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HomeMy WebLinkAboutResolution - 2005-R0185 - Agreement - Mccnton Woods Ltd. - Funding Right Of Way Acquisition - 04_28_2005Resolution No. 2005-RO185 April 28, 2005 Item 36 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor Pro Tern of the City of Lubbock BE and is hereby authorized and directed to execute for and on behalf of the City of Lubbock an Agreement between the City of Lubbock and McCanton Woods, Ltd. regarding the funding of right of way acquisition for additional property in the North Overton Tax Increment Finance Reinvestment Zone authorized in Resolution No. 2004-R596. Said Agreement is attached hereto and incorporated in this Resolution as if fully set forth herein and shall be included in the minutes of the Council. Passed by the City Council this 28th day of April , 2005. TOM MARTIN, MAYOR PRO TEM ATTEST: Rebecca Garza, City Secretary APP't E S NTENT: Craig Farmer, Managing Director of Planning and Transportation APPROVED AS TO FORM: Linda L. Chamales, Senior Attorney Office Practice Section City Att / Linda: Res -NO TIF reimb.Agret-McCanton Woods re 2004-R596 April 18, 2005 Resolution No. 2005-RO185 6010 AGREEMENT BETWEEN THE CITY OF LUBBOCK AND MC CANTON WOODS, LTD. REGARDING ACQUISITION OF PROPERTY IN THE NORTH OVERTON TAX INCREMENT FINANCING REINVESTMENT ZONE STATE OF TEXAS § COUNTY OF LUBBOCK § This agreement is between the City of Lubbock, a Texas municipal corporation (hereinafter called "City") and McCanton Woods, Ltd. (hereinafter called "Developer"). WHEREAS, the City recognizes the importance of its continued role in local economic development; and WHEREAS, the City, upon receipt of a petition requesting creation of a tax increment financing district from the owners of more than 50 per cent of the appraised value of the area, adopted Ordinance No. 2002-029, March 14, 2002, establishing the North Overton Tax Increment Financing Reinvestment Zone in accordance with the provisions of the Tax Increment Financing Act, V.T.C.A. Tax Code, Chapter 311 (the "Act"); and WHEREAS, in accordance with the Act, the Board of Directors of the North Overton Tax Increment Financing Reinvestment Zone has prepared a Project Plan (the "Project Plan") and a Financing Plan (the "Financing Plan"), and the City, in accordance with the Act and after making all findings required by the Act, has adopted ordinances approving the initial plans and amended plans; and WHEREAS, Developer has acquired a large percentage of the real property situated within the North Overton Tax Increment Financing Reinvestment Zone (the "TIF District") and intends to develop the property in accordance with the Second Amended Project Plan, a copy of which is attached and marked "Exhibit A"; and WHEREAS, Developer, after lengthy negotiations, has been unable to acquire clear title to certain property necessary to the implementation of the Second Amended Project Plan; and WHEREAS, the Act authorizes the City to exercise any power necessary and convenient to implement project plans including the power to acquire real property by condemnation and sell that property on the terms and conditions and in the manner it considers advisable; and WHEREAS, the City has adopted Redevelopment Policies which state that if the City uses the power of eminent domain to obtain property for public use in a redevelopment project and the property obtained is to benefit the redevelopment project, then Developer shall pay the cost of condemnation; and Developers Agreement- City / McCanton Woods WHEREAS, The City, after due and careful consideration, has concluded that obtaining the property within the TIF District as provided herein and in the Second Amended Project Plan will further the growth of the City, facilitate the redevelopment of the entire TIF District, improve the environment of the City, increase the assessed valuation of the real estate situated within the City, foster increased economic activity within the City, increase employment opportunities within the City, upgrade public infrastructure within the TIF District, and otherwise be in the best interests of the City by furthering the health, safety, and welfare of its residents and taxpayers, and that entering into this Agreement is necessary and convenient to implement the Plans and achieve their purposes; and WHEREAS, the City is desirous of having Developer undertake redevelopment in the TIF District in order to serve the needs of the. City and in order to produce increased tax revenues for thevarious taxing units authorized to levy taxes on real property within the TIF District and the City; and, WHEREAS, in order to stimulate and induce the redevelopment of the TIF District, the City has agreed to participate by exercising the power of eminent domain to obtain certain property in accordance with the Second Amended Project Plan, all in accordance with the terms and provisions of the Act, with the land aggregation policies set up by the City to be followed in Redevelopment projects, and with the terms of this particular Agreement; and WHEREAS, the Developer desires to have the City participate and is willing to pay the cost of condemnation for the remaining parcels, including the cost of appraisals, expert witness fees, land acquisition, and other costs involved in obtaining the remaining property in accordance with the Second Amended Project Plan; NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants and agreements herein, the Parties agree as follows: ARTICLE I. RECITALS AND EXHIBITS PART OF AGREEMENT 1.1 The representations, covenants and recitations set forth in the foregoing recitals are material to this Agreement and are hereby incorporated into and made a part of this Agreement as though they were fully set forth in this Article I. Exhibits A and B attached hereto are incorporated into this Agreement as if fully set forth herein. Developer Agreement — City / McCanton Woods 2 ARTICLE H. DEVELOPMENT PLAN — NORTH OVERTON 2.1 Developer has acquired a large percentage of the real property situated within the North Overton Tax Increment Financing Reinvestment Zone and intends to develop the property in accordance with the Second Amended Project Plan, which is attached and marked "Exhibit A" as adopted by the Board of Directors of the North Overton Tax Increment Financing Reinvestment Zone and the City Council of the City of Lubbock 2.2 Developer, after lengthy negotiations, has been unable to acquire clear title to certain property necessary to the implementation of the Second Amended Project Plan. ARTICLE III. CITY PARTICIPATION 3.1 In accordance with the Act and with the Second Amended Project Plan recommended by the Board of Directors of the North Overton District Tax Increment Finance Reinvestment Zone and approved by the City Council of the City of Lubbock, and in accordance with the City of Lubbock Redevelopment Policies and Tax Increment Finance Policies, the City agrees to exercise the powers of eminent domain to acquire the property described in Exhibit B for the purpose of implementing the Second Amended Project Plan. 3.2 City agrees to hire appraisers or other expert witnesses necessary to determine and testify as to the fair market value of said properties. 3.3 City agrees to take title to the properties acquired by eminent domain for implementing the Second Amended Project Plan, and to transfer to Developer at fair market value (as determined by the courts), to be used to implement the Second Amended Project Plan approved by the City Council. Developer Agreement — City / McCanton woods 3 ARTICLE IV. DEVELOPER OBLIGATIONS 4.1 In accordance with the City of Lubbock Redevelopment Policies and Tax Increment Finance Policies, the Developer agrees to pay all costs and expenses (including, but not limited to those costs detailed in paragraphs 4.2, 4.3, 4.4, and 4.5 below) which are incurred by the City of Lubbock related to the acquisition by condemnation of the property described in Exhibits B. 4.2 Developer agrees to pay, within thirty days of presentment with the invoices, all appraisal and other expert witness fees, title insurance premiums, court costs and expenses related to the acquisition of those property in Exhibit B, including fees incurred in appeals or settlement negotiations with any party to the condemnations. 4.3 Developer agrees to pay all land acquisition costs, including depositing the sum determined by the Commissioners to be the fair market value of the property in Exhibit B, into the Court so that the City may take possession of the properties for implementing the Second Amended Project Plan. 4.4 Developer agrees to accept title to any excess land not needed for right-of- way purposes and agrees to use the excess land in implementing the Second Amended Project Plan approved by the City Council. Developer shall pay fair market value (as determined by the courts) for the excess land, but shall receive credit for any sum previously paid into the court for said land. 4.5 For settlement purposes, prior to court determination of the fair market value for the land, Developer shall only be responsible for paying the appraised value of the land unless City and Developer shall agree on a higher settlement value. ARTICLE V FORCE MAJEURE 5.1 It is expressly understood and agreed by the parties to this Agreement that if the substantial completion of the construction of any improvements contemplated hereunder is delayed by reason of war, civil commotion, acts of God, inclement weather, governmental restrictions, regulations, or interferences, delays caused by the franchise utilities or their contractors, fire or other casualty, court injunction, necessary condemnation proceedings, acts of the other party, its affiliates/related entities and/or their contractors, or any circumstances which are reasonably beyond the control of the party obligated or permitted under the terms of this Developer Agreement — City / McCanton Woods 4 Agreement to do or perform the same, regardless of whether any such circumstance is similar to any of those enumerated or not, the party so obligated shall be excused from performing during such period of delay, so that the time period applicable to the design or construction requirement shall be extended for a period of time equal to the period the party was delayed. ARTICLE VI. TERM 6.1 The term of this agreement shall begin ofi the date of execution and end upon the complete performance of all obligations and conditions precedent by parties to this Agreement. ARTICLE VII. AUTHORITY TO BIND 7.1 The City represents and warrants to Developer that the City has full constitutional and lawful right, power, and authority, under currently applicable law to execute and deliver and perform the terms and obligations of this Agreement, and all necessary City proceedings, findings and actions. Accordingly, this Agreement constitutes the legal valid and binding obligation of the City, is enforceable in accordance with its terms and provisions and does not require the consent of any other governmental authority. 7.2 Developer hereby represents and warrants to the City that Developer has full lawful right, power and authority to execute and deliver and perform the terms and obligations of this Agreement and all of the foregoing have been or will be duly and validly authorized an approved by all necessary actions of Developer. Concurrently with Developer's execution of this Agreement, Developer has delivered to the City copies of the resolutions or other corporate actions authorizing the execution of this Agreement and evidencing the authority of the persons signing this Agreement on behalf of Developer to do so. Accordingly, this Agreement constitutes the legal, valid and binding obligation of Developer, and is enforceable in accordance with its terms and provisions. Developer Agreement — City / McCanton Woods 5 ARTICLE VIII. DEFAULT 8.1 A default shall exist if any party fails to perform or observe any material covenant contained in this Agreement, or if the representation provided for in Section IX is not true or correct. A party shall immediately notify the defaulting party in writing upon becoming aware of any change in the existence of any condition or event that would constitute a default by the defaulting party, or with the giving of notice or passage of time, or both would constitute a default by defaulting party under this Agreement. Such notice shall specify the nature and the period of existence thereof and what action if any, the notifying party requires with respect to curing the default. 8.2 If a default shall occur and continue, after thirty (30) days written notice to cure default, City may, at its option terminate this Agreement or pursue any and all remedies it may be entitled to in accordance with Texas law, without the necessity of further notice to or demand upon Developer. ARTICLE IX. FEDERAL FUNDING 9.1 The City represents and warrants to Developer that no federal funds or federally assisted project activities as administered by or under the control of the City are involved in this project at this time. City further agrees that it does not have any intention or plans to participate in the future in any federally assisted project activities in the North Overton Tax Increment Finance Reinvestment Zone. 9.2 Developer represents and warrants to City that Developer has no federal funds involved in this project at this time. Developer further agrees that it will not in the future participate in any federally assisted project activities in the North Overton Tax Increment Finance Zone. ARTICLE X. NOTICES 10.1 Any notice required by this Agreement shall be deemed to be properly served if deposited in the U.S. mails by certified letter, return receipt requested, addressed to the recipient at the recipient's address shown below, subject to the right of either part to designate a different address by notice given in the manner just described. Developer Agreement — City / McCanton Woods 6 10.2 If intended for City notice shall be sent to: Director of Planning City of Lubbock P.O. Box 2000 1625 131h Street Lubbock, Texas 79457 10.3 If intended for Developer, notice shall be sent to: Delbert McDougal McCanton Woods, Ltd. 7008 Salem Avenue Lubbock, Texas ARTICLE XI. VENUE AND GOVERNING LAW 11.1 This Agreement is performable in Lubbock County, Texas, and venue for any action arising out of this Agreement shall be exclusively in Lubbock County. 11.2 This Agreement shall be governed and construed in accordance with the laws of the State of Texas. ARTICLE XII. ATTORNEY FEES 12.1 Developer and City expressly agree that in the event of any litigation arising between the parties to this Agreement that each party shall be solely responsible for payment of its attorneys and that in no event shall either party be responsible for the other party's attorney fees regardless of the outcome of the litigation. ARTICLE XIII. LEGAL CONSTRUCTION 13.1 In the event that any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision thereof and this Agreement shall be considered as if the invalid, illegal or unenforceable provision had never been contained in this Agreement. Developer Agreement — City / McCanton Woods 7 ARTICLE XIV. COUNTERPARTS 14.1 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. ARTICLE XV. SUCCESSORS AND ASSIGNS 15.1 The terms and conditions of this Agreement are binding upon the successors and assigns of all parties hereto. Provided, however, this Agreement shall not be assigned by Developer without prior City Council approval, which approval shall not be unreasonably withheld. ARTICLE XVI. ENTIRE AGREEMENT 16.1 This Agreement embodies the complete agreement of the parties hereto as it relates to the property in Exhibit B, superseding all oral or written previous and contemporary agreements between the parties and relating to matters in this Agreement, and except as otherwise provided herein cannot be modified without written agreement of the parties to be attached to and made a part of this Agreement. EXECUTED in duplicate and effective as of the 28thday of April , 2005. CITY OF LUBBOCK TOM MARTIN, MAYOR PRO TEM ATTEST: 0 .4 gad Rebecca Garza, City Secretary McCANTON WOODS, LTD. e�6� �w4c4s> McD EQUIPMENT LEASING, L.C., General Partner By: Delbert G. McDougal, Sole Manager Developer Agreement — City / McCanton Woods 8 APPRO AS TO C NTENT: Craig Fa er anaging Director of Planning and Transportation APPROVED AS TO FORM: Linda Chamales, Senior Attorney Office Practice Section Lc:city att/Linda/additional property 2 March 24, 2005 Developer Agreement — City / McCanton Woods EXHIBIT "A" PRO.JECT Pt-.AN,7 � �.r,-,Vmd 1 ~0fdr-JI North Overton Area Tax Increment Finance Reinvestment Zone L UBBOCK, TEXAS Prepared for City of Lubbock October 2004 Second Amended Project Plan The North Overton Area was established in 1907 and over the next 20 years developed as a middle-class neighborhood, with home ownership predominating. Following World War II, the growth of Texas Tech stimulated a need for student housing. This need was provided by many non -conforming apartments, converted garages, and subdivided houses, reducing home ownership considerably. Continued growth of Tech encouraged development of apartment buildings, further destroying the stability of the area. By the 1980's, the City of Lubbock recognized the need to "explore methods of stabilizing property values while allowing the area to develop to its fullest potential" and appointed the Overton North Study Committee. This Committee formulated strategies to address the area's problems and potential. Among the strategies was the possibility of utilizing Tax Increment Financing. The City also retained RTKL in 1989 to prepare a Redevelopment Plan for Downtown Lubbock, which included the North Overton area. RTKL's plan identified many of the same issues as the Study Committee and more particularly indicated, "the City must develop creative public/private joint development opportunities and provide public improvements as incentives for development". Through a series of economic and real estate factors, nothing materialized from the two studies during the 1990's, and the situation in North Overton continued to stagnate. However, at this time, a local developer has come forward with a plan to redevelop about 90% of the North Overton area and has petitioned the City to establish a Tax Increment Financing (TIF) District to provide the necessary public funds to enter into a public - private partnership. City staff, working with the developer, has prepared a list of public infrastructure projects, which will stimulate and enhance the redevelopment of North Overton. It is expected that the North Overton Area Tax Increment Financing Reinvestment Zone planned expenditure of approximately $51.9 million for public infrastructure improvements will result in future development/redevelopment in the Zone which will increase the taxable value by approximately $317 Million over the Zone's 30- year life. As set forth in Section 311.011 of the Tax Increment Financing Act of the Tax Code, the Project Plan for the North Overton Area Tax Increment Finance Reinvestment Zone, Lubbock, Texas must and does include the following elements: 1. A map showing existing uses and conditions of real property in the Zone and a map showing proposed improvements to and proposed uses of the property. Following is a map showing uses of real property in the North Overton Area TIF Reinvestment Zone and a map indicating potential locations of proposed public improvements in the zone. Page 1 North Overton Second Amended Project Plan City of Lubbock Second Amended Project Plan 2. Proposed changes of zoning ordinances, the master plan of the municipality, building codes, and other municipal ordinances. No changes anticipated at this time except to zoning ordinances. Zoning ordinances will be modified to provide architectural guidelines and special zoning considerations to provide for redevelopment of the North Overton area as a pedestrian -oriented, neo-traditional development. 3. A list of estimated non -project costs. Non -project costs within the Zone area are those development costs not paid for by the Zone. These costs will include, but are not limited to, $333,955 Million of new development. 4. A statement of a method of relocating persons to be displaced as a result of implementing the plan. In the process of developing and redeveloping the Zone, it is not contemplated there will be any involuntary relocations. However, it may be necessary to relocate individuals and businesses through voluntary buyout. In the event that this is required, the City or private developer will follow the procedures that would be used in the development or construction of other public or private improvements outside the Zone. Page 2 North Overton Second Amended Project Plan City of Lubbock Second Amended Project Plan NORTN OVERTON PRO. 38e ' Bontl (ssue%E Street reconstructionlresurfacing $1,252,311 A/E services Reconstruction, curb & gutter Rotaries Rotary amenities $40,000 A/E services Landscaping - irrigation, lighting, street furniture Glenna Goodacre Boulevard $373,074 A/E services Replace curb & gutter ROW acquisition Glenna Goodacre Blvd. Amenities $350,000 A/E services Landscaping - irrigation, lighting, street furniture Landscaping Parkway $629,093 A/E services Landscaping - irrigation, lighting, street furniture Water/Waste Water $496,810 Replacement & relocation Electric utility - underground $653,712 Pioneer Park Improvements 0 Marsha Sharp Frwy. Frontage 0 University Ave. Improvements 0 Replace curb & gutter Incentive Projects Subtotal * Administration Total Phase 1 TIF Cost $3,795,000 Phase 2, Years 7 - 30 Public infrastructure - TIF reimbursement as per statute •$900,000 reimbursement to developer as per agreement Funds available after bonds are paid & bond interest Total TIF Cost PLAN (10-20-04 s t olat �osz 39 $6,252,750 $235,000 $275,000 $1,976,926 * $1,450,000 $950,000 $1,300,000 $920,907 $1,550,000 $2,753,190 $3,250,000 $3,338,538 $3,992,250 $500,000 $500,000 $1,000,000 $1,000,000 $900,000 $900,000 $3,500,000 $3,500,000 $23, 970, 000 $340,000 $340,000 $21,415,000 $24,310,000 $41,810,000 $66,121,000 Page 3 North Overton Second Amended Project Plan City of Lubbock Exhibit "A" EXISTING LAND USE r —I North Overton TIF Boundary Existing Land Use October 2004 Commercial Industrial Park Public Use High Density Residential Medium Density Residential Low Density Residential Vacant Land Transportation Communication and Utilities Exhibit "A" North Overton Second Amended Project Plan Exhibit "B" PROPOSED IMPROVEMENTS AND PROPOSED USES Overton Park Master Plan I =11:i Sterliitg Uahwilty Fountains _. 'e�f4ese a; 43n �Fk i�i_ T1w Centre At Overton Wal-Mart Exhibit "B" North Overton Second Amended Project Plan EXHIBIT `B" LEGAL DESCRIPTION OF PROPERTY "South 50-feet of Lots Seven (7), Eight (8), Nine (9), Ten (10), Eleven (11), and Twelve (12), Block Thirty -Three (33), Overton Addition to the City of Lubbock, Lubbock County, Texas, according to the map, plat and/or dedication deed thereof, recorded in Volume 18, Page 610, Deed Records, Lubbock County, Texas; in Volume 19, Page 56, Deed Records, Lubbock County, Texas; and in Volume 19, Page 568, Deed Records, Lubbock County, Texas."