HomeMy WebLinkAboutResolution - 2017-R0169 - Cancelling 212 Agreement - Benny Gray - 05/11/2017Resolution No.2017-R0169
Item No.6.11
May 11,2017
RESOLUTION
WHEREAS,beginning in February 2016, the City Council of the City of Lubbock (the
"City Council") instituted annexation proceedings on approximately 2,394 acres of
primarily undeveloped land located between one-halfmile east of CR 2200 (University
Avenue) and approximately CR 1700 (Milwaukee Avenue), from the existing southern
city limits to approximately 660 feet south of CR 7500; and
WHEREAS,pursuant to Chapter 43 of the Texas Local Government Code,the City
Council held public hearings regarding the proposed annexation on March 8 and March
10,2016;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 giventhe opportunityto be heard by the City Council;
and
WHEREAS,pursuantto Chapter 43.035 of the Texas Local Government Code,the City,
on or about March 1,2016, madean offerto enter into a Development Agreement in Lieu
of Annexation for a term of years with every property owner that has land within the area
proposed to be annexed by the City that is subject to an agricultural tax exemption as
determined bythe Lubbock Central Appraisal District(a"Chapter43 Agreement");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 43 Agreement or 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 certain Chapter 43 Agreements or
Chapter 212 Agreementseither due to the property owner's requestto voluntary terminate
the agreement or the City Council's determination that a property owner has violated
certain terms of the agreement;and
WHEREAS,the City Council desires to initiate annexation proceedings on the property
associated with the terminated Chapter 43 Agreements or Chapter 212 Agreements;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 twenty two (22) acres out of SEA, Section 1, Block AK,
Lubbock County, Texas and identified by the Lubbock Central Appraisal District reference
numbers R85586 and R151393, 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 May 11, 2017
Ins�
DANIEL M. POPE, MAYOR
ATTEST:
0 10110 A J�C' k
.--
Rebe ca Garza, City Se et
APPROVED AS TO CONTENT:
APPROVED AS TO FORM:
91
JuAin Pruitt Assistant City Attorney
ccdoption —Ch. 212 Agreement Termination & Service Plan Preparation — R85586, R151393
May 3,
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 �EEME T IN LIEU OF ANNEXATION (the "Agreement") is
made and effective this` ay of 2016, and is entered into pursuant to §212.172 of
the Texas Local Government Code, by and between the City of Lubbock, Texas, a Texas home rule
municipal corporation (the "City"), and the undersigned property owner(s) (the "Owner"). with the
term "Owner" including all owners of the Property, and is as follows:
RECITALS
WHEREAS, the Owner owns a parcel of real property (the "Property") in Lubbock County, Texas.
which is more particularly and separately described in the attached Exhibit A; and
WHEREAS, the City has instituted annexation proceedings for all portions of the Property and held
public hearings regarding the proposed annexation on March 8 and March 10. 2016; and
WHEREAS, at the public hearings, the Owner was presented with a service plan for the Property and
the Owner was given the opportunity to be heard by the City Council of the City of Lubbock: and
WHEREAS, the Owner does not want the Property to be annexed and desires to have the Property
remain in the City's extraterritorial jurisdiction. in consideration for which the Owner agrees to enter
into this Agreement; and
WHEREAS, it is the City's intention to allow the Owner to continue to use the Property as it is being
used at the time of this Agreement; and
WHEREAS, the Owner and the City acknowledge that this Agreement is binding upon the City and
the Owner and their respective successors and assigns for the duration of this Agreement; and
WHEREAS, this Agreement is to be recorded in the real property records of Lubbock County, "Texas;
NOW, THEREFORE, in consideration of the mutual promises contained in this Agreement, the
Owner and the City agree as follows:
AGREEMENT
Section 1 — The Property: Current Status. The City acknowledges that the Property, more
particularly described in the attached "Exhibit A," is located within the extraterritorial jurisdiction of
the City and is subject to annexation by the City unless this Agreement is signed by the Owner.
Section 2 — The Property: Continued Status. In lieu of annexation, the Owner desires that the
Property remain in the extraterritorial jurisdiction of the City for the duration of this Agreement. The
Ch. 212 Development Agreement In Lieu Of Annexation - 1 I 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 of this Agreement. The Owner's use of the
Property at the time of this Agreement is "grandfathered" into the acceptable uses of the City, and the
City is prohibited from interfering with any uses on the Property that comply with §43.002 of the
Texas Local Government Code. The Owner acknowledges that Section 22.03.091(a) of the Code of
Ordinances of the City prohibits the City from providing water to any entity outside of the city limits,
and acknowledges that the City will not be providing water to the Property unless the Property is
annexed into the City. However, if the Property is annexed pursuant to a provision of this Agreement,
then the City shall provide services to the Property pursuant to Chapter 43 of the Texas Local
Government Code.
Subject to the provisions of this Agreement, the City shall not annex the Property, shall not
involuntarily institute proceedings to annex the Property, and shall not include the Property in a
statutory annexation plan. The Owner authorizes the enforcement by the City of all of the City's
regulations and planning authority that do not materially interfere with the use of the Property in the
same manner that the City's regulations and planning authority are enforced within the City's
boundaries. The City specifically reserves its authority pursuant to Chapter 251 of the Texas Local
Government Code to exercise eminent domain over property that is subject to a §212.172 development
agreement. The City further reserves its regulatory and planning authority in the City's ETJ, as such
authority has been granted to it by the City Council.
Section 3 — The Property: Change In Status. The Owner agrees not to substantially change the use
of the Property as it is used on the date of the execution of this Agreement. The Owner agrees not to
develop the Property by filing any type of subdivision plat or related development document for the
Property with Lubbock County or the City throughout the duration of this Agreement.
The Owner acknowledges that if any plat or related development document is filed for the Property,
or if the Owner commences any development of the Property other than that which supports the use
of the Property as the Property is used on the date of the execution of this Agreement, then this
Agreement shall terminate, and in addition to the City's other remedies, such act will constitute a
petition for voluntary annexation by the Owner, and the Property will be subject to annexation at the
discretion of the City Council. The Owner agrees that such annexation shall be voluntary and the
Owner hereby consents to such annexation as though a petition for such annexation had been tendered
by the Owner.
If annexation proceedings begin pursuant to this Section, then the Owner acknowledges that this
Agreement serves as an exception to Local Government Code §43.052, requiring a municipality to
use certain statutory procedures under an annexation plan, and as an exception to Local Government
Code §43.062 requiring certain statutory procedures as to the Owner to effectuate an annexation.
Further, the Owner hereby waives any and all vested rights and claims that it may have under
§43.002(a)(2) and Chapter 245 of the Texas Local Government Code that would otherwise exist by
virtue of any plat or construction the Owner may initiate during the time between the expiration of
this Agreement and the institution of annexation proceedings by the City.
Section 4 — The Term. The term of this Agreement (the "Term") shall be twenty (20) years from the
date that this Agreement is approved by the City Council of the City of Lubbock. At the end of the
Term, the Owner, and all of the Owner's heirs, successors and assigns shall be deemed to have filed
Ch. 212 Development Agreement In Lieu Of Annexation - 2 1 P a g e
a petition for voluntary annexation of the Property, and the Property will be subject to voluntary
annexation in accordance with Section 3 of this Agreement. Prior to the end of the Term, the City may
commence the voluntary annexation of the Property.
Section 5 — Termination.
This Agreement will automatically terminate at the end of the Term. This Agreement shall terminate
upon the filing of any plat or related development document with the City or with Lubbock County or
upon the Owner's failure to prove that it is the sole owner of the Property with the authority to sign
this Agreement. The Owner and the City may agree in writing to terminate this Agreement prior to
the expiration of the Term of this Agreement.
Section b — City Council Approval Required. If the City Council of the City of Lubbock does not
affirmatively vote to annex an area that contains the Property, then this Agreement will be null and
void in its entirety.
Section 7 — Notification. Any person who sells or conveys any portion of the Property shall, prior to
such sale or conveyance, give written notice of this Agreement to the prospective purchaser or grantee,
and shall give written notice 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 With copy to: City of Lubbock
Attn: City Secretary Attn: Director of Planning
P.O. Box 2000 P.O. Box 2000
Lubbock, Texas 79457 Lubbock, Texas 79457
This Agreement shall run with the Property and be recorded in the real property records of Lubbock
County, Texas.
Section 8 — Waiver. Any failure by the Owner or the City to insist upon strict performance by either
party of any material provision of this Agreement shall not be deemed a waiver thereof, and the Owner
or the,City shall have the right at any time thereafter to insist upon strict performance of any and all
provisions of this Agreement. No provision of this Agreement may be waived except by a written
agreement signed by the Owner or the City waiving such provision. Any waiver shall be limited to
the specific purposes for which it is given. No waiver by the Owner or the City of any provision of
this Agreement shall be deemed or construed to be a waiver of any other provision or subsequent
waiver of the same provision. The Parties expressly agree that no provision of this Agreement is in
any way intended to constitute a waiver by any Party of any immunity from suit or liability that it may
have by operation of law. The Parties agree that the City shall retain all of its governmental
immunities.
Section 9 — Assurance of Ownership. The Owner hereby expressly affirms that it is the sole owner
of the Property and that no other person or entity has a valid claim to any right, title, or ownership in
the Property. Should any dispute of right, title, or ownership concerning the Property arise subsequent
to the Owner's execution of this Agreement, the Owner hereby agrees to be solely responsible for
defending and confirming its absolute right, title, and ownership to the Property. If the Owner cannot
Ch. 212 Development Agreement In Lieu Of Annexation - 3 1 P a g e
defend or fails to defend its right, title, and ownership to the Properly, 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 Maj eure"), then the obligations affected by the Force Maj cure shall be temporarily suspended.
Within three (3) business days after the occurrence of a Force Majeure, the Owner or the City shall
give notice to each other, including a detailed explanation of the Force Majeure and a description of
the action that will be taken to remedy the Force Majeure and resume full performance at the earliest
possible time.
Ch. 212 Development Agreement In Lieu Of Annexation - 4 1 P a g e
Section 16 — Enforcement. This Agreement may be enforced by the Owner or the City by any
proceeding at law or in equity. Failure to do so shall not be deemed a waiver to enforce the Agreement
thereafter.
Section 17 — Governmental Powers. It is understood that by execution of this Agreement, the City
does not waive or surrender any of its governmental powers, except as expressly set forth herein.
Section 18 — Counterparts. This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original and constitute one and the same instrument. The Owner
acknowledges that each and every owner of the Property must sign this Agreement in order for the
Agreement to take full effect.
Section 19 — Severability. If any provision of this Agreement is determined by a court of competent
jurisdiction to be unenforceable for any reason, such unenforceable provision shall be deleted from
this Agreement, and the remainder of this Agreement shall remain in full force and effect and shall be
interpreted to give effect to the intent of the Owner and the City. Without limiting the generality of
the foregoing, if it is determined that, as of the date that this Agreement becomes effective, that any
Owner does not own any portion of the Property, then this Agreement shall remain in full force and
effect with respect to the remaining portion of the Property that the Owners actually own.
Section 20 — Entire Agreement. This Agreement constitutes the entire agreement between the Owner
and the City and supersedes all prior agreements, whether oral or written, covering the subject matter
of this Agreement. The Owner acknowledges that each and every Owner of the Property must si�on
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 pain 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 F�?F, the parties mutually enter this Agreement
on this 4r day of , 2016.
Ch. 212 Development Agreement In Lieu Of Annexation - 5 1
For the Citv
GLEN C. ROBER*0 , MANOR
ATTEST:
"M
Re ecca Garza. City Secretaf-y
APPROVED AS TO CONTENT:
Andrew Paxton. Director of Plannin<o
APPROVED AS TO FORM:
f
�-),H
iustin Asista t City A orne v
For the Owner
Benny G ay, Owner
Ch. 212 Development Agreement In lieu Of Annexation - 6 1
NOTARIZATION
State of Texas §
County of Lubbock §
'This instrunent was executed before me on p _ 2016, by��
N `
h � Darr:
of the City of Lubbock. a Texas municipal corporation. on behalf of said
corporation. .o
MAGEN D. MURCHISON
D. Notary Pubic, State of Texas
My Commission Expires 04-D2017
Notary t
ublic
State of Texas §
County of Lubbock §
This instrument was executed before me on 2016, by /��+�P-�n ny'j ca"'],
on behalf of said Owner.
MONICA saLAzaR
'
Notary Public, Slate of Texas
j�JIi
Ply Commission Expires 43.20.2019
Notary Public
When Recorded Return To:
City Secretary
City of Lubbock. Texas
1625 1')"' Street
Lubbock, 1'exas 79401
Ch. 212 Development Agreement In Lieu Of Annexation - 7 1
EXHIBIT A — The Property
2,006 ACRiS OUT OF SEj4r SECTION l.r BLOCK AK: ABSTRACT M, LIMOCK COUNTY, TEXAS:
SEE EXHIBIT 'tAil ATTACHED HERE70 m HOE A FART HEREOF AS IF FU LY
COPIED HEREIN.
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REGISTEREJ3 PROFESSIONAL LAND SUFLYEYpIZ �dS7a
(Gray - R151393) Page 1 of 2
BLK AK SEC 1 AB 189 TR L OF SE/4 AC: 2
(Gray - R151393) Page 2 of 2
EXHIBIT A — The Property
TRACT I;
The West 10 acres of the North 20 acres of the Southeast k of Section 1, Block A K, .
Lubbock County., Texas and being more particularly described as follows:
BEGINNING at a point for the Northeast and beginning corner of this tract, whence a
found railroad spike the Southeast corner of Section It Block A -Kt bears South 890
56154" Fast, 1320.6 feet and South 0001'49" West, 2634.23 feet;
THME South 0000128" 0--st, 329.87feat to a point for the Southeast corner of this
tract;
THI13CE North 89056'54" West, 1320.47 feet to a 3/8" irau rod, set for the Southwest
corner of this tract;
TrENCE North 0000154" West, 329.87 feet to a 3/8" iron rod, set for the Northwest
corner of this Southeast k of Section 1, Block A K; for the Northwest caner of
Phis tract;
THaTCE South 89056154" Bast along the North line of this Southeast k of Section 1,
Block A K, 1320.6 feet to the 'Plaoe of Beginning..
Containing 10.0 acres; and
VOL1822 Fw 405
Yo��822 pars 406
TRH II:
The East 14 acres of the North 20 acres of the Southeast k of Section 1, Block A -Kr
Lubbock County, Texas and being more particularly described as follaws:
BEGINNING at a railroad spike set at the Northeast corner of the Southeast k of
Section 1 , Block A-K, for the Northeast and beginning corner of this tract, whence
a found railroad spike the Southeast corner of Section 1, Block A-K, bears south
0001149" West, 2634.23 feet;
THENCE South 0001149". West along the East line of Section 1, Block A-K, 329.87 feet
to a railroad spike set for the Southeast corner of this tract;
THENCE North 89c56154" West at 40.0 feet pass a 3/6" iron, rod in the West R.O.W.
line of a paved county. road, continuing for a total distance of 1320.47 feet to
a point, for the Southwest corner of this tract;
THENCE North O000'281' East, 329.87 feet to a point for the Northwest c=er of this
tract;
THENCE South 89056154" East along the: North line or the: Southeast k of Section. 1,
Block A-K, at 1280.6 feet pass a 3/8" ixm rod set in the West R.O.W. line of paved
county road, continuing for a total distance aE 1320.6 feet to the Place of Begiming.
Containing 10.0 acres.
(Gray - R85586) Page 1 of 2
BLK AK SEC 1 AB 189 TR F OF SE/4 AC: 20
(Gray — R85586) Page 2 of 2
1585 Development, LLC
806-543-0667
April 18, 2017
City of Lubbock
1625 13th Street
Lubbock, Texas 79401
Re: 212 Agreement
Benny Gray land
Tract R85586 (20 acres)
Tract R151393 (2 acres)
Gentlemen:
P.O, Box 64664
Lubbock, TX 79464
Please accept this as notice that 1585 Development, LLC is preparing to purchase the subject tracts.
These tracts are subject to a 212 Agreement(s) with the City of Lubbock. Pursuant to the notice
requirement in that agreement this notice is being provided to the City on behalf of Mr. Gray and 1585
Development, LLC.
Subsequent to closing 1585 Development will immediately request, by separate notice, that the 212
Agreement as to tract R85586 be terminated and the land be annexed into the City as prescribed in the
212 Agreement.
If you have any questions call me any time at 806-543-0667.
Sincerely,