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HomeMy WebLinkAboutResolution - 2017-R0195 - Cancelling Chapter 43 Agreement - Sutton - 05/25/2017Resolution No.2017-R0195 Item No.6.23 May 25,2017 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-half mile east of CR 2200 (University Avenue) and approximately CR 1700 (Milwaukee Avenue), from the existing southern city limits to approximately 660 feet south of CR 7500; 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 annexedat 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,pursuant to Chapter 43.035 of the Texas Local GovernmentCode, the City, on or about March 1,2016,made an offerto enter into a DevelopmentAgreementin 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 "Chapter 43 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 undera 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 Agreements eitherdueto the property owner's request to 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 associatedwiththe terminatedChapter43 Agreements or Chapter212 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 four (4) acres out of Block AK Section 9 AB 161 Tracts 17 and 18, Lubbock County, Texas and identified by the Lubbock Central Appraisal District reference numbers R120929 and R120782, 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 25, 2017 DANIEL M. POPE, MAYOR ATTEST: Rebe ca Garza, City Secreta APPROVED AS TO CONTENT: Bill Hower)Kn, Assistant City APPROVED AS TO FORM: Ju m Prui , AssistanCity Attorney ,s/RES. option —Ch. 21TAgreement Termination & Service Plan Preparation — R120929, R120782 15, 20 CITY OF LUBBOCK OFFICE PICK UP MOONS 9 PGS AGREE mill ro, MK'III! AAKWIlmin 11111 NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OF THE FOLLOWING INFORMATION FROM THIS INSTRUMENT BEFORE IT IS FILED FOR RECORD IN THE REAL PROPERTY RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER CITY OF LUBBOCK CH. 212 DEVELOPMENT AGREEMENT IN LIEU OF ANNEXATION THIS DEVELOPMEN'� AGREEM4anbLetween IN LIEU OF ANNEXATION (the "Agreement") is made and effective this v� day of1 , 2016, and is entered into pursuant to §212.172 of the Texas Local Government Code, by the City of Lubbock, Texas, a Texas home rule municipal corporation (the "City"), and the undersigned property owner(s) (the "Owner"), with the term "Owner" including all owners of the Property, and'is as follows: RECITALS WHEREAS, the Owner owns a parcel of real property (the "Property") in Lubbock County, Texas, which is more particularly and separately described in the attached Exhibit A; and WHEREAS, the City has instituted annexation proceedings for all portions of the Property and held public hearings regarding the proposed annexation on March 8 and March 10, 2016; and WHEREAS, at the public hearings, the Owner was presented with a service plan for the Property and the Owner was given the opportunity to be heard by the City Council of the City of Lubbock; and WHEREAS, the Owner does not want the Property to be annexed and desires to have the Property remain in the City's extraterritorial jurisdiction, in consideration for which the Owner agrees to enter into this Agreement; and WHEREAS, it is the City's intention to allow the Owner to continue to use the Property as it is being used at the time of this Agreement; and WHEREAS, the Owner and the City acknowledge that this Agreement is binding upon the City and the Owner and their respective successors and assigns for the duration of this Agreement; and WHEREAS, this Agreement is to be recorded in the real property records of Lubbock County, Texas; NOW, THEREFORE, in consideration of the mutual promises contained in this Agreement, the Owner and the City agree as follows: AGREEMENT Section I — The Property: Current Status. The City acknowledges that the Property, more particularly described in the attached "Exhibit A," is located within the extraterritorial jurisdiction of the City and is subject to annexation by the City unless this Agreement is signed by the Owner. Section 2 — The Property: Continued Status. In lieu of annexation, the Owner desires that the Property remain in the extraterritorial jurisdiction of the City for the duration of this Agreement. The Ch. 212 Development Agreement In lieu Of Annexation -1 1 4P a g e Owner acknowledges that unless the Property is annexed by the City, the Property is not eligible to receive City services, the Property shall not be included in the City's voting precincts, and the Property shall be immune from City property taxes for the duration of this Agreement. The Owner's use of the Property at the time of this Agreement is "grand fathered" into the acceptable uses of the City, and the City is prohibited from interfering with any uses on the Property that comply with §43.002 of the Texas Local Government Code. The Owner acknowledges that Section 22.03.091(a) of the Code of Ordinances of the City prohibits the City from providing water to any entity outside of the city limits, and acknowledges that the City will not be providing water to the Property unless the Property is annexed into the City. However, if the Property is annexed pursuant to a provision of this Agreement, then the City shall provide services to the Property pursuant to Chapter 43 of the Texas Local Government Code. Subject to the provisions of this Agreement, the City shall not annex the Property, shall not involuntarily institute proceedings to annex the Property, and shall not include the Property in a statutory annexation plan. The Owner authorizes the enforcement by the City of all of the City's regulations and planning authority that do not materially interfere with the use of the Property in the same manner that the City's regulations and planning authority are enforced within the City's boundaries. The City specifically reserves its authority pursuant to Chapter 251 of the Texas Local Government Code to exercise eminent domain over property that is subject to a §212.172 development agreement. The City further reserves its regulatory and planning authority in the City's ETJ, as such authority has been granted to it by the City Council. Section 3 — The Property: Change In Status. The Owner agrees not to substantially change the use of the Property as it is used on the date of the execution of this Agreement. The Owner agrees not to develop the Property by filing any type of subdivision plat or related development document for the Property with Lubbock County or the City throughout the duration of this Agreement. The Owner acknowledges that if any plat or related development document is filed for the Property, or if the Owner commences any development of the Property other than that which supports the use of the Property as the Property is used on the date of the execution of this Agreement, then this Agreement shall terminate, and in addition to the City's other remedies, such act will constitute a petition for voluntary annexation by the Owner, and the Property will be subject to annexation at the discretion of the City Council. The Owner agrees that such annexation shall be voluntary and the Owner hereby consents to such annexation as though a petition for such annexation had been tendered by the Owner. If annexation proceedings begin pursuant to this Section, then the Owner acknowledges that this Agreement serves as an exception to Local Government Code §43.052, requiring a municipality to use certain statutory procedures under an annexation plan, and as an exception to Local Government Code §43.062 requiring certain statutory procedures as to the Owner to effectuate an annexation. Further, the Owner hereby waives any and all vested rights and claims that it may have under §43.002(a)(2) and Chapter 245 of the Texas Local Government Code that would otherwise exist by virtue of any plat or construction the Owner may initiate during the time between the expiration of this Agreement and the institution of annexation proceedings by the City. Section 4 — The Term. The term of this Agreement (the "Term") shall be twenty (20) years from the date that this Agreement is approved by the City Council of the City of Lubbock. At the end of the Term, the Owner, and all of the Owner's heirs, successors and assigns shall be deemed to have filed Ch. 212 Development Agreement In Lieu Of Annexation - 2 1 -,, 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 0,71h con, 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 P - e defend or fails to defend its right, title, and ownership to the Property, then this Agreement shall terminate. Section 10 — Governing Law. This Agreement is entered into under and pursuant to, and is to be construed and enforceable in accordance with, the laws of the State of Texas, and all obligations of the Owner and the City are performable in Lubbock County, Texas. Venue for any action to enforce or construe this Agreement shall be Lubbock County, Texas. This Agreement is subject to all applicable federal, state, and local laws and any applicable ordinances, rules, orders and regulations of any local, state, or federal governmental authority, having or asserting jurisdiction. However, nothing contained in this Agreement shall be construed as a waiver by the Owner or the City of any right to question or contest any law, order, rule, or regulation which may affect the terms and conditions of this Agreement in any forum having jurisdiction, and the Owner and the City each agree to make a good faith effort to support all proposed laws and regulations which would be consistent with the performance of this Agreement in accordance with its terms. No subsequent change in the law regarding annexation shall affect the enforceability of this Agreement or the City's ability to annex the Property pursuant to this Agreement. Section 11 — Remedy. The City reserves the right to exercise any right or remedy available to it by law, contract, equity, or otherwise, including without limitation, the right to seek any and all forms of relief in a court of competent jurisdiction. Further, the City shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this Agreement, the former shall control. Section 12 — Public Information. This Agreement is public information. To the extent, if any, that any provision of this Agreement is in conflict with the Texas Public Information Act (Tex. Gov't. Code Ann. Chapter 552 et seq., as amended), the same shall be of no force and effect. Section 13 — Third -Party Beneficiaries. This Agreement only inures to the benefit of, and may only be enforced by, the Owner and the City. No other person or entity shall have any right, title, or interest under this Agreement or otherwise be deemed to be a third -party beneficiary of this Agreement. Section 14 — No Personal Liability & No Joint Venture. Nothing in this Agreement is construed as creating any personal liability on the part of any employee, officer or agent of any public body that may be a party to this Agreement. This Agreement is not intended to, and shall not be construed to, create any joint enterprise between or among the parties. Section 15 — Due Diligence & Force Majeure. The Owner and the City shall use good faith, due diligence, and reasonable care in the performance of the obligations under this Agreement, and time shall be of the essence in such performance. In the event that the Owner or the City is unable to perform its respective obligations under this Agreement, due to any event or circumstance that is not within the reasonable respective control of the Owner or the City that could not have been avoided by either the Owner or the City with the exercise of good faith, due diligence, and reasonable care (a "Force Majeure''), then the obligations affected by the Force Majeure shall be temporarily suspended. Within three (3) business days after the occurrence of a Force Majeure, the Owner or the City shall give notice to each other, including a detailed explanation of the Force Majeure and a description of the action that will be taken to remedy the Force Majeure and resume full performance at the earliest possible time. Ch. 212 Development Agreement In Lieu Of Annexation - 4 1 P �i Section 16 — Enforcement. This Agreement may be enforced by the Owner or the City by any proceeding at law or in equity. Failure to do so shall not be deemed a waiver to enforce the Agreement thereafter. Section 17 — Governmental Powers. It is understood that by execution of this Agreement, the City does not waive or surrender any of its governmental powers, except as expressly set forth herein. Section 18 — Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and constitute one and the same instrument. The Owner acknowledges that each and every owner of the Property must sign this Agreement in order for the Agreement to take full effect. Section 19 — Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be unenforceable for any reason, such unenforceable provision shall be deleted from this Agreement, and the remainder of this Agreement shall remain in full force and effect and shall be interpreted to give effect to the intent of the Owner and the City. Without limiting the generality of the foregoing, if it is determined that, as of the date that this Agreement becomes effective, that any Owner does not own any portion of the Property, then this Agreement shall remain in full force and effect with respect to the remaining portion of the Property that the Owners actually own. Section 20 — Entire Agreement. This Agreement constitutes the entire agreement between the Owner and the City and supersedes all prior agreements, whether oral or written, covering the subject matter of this Agreement. The Owner acknowledges that each and every Owner of the Property must sign this Agreement in order for the Agreement to take full effect. Section 21 — Captions & Recitals. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. However, each of the recitals contained herein, by this reference, shall be incorporated into, and deemed a part of, this Agreement. Section 22 — Modification of Agreement. This Agreement cannot be modified or amended except in writing signed by the Owner and the City and attached and made a part of this Agreement. Section 23 — Ch. 212 Agreement in lieu of Ch. 43 Agreement. If the Property is subject to an agricultural exemption, the Owner hereby acknowledges that the City, through the Office of the City Attorney, offered to make a development agreement with the Owner under §43.035 of the Texas Local Government Code. The Owner further acknowledges that the Owner rejected the offer to make a §43.035 Agreement in order to enter in to this §212.172 Agreement. IN WITNESS HER,%?F, the parties mutually enter this Agreement on this day of Ate{ , 2016, Ch. 212 Development Agreement In Lieu Of Annexation - 5 1 For the City ATTEST': Re eeca Garza ty Secr tar APPROVE6'AS-TO CONTENT: -- Andrew Paxto , Director of Planning APPROVED AS TO FORM: Justin et,Assistaijj�City Attorney For the Owner J Hugh D. Sutton, Owner Rebecca L. Sutton, Owner Ch. 212 Development Agreement In Lieu Of Annexation - 6 1 P n g e- NOTARIZATION State of Texas § County of Lubbock § This instrument was executed before me on 2016, by (4AV-0 ----�4-;:->t- OATS VA]If of the City of Lubbock, a Texa m corpora io aid tt` MAGEN D. Mi1RCHISON corporatio N*Y Pubic, SW d Texas ' MyUv� W Exp N04*2017 NIL 0-4--w-n" otary P bl is State of Texas § County of Lubbock § This instrument was executed before me on _y — [p 2016, by on behalf of said Owner. ��. TRENA PRITCHETT } �Uju;F a N*Y Pubic, SINe Of Tea �; .. w NY CM11Wn EON 06-10.2019 Notary Public tom` State of Texas § County of Lubbock § This instrument was executed before me on Lp 2016. by UAtE RESECCALSM11.4 OWNER on behalf of said v er. (3TRENA PRITCHPTT GYP^q* dTems MYWM*0ME*%%J0at9 Notary Public When Recorded Return To: City Secretary City of Lubbock, Texas 1625 13"' Street Lubbock, Texas 79401 Ch. 212 Development Agreement In Lieu Of Annexation - 7 1 P a g EXHIBIT A — The Property A tract of land out of Section 9, Block A-K, Abstract 161, Lubbock County, Texas, being all of a 2.5 acre tract described in Volume 1873, Page 341 of the Deed Records of Lubbock County, Texas and all ofa 1.535 acre tract described in Volume 4485. Page 341 of the Real Property Records of Lubbock County, Texas, described by metes and bounds as follows: BEGINNING at a spike found in the Bast line of Section 9 in Frankford Avenue for the Northeast corner of said 1.535 acre tract and the Northeast corner of this tract, the Northeast corner of Section 9 bears North a distance of 168830 feet; THEN South along the East line of Section 9 a distance of 25.00 feet to a spike found for the Northeast comer of a 0.964 acre tract of land described in Volume 3557, Page 220 of said Real Property Records and the Easternmost Southeast comer of said 1.535 acre tract and a corner of this tract; THEN West, a distance of 300.00 feet to a'/, inch steel rod with cap set for the Northwest comer of said 0,964 acre tract and a comer of this tract; THEN South a distance of 140.00 feet to a'% inch steel rod with cap set in the North line o f said 2.5 acre tract for the Southwest comer of said 0.964 acre tract and the Southernmost Southeast comer ofsaid 1.535 acre tract and a comer of this tract; THEN East a distance of 300.00 feet to a spike found in the East line of Section 9 for the Southeast comer of said 0.964 acre tract and the Northeast comer of said 2.5 acre Hatt and a comer of this tract; THEN South along the East line of Section 9 a distance of 165.00 feet to a spike found for the Southeast comer of said 2.5 acre tract and the Southeast comer of this tract; THEN West a distance of 660.00 feet to a''/: inch steel rod with cap set for the Southwest corner of said 2.5 at:re tract and the Southwest comer of this tract; THEN North a distance of 330.00 feet to a %: inch steel rod with cap set for the Northwest corner of said 1.535 acre tract and the Northwest corner of this tract; THEN East a distance of 660.00 feet to the Point of Beginning. (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 TR 17 R 120782 10 1.5 AC 360' R 120929 R120929 FILED AND RECORDED OFFICIAL PUBLIC RECORDS U Kelly Ptnlon County Clerk Lubbock Coun�y TEXAS 05/23/2016 18:62 AM FEE: $58.00 2016017869 R140515 R120782 TR17-A R136014 .8 AC TR 18 2.3 AC R 12092 9 R 120929610' 250' (Sutton — R120782 and R120929) Page 2 of 2 O d'