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02-05-07-Resolution-Authorizing the Mayor to execute an Agreement with Land Advisors LTD-02/20/2007CITY OF SANGER, TEXAS RESOLUTION NO. (R) 02-05-07 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANGER, TEXAS, HEREBY AUTHORIZING THE MAYOR OF THE CITY OF SANGER, TEXAS, TO EXECUTE THE PRE -DEVELOPMENT AND PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF SANGER, TEXAS AND LAND ADVISORS, LTD. REGARDING THE DEVELOPMENT OF THE 1,156.97 ACRE TRACT SITUATED IN THE CITY OF SANGER (TOMLIN); PROVIDING FOR AN EFFECTIVE DATE HEREOF, NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANGER, TEXAS: SECTION 1: The Mayor of the City of Sanger, Texas, is hereby authorized to execute, on behalf of the City Council of the City of Sanger, Texas, the Pre - Development and Professional Services Agreement between the City of Sanger, Texas and Land Advisors, Ltd. regarding the development of the 1,156.97 acre tract situated in the City of Sanger (Tomlin), a copy of which is attached hereto as Exhibit "A" and incorporated herein for all purposes. SECTION 2: This Resolution shall take effect immediately upon its passage. RESOLVED THIS THE vi day of -Rbrdial.,n , 2007. ATTEST TO: ROSE CHAVEZ City Secretary RESOLUTION AUTHORIZING THE MAYOR TO EXECUTE THE PRE -DEVELOPMENT and PROFESSIONAL SERVICES AGREEMENT (Tomlin) -SOLO PAGE PRE-DEVELOPMENT AND PROFESSIONAL SERVICES AGREEMENT This Pre-Development and Professional Services Agreement (this "Agreement"), effective as of July 1, 2006 (the "Effective Date"), is made and entered into by and between the City of Sanger, Texas, a home-rule municipality (the "City"), and Land Advisors, Ltd, a Texas limited partnership ("Owner"), the owner of that certain 1,240 ± acre tract of land described in Exhibit A, attached hereto as the same may be supplemented by the mutual written agreement of City and Owner(the"Development Area") WHEREAS, the City and Owner hereby recognize and agree that issues, mcludmg but not limited to, financing subject infrastructure, associated with and necessitated by developing the Development Area will require the City to obtam professional services from mdependent, third-party consultants mcludmg, but not limited to (i) engmeermg services to identify infrastructure needs, (ii)planning services, (m)financial advisory services and(iv) legal services (collectively,the"Professional Services"), and WHEREAS, Owner hereby agrees to pay for Professional Services rendered to the City m accordance with the terms of this Agreement,and WHEREAS,the City Council of the City, by and through this Agreement, shall mamtam sufficient controls to ensure that the public purpose and best interests of the City are carried out NOW, '11H.EREFORE, in consideration of the mutual benefits and promises contamed herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,the parties agree as follows 1 Recitals The representations,covenants, and recitations set forth m the foregoing recitals of this Agreement are true and correct and are hereby adopted as findings of the City Council 2 Exhibits All Exhibits referenced in this Agreement, and listed below, are incorporated herein for all purposes, specifically Exhibit "A" — Development Area description and delmeation by cross- hatched lines 3 Payment for Professional Services Owner agrees to pay for Professional Services as set forth herein (a) Owner initially agrees to pay up to $50,000 00 for Professional Services rendered to the City by Bucher, Willis & Rathff Corporation, f/k/a R&B Associates, Inc (engmeering), Petty & Associates (consulting), Municipal Planning Resources Group, Inc (plannmg), Government Capital Securities Corporation(financial advisors)and Abernathy,Roeder,Boyd, & Joplm, P C (legal) in accordance with this Agreement mcludmg, but not limited to, the requirement that they provide itemized monthly invoices describing, in reasonable detail, the services rendered and the time expended (the"Initial Cap") Tithe Owner's payment toward the Pre-Development and Professional Services Agreement(Land Advisors) Page 1 ODMA\PCDOCS\ARBJ14 6 8 1 5 612/2/2 8/2 0 0 7 Initial Cap reaches$45,000 00, and all parties agree to contmue negotiations, discussions and/or other work on the Development Area, the parties shall amend this Agreement, m writing, to mcrease Owner's payment obligation, to a mutually agreed upon amount in excess of $50,000 00, for the professional services described herein Otherwise, City shall be able to, without any liability whatsoever and/or any further action, immediately terminate the Agreement (b) Prior to incurring any costs or expenses for Professional Services rendered by any consultant other than Bucher, Willis &Ratliff Corporation, f/k/a R&B Associates,Inc,Petty& Associates, Municipal Plannmg Resources Group, Inc, Government Capital Securities Corporation or Abernathy, Roeder, Boyd & Joplm, P C, the City shall provide to Owner the name, qualifications, experience, and billing rate of the consultant, together with a copy of the proposed contract with the consultant(which contract shall be termmable at will by the City and shall require itemized monthly mvoices describing, m reasonable detail, the services rendered and the time expended) Owner shall have five (5) busmess days after the receipt of each proposed contract within which to review and provide written comments to the City, and the failure of Owner to provide written comments shall be deemed acceptance of the proposed contract by Owner The City shall use reasonable efforts to modify any proposed contract to take into consideration the written comments of Owner,however, in the event of a disagreement between Owner and the City that cannot be resolved,the decision of the City shall control (c) Owner shall only be obligated to pay the actual costs and expenses billed by the provider of Professional Services as set forth m this Agreement (d) After the City receives an iteml7ed monthly invoice from any provider of Professional Services,the City will forward a copy to Owner for payment in accordance with this Agreement Owner shall have ten (10) days after the receipt of each invoice durmg which to object to any portion thereof(which objection shall be in writing and shall set forth in detail the basis for the objection) If Owner fails to object withm such 10-day period, Owner shall be deemed to have approved the invoice If Owner objects to any portion of an invoice, the City, Owner, and the service provider shall attempt to resolve the dispute withm a reasonable period of time, however, if notwithstandmg their collective good faith efforts the dispute cannot be timely resolved, then Owner shall pay all or such portion of the disputed amount that the City certifies to Owner,in writing, is due and payable to such service provider (e) Owner shall pay in full within thirty (30) days after receipt from the City of mvoices for Professional Services (1) the full amount of any invoice to which Owner has not objected, or (2)the portion of any disputed invoice to which Owner has not objected Owner shall pay in full within ten (10) days after written certification from the City the amount of any disputed invoice that the City certifies to Owner, m writing,is due and payable (f) If requested by Owner, the City agrees to provide further information as reasonably necessary to explain and detail any invoice for Professional Services, however, City shall not be required to provide any information that is privileged Pre-Development and Professional Services Agreement(Land Advisors) Page 2 ODMA'PCDOCS\ARBJ\468156\2/2/28/2007 4 City's Obhgations The City shall utilize the Professional Services m an efficient and reasonable manner for the benefit of the City and the Development Area The City shall mform all service providers of the terms of this Agreement 5 Termmation (a) Unless earlier terminated as provided in Section 5(b)below,this Agreement shall have a primary term of two (2)years after the Effective Date, and shall thereafter contmue on an annual basis unless termmated as provided herem (b) Either City or Owner may, in their respective sole judgment, termmate this Agreement upon delivery of written notice to the other party, subject to Owner's contmumg obligation to pay outstanding unpaid invoices for Professional Services as set forth m Section 5(c)below (c) Upon any termination of this Agreement pursuant to Section 5(b), Owner shall be obligated to pay (i) all remammg mvoices for Professional Services that are outstanding and unpaid as of the date notice of termination is delivered to the City, provided that such mvoices were incurred and performed m accordance with the terms of this Agreement, and (ii) all mvoices for Professional Services mcurred and performed in accordance with the Agreement prior to the date notice of termmation is delivered to the City but not yet billed to the City 6 Entire Agreement This Agreement contains the entire agreement between the parties with respect to the obligation of Owner to pay for Professional Services 7 Amendment This Agreement may only be amended or altered by written mstrument signed by Owner and the City 8 Successors and Assigns Neither the City nor Owner may assign or transfer this Agreement or any interest m this Agreement without prior written consent of the other party City hereby consents to the assignment or transfer by Owner of all of its right,title and interest m this Agreement to any limited partnership which, at the time of such assignment or transfer, owns the Development Area and in which Owner is a general partner This Agreement is binding upon, and mures to the benefit of the City and Owner and their permitted assigns, however,this Agreement confers no rights or benefits on any third parties and, in particular, no rights or benefits on any provider of Professional Services other than for payment of services rendered 9 Notice Any notice required or contemplated by this Agreement shall be deemed given (a) if mailed via U S Mail, Certified Mail Return Receipt Requested, on the earlier of the date actually received at the delivery address or five business days after mailed, (b) if deposited with a private delivery service (such as U P S or FedEx), when delivered, as evidenced by a receipt signed by a person at the delivery address, and (c) if otherwise given(including by FAX or E-mail), when actually received at the delivery address All notices shall be addressed as set forth below, however, any party may change its address for purposes of this Agreement by giving notice of such change as provided by this Section 9 Pre-Development and Professional Services Agreement(Land Advisors) Page 3 - ODMAIPCDOC S\ARBA468156\2/2/28/2007 The City of Sanger Attn City Manager 201 Bolivar P 0 Box 1729 Sanger,TX 76266 PHONE 940 458 7930 FAX 940 458 4180 With a copy to Abernathy,Roeder,Boyd &Jophn Rebecca Brewer 1700 Redbud Blvd, Suite 300 McKinney,TX 75069 PHONE 214 544 4000 FAX 214 544 4040 Land Advisors,Ltd. Attn• Dan Tomlm,III 4265 Kellway Circle Addison,Texas 75001 PHONE 972 239 0707 FAX 972 788 4247 With a copy to Mark V Murray 2200 One Galleria Tower 13355 Noel Rd L B 48 Dallas,Texas 75240-7109 PHONE 972 419 7109 FAX 972 419 8329 10 Interpretation Regardless of the actual drafter of this Agreement,this Agreement shall, m the event of any dispute over its meaning or application, be mterpreted fairly and reasonably and neither more strongly for or agamst either party 11 Applicable Law This Agreement is made, and shall be construed m accordance with the laws of the State of Texas and venue shall lie m Denton County,Texas 12 Severability In the event any portion or provision of this Agreement is illegal, mvalid, or unenforceable under present or future law,then and in that event, it is the intention of the parties hereto that the remainder of this Agreement shall not be affected thereby, and it is also the intention of the parties to this Agreement that in lieu of each clause or provision that is found to be illegal, mvalid or unenforceable, a provision be added to this Agreement which is legal, valid and enforceable and is as similar in terms as possible to the provision found to be illegal, mvalid or unenforceable Pre-Development and Professional Services Agreement(Land Advisors) Page 4 1' ODMA\PCDOCS\ARBJ\468156\2/2/28/2007 13 Counterparts This Agreement may be executed m multiple counterparts, each of which shall be considered an original,but all of which shall constitute one instrument 14 Sovereign Immunity The parties agree that City has not waived its sovereign immumty by entermg mto and performmg its respective obligations under this Agreement 15 Consideration This Agreement is executed by the parties hereto without coercion or duress and for substantial consideration, the sufficiency of which is forever confessed 16 Authority to execute The individuals executmg this Agreement on behalf of the respective parties below represent to each other and to others that all appropriate and necessary action has been taken to authorize the mdividual who is executing this Agreement to do so for and on behalf of the party for which his or her signature appears,that there are no other parties or entities required to execute this Agreement in order for the same to be an authorized and bindmg agreement on the party for whom the individual is signing this Agreement and that each mdividual affixing his or her signature hereto is authorized to do so, and such authorization is valid and effective on the date hereof 17 Bmdmg Effect This Agreement shall be bmdmg upon and inure to the benefit of the parties hereto and their respective heirs, executors, administrators, legal representatives, successors and assigns,as allowed herein 18 PARTIES' ACKNOWLEDGMENT OF CITY'S COMPLIANCE WITH FEDERAL AND STATE CONSTITUTIONS, STATUTES AND CASE LAW AND FEDERAL, STATE AND LOCAL ORDINANCES,RULES AND REGULATIONS/OWNER'S WAIVER AND RELEASE OF CLAIMS. A. OWNER RELEASES THE CITY FROM ANY AND ALL CLAIMS OR CAUSES OF ACTION BASED ON EXCESSIVE OR ILLEGAL EXACTIONS PURSUANT TO THIS AGREEMENT. B. OWNER WAIVES ANY CLAIM FOR DAMAGES AND/OR REIMBURSEMENT AGAINST THE CITY FOR A VIOLATION OF ANY FEDERAL AND/OR STATE CONSTITUTION, STATUTE AND/OR CASE LAW AND/OR FEDERAL, STATE AND/OR LOCAL ORDINANCE,RULE AND/OR REGULATION BASED UPON THIS AGREEMENT THIS PARAGRAPH SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT 19 Vested Rights/Chapter 245 Waiver Nothmg in this Agreement shall be implied to vest any rights m the parties In addition,nothing contained m this Agreement shall constitute a "permit" as defined m Chapter 245, Texas Local Government Code and nothing m this Agreement shall be considered to provide the City with fair notice of Owner's Project OWNER WAIVES ANY STATUTORY CLAIM UNDER CHAPTER 245 OF THE TEXAS LOCAL GOVERNMENT BASED UPON THIS AGREEMENT. THIS PARAGRAPH SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT 20 Attorney's Fees In any legal proceeding brought to enforce the terms of this Agreement, including but not limited to a proceeding brought pursuant to¶ 18 or 19 above, the Pre-Development and Professional Services Agreement(Land Advisors) Page 5 ODMAIPCDOCS\ARBJ\46815612/2/28/2007 prevailmg party may recover its reasonable and necessary attorneys' fees from the non- prevailmg party as permitted by Section 271 159 of the Texas Local Government Code,effective on September 1,2005 or as it may subsequently be amended A ST. CITY OF GER,TEXAS j,au) By Rosalie Chavez, Secr Joe Higgs, or LAND ADVISORS,LTD. a Texas Limited Partnership By Land Advisors Management,L L C, �y«�5 .#'�z , r a Texas limited liability company, „4� a its sole General Partner .>°° ,, 0 4 Ci ,, r o _ _ u v �-- ,-.. .." e w. By o rA '"ti w Dan omlm,Jr,Vice President oOo eo'6 'i. °pou.�.n seo "' Pre-Development and Professional Services Agreement(Land Advisors) Page 6 ODMA\PCDOCS\ARBJ\468156\2/2/28/2007 EXHIBIT"A" Development Area Description [Immediately following this page]