to lhc Place of Bcalnalnt- BLK AK SEC I AB 189 W/2 TR 6 UNIVERSITY SOUTH AC: 2 J (L ... W/2 TR f R77706 2AC 211 .18' (Smith -R77706) . . .. . EXHIBIT A -The Property A tract of land located in Section 1, Block A-K, Lubbock county, Texas, being further described as follows: BEGINNING at a 1/2" iron rod set which bears N. oo degrees 01'48" E. a distance of 1562.93 feet and N. 89 degrees 59 1 12" w. a distance of 1721.19 feet from the Southeast corner of Section 1, Block A-K, Lubbock County, Texas; THENCE N. 89 degrees 59 1 12" W. a distance of 465.46 feet to a set 1/2" iron rod; THENCE N. 00 degrees 00 1 54 11 w. a distance 413.02 feet to a set 1/2 11 iron rod; THENCE s. 89 degrees 56 1 54" E. a distance of 465.75 feet to a set l/2" iron rod; THENCE s. 00 degrees 01 1 48" w. a distance of 412.68 feet to the Point of Beginning. BLK AK SEC 1 AB 189 E465'0F TR 7 UNIVERSITY SOUTH AC: 4.4 R77734 12 (Smith -R77734) ..... ---.... ·-·--......... _,. ___ ·----....... _ .. E465 ' Of-TR 7 4 .3974 AC 46546' FILED AND RECORDED e:~D ~ Kelly Pinion1 County Cle~k Lubbock Coun~y~ TEXAS 05/23/2016 10 :u2 Aft FEE: $58 .00 2016017882 . . .. 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 NUM=B=ER=---------------------------------------------------- CITY OF LUBBOCK CH. 212 DEVELOPMENT AGREEMENT IN LIEU OF ANNEXATION THIS DEVELOPMEN"J; ~vREEM~EI. 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. Ch. ZlZ Development Agreement In Lieu Of Annexation -11 Page 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 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. Ch. 212 Development Agreement In lieu Of Annexation -2 I P a g e .. 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 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 Attn: City Secretary P.O. Box 2000 Lubbock,Texas79457 With copy to: City of Lubbock Attn: Director of Planning P.O. Box 2000 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 Ch. 212 Development Agreement In Lieu Of Annexation - 3 I P a g e 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 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 Ch. 212 Development Agreement In Lieu Of Annexation - 4 I P a g e "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. 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. Ch. 212 Development Agreement In Lieu Of Annexation • 5 I P a g e IN WITNESS H I;~OF, the pA rties mutually enter this Agreement on this ~ day of pg.i] 1 , 2016. For the City For the Owner Andrew Paxton ~ Director of Planning APPROVED AS TO FORM: Justin Ch. 212 Development Agreement In Lieu Of Annexation - 6 I P a g e NOTARIZATION State of Texas State of Texas § County of Lubbock § Th is inSirument was e.ecuted before me on 1 k 2016, b:-:3Ptt'M'~•~a<f' on behalf of said Owner. When Recorded Return To: City Secretary City of Lubbock. Texas 1625 l31h Street Lubbock. Texas 79401 e VENITA WADSWORTH NotaJy Ni:, Slated Texas Ndaly 1011twOS-6 My CcmmlssiJl EJpi8S Q5.28.2020 Ch. 212 Development Agreement In Lieu Of Annexation - 7 I P a g e EXHIBIT A-The Property The East portion of TRACT TWENTY·FOUR (24), FRANKFORD FARMS, a Subdivision out of the Southwest Quarter (S\VJ.l) of Swion Twenty-Four (24), Block I;-Two (E-2), Lubbock County, Tcxa.-., according to the Map, Plat and/or Dedication o~cd thereof rt:cordcd in Volume 3033, Pasc 242, com:c:tcd in Volume 3176, Page ]40 of the Real Property Records of Lubbock County, TclC:IS, and being fun her dcscnbcd by metes ilnd bound'> iiS follows· 13EGJNNING at il ~':"iron rod found at the Northeast comer of sa id Tract 24, the same being the Northci!.st comer of th<1t 5.00 :acre tract of J;md dcscnbcd in Volume 53:!9, Page 298 of the Real Property Records of Lubhock County, Tc;o;ilS; THENCE South 00~28'13" E01st, nlong the Enst line of said Tract 24 and the East line of suid 5.00 acre unci of l:mtl. a thstanc:c of376.10 feet to a V!" iron 10d found at the Southeast comer ofth1s tract; THENCE South 89~02'-l I" West (platted South 89a02'3l" West), along the Soulh line of said Trnct 24 nnd I he South line uf said 5 .00 acre tract of hmd, :s distance of 289.54 feet to n ~;;•· iron rod with cap found at the Southwest comer of this t:':lct; THENCE North 00°28'38" West, along the East line of the \Vest portion of said Tract 24 as described in Volume 9586, P:~gc 191 of the Of!iciOJl Public Records of Lubbock County, Texas, a distance of 376.19 fc:ct to a'~:'' iron Hld with cap found :11 the Nonhwc..~r comer of this tract; TIIENCI: North 8!1c02'31'' Enst, alon~ the Nonh line of s:~id Tri!ct 24 and the: South rightoi>f-way line or 1~6t.h S:rcct. il tlim.m:c of 289 .54 feet 10 the Place of Bcyinning . (lee-R69053) FRANKFORD FARMS E/2 OF TR 24 I 289 54' 2 4 F.•'·<r ·i I FILED AND RECORDED 8p:4:~~ Kelly Pin1on1 County Clerk Lubbock Coun\y~ TEMAS 05/23/2018 10 :v2 AM FEE : $54.00 2016017883 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 DEVELOPMEN',I'.t\fREEM~} LIEU OF ANNEXATION (the "Agreement") is made and effective this _r:c_: 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, 20 16; 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 I P 3 g e Owner acknowledges tha t 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 Ci ty's voting precincts, and the Property sh all be immune from City property taxes for the duration of this Agreement. The Owner's use of the Property at the time o f 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 Ordina nces 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 un less the Property is annexed into the City. However, if the Property is annexed pursuant to a provision ofthis 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 no t annex the Property, sh a ll no t involuntarily institute proceedings to annex the Property, and shall not inc lude 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 regu lations and p lanning authority are enforced within the City •s boundaries. The City specifically reserves its authority pursuant to Chapter 251 o f 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 C ity'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 th is Agreement. The Owner agrees not to develop the Property by filing any type of s ubdivision plat or related development document for the Pro perty w ith Lubbock County or the Ci ty 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 o f 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 wiU 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 "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 Ueu Of Annexation - 2 I 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 Attn: City Secretary P.O. Box 2000 Lubbock, Texas 79457 With copy to: City of Lubbock Attn: Director of Planning P.O. Box 2000 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. 21~ Development Agreement In Ueu Of Annexation - 3 I 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 Jaw, 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 Agreem ent or the City's ability to annex the Property pursuant to this Agreement. Section 11 -Remedy. The C ity 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 exclus ive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this Agreement, the fanner 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 Informa tion Act (Tex. Gov't. Code Ann. Chapter 552 et seq., as amended), the same sha ll be of no force and elTect. Section 13-Third-Party Beneficiaries. This Agreement only inures to the bene lit of, and may only be enforced by, the Owner and the City. No other person or entfty shall have any right, t it le, or interest under this Agreement or otherwise be deemed to be a third-party benefi ciary 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 Agree ment is not intended to, and shall no r be construed to, create any joint enterprise between or among the pa rties . 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 . an d t ime shall be of the essence in such performance. In the event that the Owner or the City is unab le to perform its respective obligations under this Agreement, due to any event or circumstance that is no t 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 obl igations 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, includ ing a detai led explanation of the Force Majeure and a description of the action that will be taken to remedy the Force Majeure and resume fu ll performance at the earliest possible time. Ch . 212 Deve topment Agreement I n Ueu Of Annexation - 4 I 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 "t~P~OF, the Aartie~ mutually enter this Agreement on this day of 'fJt?-f J , 2016. Ch. 212 Development Agreement In Ueu Of Annexation • 5 I P a g e For the City For the Owner A ~dreW Paxton, Director of Planning APPROVED AS TO FORM: Ch. 212 Development Agreemen t I n Ueu Of Annexation - 6 I P tl g e NOTARIZATION State of Texas § County of Lubbock § This i strument was executed before me on Ap~L 14 1 2016, by g\{ V\ ~· R.o~ --1lL~~?>J..!.;::;...---of the City of Lubbock, a Texas munici al co aid State of Texas § County of Lubbock § This instrument was executed before me on dv i't.\Tt State of Texas § County of Lubbock § When Recorded Return To: City Secretary City of Lubbock, Texas 1625 13'h Street Lubbock, Texas 79401 . e~ MAGEN D. MURCHISON NcUly N*, Slate c:ATUU My Commiilll EJpias 04-03-2017 e VENITA WADSWORTH · NCU!y Nlllc, Slall c:A Texas NUy1011~ I ' My~ Expias 05-28-2020 Ch. 212 Development Agreement In Ueu Of Annexation - 7 I P a g e EXHIBIT A -The Property Only the northernmost 660' of the following description less any dedication, with ~uch property being only that portion of the property included in the official suNey attached to the City of lubbock Ordmance No. 2016-00054. . . i'l6t of" Perimeter Sl.lrvoj" at 6 12. 3~ ocrv truct. at· 111lld aut of t.ha N.E./4 CF S.!IO!'IOli 2, l!LCIJK A-K, WBOOCK COmiTY, ~\3 !'IlJ.D H~ ~or 6 lZ.}4 acre tract of land. out o! the U.t:.{4 or Section 2, ~loc:Y. 11.-l<, Lubl:Qc.k County, 'l'BJa1o, doacribecl by mct.o:~ end bo-.md.o o.s £o lo~: l!mmNu;G at a 3/1511 iran rad iound i:l t.ha South a1do 9t" on :a:a:,t.-Yeat r,r"lded raad, t.ha liort.'h\.ooat cot"llor o! t.. 12.}4 a.cr8 tract ILI:ld the MorthOtlat comer or tlliu Lr'll:t, :fn1111 whence &" r"llrood trplko found. at the t.JorthellSt cora!r of Soct1on 2 . lll.uck t.-R, lubhaclc CUW1t7, Tela~, beara North a diutlul~c or 25 feat. 'tl.n~ tl89°55'5~"E 11 alist!l!lce o! 12611.04 feet; !ll!ENC!: South aloog thit West. L\re of Ulci 12.311 a.cs-v trllct., 6t. 0 .$0 foe\. tn~u lf. po,.,e r 1 lino~lo, ot 6.00 ~cut PQBa on the Woat nlde ur a co~er !euce pont, 1o 1111 e. tl btaru:v Of l .40 .feot \o a i" ~lvanh;od iron p ·lpe found 6t tho South-nt corner of &1111! . ~2.) ac:ro trac1. on tho "ll'ost. aide uf a conu1r fence pnot for the Southa.'1~t c:ornr r of ' t h1rs true t: ' \ niS>CE Sd9°5~·55"W ptU"Q.l.leJ. tu t.l'.c llortb Line of ao.id Section 2 n dl:ltance of 4ol.OZ . !'aot. to a. l." GBlvonbod iron plpo found a.t the Sout.bctu~t. corner of a l.5 ~:~Crc tnc:t •1 for thQ S:su.t.hwasL coroer Of' thia ~t; 1 T~G:iCE Worth ~loU& tl.e ~t Linu o! aa.ld 15 o.crtt trnct a dle~o of' l)llo.4o :rent to 6 3/4•• uucker rad. found in ttv: South alole u! on .Faat-Weot. cru~d roed at tho Horth o11~t 'carucr or ll:l.id 15 acre tr••et :for t.ha Narth.-crat corner uC chlo ~t; I !DfENCE NS9"55 ~55"E u.l.on& thll SOuth Side of s"ld ro>\:1, 25 .fo<!:t aou.th CJf llnd "P'lMllel to fho ltorth Line of a:Ud Soct"lon :2, e. cUot-=co o~ ~l .CP-i'oct t.o t.l:o pl:.c., of bn(;lnning. I, Bo't:ert '1'. ~~. ~1~t,.rttd Pul·l k SurT·~:--nt·. do hen.•"··· ""rur, tbot ·th1• ·~·•,... ~de by-··,;;;.M=d and t.hl\t thiv plAt ill t.ru.e o.n:l cu~t{""' d. 4 • 'P.c'b~trt ; G~ -~ £XHIBlT A (Stargel-RS439S) Page 1of2 . . BLK AK SEC 2 AB 1002 TR B3 OF N/2 OF NE/4 ACS: 12.34 (Stargel-R5439S) ~ .....: 0 0 ...... TR 8-3 OF NE/4 R54395 12.34 AC f 401 .02 ' Page 2 of 2 FILED AND RECORDED -p~~:~~~ Kelly Pinioni County Clerk Lubbock Coun y~ TEXAS 05/23/2016 10 :u2 A" FEE: j58.H 2016017884 CITY OF LUBBOCK OFFICE PICK UP Page 1 of 1 ~OTICE OF CO::\-ni>El\!L~LITY RIGHTS: IF YOU ARE A ~A TI!RAL PERSON, RE~IOVE OR STRIKE A.!~Y OF THI FOLLOWI~G ll\~OR.,·L~TIOl" ~ INSTRlJ")IEl\1 BEFORE IT IS Fll.ED FOR RECORD IN THE REAL PROPERTY YOCR SOCLU. SECURITY ~~~IBER OR YOUR DRIVERtS LICENSE !\l.~IBER CITY OF LUBBOCK CH. 212 DEYELOPl\'IENT AGREEl\•IE~T I}'; LIEU OF ANNEXJ TIDS DEVELOP~-IE!\1 Af REE~ XI J1' UEC OF .-L"'\l\"'EXATIO~ (the "Agree made andeffecth·e this )4-t day of ... , 20 16, and is entered into pursuant to§: the Texas Local Government Code, by between the City of l ubbo ck, Texas, a Texas munic ipal corporation (the "City"), and the undersigned property owner(s) (the "Owner": term ··owner .. including all owners of the Property, and is as follows: RECITALS \YHEREAS, the Owner owns a parcel of real property (the .. Property") in Lubbock Cou which is more particularly and separately described in the attached Exhibit A~ and \VII ERE AS, the City has instituted annexation proceedings for all portions ·Of the Proper public hearings regarding the proposed annexation on ~larch 8 and March 10, 20 16 ; and \VHEREAS, at the public hearings , the Owner was presented with a service plan for the P1 the Owner was given the opportunity to be heard by th e City Council of the City of L ubbo \YHEREAS, the Owner does not want the Property to be annexed and desires to have tl remain in the City 's extraterritorial jurisdiction, in consideration for which the Owner agn into this Agreement; and \YHEREAS, it is the City's intention to allow the Owner to c ontinue to use the Property a: used at the time of this Agreement; and \YHEREAS, the 0\mer and t he City acknowledge that this Agreement is binding upon tl the Owner and their respective successors and assigns for the duration of this Agreement; \YHEREAS, this Agreement is to be recorded in the real property records ofL ubbo ck Cou ~0\V, THEREFORE , in consideration of the mutual promises contained in this Agre Owner and the City agree as follows : AGREE~IE~T Section 1 -The Property: Current Status. The City acknowledges that the Prop particularly described in the attached ''E xhibit A ," i s lo cated '"ithin the extraterritorial jur: the City and is subject to annexation by the City unless this Agree ment is signed by the 0· https://mail.ttu.edu/owa/WebReadyViewBody.aspx?t=att&id=RgAAAABlp7%2bn%2bcTS ... 4/4/2016 Page 1 of 1 Owner acknowledges that unless the Property is annexed by the City, the Property is not receive City services , the Property shall not be included in the City 's ,·oting precinc ts , and tl shall be immune from City property taxes for the duration of this Agreement. The 0\vner' Property at the time of this Agreement is .. grandfathered" into the acceptable uses of the C City is prohibited from interfering with any uses on the Property that c ompl)• with §4 3 Texas Local Government Code. The Owner acknowledges that Section 22.03 .09 l (a) oft: Ordinances of the City prohibits the City from providing water to any entity outside of the and acknowledges that th e City will not be providing water to the Property unless the annexed into the City. Howe,·er, if the Property is annexed pursuant to a pro,·ision of this J then the City shall provide services to the Property pursuant to Chapter 4 3 of the T Government Code. Subject to the pro,·isions of this Agreement, the City shall not annex the Property involuntarily institute proceedings to annex the Property, and shall not include the Pre statutory annexation plan . The Owner authorizes the enforcement by the City of all of regulations and planning authority that do not materially interfere with the use of the Pro] same manner that the City 's regulations and planning authority are enforced within boundaries . The City spe cifically reserves its authority pursuant to Chapter 25 1 of the T Government Code to exerci se eminent domain over property that is subject to a §212.1 i2 df agreement The City further reserves its regulatory and planning authority in the City 's E authority has been granted to it by the City Council. Section 3-The Property: Change In Status. The Owner agrees not to substantially cha: of the Property as it is used on the date of the exe cution of this Agreement The Owner a~ de,·elop the Property by filing any type of subdivision plat or related de,·elopment docun Property with Lubbock County or the City throughout the duration of this Agreement . The Owner ackno\vledges that if any plat or related development document is filed forth or if the Owner commences any de\·elopment of the Property other than that which suppc of the Property as the Property is used on the date of the e xecution of this Agreemen· Agreement shall terminate , and in addition to the City's other remedies, such act will c petition for voluntary annexation by the Owner, and the Property will be subject to annex discretion of the City Council. The 0 \v ner agre es that such annexation shall be voluntc Owner hereby consents to such annexation as though a petition for suc h annexation had bee by the Owner. If annexation proc eedings begin pursuant to this Sectio11: then the Owner acknowledgt Agreement serves as an ex ception to Local Government Code §43.052 , requiring a mun use certain statutory procedures under an annexation plan, and as an exception to Local G Code §43 .062 requiring certain statutory procedures as to the Owner to effectuate an ' Further, the Owner hereby waives any and all vested rights and claims that it may 1 §43 .002(a)(2) and Chapter 245 of the Texas Local Government Code that would otherwi virtue of any plat or construction the Owner may initiate during the time between the e~ this Agreement and the institution of annexation proceedings by the Cit y . https ://mai l.ttu.edulowa/WebReadyViewBody.aspx?t=att&id""RgAAAABip7%2bn%2bcTS... 4/4/2016 Page 1 of 1 a p etition for voluntary annexation of the Property, and the Property will be subjec t tc annexation in ac cordanc e with Section 3 of this Agreement. Prior to the end of the Term. th commenc e the voluntary annexation of the Property . Section 5-Termination. This Agreement will automatically terminate at the end of the Term . This Agreement shaJ upon the filing of any plat or related development document with the City or with Lubbod upon the Owner's failure to pro\·e that it is the sole owner of the Property with the autho this Agreement. The 0\\ner and the City may agree in \\Tiling to terminate this Agreem• the expiration of the Term ofthis Agreement. Section 6-City Council Appro,·al Required. If the City Council of the City of Lubbo' affirmath·ely vote to annex an area that contains the Property, then this Agreement will I \·oid in its entirety. Section 7-~otification. Any person who sells or conveys any portion of the Property sh; such sale or conveyance, give \\Titten notice of this Agreement to the prospective purchaser and shall give \\Titten notice of the sale or conveyance to the City. Further, the Owner and t1 heirs, successors, and assigns shall gi,·e the City \\Titten notice within fourteen (14) days of in the status of the Property. A copy of any notice required by this section shall be forwarded to the City at the followit Ci~· of Lubbock Attn: City Secretary P .0. Box 2000 Lubbock, Texas 79457 With cop1.· to : Ci~· of Lubbock Attn: Director of Planniu~ P .0. Box 2000 Lubbock, Texas 79457 This Agreement shall run with the Property and be re c orded in the real property records< County, Texas. Section 8-'Vah·er. Any failure by the Owner or the City to insist upon strict performanc party of any material provision of this Agreement shall not be deemed a \vaiver thereof, and or the City shall have the right at any time thereafter to insist upon stric t performance of provisions of this Agreement. No provision of this Agreement may be waived exc ept b agreement signed by the Owner or the City waiving such provision. Any waiver shall b( the specific purposes for which it is given. Ko waiver by the Owner or the City of any p this Agreement shall be deemed or construed to be a waiver of any other pro,·ision or wai,·er of the same provision. The Parties expressly agree that no pro,·i sion of this Agre any way intended to constitute a waiver by any Party of any immunity from suit or liability ha,·e by operation of law. The Parties agree that the City shall retain all of its go· immunities. Section 9-Assurance of Ownership. The Owner hereby expressly affirms that it is the of the Property and that no other person or entity has a valid claim to any right, title, orO\ the Property. Should any dispute of right, title, or ownership concerning the Property arise https://mail.ttu.edu/owa/WebReady View Body .aspx?t=att&id=RgAAAABip7%2bn%2bcTS ... 4 /4/2016 Page 1 of 1 defend or fails to defend its right, title, and ownership to the Property , then this Agree terminate. Section 10 -Go\·ernint: Law. This Agreement is entered into under and pursuant to, a construed and enforceable in a c cordance with, the laws of the State of Texas, and all obl the Owner and the City are performable in Lubbock County, Texas . Venue for any action or c onstrue this Agreement shall be Lubbock County, Texas . This Agreement is sul applicable federal, state , and local laws and any applicable ordinances, rules , orders and of an y loc al, state , or federal go\'ernmental authority, having or asserting jurisdic tion. nothing contained in this Agreement shall be construed as a wai\'er b y t he Owner or the c r ight to question or c ontest any law, order, rule, or regulation wh ic h may affe ct the conditions of this Agreement in any forum having jurisdiction, and the Owner and the City to make a good faith effort to support all proposed laws and regulations which would be with the performance of this Agreement in a ccordance with its terms . Ko subsequent ch; law regarding annexation shall affect the enforceability of this Agreement or the City's abili the Property pursuant to this Agreement. Section 11 -Remedy. The City reserves the right to exercise any right or remedy avail.a' law, contract, equity, or otherwise , including without limitation, the right to seek any and z reli ef in a court of competent jurisdiction. Further. the City shall not be subject to any process prior to exercising its unrestricted right to seek judicial remedy . The remedies set f are cumulative and not excl ush·e, and may be ex ercised concurrently . To the extent of a between this provision and another pro,·ision in , or related to, this Agreement, the former st Section 12-Public Information. This Agreement is public information . To the extent, any provision of this Agreement is in conflict w ith the Texas Public Information Act (1 Code Ann. Chapter 55 2 et seq., as amended), t he same shall be of no force and effect . Section 13-Third-Party Beneficiaries. This Agreement only inures to the benefit of, an be enforced by, the Owner and the City. No other person or entity shall have any right, title under this Agreement or otherwise be deemed to be a third-party beneficiary of this Agree Section 14-!\o Personal Liabili~· & !\o Joint Yeoture. Nothing in this Agreement is c~ creating any personal liability on the part of any employee, officer or agent of any publi• may be a party to this Agreement. This Agreement is not intended to, and shall not be cc create any joint enterprise between or among the parties . Section 15-Due Dili&ence & Force llajeure. The Owner and the City shall use gooc diligence , and reasonable care in the performance of the obligations under th is Agreemen shall be of the essence in suc h performance. In the e\·ent that the Owner or the City i ! perform its respe ctive obligations under this Agreement, due to any e\·ent or circumstanc~ within the reasonable respecti\'e control of the Owner or the City that could not ha,·e been e ither the 0\vner or the City with the exercise of good faith, due diligence, and reasona ··Force ~~Iajeure'), then the obligations affe cted by the Force Majeure shall be temporarily \Vithin three (3) business day s after the occurrence of a Force ).ilajeure , the Owner or thf ail .. ·,. nnti r ·p tn P::trh nthPr inr"lnrlina ::. rl,at::.il,a rl PTnl::.n,.nnn nf th,a Fnrf''"' \if::.i""'"'"" ""rl ,. rf,..• https ://mail.ttu .edu/owa/WebReady View Body .aspx?t=att&id=RgAAAABip 7%2bn%2bcTS ... 4/4/2016 Page I of I Section 16 -Enforcement. This Agreement may be enforced by the Owner or the Ci proceeding at law or in equity. Failure to do so shall not be deemed a waiver to enforce the J thereafter. Section 17 -Go,·ern mental Powers. It is understood that by execution of this Agreemen does not waiv e or surrender any of its go,·ernmental powers, except as expressly set forth Section 18-Counterparts. This Agreement may be exe c uted in any number of counterpa which shall be deemed an original and constitute one and the same instrument. 1 acknowledges that ea ch and e\"ery owner of the Property must sign this Agreement in 01 Agreement to take full effec t Section 19 -Se\·erability. If any provision of this Agreement is determined by a court of jurisdiction to be unenforceable for any reason. such unenforc eable provision shall be de this Agreement, and the remainder of this Agreement shall remain in full force and effec t z interpreted to give effect to the intent of the Owner and the City. \Vithout limiting the ge the foregoing, if it is determined that, as of the date that this Agreement becomes effecth O wner does not own an y portion of the Property, then this Agreement shall remain in ful effect with respect to the remaining portion of the Property that the Owners a ctually own . Section 20-Entire Agreement. This Agreement constitutes the entire agreement between and the City and supersedes all prior agreements, whether oral or \\Titten, c overing the sut of this Agreement. The Owner acknowledges that eac h and e\·ery Owner of the Propert) this Agreement in order for the Agreement to take full effect. Section 21-Captions & Recitals. Captions and headings used in this Agreement are fot purpo ses only and shall not be deemed a part of this Agreement. However , each oft: contained herein , by this reference , shall be incorporated into, and d eemed a part of, this A Section 22 -~Iodification of Agreement. This Agreement c annot be modified or amenc in \\Tit ing signed by the Owner and the City and attached and made a part of this Agree me Section 23 -Ch. 212 Agreement in lieu of Ch. 43 Agreement. If the Property is sul agricultural exemption , the Owner hereby acknowledges that the City, through the Office • Attorney, offered to make a development agreement with the Owner under §-43 .035 of l ocal Go,·emment Code. The Owner further acknowledges that the Ownerrejec ted the off a §-1 3.035 Agreement in order to enter in to this §212 .1 n Agreement. L" \YIT:\'"ESS HEREOF, the px;es mutual~· enter this Agreement oo tbis ~J!a)· of ri I , 2016. ~-J1fl1 https ://mai l.ttu.edu/owa/WebReady View Body .aspx?t'""att&id=RgAAAABip7%2 bn%2bcTS ... 4 /4/2 01 6 Page 1 of 1 For the Cin· For the Owner DebbieJ.C~ A~drew Paxton. Director of Planning APPROYED AS TO FOR..,I: https://mail.ttu.edu/owa/WebReadyViewBody.aspx?t==att&id=RgAAAABip7%2bn%2bcTS... 4/4/2016 Page 1 of 1 l'OTARIZATIO:X State ofT ex as § Coon~· of Lubbock § This i menr was executed before me on ~ \j\, 2016, by (A \m (J2WtJb!D l)l/1 -....:........::;;.~:-tl)~----of the City ofLubbock, a Texas munici al co or i . of D. MUt£~ f)~:L~~ State ofT exas § Coun~·ofLubbock § This instrument was executed before me on on behalf of said O"ner. ~cJ~ •o y Public State of Texas § Coon~· of Lubbock § This instrument ,,.as executed before me on ~\~\\\I 2 016 , by 9c:.bJ>ie. ).C.o'£., on behalf of said 0\\ner. dk~~~Qp \Yben Recorded Return To: City Secretary City of Lubbock, Texas 1625 13 1h Street D41t DDIII: ~ c:at-01\')I.'DI. https://mail .ttu.edulowa/WebReadyView8ody.aspx?t==att&id=RgAAAABip7%2bn%2bcTS... 4/4/2016 . ' . .. EXHIBIT A -The Property Exhibit "A" A Tract orland located ia Section I, Block AK, Lubbock County, Texas. befog further described as follows: BEGINNING atal/2" Jron rod fouad which bears N. 00°01'48" E. a distance or 1562.93 feet and N. 89°59'12" W. a distance of 30.00 reel from tbe Southeast corner ofSectJoa J, Block AK, Lubbock County, Texas; THENCE N. 89°59'11" W. at 10.00 feet pass a found J/2" iron rod wftb cap, c:ontfnulug for a total distance o!llt.65feet to a found til" iron rod: THENCE N. 00°01'48" E. a distance of411.69feet to a found Ill" iron rod; THENCE S. 89°56'54" E. a dlstante oflll.6S feet to a found J/2 11 Iron rod; THENCE s. 00°01 '48'' w .• dfstuce or 41 1.55 feet to tbe Point of Beginning. BLK AK SEC 1 AB 189 TR 1 UNIVERSITY SOUTH ACS: 2 2234' (Copeland & Cox-R42482) C R 7450 TR 1 R42462 R42462 2 AC 211.65 1 30' FILED AND RECORDED .,,~~ Kelly Pinion1 County Clerk Lubbo~k Coun~y~ TEXAS 05/23/2016 10:v2 A" FEE : $54.00 201601788! . . . 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 DEVELOPMENi\~REE~~l'i LIEU OF ANNEXATION (the "Agreement") is made and effective this \ day of ll 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 I 0, 20 16; 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 ofthis Agreement. The Ch. 212 Development Agreement In Ueu 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 25 I 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 tiled 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 tiled Ch. 212 Development Agreement In Ueu Of Annexation - 2 I I a 6 t: 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 S-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 ofthe 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 ofany 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 Attn: City Secretary P.O. Box 2000 Lubbock, Texas 79457 With copy to: City of Lubbock Attn: Director of Planning P.O. Box 2000 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 I rJ d r. c 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 havingjurisdiction, 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 Jaw 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 Jaw, 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 liabiJity 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 I rl o ~ ~ 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 Hf:~OF, the ruarties. mutually enter this Agreement on this .LC.'itay of Mfr:z-1 \ , 2016. Ch. 212 Development Agreement In Ueu Of Annexation -5 I .. ~ "' For the City For the Owner GLENC.d~OR ..... AndrewPBxt(m , Director of Planning APPROVED AS TO FORM: Ch. 212 Development Agreement In Ueu Of Annexation -6 I r D ~ <:: State of Texas § County of Lubbock § NOTARIZATION This instrument was executed before me on J\r~ L):'t 2016, by Q lf-n NkE · JLobtrz±svY\ M0~(\'0& of the City of Lubbock, a Texas municipal corporation_. on N>h:Ai f . fsaid corporation.\) . eMAGEN D. MURCHISON ~ NcayNllc.Stae~Texas ~ .~. My~EJiies04-03-20t7 -+~~~~~~~~~~~-- State of Texas § County of Lubbock § This instrument was executed before me on April ~ DATI on behalf of said Ow er. When Recorded Return To: City Secretary City of Lubbock, Texas 1625 13th Street Lubbock, Texas 79401 TERRA SMART Nolary Public, State of Texas MyCootmission Expires 07·21 ·2018 Ch. 212 Development Agreement In Ueu Of Annexation - 7 I ' I EXHIBIT A -The Property Lot FOUR ( 4) , FRANKFORD PARKS a Subdivision out of southwest 1/4 of section 24, Block E-2, Lubbock County, Texas, according to the Hap, Plat, and/or Dedication Deed thereof, recorded in Voluae 3016, Page 219, Real Property Records o! Lubbock county, Texas. (the •Property"). FRANKFORDFARMSTR4 ·. L • (Stewart-R68469) FILED AND RECORDED -~~~ Kelly P!nion 1 County Clerk Lubbock Coun~y~ TEXAS 05/23/2016 l0:u2 AM FEE : $54.00 2016017886 I • 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 DEVELOPMENT AGREEME~.f I~ LIEU OF ANNEXATION (the "Agreement") is made and effective this 14 ~ day of 12.-11 , 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 Exhibit 8; 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" and "Exhibit 8," is located within the extraterritorial jurisdiction of the City and is subject to annexation by the City unless this Agreement i~ signed by the Owner. Ch. 212 Development Agreement In Lieu Of Annexation -1 I P a g e 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 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 22.03.09l(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. Ch. 212 Development Agreement In lieu Of Annexation - 2 I P a g e Section 4-The Term. The tenn 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 Tenn, the Owner, and all ofthe Owner's heirs, successors and assigns shall be deemed to have filed 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 tenninate 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 tenninate 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 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 (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 Attn: City Secretary P.O. Box 2000 Lubbock, Texas 79457 With copv to: City of Lubbock Attn: Director of Planning P.O. Box 2000 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 perfonnance 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 perfonnance 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 affinns 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 Ch. ZlZ Development Agreement In Lieu Of Annexation -3 I P a g e 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 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 Ch. 212 Development Agreement In Lieu Of Annexation -4 I P a g e 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. 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 ~-OF, the{\arties mutually enter this Agreement on this 'tTY'day of -PlZ-4 \ , 2016. Ch. 212 Development Agreement In Lieu Of Annexation - 5 I P a g e For the City For the Owner Gary~/?dR_ APPROVED AS TO CONTENT: gg_ Andrew Paxton, Director of Planning APPROVED AS TO FORM: Ch. 212 Development Agreement In Lieu Of Annexation - 6 I P a g e State ofTexas § County of Lubbock § NOTARIZATION This ·nstrument was executed before me on A~ l \4 , 2016, byl:i\(Vvl (. lZ.D~ ::t=-!=-! DATE l I'IAIII~ -4-~l.!!...l~~t-L..~~-of the City of Lubbock, a Texas municipal corporation, on behalf of said State of Texas § County of Lubbock § I ~ When Recorded Return To: City Secretary City of Lubbock, Texas 1625 13th Street Lubbock, Texas 79401 e MAGEN D. MURCHISON Ndlly PLDt. Stated Texas My Conln!aim e.pires04-03-2017 Ch. 212 Development Agreement In Lieu Of Annexation - 7 I P a g e EXHIBIT A-The Property Exempting from Annexation the 36.500 acres (as outlined in the Survey and description Immediately following), wh1ch is the northwest portion of a larger tract of approximately 155.9 acres further shown below: .... _ ; i ~ ( ~-·~~li= ~ :tflji ,, ~:! IJ ! I 1. I ) ~~~· I I 111 I , i1'i 1 1 Is 1,_..-· ~I!! \-I I ......... !~ - -I \"'-_1 _ -- - -..... - - - ---r-= -~·~• ...,u.....,., ••• ,.. .. .tl.tll~S.aGH -.. - -\-.. I I & ·~ : ~~~~ j ,lili (Bell-R97650) Pagel of3 DESCRIPTION: A 36.500 ACRE TRACT OF lAND LOCATED IN THE WEST HALF OF SECTION 16, BlOCK E, G.C. & S.F. RR . CO . SURVEY, ABSTRACT NUMBERS 664 AND 1000, LUBBOCK COUNTY, TEXAS, AND BEING SITUATED WITHIN (lt A PORTION OF THAT CERTAIN TRACT OF LAND IN THE NORTHWEST QUARTER (NW/4) OF SECTION 16, BLOCK E, ABSTRACT NO. 664 CONVEYED TO GARY BELl DESCRIBED IN A SPECIAL WARRANTY DEED RECORDED I N VOLUME 6922, PAGE 54 OF THE REAL PROPERTY RECORDS OF LUBBOCK COUNTY, TEXAS, (2) ALL OF THAT CERTAIN 3.0 ACRE TRACT OF LAND CONVEYED TO GARY BEll DESCRIBED IN A WARRANTY DEED RECORDED IN VOLUME 1680, PAGE 423 OF THE DEED RECORDS OF LUBBOCK COUNTY, TEXAS, AND (3} A PORTION OF THAT CERTAIN TRACT OF LAND IN THE SOUTHWEST QUARTER (SW/4) OF SECllON 16, BLOCK E, ABSTflACT NO. 1000 DESCRIBED AS TRACT 1 IN A DEED OF PARnTION RECORDED IN VOLUME 3107, PAGE 280 OF niE REAL PROPERlY RECORDS OF LUBBOCK COUNTY, TEXAS, SAID 36.SOO ACRE TRACT BEING FURTHER DESCRIBED BY METES AND BOUNDS AS FOLLOWS= BEGINNING AT A 1/2" IRON ROD WITH A CAP MARKED "STEVENS RPLS 4339• fOUND IN THE WEST LINE OF SAID SECTION 16 NEAR THE CENTER OF COUNTY ROAD 2200 (SOUTH UNIVERSITY AVENUE} AT THE SOUTHWEST CORNER OF THAT CERTAIN 153.5n ACRE TRACT OF LAND CONVEYED TO REAL PROPERTY RESOURCES, INC. DESCRIBED IN A WARRANTY DEED RECORDED IN COUNTY aERK'S FILE NUMBER 2015033573 OF THE OFFICIAL PUBLIC RECORDS OF LUBBOCK COUNTY, TEXAS, FOR THE NORTHWEST CORNER OF THIS TRACT, SAID NORTHWEST CORNER HAVING COORDINATES OF NORTHING; 7,233,891.56 AND EASTING; 940,937.24, TEXAS COORDINATE SYSTEM OF 1983 (2D11}, TEXAS NORTH CENTRAL ZONE, WHENCE THE NORTHWEST CORNER OF SAID SECTlON 16 BEARS N. 01" 48' 38" £.A DISTANCE OF 2631 .27 FEET; THENCE S. as• 24'19" E.. ALONG THE SOUTH LINE OF SAID 153 .572 ACRE TRACT AT A DISTANCE OF 40.00 FEET PASS A 1/2" IRON ROD WITH A CAP MARKED "STEVENS RPLS 4339" FOUND IN THE EAST RIGHT -QF·WAY LINE OF COUNTY ROAD 2200 (SOUTH UNIVERSITY AVENUE), AS DESCRIBED IN A RIGHT·Of.WAY EASEMENT RECORDED IN VOLUME 532, PAGE 132 OF THE DEED RECORDS OF LUBBOCK COUNTY, TEXAS, CONTINUING FOR A TOTAL DISTANCE OF 899.59 FEET TO A l/2" IRON ROD WITH A CAP MARKED "STEVENS RPLS 4339• SET FOR THE NORTHEAST CORNER OF THIS TRACT AND THE MOST NORTHERLY NORTHWEST CORNER OF A 123.943 ACRE TRACT OF LAND SURVEYED THE SAME DATE HERE·WITH; THENCE S. 01" 51' 20" W., AT A D~STANCE OF 32 .00 FEET PASS A 1/2" IRON ROD WITH A CAP MARKED •STEVENS RPLS 4339• SET IN THE NORTH li NE OF SAID SO UTHWEST QUARTER (SW/4}, SAME BEING THE SOUTH UNE OF SAID NORTHWEST QUARTER (NW/4), CONTINUING FOR A TOTAL DISTANCE OF 1769.53 FEET TO A 1/2"1RON ROD WITH A CAP MARKED •STEVENS RPLS 4339" SET FOR THE SOUTHEAST CORNER OF THIS TRACT AND AN ELL CORNER OF SAID 123.943 ACRE TRACT; THENCE N. 88" 08' 40" W., AT A DISTANCE OF 859.55 FEET PASS A 1/2" IRON ROO WITH A CAP MARKED "STEVENS RPLS 4339• SET IN THE EAST RIGHT·OF-WAV LINE OF SAID COUNTY ROAD 2200 (SOUTH UNIVERSITY AVENUE), CONTINUING FOR A TOTAL DISTANCE OF 899 .55 FEET TO A 1/2" IRON ROO WITH A CAP MARKED "STEVENS RPLS 4339" SET FOR THE SOUTHWEST CORNER OF THIS TRACT AND THE MOST WESTERLY NORTHWEST CORNER OF SAID 123.943 ACRE TRACT, WHENCE A RAILROAD SPIKE FOUND AT THE SOUTHWEST CORNER OF SAID SECTION 16 BEARS S. 01" 51' 20" W. A DISTANCE OF 910.52 FEET, SAID SECllON CORNER HAVING COORDINATES OF NORTHING : 7,231,218 .68 AND EASTING: 940,850.64, TEXAS COORDINATE SYSTEM OF 1983 (2011), TEXAS NORTH CENTRAL ZONE; THENCE N. 01" 51' 20" E. A DISTANCE OF 1724.14 FEET TO A RAILROAD SPIKE FOUND AT THE EAST QUARTER CORNER OF SECTION 1, BL9CK AK, LUBBOCK COUNTY, TEXAS FOR A CORNER OF THIS TRACT; THENCE N. 01" 48' 38" E., ALONG THE EAST UNE Of THE NORTHEAST QUARTER (NE/4 ) OF SAID SECTION 1, BLOCK AK AT A DISTANCE OF 9.29 FEET PASS THE WEST QUARTER CORNER OF SAID SECTION 16, CONTINUING FOR A TOTAL DISTANCE OF 41 .29 FEET TO THE POINT OF BEGINNING. BEARINGS ARE RELATIVE TO THE TEXAS COORDINATE SYSYTEM OF 1983 (2011), TEXAS NORTH CENTRAL ZONE. THE CONVERGENCE ANGLE TO TRUE NORTH IS .01" 50' 14". DISTANCES ARE AT SURFACE. I N U.S . SURVEY FEET. (Bell-R976SD) Page2of3 BLK E SEC 16 AB 1000 TR C OF SW/4 AC:l55.90 LUBBOCK COUNTY, TEXAS: TRACT I: (Bell-R97650) The Southwest One•fourth (SW/4) of section 16, Block E, in Lubbock county, Texas, SAVE AND EXCEP1' a 3. 0 acre tract of land conveyed by Ford Bell, et ux, to Gary 8ell, by Warranty Deed dated February 13, 1980, such 3.0 acre tract of land being out of the southwest 1/4 of section 16, Block E, G.c. & s.F. R.R. co. survey, certificate No. 3/366, Abstract No. 1000, Patent No. 157, Volume 44, dated Mary 6, 1912, Lubbock County, Texas, described by metes and bounds as follows: BEGINNING at a 3/8" iron rod set on the North line of the southwest 1/4, from whence a 3/411 iron pipe found for the Northeast corner of tha Southwest 1/4 bears East, 2087.98 feet, the Northeast corner of this tract; THENCE South o• 11' 40 .. West, a distance of 250.45 feet to a 3/811 iron rod set for the southeast corner of this tract; THENCE West, at a distance of 481.78 feet pass a 3/8" iron rod set in the R.o.w. line of a paved county road, continuing for a total distance of 5~1.79 feet to a railroad spike set in the centerline of a llorth-South paved county road, for the southwest corner of this tract; THENCE North o• 11' 401' East, a distance of 250.45 feet to a found railroad spike for the Northwest corner of this tract; THENCE East~ at a distance of 40.00 feet pass a set 3/8" iron rod, in the R.o.w. line of said paved county road, continuing for a total distance of 521.78 feet to the PLACE OF BEGINNING. Value of such 157-acre tract 1t R97762 { - I ~ 520 -6 4 2 - - -, - iR co;-!.~·.~ R97650 1,!,5 9AC Page3of3 EXHIBIT 8-The Property A 3.0 acre tract of land out of the Southwest 1/4 of Section 16, Block E, G. c. & s. F. R.R. Co. Survey, Lubbock county, Texas, and being more particularly described as follows: BEGINNING at a 3/8" iron rod set on the North line of the Southwest 1/4, from whence a 3/4 11 iron pipe found for the Northeast corner of the Southwest 1/4 bears East, 2087.98 feet, the Northeast corner of this tract; THENCE South 0°11 1 40 11 t~est, a distance of 250.45 feet to a 3/8" iron rod set for the Southeast corner of this tract: THENCE Nest, at a distance of 401.78 feet pass a 3/S" iron rod set in the R.O. 1·1. line of a paved county roa~, continuing for a total distance of 521.78 feet to a railroad spike set in the centerline of a North-South paved county road, for the Southwest corner of this tract; THENCE North 0°11 1 40" East, a distance of 250.45 feet to a found railroad spike for the Northwest corner of this tract: THENCE East, at a distance of 40.00 feet pass a set 3/8" iron rod, in the R.o.w. line of said paved county road, continuing for a total distance of 521.78 feet to the PLACE OF BEGINNING. CONTAINING 3.0 ACRES. (Bell-R97782) Page 1of2 BLK E SEC 16 AB 1000 TR C1 OF SW/4 ACS:J C-1 OF SW/4 R97762 3AC 521 . 78' FILED AND RECORDED e:~~;~ Kelly Pinlon 1 County Cl erk Lubbock Coun~Y~ TEXAS 05/23/2116 10:~2 AM FEE: $70 .11 2016017888 (Bell-R9778Z) Page 2of2 LO v . 0 l() N . . . . CITY OF LUBBOCK OFFICE PICK UP 2016017947 8 PGS AGREE 1111 W-' ~~?.vP-'11.-')~~~~.il~M\& IIIII 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 DEVELOPMENWGREE~~ LIEU OF ANNEXATION (the ••Agreement") is made and effective this ~day of , t 2016, and is entered into pursuant to §212.172 of the Texas Local Government Code, by (J 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 I 0, 20 16; 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 docs not want the Property to be annexed and desires to have the Property remain in the City's extraterritorialjurisdiction, 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 usc 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 Propertyt 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. Z12 Development Agreement In 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 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 u~es 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 .09l(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: Cbange 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 Ueu Of Annexation - 2 f 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 tenninate 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 Attn: City Secretary P.O. Box 2000 Lubbock, Texas 79457 With copv to: City of Lubbock Attn: Director of Planning P.O. Box 2000 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 Ownenhip. The Owner hereby expressly affirms that it is the sole owner of the Property and that no other person or entity bas 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. 2U Development Agreement In Ueu Of Annexation -3 I 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 fcderaJ, 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 Jaw 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 seck 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 liabmty 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. 2U Development Agreement In Ueu Of Annexation -4 I 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 Cb. 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 \mREOF, the parties mutually enter this Agreement on this ~day of A~; I , 2016. 14fh I Ch. 212 Development Agreement In Ueu Of Annexation - 5 I P a g e Fortbe City For the Owner GLilNC.~OR Elaina Rosa, Owner Andrew Paxton, Director of Planning APPROVED AS TO FORM: Ch. Z12 Development Agreement In Ueu Of Annexation - 6 I P a g e State of Texas § County of Lubbock § NOTARIZATION Th"s instrument was executed before me on ~~J4 1 2016. by b lt\t\~~. fu bvg\-8;1)11 _....:;....y;..~~,£.~.:....----ofthe City of Lubbock, a Tex~s_mun ici pal co rp oration, on behalf of said T LE State of Texas § County of Lubbock § e MAGEN D. MURCHISON N!UJy Nil, Stae of Texas My Coornissioo EJpies 04-()3.2017 This instrument wa5 executed before me on Aorj ( lo F" DATE on behalf of said Owner. ~ .. ···--~~"'"~?' .... l!ii. ....... ,,-JAN~I~E~M~GO~NZA~L~E-::-S "( :'~?::£:::~\ NOTARY PUBLIC \:~-..."Jf.C}~j StatdTexas • ..... ~·····;.~"":··· ,.._ Cwn rv:: ""2017 ··· .... ! .... ··· \o,A.Jtl.ll ............ ~~ .... State of Texas § County of Lubbock § This instrument was executed before me on ..... A""p"-r•_;.·l~(pr.<±---2016, by --~-~~=::"1./L_~===---o"TE ~ow% on behalf of said Owner. When Recorded Return To: City Secretary City of Lubbock, Texas 1625 131h Street Lubboc~ Texas 79401 /,;.V.:~···.. JANIE M GONZALES -~~' {it . \ \ NOTAAY PUBLIC .• t ••J '~~ Pl. StldeotTexas \.~~]!j.~··· Corm. Elcp. 05-20-2017 Ch. 212 Development Agreement In lieu Of Annexation -7 ) P a g e EXHIBIT A -The Property The ~·lest Half (i'J/2) of Tract Twenty-Four {24), FRANKFORD FARNS, a subdivision out of the Southvtest Quarter {S~v/4} of Section T\·Jenty-Four (24}, Block E -2 {E-2), Lubbock County, Te:{as, according to the map, plat, and/or dedication deed thereof recorded in Volume 3033, Page 242 and corrected ~n Volume 3176, Page 34 0 of the Real Property Records of Lubbock County, Texas (the "Property"). (Rosa -R146682) FRANKFORD FARMS W/2 OF TR 24 150' R ·1466132 ._,._. 2 0 1 24 .! 3 -l ~J ~~.-:: -o T :\L FILED AND RECORDED -p~~ Kelly Pinion 1 County Clerk Lubbock Coun~yA TEXAS 05/23/2016 10 :~2 AM FEE : $54.00 2016017947 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 TmS 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 DEVELOPMENJ AGREEM~T I . LIEU OF ANNEXATION (the "Agreement") is made and effective this · 4 "{\1\ 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 "Owner11 ), with the tenn "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 1 0, 20 16; 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 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, or that are associated with any residential, office, or agricultural uses. 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 being used on the date of the execution of this Agreement, or that supports any planned use of the Property that conforms with §43.002 of the Texas Local Government Code, 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 "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 Ch. 212 Development Agreement In Ueu Of Annexation - 2 I P a g e .. Term, the Owner, and all of the Owner's heirs, successors and assigns shall be deemed to have filed 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 Attn: City Secretary P .0. Box 2000 Lubbock, Texas 79457 With copv to: City of Lubbock Attn: Director of Planning P.O. Box 2000 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 Ch. 212 Development Agreement In Lieu Of Annexation - 3 I P a g e defending and confirming its absolute right, title, and ownership to the Property. If the Owner cannot 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 Ch. 212 Development Agreement In lieu Of Annexation - 4 f P a g e the action that will be taken to remedy the Force Majeure and resume full performance at the earliest possible time. 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 Iq:~. OF, the ~es tnutually enter this Agreement on this xt:·day or Je:1 I , 2o16. Ch. 212 Development Agreement In Ueu Of Annexation - 5 I P a g e For the Citv For the Owner Andrew Paxton, Director of Planning APPROVED AS TO FORM: Justin NOTARIZATION Ch. 212 Development Agreement In Lieu Of Annexation - 6 I P a g e State of Texas § County of Lubbock § This in trument was executed before me on~~u4 ) 20 I 6, by 61-Ln ,~ . f?cixrlS"'&fl --'-::.....J.I0~:;-:::0'?-;....:.... ___ of the City of Lubbock, a Texas municipal corporation, on behalf of said State of Texas § County of Lubbock § e MAGEN D. MURCHISON Nay Nile, State uTuas t.tt~ Ell*-04-03-2017 This instrument was executed before me on -1;~~<-~~D:i=n:--2016, by ~ ~C on behalf of said Owner. e VENITA WADSWORTH Ncay Nit. SIBle uTexu Nay IDI11E3705-e MyConnisbl ExpiiiH.m State of Texas § County of Lubbock § This instrument was executed before me on -Ljy 2016, by 7}-tJ/htl ~. "Mee --""-.f.t..,_D=An:=--~YJ.PIUa-OWNER on behalf of said Owner. e VENITA WADSWORTH Nealy Pldct S.ol TIXII NrAaly 011lWOS-6 UyCallnillbl Expin (Y-2al0 When Recorded Retum To: City Secretary City of Lubbock, Texas 1625 13th Street Lubbock, Texas 79401 Ch. 212 Development Agreement In Lieu Of Annexation -7 I P a g e .. ' . . EXHIBIT A -The Property TRACfTIVENTY-FJVE {25), FRANKFORD FARMS, a SubdiVISIOn out of the SW/4 of SectiOn 24, Block E-2, Lubbock County, Texas, accordmg to the Map, Plat and/or Dedtcatlon Deed thereof recorded m Volume 3033, Page 242, corrected m Volume 3176, Page 340 ofthe Real Property Records of Lubbock County, Texas . " ci .. ') FRANKFORD FARMS TR 25 LESS NE207' FRANKFORD FARMS NE207'0F TR 25 • .__ • I I '-' I R1 08145 25 20T R69079 r 578 97' I FILED AND RECORDED (Price-R69079 & R108145) -:~~~~~ K•lly P!n!on 1 County Cl•rk Lubbock Coun~y~ TEXAS 05/23/2016 10:u2 AM FEE : JS4 .80 2016017887 . . 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 DEVELOPMEN'T )\QREEM:~ LIEU OF ANNEXATION (the ·'Agreement") is made and effective this~ day of \ • 2016, and is entered into pursuant to §212.1 72 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 ofthe 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 I 0, 20 16; 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 ofthis Agreement. The Owner's use of the Property at the time of this Agreement is "grandfathered'" into the acceptable uses ofthe 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 Ueu Of Annexation ~ 2 I 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 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 ofthe Property. A copy of any notice required by this section shall be forwarded to the City at the following address: City of Lubbock Attn: City Secretary P.O. Box 2000 Lubbock, Texas 79457 With c:opv to: City of Lubbock Attn: Director of Planning P.O. Box 2000 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 I 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 havingjurisdiction, 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 fonns 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 perfonn 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 I 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~OF, the parties. mutually enter this Agreement on this .M:: Hay of A~t'ld \ , 2016. Ch. 212 Development Agreement In Ueu Of Annexation-5 I Page .. For the City For the Owner GLE NrC~MAYOR UtJ.L/L Hugh D. Sutton, Owner t,~tLL Rebecca L. Sutton, Owner ATTEst: .. ~. APPROVED AS TO FORM : Ch. 212 Development Agreement In Ueu Of Annexation - 6 I P a g e State of Texas § County of Lubbock § State of Texas § County of Lubbock § NOTARIZATION This instrument was executed before me on 4--{p When Recorded Return To: City Secretary City of Lubbock, Texas 1625 13'11 Street Lubbock, Texas 79401 D4Tt Ch. 212 Development Agreement In Ueu Of Annexation • 7 I P a g e ., I " • EXHIBIT A-The Property A U'3Ct of lllnd out of Secrion 9, Block A-K. Abstmct 161, Lubbock County, Texas, being all of a 2.5 acre tract described in Volume 1873, Page 34 t of the D=l ~ords of lubbock County, Texns and all of a 1.535 acre Inlet dc:scnocd in Volume 4485, Page 341 of the Real Property Records of Lubbock County, Texas, dcscnlied by metes and bounds as follows: BEGINNING at a spike: found in the East line of Section 9 in Frankford Avenue for the Northeast comer of said J .53S acre tract and the Norlhcast comer of this tract. the Nonhcast comer of Section 9 bears North a distance ofl688.50 feet; mEN South along the EAst line of Section 9 a distance oflS.OO feet to a spike found for the Northeast comer of a 0.964 acre tnct of bnd described in Volume 3SS1, Page 220 of said Real Property Records and the Easternmost Southeast comer of said 1.535 acre Inlet and a comer of this tract; Til EN West, a dist.ance orJOO.OO feet to a YJ inch steel rod with cap set for the Northwest comer of said 0.964 ac:JC tr.lct and 11 comer of this tract; THEN South a distlncc of 140.00 feet to a % inch steel rod with cap set in the Nonh line of said 2.5 acre tr.act for the Southwest comer of said 0.964 acre tr.u;t and the Southernmost Southeast comer of said 1.535 acn: ~met and a comer of this tract; THEN East a distance ofJOO.OO fcetto a spike found in the &st line of Section 9 for the Southeast comer of gid 0.964 acre llilct and the Nonhcast comer of said 2.5 acre tr:Jct and a comer of this lract; THEN South along the EAst line of Section 9 a distance of 165.00 feet to a spike found for the Southeast comer of s;~id 2.5 acre mu:t and the SouthCll.St comer of this tnct; THEN West o distance o£660.00 feet to a VJ inch steel rod with cap set for the Southwest comerofs:1id 2.5 a~n: lmct and the Southwest comer ofthis tract; THEN Nonh a distlnce of 330.00 feet to a v, inch steel rod with cap set for the Northwest comer of said 1.535 acn: tract and the Nonhwest comer of this ttact: THEN East a distance of 660.00 fcc:t to the Point of Bc&iMing. (Sutton-R120782 and R120929) Page 1 of 2 . ~ ).. . BLK AK SEC 9 AB 161 TR 17 ACS: 1.5 BLK AK SEC 9 AB 161 TR 18 ACS: 2.3 TR17 R120762 1.5 AC l() <0 '\"'"" 360' R120929 l() <0 T"" R120929 FILED AND RECORDED .PU~~ Kelly Pinion 1 County Clerk Lubbock Coun\Y TEXAS 05/23/2016 10:62 AM FEE : $58.00 2016017889 (Sutton -R120782 and R120929) R140515 . R120782 TR 17-A R 136014 .SAC 250' TR18 ~ 2.3AC - R120929 ~ R120929 61 0' -0 v '\"'"" - --, Page 2 of 2 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 DEVELOPMENJ J\QREEM~I LIEU OF ANNEXATION (the "Agreement") is made and effective this ~1""-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 unde rsigned 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 J 0, 20 I 6; 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. [n 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 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 ofthe 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 22.03.09l(a) of the Code of Ordinances of the City prohibits the City from providing water to any entity outside of the city I imits, 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 tenninate, 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 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 Attn: City Secretary P.O. Box 2000 Lubbock, Texas 79457 With copy to : City of Lubbock Attn: Director of Planning P .O. Box 2000 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 I Page 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 I Page 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 detennined 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~pF, the p~ties mutually enter this Agreement on this l±:'day of.pf211 '2016. Ch. 212 Development Agreement In Ueu Of Annexation - 5 I P a g e For the City For the Owner Dale McCrum, Owner ... .. Andrew Paxton, Director of Planning APPROVED AS TO FORM: . Ch. 212 Development Agreement In Ueu Of Annexation -6 I P a g e NOTARIZATION State of Texas § County of Lubbock § Thi i strument was executed before me on ~~1.14 1 2016, by blfJh .. b--!LobrPiSlJVI -+L....IJ-::::=,p.G~l2--_________ of the City of Lubbock, a Texas municipal corporation, on beh alf of..s.aid State ofTexas § County of Lubbock § e MAGEN 0. MURCHISON Ndaly m, Sllla <i Texas My~ EJPIM04-0S-2017 This instrument was executed before me on _.,f..I..-1-/~Ju~~T=t --2016, by :J:b41!f:.(!c:::l!' on behalf of said Owner. State of Texas § County of Lubbock § This instrument was executed before me on -'f/11 on behalf of said Owner. When Recorded Return To: City Secretary City of Lubbock, Texas 1625 131h Street Lubbock, Texas 79401 D~TE VENITA WADSWORTH , Ncay ·PUJt, Slale fA Teras ~ l)t 1053705-6 Ch. 212 Development Agreement In Lieu Of Annexation -7 I P a g e EXHIBIT A -The Property PROPERTY : All ~~~t certain 5 .00 acres, more or less, being Tract seventeen (17), Frankford Facns, more fully described in the Warranty Deed to the Veterans Land Board dated NoveMber 15, 1989, recorded in Volume 3219, Page 68 of the Deed Records of Lubbock County, Texas: and further described in that Contract of Sale and Purchase dated November 15, 1989, recorded in Vol~ 3219, Page 62 of the Deed Records of Lubbock County, Texas · FRANKFORD FARMS TR 17 R68823 (McCrum-R68823) EXHIBIT A -The Property FIELD NOTES of the South 3.00 acres, aore or less, of Frankford Farms Subdivision of the Southwest Quarter (SW/4) of Section TWenty-Four (24), Block E-'l'Wo (E-2), Lubbock county, Texas, as shown by a plat recorded in Volume 3016, Paqa 219 of the Real Property Records of Lubbock county, Texaa1 BEGINNING at a 1/2" iron rod found for the Southeast corner of Tract Eighteen (18), for the Southeast corner of this tract; THEN~£ South 89"04 1 14n West , a distance of 116.26 feet to a 1/2" iron rod found for the Northwest corner of Tract Twenty-One (21), continuing South 89"23 1 15" West, a distance of 115.34 feet to a 1/2" iron rod set for the Southwest corner of Tract 18, from whence a 1/2" iron rod found for the southwest corner of Tract Sixteen (16), bears South 89"23 1 15" West, a distance of 463.20 feet; THENCE North 00"07 1 32" West, a distance of 564.49 feet to a 1/2" iron rod set for the Northwest corner of this tract, from whence a l/2" iron rod found for tbe Northwest corner of Tract 18, bears North 00"07 1 32• West, a distance of 376.71 feet; ·THENCE North 89.23 1 12" East, a distance of 231.43 feet to a 1/2" iron rod set for the Northeast corner of this tract, from whence a 1/2" iron rod found for the Northeast corner of Tract 18, bears North oo•os 1 32" West, a distance of 376.69 feet1 THENCE South 00"08 1 32" East, alonq the East line of Tract 18, a distance of 564 .43 feet to the Place of Beginning; (McCrum-R68885) FRANKFORDFARMSBALOFTR18 BAL OF 18 Co LO R66865 ~ I tO LO Page 1 of 1 EXHIBIT A -The Property PROPERTY: All that certain 5.00 acres, more or less, in the Southwest 1/4 Section 24, Block E-2, Tract 22 Frankford Farms, more fully described in the Warrantv Deed to the Veterans Land Board dated August 18, 1989, recorded in Volume 3169, Page 176, Deed Records of LUBBOCK County, Texas: and further described in that Contract of Sale and Purchase dated August 30, 1989, recorded in Volume 3169, Page 178, Deed Records of LUBBOCK County, Texas. FRANKFORD FARMS TR 22 R66993 22 R58993 578.24' 126TH ST (McCrum -R68993) 126TH FILED AND RECORDED ep:~~ Kelly Pini on, County _Cl•~k Lubbock Coun~y TEXAS 05/23/2016 10 :62 AM FEE : $62.00 2016017890 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 DEVELOPMENT A2REEMENT IN LIEU OF ANNEXATION (the "Agreement") is made and effective this~ day of .AO~I \ , 2016, and is entered into pursuant to §212.172 of the Texas Local Government Code, by ~en 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 1 0, 20 16; 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 ofthe 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 I Page 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) ofthe Code of Ordinances of the City prohibits the City from providing water to any entity outside ofthe 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 12.172 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 ofthis 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 ofthe Owner's heirs, successors and assigns shall be deemed to have filed Ch. 212 Development Agreement In Ueu Of Annexation - 2 I 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 ofthis 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 Attn: City Secretary P.O. Box 2000 Lubbock, Texas 79457 With copv to: City of Lubbock Attn: Director of Planning P.O. Box 2000 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 Jaw. 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 I 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 Jaw 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 ofthe 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 I P a g e Section 16-Enforcement. This Agreement may be enforced by the Owner or the City by any proceeding at Jaw 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 ofthis 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 Cb. 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~F, the '¥2ies r•tually enter this Agreement on this~ day of fl1 , 2016. Ch. 212 Development Agreement In Ueu Of Annexation - 5 I P a g e For the Citv For the Owner GLEN c. Ro""~YOR Andrew Paxton, Director of Planning APPROVED AS TO FORM: Ch. 212 Development Agreement In Ueu Of Annexation - 6 I P a g e NOTARIZATION State of Texas § County of Lubbock § This instrument was executed before me on ~L li 2016, by &liNt~. J2.nbeel6 PY} 1\l\~k of the City ofLubbock, a Texas municipal corporation, on behalf of said mtt ~~D .M~~ e MAGEN D. MURCHISON Ndaly Pubic, Slate of Texas My c:anrnm Expires (14.()3.2017 State of Texas § County of Lubbock § This instrument was executed before me on --~~--.£~-6;(-!=-£--2016,~~ • , When Recorded Return To: City Secretary City of Lubbock, Texas 1625 J3 1h Street Lubbock, Texas 79401 e VENITA WADSWORTH N*Y Nlic, Slate of Texas N!UryiDI10537QS.6 My Con1llm Expires 05-28-2020 Ch. 212 Development Agreement In Ueu Of Annexation - 7 I P a g e . . ~ ... EXHIBIT A -The Property " . f VOL3557 PACE 222 EXHIBIT "A" BEING A TRAer 01" LAND IN SECTION KINE (9) 1 BLOCK AK, WBBOCK COUNTY 1 TEXAS, DESCRIBED BY METES AND BOUNDS AS !'OLIDWS l BEGINNING AT A POINT IN THE EAST LINE OF SAID SE~ION 9 1 A DISTANCE OF 1713 • 5 FEET SOUTH OF THE NOR'l'HEAST CORNER OF SAID SECTION 9 FOR 'l'HE NORTHEAST AND BEGINNING CORNER OF THIS TRACT J THENCE SOUTH WI'l'H THE EAST LINE OF SAID SE~IOH 9 1 A DISTANCE OF 140 FEET FOR THE SO~HEAS'l' CORNER OF THIS TRACT7 'l'HEHCE WEST 3 00 FEET '1'0 A POINT FOR 'l'HE SOUTHWEST CORNER OF 'l'HIS TRACT7 THENCE NORTH 140 FEET FOR 'l'HE NORTHWEST CORNER OF THIS TRACT7 THENCE EAST 300 FEET TO THE PLACE OF BEGINNING. BLK AK SEC 9 AB 161 TR 17 A ACS: .8 R120782 TR 17-A R136014 .8 AC 250 ' FILED AND RECORDED ep:~~ (Munoz-R136014) Kelly Pinion 1 County Clerk Lubbock Coun~y TEXAS 05/23/201& 10:i2 AM FEE: $S4 .ee 2016017894 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 DEVELOPMENT ~GREEM~Jfl ~lEU 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 tenn "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 -11 Page 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 ofthis 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 ofthis 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 ofthe Owner's heirs, successors and assigns shall be deemed to have filed Ch. 212 Development Agreement In Lieu Of Annexation - 2 I 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 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 ofthis 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 Attn: City Secretary P.O. Box 2000 Lubbock, Texas 79457 With coe,y to: City of Lubbock Attn: Director of Planning P.O. Box 2000 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 ofthis 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 Page 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 ofthe 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 tenns 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 P a g e Section 16-Enforcement. This Agreement may be enforced by the Owner or the City by any proceeding at Jaw 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 ful I 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. on this tft'0 day of lU l , 2016. IN WITNESS Hj1fiOF, the pYt"" mutually enter this Agreement Ch. 212 Development Agreement In Ueu Of Annexation -S I P a g e For the Citv Fo r th e Own e r GLEN C.·~~MAYOR 1~~ ICelliJ eth Ba k er, Owner \ Andrew Paxton, Director of Planning APPROVED AS TO FORM: Ch. 212 Development Agreement In Ueu Of Annexation -6 I P a g e NOTARIZATION State of Texas § County of Lubbock § This i st ment was executed before me on !\VIit LYl J 2016, by fi ~tl{· ~ ---lf..=-~~+()..;;.....lL-___ ofthe City of Lubbock, a Texas municipal corporation, on behalf of said e MAGEN D. MURCHISON Ndaly Nllc, Stme d Texas My Cannlissioo Expies 04-03-2017 State of Texas § County of Lubbock § This instrument was executed before me on -~#.L~u ~:n:=---2016, by /~ When Recorded Return To: City Secretary City of Lubbock, Texas 1625 131h Street Lubbock, Texas 79401 e VENITA WADSWORTH Nealy Ni:. S1ale of Texas Neary 1011053705-6 MyConrnisslll Expies 05-28·2020 Ch. 212 Development Agreement In Lieu Of Annexation - 7 I P a g e EXHIBIT A -The Property A TRACT Of LAHD OO't OP A 7.50 lCII RACT, ll1RB OR li!SE LOCmD Ilf TD SOOTBDST QUmiR ISB/4) OF S!CTIOH 9, BLOa AI, LUBBOCl comm, mAS, SAID 7.50 ACRB meT BmG DISCIIBBD BY DTBS ASD BOtllfDS IH THAT CDTAII HAWm'Y DDD IICOIDID IN VOLUKI 1361, PAGB 519, DDD RBCOiDS OP LVBBOCl comrrY, TBW, BIIHG 11)11 FULLY DISCRIBID AS FOLLOWS: BBODJmm AT A SPID HAIL Sft AT TBB S00'1'BWT CORm OP 'l'BI 7.50 ACU TRACT tfiiiCH IS f9.8 PUT lAST OP A PODHD l/21 ROD lfiiiCH IS AT TBI mJRSICTI(Il OF THB SOUTH LIHB or THI . 7.50 ACU TRACT ARD TBI LUBBOCt comr1'f ROAD iiGBT·OP-1fAY LID , SAID SPID HAIL BilliG 1118.9 lBBT HOlTB or T!B SOUTBWT C01H!R OP 'lBB Sl/4 OF SBCTIOI 9, BLOCl A·J:; THIKCI WIST ALONG TBI SOUTH LDm OP 'lHI 7 .SO ACU met 210 Plitt TO A 5/8 1 ROD srr FOI TEl SOU'l'BIIIS'l CODER OP THIS TiACTJ TBBD HOI'l'lll05 TO A 5/1 1 ROD srr FOR TBB liOIDKIST COIHII OP ms TRACT; mltl EAST A'! 160 PDT PASS A 5/8 1 iOD srr IB m LUBBOa CCtlm' lOAD ilGB'f·OF·ftAY Lilfl Ill ALL A DISTAICI OF Z!O PBBT TO A SPID HAIL SIT FOR '1'HI NOJlTJIDST CCmP. 0? THIS WC'l'J mHCB Sotml 105 PDT TO TBI PLACI OP BBGINlfiJ'.j. BLK AK SEC 9 AB 161 TR 16A ACS: .5062 160' -LO TR 16-A 0 ~ R7 505 8 FILED AND RECORDED -~~~ Kelly Pinion, County Clerk Lubbock Coun~y~ TEXAS 8S/Z3/Z016 10:G2 AM FEE: JS4.fiJ0 201&017908 (Baker, Kenneth-R75058) 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 DEVELOPMENJ4GREEMENT IN. LIEU OF ANNEXATION (the "Agreement") is made and effective this -thday of 1\R}l..t\, 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. ZlZ Development Agreement In 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 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 ofthe 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, ifthe Property is annexed pursuant to a provision ofthis 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 materia11y 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 ofthis 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 Ueu Of Annexation - 2 I 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 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 selJs or conveys any portion of the Property shall, prior to such sale or conveyance, give written notice ofthis 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 ofthe Property. A copy of any notice required by this section shall be forwarded to the City at the following address: City of Lubbock Attn: City Secretary P .O. Box 2000 Lubbock, Texas 79457 With copy to: City of Lubbock Attn: Director of Planning P.O. Box 2000 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 I 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 ofTexas, 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 shaH 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 shaH 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 I 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 ~OF, the parties.111utually enter this Agreement on this day of 1\pYLil , 2016. Ch. 212 Development Agreement In Ueu Of Annexation • 5 I P a g e For the City For the Owner GLEN Andrew Paxton, Director of Planning APPROVED AS TO FORM: Ch. 212 Development Agreement In Ueu Of Annexation - 6 I P a g e NOTARIZATION State of Texas § County of Lubbock § This instrument was executed before me on 4~o 16, by ~ \..e Y\ G. I2o~t"\)-y'\ ~~ NAME cofPOr:tidf of the City of Lub ock, a Texas municipal coi)>Oration, on behalf of said ~!~~D .hlwMJ~ e MAGEN D. MURCHISON N!Ury Nlic, Sllle G Texas M Coolnissioo c........., 04-03-2017 y ....,... .... State of Texas § County of Lubbock § This instrument was executed before me on -~ft~~.:.,o;l {:-:-:::\,:::-, __ 2016, b~~:Cu e VENITA WADSWORTH by Nit, Sllle cHexas Ncaylll1~ MyCoAialsabl EJpias 05-28-2000 When Recorded Return To: City Secretary City of Lubbock, Texas 1625 l31h Street Lubbock, Texas 79401 Ch . 212 Development Agreement In Ueu Of Annexation - 7 I P a g e EXHIBIT A-The Property 7.50 acres of land out of the SE/4 of Section 9, Block AK, Abstract No. 161, E L & R R Ry. co ., described by metes and bounds as follows: Beginning at a point in the east line of Section 9, Block AK, a distance of 1118.9 ft. north of the SE corner of this Section for the SE and beginning corner of this survey tract, This point is the NE corner of the Jim White 7.50 clcrc tract . A ~" rod bears west about SO ft .; Thence North 495 ft. with the East lino of Saction 9 and along pilved road to a point for the NE corner of this tract, Hhanca a~~~ rod bears west about SO ft,J Thence \~est 660 ft. set i" iron rod in field for the NW corner of this tract; Thence south 495 ft. to a found ~" iron rod for the SW corner of this tract. Same being the NW corner of the Jim White 7.50 acre tract1 Thence East 660 ft. to the place of beginning, and containing 7,50 acres of land. Save and except the following: 1/2 a'?re out of the Southeast corner. being 105 feet by 105 feet out of 7. 50 acres of land out of the Southeast One- Fourth ( SE/ 4) of section 9, Block AK, Abstract No. 161 E L & R R Ry. Co. , being rrore particularly described by rretes and b::Junds in that certain Warranty Deed dated August 29, 1973, f~ Glen B. Payne and wife, Mary c. Payne, 1;0 w. J. Blake and WJ.fe, Mary Joann Blake, duly recordea m Vol. 1361, page 519, of the Deed Records of Lubbock County Texas, to which reference is hereby rrade for all purposes. ' (Baker, Billy -R120724) Page 1 of 2 BLK AK SEC 9 AB 161 TR 16 ACS: 6.9938 610' TR 16 6.9939 AC 450' FILED AND RECORDED -:~~ Kelly Pinion 1 County Clerk Lubbock CountY lEXRS tS/23/2016 10:02 RM FEE: $58.00 20161U7892 (Baker, Billy· R120724) lo 0 ...... 160' TR 16-A b (j) ("'') Page 2 of 2 CITY OF LUBBOCK OFFICE PICK UP 2011017893 10 PGS AGREE 1111 ~ .. 111 ~~, .. ~~· ~W~I'I""=Wrl~.,~, II 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 SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER CITY OF LUBBOCK CH. 212 DEVELOPMENT AGREEMENT IN LIEU OF ANNEXATION THIS DEVELOPMENT AGREEM-'tr,g~l ~lEU OF ANNEXATION (the "Agreement") is made and effective this llf''tV'I day of · 2016, and is entered into pursuant to §212.172 of the Texas Local Government Code, by anl:i 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 Sedion 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 -11 Page 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 tlte 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 tlte 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 tenninate, 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, tlte 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 tlte institution of annexation proceedings by the City . Section 4-The Tenn. The tenn of this Agreement (tlte "Term") shall be twenty (20) years from the date that tltis 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 Ueu Of Annexation -2 I 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 tenninate at the end of the Tenn. This Agreement shall tenninate 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 tenninate 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 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 ( 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 Attn: City Secretary P.O. Box 2000 Lubbock, Texas 79457 With cooy to : City of Lubbock Attn: Director of Planning P.O. Box 2000 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 perfonnance 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 perfonnance 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 affinns 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 confinning its absolute right, title, and ownership to the Property. If the Owner cannot Ch. 212 Development Agreement In Ueu Of Annexation - 3 I 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 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 shaJJ 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 I 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 PAf"'! mutually enter Ibis Agreement on this ~day of '€A' , 2016. Ch. 212 Development Agreement In Ueu Of Annexation - 5 I P a g e For the City GLENC.~OR APPROVED AS TO CONTENT: Atidrew Paxton, Director of Planning APPROVED AS TO FORM: For the Owner J. ~~,~ ~1Mtlrreu, owner Ch. 212 Development Agreement In Ueu Of Annexation -6 I P a g e State of Texas § County of Lubbock § NOTARIZATION This instrument was executed before me on _· _.fJ+;)-:~;t-:<;;:-E --2016, by ~)ll~{!.M!~!lli(/ on behalf of said Owner. / e VENITA WADSWORTH NcDty-Silled Texas Ncalyb1~ MyQinnisim &piasH-21rl0 When Recorded Return To: City Secretary City of Lubbock, Texas 1625 13th Street Lubbock, Texas 79401 Ch. 212 Development Agreement In Ueu Of Annexation -7 I P a g e EXHIBIT A -The Property ~~------.--.-----------------------------------------------------------------------------------. . ., Revised Plat of Survey rvt~.3336 flrll72 or Tract 18.Frankford Farms South, a Subdivision aut of the Soulh ·1/2 at the Narlhwest 1/4 of SecUon 8 Block A-K Abstract 959, Lubbock CounLL Texas u shown by pl11.L recorded \n Volume :!281, Page 109, Real Properly "Records, Lubbock County, Texas II -01' 1111" 1: CZI .Tl' Tract 16 ----, I I 1 .. li 11 ~ ... ,_. ... Ul ~~ -. -----,_ .L • • • J • ---- - ( -..... ---,_ --.. . .. .!!.. :!.. .!!.. ~ ,:_ :-~ :..•-.. --=-- s FI!UI NCITI:S: ; ta:I.D liGT1:S el a I.G .... \taCL el laa.l ... L e1 U.. s...u. 1/Z ., &M llorUI••rt l/4 ., So.U.. ....... I I di . t Ill 5.0 Acres Ia 5 ..J:.:-'~ al~ ... I 1: Ill J.•X. .U.oltact OSIJ, Lllbllocll Cona11l1. Toaaa .. no.. h ., plot recerololl 1a YaiWM 22&1. P .. • 1111, ll&.ol .,. "'-pcrtJ llocN'41., L&alll>ocll CouaiJ, Teaaa ~ ..,.., ~ ...,. peztkulorl7 .. -n ... u foil.- -UCINIIIII~ •l a 1/r rod oiL Ia llae lui ICIII Ill b fraMjenl J.nll\le for Ulo JlorUI.col concr or Ulla ~ b :! -.. -. .: b z II ... II$' o&T' W ti'P.al• ~au..\ DOUCW SVJM:'I'lNc; C:O. 1 DO 1-C 34TH st1lEI:l' LUBDOCX. n:X1.S 1S411 (110!1) '144-11540 ·-· •• S.l 1/r a..s • 1uner 11'1111'1 Wllme. Ule S..ulll•col corau or ua. llonJIVUl 1/4 ., So~UCIIl • kara s or Cit Oil' "· as.o · ud s ff u· 4:1' 1:. NG.D' b .. _EXHIBIT A THDCCE If er oo· 011' I! • lllo\.uce or 4ZI.'tl' 1e • ltr nod oat Jer U.w NorUioart ""'"'"' Ill W. ........,.; TIIENct S Cl' II' 4:r' I! • 41lllAiltw ol 411.11' ta a liZ rod "' fer • conacr or Lhl• eunor. 11014 n,. .. .be IMla& U.a lfllf'U!Mal eonaor If • l Jl acr-l.rad: 'IHI:HCC S lr II$' 4Y W, al .... U\o tlori.ll liDa of aNd I .G .en Cncl. 1 tbrtallc• •I =e.?t' le a IJr nd oo\ lor • canon el W. runq, all• a.dq Ulo • ..,.. .... , --•• llld 1.11 --llad: 110CE S f1 II' 4:1' ~ ••1 llae Wal llao tJI oal.l Ul aa:re 1rKt a dllla:u ol ZCIG.71' kl o 1/r noll Ml Ia U.• Noruo 1101' If 131\11 "'•~ abD kllla u.. Soulbaul ecnarr ol o&ld 1.1 acra tl'..:l: TIIDIC't s II' 115' 4"f' W, .S~~~~t Ulo NOIUI JllJW ot 1:111\la Stftol. a dbt.oa•• or IV7 A L' lll a peliL fOI' a canacr or lNao o~~nor. 11IDICt .Saq Ul• .,. or • ftlrft Ia Ulo IJI&bL I&& .tal_ • a.oli\11 of 1~·. • T .. ,.,., of 111.11' • hila or 10'~ • &.~~ella •• 1::1.n· a.. " pa1a1 1a u.. ~ ao• ar fraala,lanl J.n.,... far • _..,. or W. •-r. THDICI: If ff 11' cr W, olq U.o tArt IIIII' el lruoldanl ....... u. • dlll.aiiCII., ICU.H' Ia Ulo P'-"' ••&l.oAiq ...... lalola& liD o.cno Ill IUIIL &&ONUVENTS PLACED AS SHOWN B'{ PUT ~WN AS ;..u N TH OUND ~---.: ______ _ DON H. DOUCLAS RECJSTERED PROF-ESSIONAL UND SURVEYOR 14579 (Murrell, James Lyndell-R86581) Page 1 of2 . . . . FRANKFORDFARMSSOUTHTR16 I m ct: u.. I I l i i i j i i i 1 I I I I 55' I { I l . 0') ,....._ v 0 <.0 197 .81' 0 (Murrell, James Lyndell -R86581) TR16 5AC R8 65 81 208.71' TR15 -~ r- cri 1 AC 0 C\1 R8 655 1 100' <0 ro 0') ~ (0 Page 2 of2 . . . . EXHIBIT A -The Property The SURFACE ESTATE ONLY of TRACT FimEN (15) • FRANKFORD FARMS SOUTH, a aubclividon of the !\nuth 1/2 of the Northvut 1/4 of Section 8, Block A-K. Lubbock County, Texaa, according to the Hap, Plat •nd/or Dedication Deed thereof recorded iu Volu•• 3281, Page 106 oC the Real Property Recorda of Lubbock County, 'Tex~a. (Murrell-R86551) FRANKFORD FARMS SOUTH TR 15 T""" ,...... co 0 C'\1 208.71' TR15 1 AC R86551 FILED AND RECORDED .PU~~ Kelly P1nion 1 County Clerk Lubbock Coun~y~ TEXAS 0S/23/201B 10 :v2 AM FEE:_ JB2 .00 201&017893 CITY OF LUBBOCK OFFICE PICK UP 2016017891 8 PGS AGREE 1111 W.1 rtt.H.•Lt·F.C/1~~ ~~W ~:1.11\' IIIII 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~,REEME~~LIEU OF ANNEXATION (lhe "Agreement") is made and effective this ~ay 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 I 0, 20 16; 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 l -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 " 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 ofthis 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 ofthe 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 ofthe Property in the same manner that the City's regulations and planning authority arc 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 ofthe execution ofthis 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 c e a petition for voluntary annexation of the Property, and the Property will be subject to voluntary annexation in accordance with Section 3 ofthis 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 ofthe 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 ofthe Property. A copy of any notice required by this section shall be forwarded to the City at the following address: City of Lubbock Attn: City Secretary P.O. Box 2000 Lubbock, Texas 79457 Wilh coey lo: City of Lubbock Attn: Director of Planning P.O. Box 2000 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 I Page 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 ofthe 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 I 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 ~~~~OF, the ¥\?i~ mutually enter this Agreement on this ~ day of g.,) J , 2016. Ch. 212 Development Agreement In Lieu Of Annexation - 5 I P a c e For the City For the Owner \• ATTEST: APPROVED AS TO FORM: Ch. 212 Development Agreement In Lieu Of Annexation - 6 I P il ll c . . State ofTexas § County of Lubbock § NOTARIZATION This instrument was executed before me on ~~JJ4,_ 2016, by b\-e.n .. ,l. ~ l\1\.~ 0 j2..-of the City of Lubbock, a Texas municipal corporation, on behalf of said Tl t corporation. ~-eMAGEN D. MURCHISON I ~ H*yN!Ic, Stated Texas My Cammlliall &pillS 04-00-2017 State ofTexas § County of Lubbock § 1 Th is instrument was executed before me on _4-+t-· ::-:-U:[--2016, by Cf.L£;,~7?,~'?!!;'-I:I,~q/L!..., on behalf of said Owner. ·, .~. VENITA WADSWORTH I Ndaly Nile. Sllla ciT au Ncayllt1~ " MyCcmnilsbl &piasCI532mo 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 I P a g e . . EXHIBIT A -The Property A trnct of land out of the Southeast Quarter (SE/4) of Section I, Block A·K, Lubbock County, Texas, further described as follows: OEGJNNJNG ost n milro;ad spike found in the Ellstlinc of Section I, Block A·K, Lubbock County, Texas for the Southeast comer of the North 80.00 acres of the Southeast l/4 of said Section I, Block A·K and for the Southeast and beginning comer of this tr:u:t, whence a railroad spike found for the Southeast comer of Sllid Section I, Block A-K bears South 00°01'49" West, 1315.45 feet; THENCfi North 89°59'12" West. :dong the South line of said North 80.00 acres of the Southc:tsl 114 :1140.00 feet pass a Ill" iron rod with cap set in the West line of County Road 112200 (University Avenue), continuing foro total di!;lllncc of 2640.16 feel to 11 3/8'' iron rod, found in the Wc:sllinc of said Southcasl 114 for the Southwest com~r of said North 80.00 acres of lhe Soulhcast 114 and for lhc Southwest comer of this trncl: THENCE N~rth 00°00'54" W~st, along llle West line of said Southeasll/4, 247.48 feet to a 3/8" iron rod, found for the Northwest comer oflhis tract; THENCE South 89°S9'12" east, at 2600.35 feel pass a 3/8" iron rod found in lh~ W~sllinc of s:Jid County Ro:td #2200 !University Avenue), c:onlinuing for a total disumee of2640.J5 feet to a railroad spike, found in the l!.ast line of said Section I, Block A-K for the Northeast comer of this uact; THENCE South 00°01 '49" West. along the East line of said Section I, Block A-K, 247.48 feet to the Place: of Beginning. BLK AK SEC 1 AB 189 TR G OF SE/4 AC: 15 I I\ .; ·-r---------;;;:-----__j 7, ;~,- (Hudson-R42409) FILED AND RECORDED -~~~~ Kelly Plnlan1 Caunty Clerk Lubback County~ TEXAS BS/23/2016 10:w2 AM FEE: J154.00 2016017891 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 miS DEVELOPMENL ~REEME¥1 LIEU OF ANNEXATION (the "Agreement") is made and effective this Lt' 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 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-Tbe 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 ofthe Owner's heirs, successors and assigns shall be deemed to have filed Ch. 212 Development Agreement In lieu Of Annexation -2 I 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 Attn: City Secretary P.O. Box 2000 Lubbock, Texas 79457 With copy to: City of Lubbock Attn: Director of Planning P.O. Box 2000 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 I P a g e defend or fails to defend its right, title, and ownership to the Property, then this Agreement shaH 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 ofthe 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 I 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 ~OF, the 'A,rties ~mutually enter this Agreement on this ttll'day of fEd\ , 2016. Ch. 212 Development Agreement In Lieu Of Annexation - 5 I P a g e For the City For the Owner Dustin Ford Bell, Owner Andrew Paxton, Director of Planning APPROVED AS TO FORM: Ch. 212 Development Agreement In Lieu Of Annexation -6 I Page State ofTexas § County of Lubbock § NOTARIZATION This instrument was executed before me on -~~..~::,~. -==:r=D;...."\2.;... ___ of the City of Lubbock, a Texas municipal corporation, on behalf of said ~Omtlon. M\1~ State of Texas § County of Lubbock § .. e MAGEN D. MURCHISON NlUJy Nlic, Stile ol Texas My Conlnisslon EJPras 04-03-2017 This instrument was executed before me on --1-+(.r..J~~~--2016, by 24 llt!J &/b/1 , +fo;:n. ~rnN roao ltLL -~ on behalf of said Owner. 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 I P a g e EXHIBIT A-The Property A 1.09596 acre tract of land, more or less, out of the Southwest One-P'ourth (SW/4) of Section 16, Block E, G.C. t& S.P. R.R. Co. Survey, Certificate No. 3/366 1 Abstract No. 1000, Patent No. 157, Volume 44, dated May 6, 1912, Lubbock Coun~, Texas, being described by metes and bounds as follows, to•wit: BEGINNING at a point 957 feet South and 518 feet East of the NW comer of said SW/4 of Section l.G, Block B, Lubbock County, Texas, for the NW and begim::dng comer of . said 1.09596 acre tract herein conveyed, TRENCI South 140 feet along a line parallel to the Waat boUDdary line of said SN/4 of Section 16, Block B, to a point for the SW corner of this traotr TJIINCI Ba•t 341 feet along a l!De puallel t:o tbe North boundary line of ••id SK/4 of SectiOQ 16, Bloak B, t:o a pobt: for the SB comer of tbia t:ract:J TB!!NCI North 140 feet aloag a line parallel to the Weat boundary line of aaid SW/4 of Sect:iou 16, Block B, to a paint for the NB corner o! thia tract, "l'HENCB Weat 341 feet. along a line parallel to tbe Harth boundary line of aaid SW/4 o! Seotion 16, Block B, to the NW and beginning corner of said 1.09596 acre tract of land, more or lesa. (Befl, Dustin-R168993) Page 1 of2 . . . . BLK E SEC 16 AB 1000 TR C2 OF SW/4 ACS:1.095 R168993 FILED AND RECORDED ·p~~ Kelly Pinion, CGunty Cle~k Lubbock Coun~y TEXAS 05/23/281& te :t2 AM FEE: ssa.ee 201601789!5 (Bell, Dustin-R168993) R97650 TR C OF SW/4 155 9 AC Pa1e 2of2 L(4/12/2016) Kim Parri'Sfj':" Chapter 212 Agreemen..t: K.;.;.;im.;.;.o;.,be,...r<.t..I~..,P .... a,..rr ... is,..ht,!;,.p.;.df;.._, ______________ ...... P ... a.'!!..ge.;.......;..,1 § 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 DEVELOPMENT ~REEM~I~ 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 auached 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 g and March I 0, 20 16; 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 ofthc City of Lubbock; and WHEREAS, the Owner docs 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 usc 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 C ity 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 Stntus. 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 (EZ f?t20i~[KTm Parrish-Chapter 212 Ag~ment-Kimbe~ P..;;.a_.rr ... is.;.;.h.l!.io·g_o;..;df .... .._ _____ _. _______ ~ __ Pa-=g~~-2 .... 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 usc 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. I 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 J-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 add ition 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 ::=• 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 ofthe 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 ofthis 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 lbrwarded to the City at the following address: City of Lubbock Attn: City Secretary P.O. Box 2000 Lubbock, Texas 79457 Witlz conv to: City of Lubbock Attn: Director of Planning P.O. Box 2000 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. I fthe Owner cannot Page ]] ~[(~41-12~P-0-1~~~:K-im~P-ar-ris_h_-~c•h~~p~re-r~2-12•A~;~~l~ee~m•e•n•t-~~-im_b~~-~V~Y -Pa~r~ris•h~.~~L:--------=---------------------p ~ 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 nrc 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 n 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 n 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 seck any and nil forms of relief in n 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 nrc 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 usc 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 aller 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. : Section 16 -Enforcement. This Agreement may be enforced by the Owner or the City by nny 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 nn 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-Severnbility. 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 ofthe date that this Agreement becomes effective, that nny Owner docs 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 nrc for reference purposes only and shall not be deemed a part of this Agreement. 1-Jowcver, each of the recitals contained herein, by this reference, shall be incorporated into, and deemed a part of, this Agreement. Section 22-Modification or Agreement. This Agreement cannot be modified or amended except in writing signed by the Owner and the City nnd attached nnd made a part of this Agreement. Section 23-Ch. 212 Agreement in lieu or Ch. 43 Agreement. If the Property is subject to nn 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 H,I•;~~OF, the parties ~utually enter this Agreement on this ~day of ApiU ) , 2016. ~~(~4/~1 ~2/~~~dJ§_6~)-R-im_iP_a~g-M s.h_-_c_·h-a ~pt-er-2•1~2-A~g~re-e-m~e-nt~--K-im_b_e_r~ly _P_a_rri.sh •. ~pd~f __________ w _______________ ____ Page6 For the City For the Owner APPROVED AS TO FORM: Justin (<4/12/2016) Kim Parrish-Chapter 212 A 9reement-KimbE;!j}l Parrish.@ When Recorded Return To: City Secretary City of Lubbock, Texas 1625 13 1h Street Lubbock, Texas 79401 NOTARIZATION e VENITA WADSWORTH N«DDy Ni:, Slale of Texas NcAary 1011~ ' My~ExpbHQ5.28-2020 EXHIBIT A -The Property A 2.000 acre tract out of the Southeast Quarter (SE/4) of Section 1, Block AK, Lubbock County, Texas being further described by metes and bounds as follows: BEGINNING at a set steel nail with washer marked Abacus Eng. RPLS 4 4 60 having Te::t.as North Cent.ra 1 Zone Coordinates of North: 7231771.23, East: 940868.60 in County Road 2200 for the Southeast corner of this tract whence a found railroad spike having Texas North Central Zone Coordinates of North: 7231217.65, East: 940850.66 bearsS 01'51'18" W (Texas North Cen t ral Zone Bearing Basis), 554.00 feet; THENCE N 88.08'50" \-1, 521.67 feet to a set ~, rod \vith orange cap marked RPLS 4460 for the Southwest corner of this tract; THENCE N 01 ·51' 18" E, 167.00 feet to a set ~" rod Hi th orange cap marked RPLS 4460 for the Northwest corner of this tract; THENCE S 88.08'50" E, 521.67 feet to a set steel nail with \'lasher marked Abacus Eng. RPLS 4 4 60 in County Road 2200 for the Northeast corner of this tract whence a found railroad spike having Texas North Central Zone Coordinates of North: 7233850.26, East: 940935.92 for the Northeast corner of the SE/ 4 bears N 01 ·51' 18" E, 1913.65 feet; THENCE S 01 ·51' 18" W, with County Road 2200 and the East line of Section 1, a distance of 167.00 feet to the PLACE OF BEGINNING and containing 2.000 acres including any Right-of-Way (the "Property") . (Parrish -R322346) Page 1 of 2 BLK AK SEC 1 AB 189 TR M OF SE/4 AC: 2 TR M OF SE/4 2AC 521.67' FILED AND RECORDED -~~~ Kelly P!nion1 County Cle~k Lubbock Coun~y TEXAS 05/23/2016 10:t2 AM FEE : $5a .ee 2016017896 (Parrish-R322346) Page 2 of2 CITY OF LUBBOCK OFFICE PICK UP 2016017897 8 PGS AGREE II II W~ rlft-IC1~1-ft'J ~,.~ ~~~~M\' IIIII 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 ~REEMENT IN LIEU OF ANNEXATION (the "Agreement") is made and effective this g} day of Arm_j\ . 20 I 6, and is entered into pursuant to §212. I 72 of the Texas Local Government Code, by ~en 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 I 0, 20 I 6; 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 ofthis 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 ofthe 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 ofthe 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 I 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 ofthis 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 ofthe 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. lfthe 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 Attn: City Secretary P.O. Box 2000 Lubbock, Texas 79457 With copy to: City of Lubbock Attn: Director of Planning P.O. Box 2000 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 I 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 ofthe State ofTexas, 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 I P a g e Section 16 -Enforcement. This Agreement may be enforced by the Owner or the City by any proceeding at Jaw 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 ofthe 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 ofthe 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 §2 12.172 Agreement. IN WITNESS H~R.JfOF, the ~ics. mutually enter this Agreement on this J:E:'day of l?d I , 2016. Ch. 212 Development Agreement In lieu Of Annexation -5 I P a g e For the City For the Owner GLENC.~R Norma F. Favcrs, Owner Andrew Paxton, Director of Planning APPROVED AS TO FORM: Ch. ZlZ Development Agreement In Lieu Of Annexation-6 I Page State of Texas § County of Lubbock § NOTARIZATION This in trument was executed before me on ~~L 14, 2016, by UkJ'L~· ~SDVl C DR-ofthe City of Lubbock, a Texas municipal corporation, on behalf of said TITLE State of Texas § County of Lubbock § This instrument was executed before me on ~ IIATE on behalf of said Owner. When Recorded Return To: City Secretary City of Lubbock, Texas . 1625 13 1h Street Lubbock, Texas 79401 e MAGEN D. MURCHISON NIDiy Nllc, Slate ciTexas My C'Amnisl!kln &pies ()4.03-2017 2016, by~ l:.fe?&rS NORMA F. FAV[M!I . OWNER Ch. 212 Development Agreement In lieu Of Annexation - 7 I P a g e t:l ~ - - ) ' EXHIBIT A -The Property 76.641 acres, more or less, being all of the 80 acres of South One-half (S/2} of the Southeast One-quarter (SE/4) of Section One (1), Block AK, EL&RR RR. Co. Survey, Certificate No. 937, Abstract No.189, Lubbock County, Texas; Save and Except: 3.359 acres, more or less, more fully described In that certain Warranty Deed dated February 1, 1982, from V.G. Allen and wife, Gladys K. Allen, as Grantors, to Roy A. Towle and wife, Elizabeth Towle, as Grantees, recorded in Volume 1772, Page 921, Official Public Records, Lubbock County, Texas BLK AK SEC 1 AB 189 BAL SE/4 AC: 72.91 I"(<U.W.ll 2!1.10 ' R35506 BAL. OF SE/4 72 91 AC fj TR'OC# U < i J.K. RJ22J46 """1' R35506 -' '"~ - 10\J B7' : J ;:.~:,~ -.:; l I R65559 ,.. .... ~ ! I I I FILED AND RECORDED (Favers-R35506) .PU~~~;~ Kelly Pinion 1 County Clark Lubbock Coun~y~ TEXAS 0!1/23/2016 10:~2 AM FEE: $!1-\.00 20tsenasn 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 CD. 212 DEVELOPMENT AGREEMENT IN LIEU OF ANNEXATION THIS DEVELOPMENT AGREE~g,jiN ~lEU OF ANNEXATION (the "Agreement") is made and effective this J4th 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 -Tbe 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 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 Attn: City Secretary P.O. Box 2000 Lubbock, Texas 79457 With copy to: City of Lubbock Attn: Director of Planning P.O. Box 2000 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 I 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 detetmined 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 detetmined 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. I IN WITNESS ~!Y'OF, tbeJ12rti!'5 mutually enter tbis Agreement on this ~day of f?-1 J , 2016. Ch. 212 Development Agreement In Ueu Of Annexation - 5 1 P a g e NOTARIZATION State of Texas § County of Lubbock § This instrument was executed before me on ~ l \4J 2016, by {A \_.t,~ G. J2..o~Y\ ~A ~ ~ tv ~Q {2--of the City of Lubbock, a Texas municipal corporation, on behalf of said ~~i~· MltKLhlitl!\ State of Texas § County of Williamson § e MAGEN D. MURCHISON NdaryNllc.S.cHuas My Ccml8ill &pnll ()4.03.2017 This instrument was executed before me on AD 6/ f { r DATI: 2ot6, by 5afldro... Car\ tot\ on behalf of said Owner. ~ItA X. CAJU.lOII -OWIIE& e~ MOOYC. MERKEL MY COMMlSSION EXPIRES February 27,2017 When Recorded Return To: City Secretary City of Lubbock, Texas 1625 13th Street Lubbock, Texas 79401 Ch. 212 Development Agreement In Lieu Of Annexation - 7 I P a g e EXHIBIT A -The Property Only that portion of the property lnduded In the official survey attached to the City of Lubbock Ordinance No.lOJ6-000S4. Being one-Third -(1/l) of a 2s:i2 acre tract of lana out of the Northeast One-Fourth (NE/4) of Section 2~ BloCk A-1, Lubbock County, Texas, described by metes and bounds as follows: BEGINNING at a 112• iron rod set at the intersection of the west slde of Onlverslty Ave. and the South Line of an east-West Qradea road for the Northeast corner of tbla tract, from whence a railroad spite found at the Northeast corner of Section 2, Block A-K, Lubbock County. Texasr bears North a distance of 25.00 feet and North 89.55'55" Bast a distance of 40.00 feet; TRENCE South alon9 the West side of On1vers1ty Ave •• 40.00 feet from and parallel to the east Line of said Section 2. a distance of 446.80 feet for the Northeast corner of thle tract; THENCE South along the West side of Onlversity Ave., 40.00 feet from and parallel to the East Line of Section 2. a distance of 446.80 feet for the Southeast corner of this tract• TBENCE South ag•ss•ss• West parallel to the North Line of sold Section 2, a distance of 823.02 feet for the Southwest corner of this tract; THENCe North parallel to the Bast Llne of Said Section 2 a distance of 446.80 feet for the Northwest corner of this tract: TRENCB North 99•ss•ss• East a distance' of 823.02 feet to tbe PLAC£ OP BEGINNING, and containing 8.44 acres of lana •• (Carlton • RS4087) Pace 1 of2 • I • ' BLK AK SEC 2 AB 1002 TR B OF NE/4 ACS: 8.44 823 02' TR 8 OF NE/4 R54087 8.44 AC FILED AND RECORDED -:~~ KellY P1nion 1 County Clerk Lubbo~k Coun~y TEXAS es/23/201& 1e:•2 AM FEE: $58.10 2016017898 (carlton-R54087} Pase 2 of2 CITY OF LUBBOCK O.FFICE 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 DEVELOPME~T t\fREEM&NT ~N LIEU OF ANNEXATION (the "Agreement'') is made and effective this 4 day of J.\f.l?il , 2016, and is entered into pursuant to §212.172 of the Texas Local Government Code, by ana 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 .09l(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 inst itution 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 ofthe Term. This Agreement shall tenninate 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 he irs, 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 Attn: City Secretary P.O. Box 2000 Lubbock, Texas 79457 With copy to: City of Lubbock Attn: Director of Planning P.O. Box 2000 Lubbock, Texas 79457 This Ag reement 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 a11 provisions of this Agreement. No provision of th is 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 Jaw. 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 I Page defend or fails to defend its right, title, and ownership to the Property, then this Agreement shall tenninate . 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 perfonnable 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 Jaw, order, rule, or regulation which may affect the tenns 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 fonns 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 I 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 H~REOF, the Artie~ mutually enter this Agreement on this 4 t.hday of p R.J I , 2016. Ch. 212 Development Agreement In Lieu Of Annexation - 5 I P a g e For the City For the Owner Alfun~O~-. ------ · .. Andrew Paxton, Director of Planning APPROVED AS TO FORM: •· 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 £\r¥-1 1 r:l , 2016, by fal.-tV1 G. f2-c:bt ~·D'VJ ~~ Mn ~•• ~~Of: ofthe City of Lubbock, a Texas munici o · fsaid c.orporat·. ion. ·. . • e~· MAGEN D. MURCHISON ~ I . . .111(. NdalyPitlc.SIIIo~T-~D .Mtt~~ ..,~~~11 Notar · ublic State of Texas § County of Lubbock § This instrument was executed before me on '¢.:3 2016, by ~~tr~ NrAary Ptmlk:, Stale ol Texas , e VENITA WADSWORTH Ndaly IDI1~70&e My Ccmmissloo Expies 05-28-m State of Texas § County of Lubbock § This instrument was executed before me on ___ ./L+~~%~2._' _ 2016, byc"V~ ~. 44 ATE ~IECAU.A~a on behalf of said Owner. e VENITA WADSWORTH Nolaly NIIC, Sla&e ol T axas NcMiy l)t 1053705-8 MyConrnSSbt Expims 05-28-2020 When Recorded Return To: City Secretary City of Lubbock, Texas 1625 13 1h Street Lubbock, Texas 79401 Ch . 212 Development Agreement In Lieu Of Annexation - 7 I P a g e EXHIBIT A-The Property A tract of land located in Section l, Block A·K. Lubbock County, Texas, being further described as follows: BEGINNJNG at D found W' iron rod which bears N. 00°01 '48" E. a distance of 1562.93 feel and N. 89°59'12" w. a distance of2429.54 feel from the Southeast comer of Section I, Block A-K; . THENCE N. 89°59'12" W. a distance of210.83 feet to a found J/8" iron rod; THENCE N. 00°00' 54" W. a distance of 413JO feet to 11 found 3/8" iron rod, reset widl W' iron rod with cap; THENCE S. 89°56'54" E. a distance of21 0.83 feet to a found W' iron rod with cap; THENCE S. 00°00'54" E. a distance of 413.16 feet to the Point of Beginning. BLK AK SEC 1 AB 189 W210'0F TR 8 UNIVERSITY SOUTH AC: 2 (Gallardo -R112268) 0 co 264.47' W/210 R112266 2AC TRB 210.6' FILED AND RECORDED (i:~~ Kelly Pinion1 County Clerk Lubbock Coun~y~ TEXAS 05/23/2016 10:~2 AM FEE : $154.00 201&017899 . . 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 DEVELOPMENT Afi;REEM~j LIEU OF ANNEXATION (the "Agreement") is made and effective this \"1"' day of , 2016, and is entered into pursuant to §212 .1 ?2 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 ofthis 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 Page 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 ofthe City prohibits the City from providing water to any entity outside ofthe 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 ofthe 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 tenninate, 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 ofthe City of Lubbock. At the end ofthe 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 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 Propert y. Section 5-Termination. This Agreement will automatically tenninate 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 ofthe 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 ofthe Property. A copy of any notice required by this section shall be forwarded to the City at the following address: City of Lubbock Attn: City Secretary P.O. Box 2000 Lubbock,Texas79457 Wilh copv 10: City of Lubbock Attn: Director of Planning P.O. Box 2000 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 ofthis 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 I 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 seck 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 c 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 ofthis 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 I imiting 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 HERJ:OF, the 7\rties. mutually enter this Agreement onthisjfdayof pg,il ,2016. Ch. 212 Development Agreement In Lieu Of Annexation • 5 I P a g e For the City For the Owner APPROVED AS TO FORM: Ch. 212 Development Agreement In Lieu Of Annexation-6 I Page State of Texas § County of Lubbock § NOTARIZATION Thi s~:{"ument was executed before me on ~!Ji.))4_,_ 2016, by hl-W ,.~. RobeJ?i6:i\ VI _ _ . ~ J2-of the City of Lubbock, a Texas municipal corporation , on behalf of said LE corporat ion . M·, . D M~ tl!" . . 0~. MA:~~M:;~~ _,_ ,___11\,~ My-El!*lo~l Notar ublic State of Texas § County of Lubbock § This instrument was executed before me on ./ J '/~ ·_ ~ on behalf of said ~mHo.. When Recorded Return To: City Secretary City of Lubbock, Texas 1625 13'h Street Lubbock , Texas 79401 2016,by ~ .22mzer ~\\~NNU .o wNU e VENITA WADSWORTH NcUry Nile. S1a1e ofT IIIII NUyDI1~ My Camnlisllrl &iN H-2020 Ch. 212 Development Agreement In Lieu Of Annexation-7 I P a c e .. EXHIBIT A-The Property A 4.466 acre tract of land out of the Southeast One-Fourth (SE 1/4) of Section Nine (9), Block AK, Abstract 161, E.L.&R.R.R.R. Co. Survey, Lubbock County, Texas, described by metes and bounds as follows: BEGINNING at a found 3/4" iron pipe at the Southeast corner of Section 9, Block AK, and in intersection of N-S and E-W public road for the Southeast and beginning corner of this tract: THENCE South 89° and 52' w~st 660.0 feet with the South line of Section 9 and along public roiid net 3/B" iron rod for the Sou~hwest corner of this tract. l·IJIENCE a 1/2" iron pipe bears North 25 feet; THENCE North 295.7 feet set l/2" iron pipe in field for the Northwest corner of this tract; THENCE East 660.0 feet set 3/8" iron rod in the East line of Section 9, and in N-S public road for the Northeast corner of this tract. WHENCE a 1/2" iron pipe bears West 20 feet; THENCE South 293.9 feet with the East line of Section 9, and along public road to the place of beginning. BLK AK SEC 9 AB 161 TR 20 OF E/2 ACS: 4.126 TR 20 . RI2112C• 4.126 AC R 12 1120 1.() (j) C\1 610' (Bonner-R121120) Page 1 of 1 FILED AND RECORDED ep::z::DS~ Kelly Pinion1 County Clerk LubbOck Coun~y TEXAS 85/23/2816 18 :.2 AM FEE: $54.1118 2016017900 . . 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 TmS 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 TIDS DEVELOPMENT AGREEME~ ~lEU OF ANNEXATION (the "Agreement") is made and effective this 14 +hday of I 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 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 I 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 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 CouncU 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. Sedion 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 Attn: City Secretary P .0. Box 2000 Lubbock, Texas 79457 With copv to : City of Lubbock Attn: Director of Planning P .0. Box 2000 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 I 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 Ueu Of Annexation -4 I 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 ~~OF, the P.arties. mutually enter this Agreement on this J:r: day of Ap J2..f I , 2016. Ch. 212 Development Agreement In Ueu Of Annexation - 5 I P a g e For the City For the Owner ~m ~ Linda Mayne, Owner - APPROVED AS TO CONTENT: Andrew Paxton, Director of Planning APPROVED AS TO FORM: Ch. 212 Development Agreement In Lieu Of Annexation -6 1 P a g e State of Texas § County of Lubbock § NOTARIZATION When Recorded Return To: City Secretary City of Lubbock, Texas 1625 13lh Street Lubbock, Texas 79401 Ch. 212 Development Agreement In Lieu Of Annexation - 7 1 P a g e 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. Only the North 660 feet of the following: A t.ract of land located in Sect:ion Six (6), Block AK, Lubbock County, Texas, being further described by metes and bounds as follows: BEGINNING at a 1/2" rod found for the Northeast corner of this tract which bearsS. 89°57'00" E. a distance of 1215.00 feet: from the North\.-1est corner of Section 6, Block AK, Lubbock County, Texas; THENCE South, at 30.00 feet pass a 1/2" rod found, continuing for a total distance of 720. 50 feet to a 1/2" rod found for the Southeast corner of this tract; THENCE N. 8 9°5 7 '00" W. a distance of 200.00 feet to a 1/2" rod found for the South\o.!est corner of this tract; THENCE North, at 690.50 feet pass a 1/2" rod found, continuing for a total distance of 720.50 feet to a 1/2" rod found for the Northwest corner of this tract; THENCE S. 89°57'00" E., along the North line of Section 6, Block AK, a distance of 200.00 feet to the POINT OF BEGINNING ( the uP roper t y" ) . (Mayne -R140518) Page 1 of2 BLK AK SEC 6 AB 760 TR 7 OF N30 AC OF W220 AC: 3.17 FILED AND RECORDED -~~s~ Kelly Pinion, County Clerk Lubbock Coun~Y~ TEXAS eS/23/2116 te:uz AM FEE: $58 .01 2016011901 (Mayne-R140518) R 140518 TR? 317 AC R1-t0518 Page2of2 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 DEVELOPMENT ~REEMWFT LIEU OF ANNEXATION (the "Agreement") is made and effective this l4 f day of \ , 2016, and is entered into pursuant to §212 .172 of the Texas Local Government Code, by ana 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 ofthe 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 I 0, 20 16; 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 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 ofthis 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 ofthis 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 I 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 ofthe 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 Attn: City Secretary P.O. Box 2000 Lubbock, Texas 79457 Wilh copy lo: City of Lubbock Attn: Director of Planning P.O. Box 2000 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 con tinning its absolute right, title, and ownership to the Property. If the Owner cannot Ch. 212 Development Agreement In Lieu Of Annexation-3 I P a g c 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 ll -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 I 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 14~0F, the pap,ies ll!yually enter this Agreement on this + day of pf?..t , 2016. Ch. 212 Development Agreement In Ueu Of Annexation - 5 I P a g e For the City For the Owner APPROVED AS TO FORM: Ch. 212 Development Agreement In Lieu Of Annexation-6 I Page State of Texas § County of Lubbock § NOTARIZATION This instrument was executed before me on ~p.-i \lib 2016, by fJt/;y) L kR-obet9DP"V\ \. /\ VJ DATE . NAME u._~O J=:: of the City of Lubbock, a Texas municipal corporation, on behalf of said corporation. ·-• e· MAGEN 0. MURCHISON C..,.~ 1\ .-~. NdalyP&mlc,StaledT• 0 v (/ \ My Comlnl!lsloo Expiw~7 State of Texas § County of Lubbock § This instrument was executed before me on on behalf of said Owner. When Recorded Return To: City Secretary City of Lubbock, Texas 1625 13 1h Street Lubbock, Texas 79401 Ch. 212 Development Agreement In Lieu Of Annexation-7 I Page ,' I . . . . I ...... EXHIBIT A -The Property TRJ\CT 1 ': A 10.2 acre tract of land, more or leaa, out of the Salt 1/2 of section a, Block A·K, Lubbock County , Texa1, and being more particularly deacribed aa follow•~ BEGINNING at a railroad apike aet in the center line of Farm to Market Highway 1730, for the Southeaat and beginning corner ot tbia tract, from whence the Southeast corner of Section a, Block A-K beara South 1 ,685 .04 feet1 THEitCS south n• 30' 40" Neat, (at 45 feet pau a 3/4" iron pipe) a total diatance of 2,&41 .& feet to a J/4" iron pipe eet for the Southweat corner of thia t~act1 THENCE North o• 05 1 35" Eaat 171.12 feet to a 3/4• iron pipe, aet for the Northwest corner of thie tract ; THBHCI North at• 30' 40• Eaat 2 ,C41 .3J feet to a railroad aplke aet in the •••t line of aaid section a for the Northea1t corner of thla tract1 THENCE South a diatance of 171.12 feet to tbl PLACI OP BBOIHNINQ. TRACT 2: A 10.2 acre tract of land, ~re or le1a, out of the Ka1t 1/2 of Section I, Block A-K, Lubbock County , Texaa, and being more particularly deacribed aa followar BEGINNDlG at a rail~oad 1pike aet in the centerline of Far. to Market Highway 1730, for the southeaat and beginning corner of thla tract, from whence the Soutbeaat corner of Section 8 , Block A·R beara South 1,aSC .15 feet1 THENCE South.,. 30' 40 1 Neat, {paaaing 3/4" iron pipe at 45 feet) a total distance of 2,641.3! feet to a J/4" iron pipe aet for the Sauthveat corner of tbia tract, 7HEHCE North o• os • 35• Eaat 171 .14 feet to a l/t• iron pipe, aet for the Rorthvcat corner of thia tract: -THENCE North at• 30' co• Baat (paaaing a 3/t• iroa pipe at 2,5t6.12 feet) a total diatance of 2,Ct1 .12 feet to • railroad •pike 1et ia the laat line of aaid Sectioa I for the Northeaat corner of ~ia tract: 'rBINCI South 111.14 feet to the PLACK OP BBGINNINQ . BLK AK SEC 8 AB 959 TR E6 ACS: 10.2 ) ; lR f (i 1!ll Jl R657J1 R65731 1•;2 AC RJ150i9 l;ll~ tL. I I j ~ I rr (Aufill -R65731) EXHIBIT A -The Property TRACT 1 ·: A 10 .2 acre tract of land, ~ore or leaa, out of the Saat 1/2 of Sectiou 8, Block A•K, Lubbock County, Texas, and being more partieularly deecribed aa follow•• BEGINNING at a railroad epike aet in the center line of Fa~ to Harkot Highway 1730, for the soutbeaat and beginning corner of this tract, fro~ whence the Southeaat cornar of Section I, Block A-~ beara Soutb 1,&8S.Ot feet z THEU~S South n• 30' to• Neet, (at 45 feet pan a l/4• iron pipe) a total diataac:e of 2,641 .6 feet to a 3/4• iron pipe eet for the Soutbweet corner of thia tract, THEHCB North o• os• 35• Baat 171.12 feet to a l/4• iron pipe, aet for tbe Hortbweat corner of this trac:tr THIHCI North &J• 30' 40• Eaat 2,St1.lJ feet to a railroad apike aet in the laat liDe of aaid Section 8 for the Sortheaat co~er of th!a tract1 'ili!NCS South a diatance of 171.12 feet to tho l'LACI or BIQIHHIRO. TRACT 2 : A 10.2 acre tract of land, more or leaa, out of the aaet 1/2 of Section 1, Block A-~, Lubbock County. Texaa, and being more particularly deacribed aa follawat BSCINNDK: at a railroad spite set in the centerline of P~ to Market R1gh~ay 1730, for the Southeaat and beginning corner of this tract, fro~ whence the Southealt corner of Section 8 , Block A-~ bears South 1,15,,1, feett TH£NC~ South at• lO' 40• Heat, fpas11ag l/4• iron pipe at cs feet) a total di1tanee o! ~,641.39 feet to a 3/4" iron pipe eet for the Southweat corner of tbia tractt THENCE North o• 05' 35• Eaat 171.14 feet to a J/t• iroB pipe, let for the Narthweat corner of thia tract; TRSNCS North at• lO' 40• Baat (paaaing & l/t• !roo pipe at 2,SJS.12 feet) a total di•tance of 2 ,6tl.12 feet to • railroad Ypike let in the laat line of aaid Sectlou I for the Northeaat corner of thia tractt 'rBINa South 171.14 feet to the l'LlCB or BBGINNIRO. BLK AK SEC 8 AB 959 TR E7 AC: 10.38 :1·r II I R316688 nu r R65760 R65760 10 Jii A: I I (Aufill -R65760) f/ EXHIBIT A-The Property TRACT I: MBTES AND BOUNDS DESCRIPTION of a 5. 00 ac:z;e tract of l.and, IUO:re or l.and, located in the East Half (E/2) of Section Eight (8), Block A-K, Lubbock County, Texas, boing fw:t:he:r dasc:r:ibecl as fallows: BEGINNING at a 1/211 iron rod. with cap set for the Southeast. corner of thia t:z;act which bears North, a distance of 1522.94 feet and South 99°30'10" West, a distance of 1288.94 feet from the Southeast corne:r of Section B, Block A-X, Lubbock County, Texas; 'l'HENCZ South 89° 30 I 0311 West, a distance of 1352.06 feat to a 1/211 iron rod with cap found in the Ea.st line of that tract of land described. in Volume 431, Page 416 of the Deed Records of Lubbock County, Texas, at the Southwest corner of this tract; THENCE North 00 ° 09 1 3611 East (Deed calls North 00° 01 1 4111 East) , along the Bast line of said tract of land ciascrihed in Volume 431, Page 416 of the Deed Records of Lubbock County, Texas, a distance of 160.75 feet to a 5/9" iron rod. with cap found at the South•st corner of that tract daacribed in Volume 6941 1 Page 270 of the Real. Property Recorda of L~ook County, Texas, and the Northwest co:rner of thia tract; 'l'BB:NCE North 89° 28 1 13" East, along the South line of aaid tract of land described in Volume 6941, Page 270 of the JWa.l Property Recoz:cta of Lubbock County, ~exas, a distance of 1352.05 feet to a 1/2" iron rod with cap set for the Northeast corner of this tract; !Z'HENCE South 00°09'12 11 West, a distance of 161.47 feet to the Point of Beginning; TRACT II: METES AND BOUNDS DEBCRIP!riON af the West 4. 2745 acre tract of land, ao:z;e or leas, out of a 10.126 aore tract of land described under Clerk's i'i..le Number 2007050194 of the Official. Public Records of Luhboo'lt County, Texas, located in the East Half (B/2) of Section Bight (8), Block A-K, Lubbock County, Texaa, being further described as fo.llows: BEGINNING at a railroad spike :found in the East line of said Section 8 1 at the Southeast corner of this tract which bears North, a distance of 1355.22 feet from the Southeast corner of Section 8, B.lock AK, Lubbock County, Texas; THENCB South 89°31'53" West, at 45.00 feet pass a 1/211 iron rod with cap found in reference, continuing for a total distance of 2641.45 feet to a 1/211 iron rod found at the Southwest corner af tbia tract; !l'BKNCB North 00°09 1 36 11 East (Deed North 00°07 1 14 11 East) I a distance of 166.31 feet to a 1/211 iron rod with cap set for the Northwest corner of this tract; TBBHCB North 89°30'03 11 :&:aat, at 2596.00 feet pass a 11 x 11 cut in concrete sat in reference, continuing for a total distance of 2641.00 feet to a mag nail with washer set in the East line of said Section B, for the Northeast corner of this tract; !Z'HBNCE South, along the Bast line of said Section a, a distance of 167.72 feet to the Point of Beginning; {Auflll-R315079 & R313565 & R317106) Page 1 af 2 . . TJU\C~ III: METES AND BOUNDS DESCRIPTION of a 4.00 acre tract of land, more or ~esa, out of a 10.126 acre tract of land described under Clerk's File Number 2007050194 of the Official Public Records of Lubbock County, ~exas, located ~n Section Eight (8), Block A-K, LUbbock County, Texas, being further deacribec:l aa follows: BEGINNING at a l/2" iron rod with cap found in the South line of said 10 .126 acre tract of land, at the Southwest corner of a 1. BS acre tract of land doacribed under Cl.ark' a i'ile Number 2009003766 of the Official Public Records of Lubbock County, !raxas, and the Southeast corner of this tract which bears North, a distance of 1355.22 feet and South 89°31 1 53" Wast, a distance of 481.54 feet from the Southeast corner of Section 8 1 Block AK, LUbbock County 1 'raxaa; THENCE South B9.31'53 11 West, al.ong the South line of said 10.126 acre tract of land, a distance of 1042.33 feet to a 1/2'' iron rod with cap set for the Southwest oornex of this tract; TBBNCE North 00°36'24" East, a distance of 166.93 feet to a 1/2" iron rod with cap set in the North line of aaid 10.126 acre tract of land, for the Northwest corner of this tract; THENCE North 89°30 1 0311 East, along the North line of said 10 .126 acre tract of land, a distance of 1042.34 feet to a 1/2" iron rod with cap found, at the Northwest corner of said 1. 85 aora tract of land and the Northeast corner of this tract; 'l!BENCB South 00.36 1 24" West, along the West line of said 1.85 acre tract of land, a distance of 167.49 feet to the Point of Ba~inning; ~ . ~ c ~ BLK AK SEC 8 AB 959 TR E5A OF E/2 AC: 5 BLK AK SEC 8 AB 959 TR E4 OF E/2 ACS: 4.277 BLK AK SEC 8 AB 959 TR E4B OF E/2 ACS: 4 t ''"''-'I U I R315079 IH2 ' TRE-5 A SAC -rn t-5 R42508 R315079 IIHH "R E-4 4 2n r'C TRE..; B 4 AC R313565 R313565 R317106 t•J!13]' 13217 I 716 B' a 7 ~c I (Aufill-R315079 & R313565 & R317106) Page 2 of 2 ~ 'IS . FILED AND RECORDED ep:~~ Kel l y Pinion1 County Clerk Lubbock County~ TEXAS 05/23/2016 ll:u2 A" FEE : J66 .00 2016017902 \ . . CITY OF LUBBOCK OFFICE PICK UP NOTICE OF CONFIDENTIALITY RIGHTS: lF 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 J'ft.REEME~ \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 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 22.03.09l(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 I 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 ofthis 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 Attn: City Secretary P.O. Box 2000 Lubbock, Texas 79457 With copy to: City of Lubbock Attn: Director of Planning P.O. Box 2000 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 I 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 shaii be Lubbock County, Texas. This Agreement is subject to ali 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 ali 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 ll-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 seck 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 shali 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 usc 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 I 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 detennined 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 docs 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-Cb. 212 Agreement in lieu of Cb. 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 ~OF, the ~es,mutually enter this Agreement on this ff:day of ~I , 2016. Ch. 212 Development Agreement In Lieu Of Annexation -5 I P a g e For the Citv For the Owner ~rn dkl{h-/ Violet Melones, Owner APPROVED AS TO FORM: Ch. 212 Development Agreement In Ueu Of Annexation - 6 I P a g e State of Texas § County of Lubbock § NOTARIZATION This instrument was executed before me on ~ J . 14, 2016, by GI!V\ C .. 12obt¥is U Y1 r.. A a AJ\ \IJ .... " "AM' 1\~0r..,= ofthe City of Lubbock. a Texas municipal corporation, on behalf of said co!Poratton. State of Texas § County of Lubbock § This instrument was executed before me on When Recorded Return To: City Secretary City of Lubbock, Texas 1625 13 111 Street Lubbock, Texas 79401 e MAGEN D. MURCHISON NIUJy Nlk, Stile dTexas My~ EJJ*es 04-03-2017 ~2 2016,by ~~. Ch. 212 Development Agreement In Lieu Of Annexation - 7 I P a c e EXHIBIT A -The Property BEING TRE NORTH ONE-THIRD (N-1/3) OF Tfte FOLLOWING DESCRIB!O TRACT OF LAND: A 25.32 acre tract of land out of the Northeast One-Pourth {NE/4) of Section 2, Block A-~, Lubbock County, Te~asr described by metes and bounds as follows: BEGINNING at a 112• iron rod set at the intersection of the West side of University Ave. and the South Line of an East-West graded road for the Northeast corner of this tract,from whence a railroad spike found at the Northeast corner of Section 2, Block A-~, Lubbock County. Texas. bears North a distance of 25.00 feet and North ag•ss•ssw east a distance of 40.00 feet: TRENCE South along the West side of University Ave., 40.00 feet from and parallel to the East Line of said Section 2. a distance of 1340.40 feet to a 5/8" iron rod set for the Southeast corner of this tract~ THENCE South ag•ss•ss• West parallel to the North Line of said section 2, a distance of 823.02 feet to a s;a• iron rod found at the Southeast corner of a 12.34 acre tract for the Southwest corner of this tract~ TRENCF. North parallel to the East Line of Said Section 2 and alonq the East Line of said 12.34 acre tract a distance of 1340.40 feet to a 3/8• iron rod found in the South Line of an East-West graded road at the Northeast corner of said 12.34 acre tract for the Northwest corner of this tract: VQl 814 fiP.tCE 4;) THENCE North ag•ss•ss~ East along t~e south Line of said road, 25.00 feet South of and parallel to the North Line of said section 2~ a distance of 823.02 feet to the PLACE OP BEGINNING. (Mcinnes -R300772) Page 1 of 2 BLK AK SEC 2 AB 1002 TR BS OF NE/4 ACS:8.44 I 8.44 AC I~ I<( TR 8 5 OF NE/4 R300771 r---------------~8~23~0~2~·--____________ _j 1;>- FILED AND RECORDED t;p:z;~ Kelly Pin1on 1 County_Clerk L.ubbock Counw TEl<AS 05/23/2018 10:62 AM FEE : J88 • fl0 201&017903 (Mcinnes -R300772) Page 2 of 2 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 DEVELOPMEN~ ~REEMNFfl LIEU OF ANNEXATION (the "Agreement") is made and effective this £t 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 I 0, 20 I 6; 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 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 22.03.09l(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 Co unci I. 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 ofthe 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 Ueu Of Annexation -2 I 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 ofthe 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 Attn: City Secretary P.O. Box 2000 Lubbock, Texas 79457 With copy to: City of Lubbock Attn: Director of Planning P.O. Box 2000 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 I Page 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 havingjurisdiction, 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 descr iption 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 I Page 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 HI1~0F, the pl{tics.mutually enter this Agreement on this day of pl-1 \ , 2016. Ch. 212 Development Agreement In Ueu Of Annexation - 5 I P a g e For the City APPROVED AS TO FORM: For the Owner Gerald & ne Bonner Trust, Owner Wayne Bo ncr, Trustee Ch . 212 Development Agreement In Lieu Of Annexation -6 I P a g c State of Texas § County of Lubbock § NOTARIZATION This instrument was executed before me on lJ.v:vJr\ 14 2016, by tie n L. IZo~ {\ 1\ rA \l ~ DATE ~ NAME "':'~f?:.. of the City of Lubbock, a Texas municipal corporation, on behalf of said corporation. 1/1, ~ NdaryNit,SIDciT- . e~· MAGEN D. MURCHISON ...L.lU~~~~-t.:...;~~~:.....;'--= \_....-~-"''"r. My~EJiies~17 State of Texas § County of Lubbock § This instrument was executed before me on When Recorded Return To: City Secretary City of Lubbock, Texas 1625 13 1h Street Lubbock, Texas 79401 '1/cr 2016,by ~. e VENITA WADSWORTH Nealy~ SlateciTua NcDJy lDt 105371)5.6 MyCormlisioo &pies 05-28al Ch . 212 Development Agreement In lieu Of Annexat ion -7 I Page EXHIBIT A -The Property 1r tract of land out of the East one-half (112) of Section Nine (9),Biock AK. described by metes and bounds as follows: BEGINNING 660 feet East of the Northwest Corner of the East one-half of Section 9, Block AK. Lubbock County. Texas for the Northwest and beginning comer or this tract: THENCE South 660 feet to a point; THENCE East 165 feet to a point; THENCE North 660 feet to a point in the North line of Section 9, in the East- West paved road for the Northeast comer of this tract; THENCE West along a paved road to place or beginning and containing 2% acres of land more or less. BLK AK SEC 9 AB 161 TR 9 ACS: 2.3485 ' ...... ~ ..................... 4_".._ ••• ~. ;. TR 9 R121569 f 2.3485 AC 165' (June & Gerald Bonner Farnlly Trust • R121589) Pagelofl r:vu•RIT A -The Property A tract of land out of the East one.half (E/2) of Section Nine (9),Bicck AK. described by metes and bounds as follows: BEGINNING 825 feet East of the Northwest Comer or the East one-half of Section 9, Block AK, Lubbock County, Texas for the Northwest and beginning comer of this tracl; THENCE South 660 feet to a point; THENCE East165 feet to a point; THENCE North 660 feet to a point in the North line of Section 9, Block AK, in the East-West paved road for the Northeast comer of this tract, THENCE West along a paved road to place of beginning and containing 2~ acres of land more or tess. BLK AK SEC 9 AB 161 TR 10 ACS: 2.3485 ..... _.. --~·--··-·--··-··-··--·-··-·--· . T R 10 R120-l97 2.3485 AC R 1 (June & Gerald Bonner Family Trust-R120497) Page lofl FILED AND RECORDED (j:~DS~ Kelly Plnlon, Coun~y _Clerk Lubbock Count.y TEXAS es/23/zete te :ez An FEE :_ ssa. ee 2016017904 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 CU. 212 DEVELOPMENT AGREEMENT IN LIEU OF ANNEXATION miS DEVELOPMENT AGREEMEWjed !LIEU OF ANNEXATION (the "Agreement") is made and effective this 14 +h 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 1 0, 20 16; 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 -Tbe 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 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 22.03.09I(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 Ueu Of Annexation • 2 I;.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 docs 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 Attn: City Secretary P.O. Box 2000 Lubbock, Texas 79457 With copy to: City of Lubbock Attn: Director of Planning P.O. Box 2000 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 I 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 Ueu Of Annexation - 4 I 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 docs 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. on this~ day of ~ J , 2016. IN WITNESS HEru;_oF, the ~"? mutually enter this Agreement Ch. 212 Development Agreement In Ueu Of Annexation - 5 I P a g e For the City GLEN C. RT9DN, MAYOR .�• 1 rf fr `. AST= •..� TTE Re ecca Garzk.City SecretatX APPROVED ASS°TOCONTENT: Andrew Paxton, Director of Planning APPROVED AS TO FORM: Assitant City Attorney For the Owner 6�- -A2�t�.- Kenneth Ellis, Owner 6&VO4(L- iieverii Ellis O er Ch. 212 Development Agreement In Lien Of Annexation - 6' P a g e State of Texas § County of Lubbock § NOTARIZATION This ins.lrument was executed before me on ~~\ \4 , 2016, by 6\tn C. !LOba:[QPV1 ~. A~ () IMT'E NAIIQ: IV\::e.P p of the City of Lubbock, a Texas municipal corporation, on behalf of said corporation. • State of Texas § County of Lubbock § e MAGEN D. MURCHISON Ndary Nllc, Slate rAT axas MyComission EJpias04-G3-2017 This instrument was executed before me on ~'#4\ \3 DAT'E 2016, by kenneth elr,s Kl::'('Q;TII UU.~-OWNt:R on behalf of said Owner. State ofTexas § County of Lubbock § ,,••''!'~''''' KEllY BETH COLLINS ~ ~. "~':.; ! i~·:.:A:;·~% Notary Public, State ol Texas %~:.)'~l$i Comm. Expires 10 ·16·2016 .-,,-::,•,''Oo'i~~,,$ Notary 10 129995781 ,,. .. ,. This instrument was executed before me on~\ \3 OAT£ on behalf of said Owner. ~,i}?tfuC~ When Recorded Return To: City Secretary City of Lubbock, Texas 1625 l31h Street Lubbo ck, Texas 79401 ,,,, .. ,,,~ KELLY BETH COLLINS •'\t:Y ~/l '• f1;··:JL~~NOIOIV Public . Stole of Texas ~~·-.!~)/. comm.bplres 10·16·2018 .-,,~~'o;'~ NOIOIYID 129995781 '''""" Ch . 212 Development Agreement In Ueu Of Annexation - 7 I P a g e EXHIBIT A-The Property An 11.272 acre tract of land out of the East l/2 of Section 8, Block A-K, Lubbock County, Texas, being more particularly described as follows: BEGINNING at a 3/8 11 iron rod found in the centerline of Farm Road 1730, for the Southeast corner of Section B, Block A-K, also being the Southeast corner of this tract1 · THENCE South 89 ° 30' 40" liest along the centerline of a county road, and the South line of Section a, a distance of 1344.49 feet to a 3/S" iron rod set for the Southwest corner of this tract; VOLi773 P/,Ct 92 THENCE North 0°05 1 35" East at 30.0 feet pass a 3/B" iron rod set in the North R.o.w. line of said county road, ~ontinuing for a total distance of 365.22 feet to a 3/8" ~ron rod set for the Northwest corner of this tract; THENCE North 89°30'40" East at 1299.49 feet pass a 3/8" iron rod set in the ~-Test R.O.l-1. line of Farm Road 1730, continuing for a total distance of 1344.49 feet to a railroad spike set in the centerline of said Farm Road 1730, for the Northeast corner of this tract; THENCE South along the East line of Section 8, Block A-K, and the centerline of Farm Road 1730, 365.22 feet to the PLACE OF BEGINNING. {Ellis· R116841) Page 1of2 BLK AK SEC 8 AB 959 TR El OF E/2 ACS: 11.272 I UtiU' 1304 49' I i i f... " TR E-1 It) 11 .3 AC i 10 i .., RH68 ~t i i i i <417 j • .--1. ... CR 7500 ! , ... R130660 I (Ellis· R116841) Page 2of2 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. Being the North 1655.89 f'eet (100.6 acres more or leu) of the Northeast Quarter (NE/4) of Section 7, Block A-K, Lubbock County, Texas, being further described as follows: B£CINNINC at a 3/8" rod found at the Northeast corner of Section 7, Block A-K, Lubbock County, Texas; THENCE South, along the East llne of said Section 7, a distance of 1655.89 feet to a railroad spike set fo~ the Southeast corner o£ this tract; THENCE South 89 degrees 41'0211 West, at 40.00 feet pass a 5/811 iron rod with cap marked 11 RPS 1676 11 set in the West right-of-way line of State Farm Road No. 1739, continuing £or a t.otal distance of 2646.32 feet to a 5/8" iron rod with cap marked 11 RPS 1676 11 set for the Southwest. earner of this tract; THENCE North 00 degrees 05 • 07 11 £., at 1635.90 feet pass a 5/811 iron rod with cap marked 11 li.PS 167611 set for-the South right-of-way line of a graded county road, con~inuing for a total dist11nce of 16n.9D feet to a 5/811 iron rod with cap 11'14rked naps 1&7£, .. sat for the Nor-th\lest corner of this tnct; THENCE North 89 degr-ees 41'02" £. a distance of 2643.85 feet to the Point of Beginning. Save and except the following six tracts: BLK AK SEC 7 AB 162 TR C BAL OF NE/4 AC: 40.59 CR 7500 ·H R130680 I I ( lR C OF NE t4 ' j i .0: ' 4059AC ~ I . 1 ' R 130680 g ~ ~ n.! t R;:J-77R --:;:,..,. tl • •• ... (Ellis -R130680) Page 1 of 3 rnENCE Soulh, l!a~~gsald Ullla'Dne ol'F.M.I1J!I. at.o'bebcthe Eat ~of~ 7 JUock~a dbtuca Gl164S fed to a point rar tbc Scutbt:m ml"Da' or lil1 tract; • l THENCE S. W41 'Ql• W. at.CO.OO fed pass a ~·trou rod wftb tap rouaa 1:1 ""West rfabklt4117 lzu: or1-•.M. 1739p IUJd COidllltdag ror. llf.ll! dlstarlcz cr %64SJJ9 feet lD. ~·tnm rod •dtb cap roama ll tlaa Soulhwat COI'Da' Gf OLb ltld; THENCE Nart!a a dl:stat% ol'lSU' rc:c:t lD a ~·ln~:~I'Od with cap ad lor &fac Nan!nn:st anu ot w. C'&Cf; THENCE N. 8~.u 'Or E. at 2SOU5 fed~ aloi•traa .rod .sd& c:.p .a&. uid tv at nps..r......,-llDe ot F.M. 17:19, aad amthndac ror a1otal cU:.t:aacc ot 2644.15 led to the Polat Dr BqJaulaz · METES AND BOUNDS DF.SCIUPTION cfalO.OO ~net. 1110n: or Jc,s,Joc:at.ttlla Scdloa 1, Block A.-K, Lubbock CaUJLtt1 Tau, btl11g further desatbcd au roUcnm BEGINNING ala pol at rar tbc Sau~tc:oncr elt!ab t.nct .blda bean South a cJbtna ot'Y/733 reel £rom Nodh=st cvracr of Sc:c1loza 1. Block A·K; • niENCE S. &-41'018 W-. at 40.00 &d pal al/r" lniD rod wttb cap set ID tb~ Wesl rfJ}Jl-cf'...a.1 line ol F..lL Road No.I'J39, C!'Dllaulq ror a IDbJ dlstaace ol2~ feet to al/r lnm l'Od with cup .et for lle SGUthwcst corvcr vi' IIIla tract; • ntENCE Nortla, a c!lsbace or 1&U8 rut to al/r lnm rod <Aith ap Jd for lhe N011!rwcstconaerl!lllds 1rad; 111E.NCE N.IVG'Ol• E. atl,611.SJB fed pu a 1/l•lraa 1'041 "'lb cap set ba the West rialatoCJI'o4f111 be llf'F.M. Road Na.17Jt, ~cUa.uluz ror a total dlstaaa or z,645.119 r= 1o • polllt r« abc Kodk&st conacr ot ~ ~ ,THENCE Soalh. a1q lhc East tiDe of SecdDD '· I dlstuc:t d' l6UI fed tD the PolDl or Bc;JIID!Dj. MEl'ES 1\ND DOUl-IDS DESCRIPTION or a 10..00 ure tn.ct ar bead, CIOn: ar less, locaecd lA Sa:iJDD 7. mock A·K. Lu'b'bOck ~srnty, Teas, bcb; ftnthcr described u JolJOM: · DEGlN.~ING at a paint for Un: Soalhrmt CGJllct'.of lh1s tm:t wt&Jda ~ Scalb • dbta-= ar J~&t ra:~ ft'lllll tile Northam =mer-or Sectloll 7. Blad:. A·X: TUENCE S. U'41 '01• W., et 4IUIO fed pass a J Jl• lrua rod willa cap sd Ia lbc West ri&Jtf-ot'-wDfllDur F .M. Ro:uJ No. l '1391 caaUIUIIII& for a Ictal dlsbiocc of ZJ'4S.S3 ted to a 1r-Jraa n4 ..Sdl Clip set Cc.o die So..un.at CGrDa' or lh1s lr:ld; • . • THE. "'CE N. 00"'05'117• E. a ~ ar 154.£5 feel to a 1/l'"lruD rod ?flh ap sd Jar lhe l'ianJnn::st CllniCI' or tills tnd; TIIEHCE N. 1~·11 'Gr E. at 2,5U.S8 ftd ~ a Jf1.• l.niD niCl mt!a cap ad Ia the West riJ;)It-ol'.,...)lllnc er F .M. ~cl No. 1'739, c:anduUiaJ: ror a tolaJ cUst:uu:e or 2,645.58 fc:d lD a plllal or U.C Northeast coracr of lhls 1nd; THENCE S.ulh. alone tl~ E&3tliae oi'SccUoa 7, a di.sbw:l: ~164.155 feeS to Ule 1'olnt DfiJc;IJmiDJ:. (Ellis -R130680) Page 2 of3 . . ME'1'ES M"D B(jtJNDS DESCRJPilDN 11ra 10.00 acn lrac:C or laD!!.~« Jc::ss,loc:a1ZIII,:I Sc:dk:IIT, Btllek A-JC, Lubbock Cclmt)'; Te:=s. 1du& rartJacr descn"bed 11!1 roDaws: BEGINNING at a poiDl rar abc Hor1hcast cunu:r ot 0a1s trad wbJch baa Souib • dlst:ula! or 99'7.33 l£d.fk'OIII Be Northc:ut CW"Der or Sa:tlcna7, Block A·K; 'IBENCE Soalh. aloug the Eut IIDC ofSedJoa 1, a 4bt•ncr DC1S4.6' rc:t lA a polat for 11M: Socl!sast coiDcr or &hJS bact; THENCE S. B9"4l~W .. at 41.00 r«t pass • 1/rlrGD rod wUh cap m lD 1he Wesl rfaJat~ Doe otF.M. RO:.d Na..l139, coa.Umalzlc ror a total db~ eU$1.5.51 fed to a 1/2•11"01! zoo& with cap lid ror the Scalhc::st coraa ofthls tract; THENCE N. 00"15"0'7" E., a dht:mcc or .JGU& rc:ct to • 1/Z" lnmr"D4 with cp R1 r~ llae Nonbwatconla' .z lllll tnct; ntENCE N. u-.u~· E.. at l,QJS.M rcct pasa al/r' Ira~~ roll wtlh ~act Ia the wee difat4-wa..Y UAe C)(F.1tl. Roacl Na. 1739, ~:~mtiludDg ror a total cllstan~ arl,6ol5.34 fed to Uu: Polal oCBcalCIIIJae-.. lltctzs and Bcn1ii!l ~~~~!I i~ ~~~~~a. Ill en! Gt las, locmd Ia ~ 1, Block Aar, Lnbbock Co~Dt]a Tc:cr. :~ .. • ;: . a , . . • ; · •. · ·. , :: ·_., BEC~1NG at a patnt COl" thr Nor1!::::1st c:or.u:r rll lh1s tnd llbJdl bean Soarh a &,cBDCC ~ 1.1l'-" fed tram t!:.c Nortllecst c::Dn:cr ar ~ 7, lllock A-~ . TJIENCE Socrt!l, alq die E:ut IIDe of Sedlaa 1, Bb:k A·K. a ilsb:K:e tL 164.63 red loa pobat fDC' lie Sau~tccma-otll:b ~ '.·· ,.-·.-. · · 'I"BENC& S. ~-ttm!·W., at•40.00 ·f:cl p:u a 5/S" It= rod ..ttla cap roaza.t a. d:e West rl;ht-411'..,., U• rl F~'~· JtozuJ Na. J1l9. ca:dlac!:rz l'4l" a toSaJ dlst.aDa or2,64&.03 rctt 1o • 5}r bm rod .Sib cap fowll at the Sculhnut cof:u:r c.r oils tr-.lt; ·' ·, . -' •• • THENCE N. GO'U5'0'7" E. a Glsbace ot l&Ul rcd.lO al/1:' Inial cod ~Ch ~~~ Ml ror «be Nocibwat '*'-" ol lhls tmct; : • :. 111ENCE N. &9"4l'Or E., atl~.&l rect pss a tfl•tr= nd wUla cap aetla the Wcstri;J&l-ol'-4nl;1 bDe .r P'.M. tw.cl Na.l139, ccaUauhl.; for.a tDta1 dbtaacc ot 1,645.13 rc:ct IG 1be PolDl or&;jaata;,: A 10.0 nue met ot lud, atore er less, aut or SedSo11 7, Block A·K. ullbodc Coupty, Tcms. bdnc rartJaer d~crlHd AS tell~ BEGINNING ot ll R..R. spike, sd ia till:' East Jlnc of Stcilon 7,. 1Dd {n F.AI. 1730, far lhe Nartlaalst and begtrudna c:anu:r orllds tr:act.. ~haaa: a3/ff' li"OII ra., loand ld theN'orthcostconxrofStdJCID ?klrs NmJ1 1491.!1 fed; TBENCE Soutb, atoag lhe &n Uu or SccUoa 1 Dnd oloar. F.N. 11JO, l64.Q feet to a k.R. splk&: round Rlr lhe Soulhc:ast earner af lids tnu:s; THENCE SoaU. 8:!7-41'0:!.• West at 4D red p:au • S/tr' lnla roc! rowad 1a lhc \Vc:rtUo~ ofF.M,l730, cunU~aulng for a lobll distance arut6.JZ fm to a Sja•JI"l)Q rod, fouad r.-lhe Sauthmsa amcr orlhb trurt; THENCE N~trth O'OS'u7• ~ 16-t.Gl feel Co a 1Jl• lrata l"l)cl set ror lhe N0111rtrat CDrDcr or lhls ttild; nr£NCE North o-41'01• Ea:Jt at 2606.0S feet JIGS• a 1/l• hoa red set Ill the West llac of i.t.f.1130 c:ouUnlalaa ror I fobl dl5taaa: oi'2~6.DIJ fed to the Pohat or Begtnulllc. (Ellis • R130680) FILED AND RECORDED ·p~~ Kelly Pinion1 County Cle~k ~ubboGk County~ TEXAS 85/23/2816 10 :~2 AM FEE: $70.00 201601790! Page 3 of 3 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 DEVELOPMENT ,;.&REEM~~~IEU 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 "Owner11 ), with the term "Owner" including all owners ofthe 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 1 0, 20 16; 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. ZlZ Development Agreement In lieu Of Annexation-Z I 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 Attn: City Secretary P.O. Box 2000 Lubbock, Texas 79457 With copv to: City of Lubbock Attn: Director of Planning P.O. Box 2000 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 I Pa ge 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 I Page 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 H~~OF, the pifties ~utually enter this Agreement on this .11_ day of pl2d I , 2016. Ch. 212 Development Agreement In Lieu Of Annexation· 5 I Page For the City ~- A1'i"drew Paxton, Director of Planning APPROVED AS TO FORM: For the Owner Wilkerson Investment Co., Owner Gordon Wilkerson, Partner Ch. 212 Development Agreement In Lieu Of Annexation - 6 I P a g e State of Texas § County of Lubbock § NOTARIZATION This in rument was executed before me on 1\p~ 1 14, 2016, by _blt n ~~ · /2Dbu[<5pY\ ' D ofthe City of Lubbock, a Texas municipal corporation, on behalf of said £ State of Texas § County of Lubbock § ~~ MAGEN D. MURCHISON NdaJy NJic, Stile ofT au My Conlnm EJpias Q4.Q-2017 This instrument was executed before me on Apcrl 13*' 2016, by Gu>cdoo Wt/K<r&O , DATE CORDON WILKERSON, PAR~ER OF OWNER on behalf of said Owner. When Recorded Return To: City Secretary City of Lubbock, Texas 1625 13 1h Street Lubbock, Texas 79401 Ch. 212 Development Agreement In Lieu Of Annexation -7 J Page EXHIBIT A-The Property TRACT B, HUFFINES BUSINESS PARK, a Subd ivision located in Section 8, Block A·K, Lubbock County, Texas, according to the Map, Pint and/or Dedication Deed thereof recorded in Document No. 2012040870, Official Public Records of Lubbock County, Texas; HUFFINES BUSINESS PARK TR B . . 299.05' TR 8 "?>us' 0 0 C'0 R318983 L{) CX) N 314 _05' (Wilkerson, Gordon-Wilkerson Investment Co.-R318983) ... ... X 0 N 00 T- a:: u Page 1 of 1 EXHIBIT A-The Property TRACT "\V" HUFFINES BUSINESS PARK, n Subdivision located in Section 8, Block AK, Lubbock County, Texas, according to the Map, Plat and/or Dedication Deed !hereof recorded in Document No . 201502311 8 of the Official Public Records of Lubbock Countyt Texas~ BLK AK SEC 8 AB 959 TR C OF N/2 OF NW/4 AC: 2.168 R318686 .J I 'f.U~ TRC OF N/2 OF NW/4 2.168 AC 329.05' FILED AND RECORDED -:~~ Kelly Plnion 1 County Clerk Lubbock Coun~y~ TEXAS 15/23/2116 11 :~2 AM FEE: $58 .10 2018017906 (Wilkerson, Gordon-Wilkerson Investment Co.-R318686) -1.0 1.0 N Page 1 of 1 CITY OF LUBBOCK OFFICE PICK UP 2016017907 10 PGS AGREE 1111 wr-' ~ ~~\~1¥ ~WMI~rr11r~~M\~ IIIII 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~I~ LIEU OF ANNEXATION (the "Agreement") is made and effective this J4+h 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 1 0, 20 16; 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 I Page 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 Attn: City Secretary P.O. Box 2000 Lubbock, Texas 79457 With copy to: City of Lubbock Attn: Director of Planning P.O. Box 2000 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. 21Z Development Agreement In Lieu Of Annexation-3 I 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 goverrunental 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 tenns 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 fonner shall control. Section 12 -Public Information. This Agreement is public infonnation. 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 perfonn 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 I P a g e Section 16 -Enforcement. This Agreement may be enforced by the Owner or the C ity 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 HE~OF, the parties mutually enter this Agreement on this~ day of l\pl?1l , 2016. Ch. 212 Development Agreement In Lieu Of Annexation - 5 I P a g e For the City GLEN C. For the Owner Wilkerson Group, LTD, Owner Gordon Wilkerson, Manager Andrew Paxton, Director of Planning APPROVED AS TO FORM: Ch. 212 Development Agreement In Lieu Of Annexation-6 I P age State of Texas § County of Lubbock § State of Texas § County of Lubbock § NOTARIZATION This instrument was executed before me on A_tu·i J I ,-.,u,2016, by &.,cdt<n M~/&cron j DATE CORDON WILKERSON, aiANACtR OF OWNtR on behalf of said Owner. When Recorded Return To: City Secretary City of Lubbock, Texas 1625 13t11 Street Lubbock, Texas 79401 - Ch. 212 Development Agreement In Lieu Of Annexation • 7 I P a g e EXHIBIT A -The Property TRACT "R", HUFFlNES BUSINESS PARK, n Subdivision located in Section 8, Block AK, Lubbock County, Texas, according to the Map, Plat and/or Dedication Deed I hereof recorded in Document No. 2014040211, Official Public Records of Lubbock County, Tcxns; TRACT "5", HUFFJNES BUSINESS PARK, o Subdivision located in Section 8, Block AK. Lubbock County. Tc:JCas, accordinG to the Map, Plat and/or Dedication Deed thcn:of n:cordc:d in Ducunu.:nt No 2014040212, Official Public Records of lubbock County, Tc.us; TRACT "T", HUFFINES BUSINESS PARK. n Subdivision located in Section 8, Block AK, Lubbock County, TeXllS, according to the Map, Plat and/or Dedication 0'--cd thereof recorded in Doc:umc:nl No. 2014040212, Official Public Records of lubbock County, Tc."<as; HUFFINES BUSINESS PARK TR R HUFFINES BUSINESS PARK TR S HUFFINES BUSINESS PARK TR T (Wilkerson, Gordon· Wilkerson Group LTD-R325704, R325705, R325706) Page 1 of2 :» ..,. -~ 't) ~ TRS 0 "' ~ 0 ~ R325705 158' ro v or- <0 N 203.96' TRR R325704 TRT R325706 0 co 170.45' .... ..-..-. -· (Wilkerson, Gordon-Wl1kerson Group LTD-R325704, R325705, R325706) ~ ~ <0 ('I) C\l Page 2 of2 FILED AND RECORDED -:~~ Kelly Pinlon1 County Clerk Lubbock County~ TEMAS 15/23/2118 11:~2 AM FEE : $58 . 10 2016017907 ...