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HomeMy WebLinkAboutResolution - 2021-R0364 - Terminating the Chapter 212 Agreement R126622 - 9.14.21Resolution No. 2021-R0364 Item No. 8.9 September 14, 2021 RESOLUTION WHEREAS, beginning in April 2018, the City Council of the City of Lubbock (the "City Council") instituted annexation proceedings on approximately 1,450 acres of primarily undeveloped land adjacent to the Western city limits of the City of Lubbock, South of 30 Street, North of Marsha Sharp Freeway, and West of Upland Avenue; and WHEREAS, pursuant to Chapter 43 of the Texas Local Government Code, the City Council held public hearings regarding the proposed annexation on April 12, 2018 and April 26, 2018; and WHEREAS, the City presented a service plan for the area proposed to be annexed at the public hearings, and property owners from the proposed area to be annexed that were present at the public hearings were given the opportunity to be heard by the City Council; and WHEREAS, the City offered a Development Agreement in Lieu of Annexation under Chapter 212.172 of the Texas Local Government Code to any property owner within the area proposed to be annexed that was interested in having their property exempted from annexation for a term of years (a "Chapter 212 Agreement"), with such Chapter 212 Agreement containing nearly identical terms as a Chapter 43 Agreement; and WHEREAS, the property exempted from annexation under a Chapter 212 Agreement retains its extraterritorial status unless the City Council determines that the property owner violated the terms of the agreement or unless the property owner voluntarily terminates the agreement; and WHEREAS, the City Council desires to terminate the Chapter 212 Agreement, attached and incorporated herein, due to the property owner of record, Cynthia St. Clair, requests to voluntary terminate the agreement; and WHEREAS, the City Council desires to initiate an annexation proceeding on the property associated with the terminated Chapter 212 Agreement; and NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL: Section 1. THAT the City Council finds and declares that the Chapter 212 Agreement attached to this Resolution as "Exhibit A" that exempts from annexation the property containing approximately 7.867 acres of unplatted land out of Block AK, Section 39, located South of 341h Street and West of Upland Avenue, Lubbock County, Texas and identified by the Lubbock Central Appraisal District reference number R126622, is hereby terminated and the exemption from annexation provided by the agreement is hereby removed from the property; and Section 2. THAT the City Council hereby authorizes and directs City staff to begin drafting, preparing, and assembling the necessary documentation required for the annexation of the property described in "Exhibit A", including, but not limited to, an annexation service plan. Passed by the City Council on September 14, 2021 DANIEL M. POPE, MAYOR rWook*W . dux X Retie ca Garza, City S cr ary APPROVED AS TO CONTENT: of Planning APPROVED AS TO FORM: • j elli Leisure, Assistant City Attorney RES. Adoption - Ch. 212 Agreement Termination & Service Plan Preparation R126622 08.30.21 CITY OF LUBBOCK - — -- OFFICE PICK UP 2018024133 13 PGS AGREE Resolution No. 2018-RO151 ,III ri 1I1AI %IlAWM% " 1W9W 11*1 ,I 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 OF RECORD IN THE REAL PROPERTY RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER. CITY OF LUBBOCK DEVELOPMENT AGREEMENT IN LIEU OF ANNEXATION THIS DEVELOPMENT AGREEMENT IN LIEU OF ANNEXATION (the "Agreement") is made by and between the City of Lubbock, Texas, a State of Texas, Tier 1 home rule municipal corporation (the "City"), and the undersigned property owner(s) (the "Owner"), [the term "Owner" includes all owners of the property that is the subject of this Agreement; and, the City and the Owner each being a "Party" and collectively the "Parties"], and this Agreement is entered into by the Parties pursuant to Section 212.172 of the Texas Local Government Code to satisfy the conditions required under Section 43.016 of the Texas Local Government Code and is made effective on April 26 , 2018 (the "Effective Date"). RECITALS WHEREAS, the Owner owns a parcel of real property (the "Property") in Lubbock County, Texas, which is more particularly depicted and described in the attached "Exhibit B"; and WHEREAS, the City has instituted annexation proceedings for all or portions of the Property and held public hearings regarding the proposed annexation on March 8 and March 22, 2018; and WHEREAS, at the public hearings, a service plan for the Property was made available to the Owner and the Owner was given the opportunity to be heard by the City Council of the City; and WHEREAS, the Owner does not want any portion of the Property to be annexed and desires to have the Property remain in the City's extraterritorial jurisdiction (the "ETJ"), 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 Parties 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; and NOW, THEREFORE, in consideration of the mutual promises contained in this Agreement, the Parties agree as follows: AGREEMENT Section 1— The Property: Current Status. The City acknowledges that the Property, more particularly depicted and described in the attached "Exhibit B," is located within the ETJ of the City, is subject to an Agricultural Use tax exemption according to the most recent Lubbock Central Appraisal District's ad valorem tax appraisal, and Development Agreement In Lieu Of Annexation - 2018 Page 1 is included in the area noticed for annexation by the City unless this Agreement is signed by the Owner and approved by the City Council of the City. Section 2 — The Property: Continued Status. a. In lieu of annexation, the Owner desires that the Property remain in the ETJ of the City for the duration of this Agreement. The Owner agrees that the primary use of the Property shall continue to be agricultural, consistent with Chapter 23 of the Texas Tax Code, except for any existing single- family residential use on the Property that supports the primary agricultural use. If the City proceeds with the annexation of the Property, then 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 Section 43.002 of the Texas Local Government Code. b. Unless otherwise provided in this Agreement, throughout the duration of this Agreement, the City shall not annex the Property, shall not institute proceedings to involuntarily annex the Property, and shall not include the Property in a statutory annexation plan. The Owner acknowledges that unless the Property is annexed by the City, the Property shall remain ineligible to receive City services, the Property shall continue to be excluded from the City's voting precincts, and the Property shall remain exempt from City property taxes for the duration of this Agreement. c. 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. Pursuant to Section 43.016(b)(1)(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 primary 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 development agreement. Further, the City reserves its regulatory and planning authority in the ETJ, as such authority has been granted to it by the City Council. Section 3 — The Property: Change in Status. a. The Owner warrants that the Property will continue to be used primarily for agriculture. The Owner agrees not to develop any portion of the Property for any other purpose than agriculture, and the Owner agrees not to file any type of subdivision plat or related development document for the Property with Lubbock County or the City throughout the duration of this Agreement. b. 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 the exemption offered in this Agreement shall terminate, and in addition to the City's other remedies, such act will constitute a request 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 development agreement under Chapter 212.172 of the Texas Local Government Code for such annexation had been tendered by the Owner Development Agreement In Lieu Of Annexation - 2018 page 2 to the City. 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. c. If annexation proceedings begin pursuant to this Section, then the Owner acknowledges that this Agreement serves as an exception to. Section 43.052 of the Local Government Code, requiring a municipality to use certain statutory procedures under an annexation plan, and as an exception to 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 Section 43.002(a)(2) of the Local Government Code 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 five (5) years from the date that this Agreement is approved by the City Council of the City of Lubbock, unless terminated earlier according to the provisions contained in this Agreement. Until this Agreement is terminated, this Agreement shall run with the land and be recorded in the real property records of Lubbock County, Texas. Section 5 — Termination. This Agreement will automatically terminate at the end of the Term. This Agreement shall terminate upon the development non -agriculture of the Property for any use other than agriculture, 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 Parties 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 at least a portion of the Property, then this Agreement will be null and void in its entirety. Section 7 — Notification. a. 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. Failure to provide notice as required in this subsection will constitute a failure of the Owner to prove its ownership of the Property, and will be grounds for the termination of this Agreement under Section 5 of this Agreement. b. A copy of any notice required by this section shall be forwarded to the City at the following address: City of Lubbock With copy to: City of Lubbock Attn: City Secretary Attn: Director of Development Services P.O. Box 2000 P.O. Box 2000 Lubbock, Texas 79457 Lubbock, Texas 79457 Development Agreement In Lieu Of Annexation - 2018 Page 3 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 Parties 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, then 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. subject to Section 5 of this Agreement. 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. All obligations of the Owner and the City under this Agreement are performable in Lubbock County, Texas. Venue for any action to enforce or construe this Agreement shall be Lubbock County, Texas. This Agreement is subject to all applicable federal, state, and local laws and any applicable ordinances, rules, orders and regulations of any local, state, or federal governmental authority, having or asserting jurisdiction. However, nothing contained in this Agreement shall be construed as a waiver by the Owner or the City of any right to question or contest any law, order, rule, or regulation which may affect the terns and conditions of this Agreement in any forum having jurisdiction, and the Owner and the City each agree to make a good faith effort to support all proposed laws and regulations which would be consistent with the performance of this Agreement in accordance with its terms. No subsequent change in the law regarding annexation shall affect the enforceability of this Agreement or the City's ability to annex the Property pursuant to this Agreement. Section 11— Remedy. The City reserves the right to exercise any right or remedy available to it by law, contract, equity, or otherwise, including without limitation, the right to seek any and all forms of relief in a court of competent jurisdiction. Further, the City shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this Agreement, the former shall control. Development Agreement In Lieu Of Annexation - 2018 Page 4 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 inures only 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 Parties 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 either Party is unable to perform its respective obligations under this Agreement due to any event or circumstance that is not within the reasonable respective control with the exercise of good faith, due diligence, and reasonable care of that Party (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 affected Party shall give notice to the other Party with such notice including a detailed explanation of the Force Majeure, a description of the action that will be taken to remedy the Force Majeure, and the estimated earliest possible time the full performance of the Agreement may resume. Section 16 — Enforcement. This Agreement may be enforced by the Parties 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 through its 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 execute this Agreement in order for it 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 Parties. Development Agreement M Ueu Of Annexation . 2018 Page 5 Section 20 — Entire Agreement. This Agreement constitutes the entire agreement between the Parties and supersedes all prier 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, and that "Exhibit A" attached to this Agreement is where additional Owners shall execute this Agreement. Section 21 — Captions & Recitals. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part ofthis 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 ❑ f this Agreement. Section 23 — International Warranties. The Parties warrant that each complies with Chapter 2270, Subtitle F, Title 10 of the Texas -Government Code by verifying: (1) that Neither Party boycotts Israel; and, (2) that Neither Party will boycott Israel during the term of the Agreement. Additionally, the Parties recognize that Texas Senate Bill 252 prohibits the City of Lubbock froin entering into a contract with a vendor that is identified by the Texas Comptroller as a company known to have contracts with or provide supplies or service with Iran, Sudan, or a foreign terrorist organization. The Parties hereby enter this Agreement on , 2018. For the CitV: DANIEL M. POPE, MAYOR SIGNATURES For the Owner: 111di itiond !haters sigh the attached "Exhibit AV i 4 �4- L-Cul� OW ER'S SIGNATURE ON 5-- OWNER'S PRINTED NAME Development Agreement In Lieu Of Annexation - 2018 page 6 ATTEST: .... Reber atParza, City $e'reta 7 1 APPROVED AS•TO eQNTENT: Steven O'Neal, Direr or a Dcvclapmcnt Services APPROVED AS TO FORM: Justin ruitt, Assistant City Attoniey Development Agreement In Lieu Of Annexation - 2018 Page 7 NOTARIZATION State of Texas § County of Lubbock § This instrument was executed before me on 4'2018, by ` DATE tiANk of the City of Lubbock, a Texas municipal corporation, on behalf ofsaid corporation. Notary tblic JENNIFER SOWDER CLEMENTS INoiary Public, 51ate of Texas �J►� Notary ID# 1249700.3 My Commission Expires 05-28-2029 State of Texas § County of©ek § This instrument was executed before me on �1 tirG� �� , 2018, by 1 VAT E ryi,lgli -tl14'. .R on behalf of said Owner. L Notary Public When Recorded Return To: City Manager City of Lubbock, Texas 1625 131h Street Lubbock, Texas 79401 .'''ar►�'•. CARISSA NOYES :gtit a4n" NOTARY PUBLIC -STATE OF TEXAS 3. 'b COMM. EXP 09-09-2018 ,,,„,• NOTARY i❑ 129381428 Development Agreement In Lieu Of Annexation - 2018 Page 8 EXHIBIT A — ADDITIONAL OWNER SIGNATURES All signatures listed in this Exhibit must be accompanied by Notarization Owner Name — Printed Owner Name — Signature Development Agreement to Lieu Of Annexation - 2018 Page 9 Chapter 43 Agreement for Annexation No. 20I8-00049 ■!w..�i.•..� iuuwf[so u.w.n�ynaw.• [411'�Il z zen'��"broo�4M.CiFA1.RMn ary y�nrq •__. �+Y�,�nw�� •4iy ��rv-.. Lubbock �.��.. llxx{ Pfoperty ' Owner Property Address 2017 Assessed Value R126622 ST CLAIR, CYNTHIA 79407 $535 2018 GENERAL INFORMATION 2017 VALUE INFORMATION Property Status Acute PropertyType Agricultural Land Legal Description BLK AK SEC 39 AB 228 TR A14A AC: 7.867 Neighborhood 1100-Frenshiplsd Account AC12039-90228-17305-000 Map Number 118 2018 OWNER INFORMATION Owner Name ST CLAIR, CYNTHIA Owner ID 00189754 Exemptions Agriculture Use Percent Ownership 100% Mailing Address 3509 EDGWOOD DR AMARILLO, TX 79109 2017 ENTITIES & EXEMPTIONS Special Exemptions AG - Agriculture Use Improvement Homesite Value s0 Improvement Non-Homesite $0 Value Total Improvement Market Value $0 Land Homesite Value $0 Land Non-Homesite Value $0 Land Agricultural Market Value $27,535 Total Land Market Value $27,535 Total Market Value $27,535 Agricultural Use $535 Total Appraised Value $0 Homestead Cap Loss _. _- -s0 Total Assessed Value $535 TAXING ENTITY I EXEMPTIONS EXEMPTIONS AMOUNT TAXABLE VALUE TAX RATE PER 100 TAX CEILING - --- --- - - - -- -- - - GLB- Lubbock County $0 $535 0.358158 0 HSP- Lubb Cnty Hospital $0 $535 0.109778 0 SFR- Frenship ISO $0 $535 1.49 0 WHP- Hi Plains Water $0 $535 0.0069 0 TOTALS 1.964836 2017 LAND SEGMENTS LAND SEGMENT STATE CODE MARKET AG USE HOMESITE LAND SIZE TYPE -- - VALUE LOSS_-_ _ 01 - Real: Qualified Open -space 1 -DryCrop Land No $27,535 $535 7.867000 acres TOTALS 342,687 Sq. ft / 7.867000 acres VALUE HISTORY YEAR IMPROVEMEN f LAN MARKET I AG MARKETAG LOSS APPRAISED 'I HS CAP LOSS ASSESSED 2016 S0 f0 SO $62 9 $0 $629I SALES HISTORY DEED DATE SELLER BUYER INSTR # VOLUME/PAGE ' 2/12/2014 ST CLAIR. CYNTHIA 2014-4363 12/20/2013 ST CLAIR JEAN ESTATE ST CLAIR, CYNTHIA 2013.49S47 . 1.1/9/2013 ST CLAIR JEAN ALICE ST CLAIR JEAN ESTATE 2013-359P DISCLAIMER Every effort has been made to offer the most current and correct information possible on these pages. The information included on these pages has been compiled by District staff from a variety of sources, and Is subject to change without notice. The Lubbock Central Appraisal District makes no warranties or representations whatsoever regarding the quality, content, completeness, accuracy or adequacy of such Information and data. The Lubbock Central Appraisal District reserves the right to make changes at any time without notice. Original records may differ from the information on these pages. Verification of information on source documents is recommended. By using this application, you assume all risks arising out of or associated with access to these pages, Including but not limited to risks of damage to your computer, peripherals, software and data from any virus, software, file or other cause associated with access to this application. The Lubbock Central Appraisal District shall not be liable for any damages whatsoever arising out of any cause relating to use of this application, Including but not limited to mistakes, omissions, deletions, errors, or defects in any information contained in these pages, or any failure to receive or delay In receiving information said or Implied. . FAp !iT 32ND i rI� S 4 FILED AND RECORDED OFFICIAL PUBLIC RECORDS Kelly Pinion County Clerk Lubbock Couniy TEXyS 06/27/2018 04:49 PM FEE: $74.00 2018024133