MODIFICATION, RATIFICATION AND EXTENSION OF DEVELOPMENT AGREEMENT AND DISTRICT CONSENT AGREEMENT

Transcription

1 MODIFICATION, RATIFICATION AND EXTENSION OF DEVELOPMENT AGREEMENT AND DISTRICT CONSENT AGREEMENT THE STATE OF TEXAS COUNTY OF KENDALL KNOW ALL MEN BY THESE PRESENTS: This and District Consent Agreement (the Amendment ) which Amendment modifies, ratifies and extends the 2008 Agreement (as hereinafter defined) and the Consent Agreement (as hereinafter defined) in accordance with the terms hereof, is executed by and between LOOKOUT BOERNE HOLDINGS, LP, a Texas limited partnership ( Owner ), on behalf of itself and its successors, transferees, and assigns, KENDALL COUNTY WATER CONTROL AND IMPROVEMENT DISTRICT NO. 2 ( District No. 2 ), KENDALL COUNTY WATER CONTROL AND IMPROVEMENT DISTRICT NO. 2-A ( District No. 2-A ) and the CITY OF BOERNE, TEXAS (the City ) to be effective on the date defined herein (the Effective Date ). ARTICLE I RECITALS WHEREAS, the City is a home rule municipal corporation of the State of Texas; and WHEREAS, Owner is a Texas limited partnership; and WHEREAS District No. 2 and District No. 2-A, together with any subsequently created subdistricts permitted pursuant to their enabling legislation (sometimes referred to collectively as the Districts ) are legislatively created governmental entities created under the authority of Article XVI, Section 59 and Article III, Section 52 of the Texas Constitution, Chapters 49 and 51 of the Texas Water Code, and the District Legislation; and WHEREAS, Owner, the Districts and the City are sometimes individually referred to as a Party and collectively as the Parties ; and WHEREAS, Owner is the owner of tracts of real property located in Kendall County, Texas subject to the jurisdiction of the Districts and depicted on attached Exhibit A and described by metes and bounds on attached Exhibit B (collectively, the Property ); and WHEREAS, the Property is located wholly within the extraterritorial jurisdiction ( ETJ ) of the City and not within the ETJ or corporate limits of any other town or city; and WHEREAS, the City and the prior owner of the Property, MA Boerne Partners, LP ("MA Boerne") entered into a Development Agreement with an Effective Date of February 12, 2008, and District Consent Agreement Page 1

2 (the "2008 Agreement") regarding the Property, which 2008 Agreement is evidenced in the real property records of Kendall County, Texas by a Memorandum of Development Agreement recorded as Document No in Volume 1361, Page 834 in the real property records of Kendall County, Texas; and WHEREAS, The City, MA Boerne and District No. 2 entered into a certain Interlocal Agreement Concerning Creation and Operation of District No. 2 regarding the creation and operation of the Districts (the Consent Agreement ); and WHEREAS, subsequent to the Effective Date of the 2008 Agreement, the City undertook and completed many obligations required of it; including, but not limited to, the construction of a new wastewater treatment and recycling plant (the New WWTRP ); and WHEREAS, Owner acquired the Property from Credit Union Liquidity Services, LLC ("CULS") subsequent to the non-judicial foreclosure by CULS of certain liens and security interests on the Property on October 1, 2013 and the acquisition by CULS of the Property after such non-judicial foreclosure sale; and WHEREAS, City contends that the 2008 Agreement is applicable to the Development of the Property and the Owner agrees to be bound by the terms and conditions contained in the 2008 Agreement; and WHEREAS, certain defaults exist under the 2008 Agreement between the City and MA Boerne which the current Owner is willing and able to cure upon the final approval of this Amendment by all Parties; and WHEREAS, the Parties, by entering into this Amendment to the 2008 Agreement, express their desire to ratify, renew and extend the various obligations contained in the 2008 Agreement in order to obtain mutual benefits. NOW THEREFORE, for and in consideration of the mutual covenants of the Parties set forth in this Amendment, and for other good and valuable consideration the receipt and adequacy of which are acknowledged and agreed by the Parties, the Parties agree to modify, ratify, extend and amend the 2008 Agreement and the Consent Agreement, and be bound by both, as follows: ARTICLE II AMENDMENTS TO THE DEVELOPMENT AGREEMENT 1. Exhibit D containing various exhibits attached to the 2008 Agreement is deleted and replaced with the Exhibit D attached to this Amendment. The specifications of the Herff Road Extension cross sections indicated in Exhibit J supersede and replace the cross section specifications shown on Exhibit D-15. All references to Exhibit D throughout the 2008 Agreement and this Amendment refer to the Exhibit D dated December 5, 2013 as modified by Exhibit J attached to this Amendment. 2. Section 2.2(a) shall be deleted and replaced with the following: and District Consent Agreement Page 2

3 Master GDP; Pod GDPs; Phase Infrastructure Plans,: (a) Master GDP. The Master GDP is comprised of the various individual sub-exhibits in Exhibit D attached hereto. The Master GDP is the initial master general development plan of the Property and identifies the proposed land uses, Phases (as so designated on the Master GDP and herein so called) and Pods (as so designated on the Master GDP and herein so called), major streets, major drainage ways, utility trunk lines, location of sites for certain parks, schools and other present and proposed land uses. The Master GDP regulates development of each Pod by applying to each Pod the City s zoning classifications (as of the Effective Date and as amended by the Consent Agreement) shown on the LEGEND to Exhibit D-2A dated December 5, The Master GDP may be revised from time to time with the approval of the City Council, the Owner, and the owners of the portions of the Property within the area of the Master GDP being revised. The Master GDP may also be revised by Owner, without the approval of the City or any other owners, so long as: (i) land use areas, Phases, and Pod acreages do not increase or decrease more than 10%; and (ii) arterial and collector roadway alignments substantially conform to the roadway alignments shown on the then-current Master GDP. If the Master GDP is revised as provided by this Section 2.2, the revision shall be considered an amendment to this Agreement, and the City shall cause the revised Master GDP to be attached to the official version of this Agreement on file with the City s Secretary s Office. The Master GDP satisfies all City requirements for a Transportation Network Plan, an Open Space Plan, and a Conceptual Master Plan. Owner shall be required to complete 80% of the development within a Phase before commencing development within the next sequential Phase. The Owner may commence development in the next sequential Phase before 80% completion of the prior Phase if the following requirements are satisfied by the Owner: (i) deliver to the City Manager evidence that is reasonably satisfactory to the City Manager that Owner will exhaust Owner s supply of any class of Lot product prior to the current Phase being 80% complete; (ii) deliver to the City Manager evidence that establishes that the next sequential Phase for development contains the Lot product that is depleted; (iii) obtain the approval of the City Manager to begin development of the next sequential Phase; and (iv) commence development of the next sequential Phase by platting the section which contains that Lot product. Under no conditions may more than two Phases of the Property be under development at any one time without prior City Council approval. If steps (i) through (iv) of this sub-section are not followed, commencement of the next sequential Phase of development of the Property prior to 80% completion of the prior Phase shall require the approval of the City Council. 3. Notwithstanding anything to the contrary contained anywhere in the 2008 Agreement the Owner shall not be required to construct the rural collector road shown on various Exhibits to the 2008 Agreement from Highway 46 East to the most easterly southeast corner of the Property. 4. Section 3.2 shall be amended as follows: (a) Section 3.2(a) shall be deleted and replaced with the following: and District Consent Agreement Page 3

4 Owner or the District or their permitted Assignees fail to make any of the Construction Contributions required by the amended Section 5.1(b)(4) set forth in this Amendment to the 2008 Agreement. (b) Section 3.2(f) shall be deleted and replaced with the following: Owner or the District or their permitted Assignees fail to fulfill the obligations contained in the amended Section 3.10(b) set forth in this Amendment to the 2008 Agreement. (c) Section 3.2(l) shall be added as follows: Owner or the District or their permitted Assignees fail to install the Gas Distribution System throughout the Property as defined and required by 5.1(d). 4. The definition of Fire Services Facility set forth in Section 3.10(a) is deleted and replaced with the following: (a) For the purposes of this Section, the following terms are defined. Fire Services Facility means a permanent facility: (1) located on a site selected by the City s Fire Chief within the 2.0 acre Municipal Annex defined in Section 3.13 of this Agreement; (2) containing not less than 7,000 square feet that includes one enclosed engine bay and one enclosed EMS bay and that is capable of being expanded to include a third bay; (3) that has adequate sleeping and cooking facilities and a day room for at least five full-time fire fighting personnel with adequate adjoining space to expand to accommodate seven full-time fire fighting personnel; (4) the design of the Fire Services Facility is subject to approval by the City s Fire Chief, and (5) the cost of design, engineering, site work, construction, furniture, fixtures and equipment of the Fire Services Facility is not to exceed $1,400, to the Owner or the District as adjusted by the CPI Adjustment from the Effective Date of this Amendment. 5. Section 3.10(b) shall be deleted and replaced with the following: From and after the Effective Date of this Agreement, the City will provide fire protection services for the Property. From and after the Effective Date and until the Fire Services Facility is operational, Owner, one or more property owners associations, or the District shall pay to the City Call Charges for such services. Prior to the date on which an application for the 1,240 th building permit is submitted to the City, the following shall occur: (1) Owner shall dedicate to the City the Municipal Annex; (2) Owner or the District shall have substantially completed construction of the Fire Services Facility as set forth in Section 3.10 (a); and (3) Owner or the District shall pay to the City $500,000 as adjusted by the CPI Adjustment to be applied toward the purchase of a Pumper Truck. 6. Section 3.13 shall be deleted and replaced with the following: and District Consent Agreement Page 4

5 Municipal Annex. Pursuant to the provisions of Section 3.10, Owner shall dedicate to the City a site containing approximately 2.0 acres as shown on Exhibit D-2A to be developed by the City as a facility providing municipal services (the Municipal Annex ). 7. Section 5.1 (b) (3) through (9) shall be deleted and replaced with the following: Section 5.1(b)(3). The City has reserved or otherwise committed, for the exclusive use and benefit of the Property, wastewater treatment capacity in the City s wastewater treatment system that will provide uninterrupted Retail Sewer Service for up to 2,736 SLUE connections at full Property build-out. This capacity and service will be available to the Property in Phases upon the approval of the final plat for each Phase of development. This capacity and service will be in full compliance with all applicable TCEQ requirements. Section 5.1(b)(4). After the date of the first sewer connection request on the Property, Owner shall pay to the City, as a contribution to the cost of construction of the New WWTRP (the Construction Payments ), on or before the next following date upon which a bond payment for the WWTRP is due, bond payments being due on March 1 st and September 1 st of each year (the Bond Payment Dates ), the entire amount of such bond payment, including principal and interest, until the Owner has paid to the City the sum of $1,850,000 (the Construction Contribution ), as adjusted by the CPI Adjustment. In the event that the next bond payment is greater than the remaining balance of the Construction Contribution, then Owner s responsibility for the next bond payment shall be limited to the remaining amount of the Construction Contribution. Upon the Owner s payment of the entirety of the Construction Contribution, no further payments for wastewater treatment capacity or sewer services shall be due from the Owner to the City. The City shall use the entire amount of the Construction Contribution only for the City s bonded indebtedness arising from the construction of the WWTRP. Section 5.1(b)(5). The City will be entitled to collect from each party requesting a sewer service connection within the Property the entire impact fee due under the City s ordinances in effect at the time of the request for the sewer service connection. Subsequent to the City s receipt of the first Construction Payment from the Owner, the City will remit to the Owner one-half (50%) of the sewer impact fee collected for each requested sewer connection as a reimbursement of the Construction Contribution as soon as such reimbursement can be processed through the City s accounting system, but, in any event not to exceed sixty (60) days after final settlement of the payment for sewer impact fee to the City. The City will continue to make such remittances to the Owner until the Owner has been reimbursed the total amount of the Construction Contribution. No remittance of any portion of a sewer impact fee will be due Owner or made by the City between the date on which the first sewer connection is requested and the date on which the first Construction Payment is received by the City. Upon the Owner s receipt of reimbursement for the Construction Contribution, the City will collect and retain the entire sewer impact fee for each additional connection made on the Property. and District Consent Agreement Page 5

6 Section 5.1(b)(6) As used throughout the 2008 Agreement and this Amendment, the term CPI Adjustment means the year to year adjustment commencing in the first anniversary of the Effective Date of the 2008 Amendment, unless otherwise noted, which adjustment shall use the Bureau of Labor Statistics, U.S. Department of Labor Consumer Price Index for all Urban Consumers for All Items for the South Region, = Section 5.1 (d) shall be deleted and replaced with the following: Natural Gas. The City will extend natural gas service to the perimeter of the Property at such locations and at such pressure and volume capacity to adequately serve 2,480 single family residential customers plus typical business/retail commercial customer use within the designated commercial areas. The Owner will construct the internal natural gas distribution system to all finished Lots on the Property (the "Gas Distribution System") concurrently with Owner s development of the Property. Upon completion of the construction and acceptance of the Gas Distribution System by the City, the Owner will dedicate the Gas Distribution System including necessary easements to the City. Once dedicated to the City, the Owner shall also assign all payment and maintenance bonds attributable to the Gas Distribution System to the City. Upon dedication of the Gas Distribution System to the City, the City shall be responsible for all maintenance of the Gas Distribution System. In the event that any pressure maintenance, regulation or other equipment necessary for the treatment of the natural gas is ever necessary on the Property, the City will be solely responsible for the design, construction and maintenance of such facilities at such locations as may be available without impeding the Owner's GDP. The City will be responsible for the design, construction and maintenance of all natural gas main lines, regulators and pressure maintenance facilities outside the Property necessary to provide natural gas service to the Property. The City will provide all design criteria for internal distribution systems within the Property in a manner which will require as little additional cost of dry utility construction for the Owner as is feasible but which complies with all City regulations pertaining to the construction of such gas utility infrastructure. The Owner will require each residence constructed on the Property to have a connection to the Gas Distribution System and each residence to be plumbed with natural gas lines for a minimum of space heating, cooking and water heating in each new home. In the alternative, Owner shall require each builder to pay to the City a nonutilization of gas fee of $1,500 at the time a building permit is issued if such plumbing is not to be included in that residence. 9. Article VI shall be deleted and replaced with the following: The Owner and the City agree that the term of the 2008 Agreement will be fifteen (15) years after the Effective Date of this Amendment unless further extended by mutual agreement of Owner and the City (as extended, the Term ). The Term shall not be affected by any limited purpose annexation under Article VII. 10. Section 7.7 shall be deleted and replaced with the following: and District Consent Agreement Page 6

7 Municipal Facility Fee. Prior to the date upon which any developer or builder submits an application for the issuance of a building permit for the first (1 st ) Dwelling unit within the Property, Owner shall prepare and file restrictive covenants applicable to all residential sections of the Property. The deed restrictions shall require that upon the original sale of each residential lot with improvements thereon (i.e., the sale of such lot with a house, townhouse, condominium, duplex, or other residential structure) within the Property to an End-Buyer, the seller of such lot and improvements shall pay to the City an amount equal to one percent (0.75%) of the gross sales price of the residential lot and improvements (the Municipal Facility Payment ). The deed restrictions shall create a lien upon each residential lot and improvements to secure payment of the Municipal Facility Payment. The title company or escrow agent handling the closing of the sale of any End-Buyer lot shall deduct the Municipal Facility Payment from the amount otherwise due the seller and shall forward the Municipal Facility Payment directly to the City (together with a copy of the closing statement). Notwithstanding anything in this section to the contrary, the foregoing payment requirements and deed restrictions shall not apply to (i) any sale of a residential lot after the original sale of such lot to an End-Buyer or (ii) any nonresidential property. 11. Section 12.2 shall be amended as follows: To the City: With a copy to: To the Owner: Attn: Ronald C. Bowman Boerne City Manager City of Boerne, Texas 402 E. Blanco Boerne, Texas rbowman@ci.boerne.tx.us FAX: Kirsten Cohoon Boerne City Attorney City of Boerne, Texas 402 E. Blanco Boerne, Texas kcohoon@ci.boerne.tx.us William R. Hinckley The Lookout Group 2730 Rice Boulevard, Suite 200 Houston, Texas lookoutgroup@hotmail.com FAX: and District Consent Agreement Page 7

8 With a copy to: Grady B. Jolley Branscomb PC 711 Navarro Street Suite 500 San Antonio, Texas gjolley@branscombpc.com FAX: ARTICLE III AMENDMENTS TO THE INTERLOCAL AGREEMENT CONCERNING THE CREATION AND OPERATION OF KENDALL COUNTY WATER CONTROL AND IMPROVEMENT DISTRICT NO Section 5.03 (b) shall be deleted and replaced with the following: In the event a District is divided pursuant to the District Legislation, for purposes of Section 5.04(e) below, the latest Bond issuance date for any District created by the division of the District pursuant to the District Legislation shall be fifteen (15) years after the date a first residential plat for any portion of Property within such subsequently formed District is recorded in the Official Public Records of Kendall County, Texas. 2. Section 7.04 shall be deleted and replaced with the following: Full Purpose Annexation. The City will not annex land within a District for full purposes any earlier than the first to occur of (a) the date that construction of water, sanitary sewer, drainage and road facilities to serve 95% of such District is complete and the District has issued Bonds to reimburse the cost of the Public Infrastructure; (b) for the original District, fifteen (15) years after the date a first residential plat for any portion of Property in the original District is recorded in the Official Records of Kendall County, Texas; (c) for subsequently formed Districts, fifteen (15) years after the date a first residential plat for any portion of Property in such subsequently formed District is recorded in the Official Records of Kendall County, Texas; or (d) the dissolution of such District (other than as a result of annexation by the City). The notice to purchasers attached to the Consent Agreement as Exhibit C shall be conformed to match the language of this amended Section Section shall be amended as follows: To the City: City of Boerne and District Consent Agreement Page 8

9 Attn: Ronald C. Bowman, City Manager 402 E. Blanco Boerne, Texas FAX: With a copy to: Kirsten Cohoon Boerne City Attorney 402 E. Blanco Boerne, Texas kcohoon@ci.boerne.tx.us With a copy to: SAMCO Capital Markets, Inc. Attn: Duane Westerman 8700 Crownhill Boulevard, Suite 601 San Antonio, Texas To the District: Kendall County Water Control and Improvement District No. 2 or 2-A Attn: Julianne B. Kugle Sanford Kuhl Hagen Kugle Parker Kahn LLP 1980 Post Oak Boulevard, Suite 1380 Houston, Texas FAX: To Owner: Lookout Boerne Holdings, LP Attn: William R. Hinckley 2730 Rice Boulevard, Suite 200 Houston, Texas FAX: ARTICLE IV GENERAL PROVISIONS 1. Recitals and Exhibits. The recitals and exhibits are incorporated into this Amendment as fully as matters of contract and not mere recitals or references. and District Consent Agreement Page 9

10 2. No Liens and No Lenders. The Owner represents and warrants to the City that the Owner owns the Property in fee simple absolute and that there are no liens on or against the Property whether or not evidenced in the real property records of Kendall County, Texas. The Owner further represents and warrants to the City that there are currently no Lenders in connection with the Property. 3. Payment of Arrearages. Upon full execution of this Amendment the Owner will pay to the City all past due amounts due under the 2008 Agreement, as amended, within three (3) business days. Upon the payment of all such sums due the parties acknowledge that there are no other defaults under the 2008 Agreement and the Consent Agreement. 4. Ratification. This and District Consent Agreement shall continue in effect until further amended by a similar agreement executed by the Parties, and recorded in the Official Records of Kendall County, Texas. All terms and conditions contained in the 2008 Agreement and the Consent Agreement not amended herein remain in full force and effect. For the same considerations stated herein, each of the parties hereby ratifies and confirms the validity of the 2008 Agreement and the Consent Agreement, together with the changes made by this Amendment, and agrees on behalf of the applicable party hereto and their successors and assigns, that the remaining terms and conditions contained in the 2008 Agreement and the Consent Agreement are binding, subsisting and in full effect. 5. Recording. This Amendment shall be recorded in full in the real property records of Kendall County, Texas. 6. Effective Date. This Amendment shall be effective as of the date that it is approved and executed by all of the parties and the BISD Agreement has been approved by BISD and the Owner, whichever is later. This Amendment is signed by each Party as of the date of acknowledgment of that Party's signature below, but is effective for all purposes as of the Effective Date stated above. [Signature Pages Follow] and District Consent Agreement Page 10

11 ATTEST: CITY OF BOERNE City Secretary By: Name: Its: Date: STATE OF TEXAS COUNTY OF This instrument was acknowledged before me, on the day of,, by, of the City of Boerne, Texas on behalf of said city. [SEAL] Notary Public, State of Texas Printed Name: My Commission Expires: and District Consent Agreement Page 11

12 LOOKOUT BOERNE HOLDINGS, LP, a Texas limited partnership By: Morningside Land & Cattle Company, LLC a Texas limited liability company, its general partner By: William R. Hinckley, its Operating Manager THE STATE OF TEXAS COUNTY OF HARRIS This instrument was acknowledged before me on the day of January, 2014, by WILLIAM R. HINCKLEY, Operating Manager of MORNINGSIDE LAND & CATTLE CO., LLC, a Texas limited liability company, general partner of LOOKOUT BOERNE HOLDINGS, LP, a Texas limited partnership, in the capacity herein stated. (Seal) Notary Public, State of Texas Name Printed or Typed My Commission Expires: and District Consent Agreement Page 12

13 KENDALL COUNTY WATER CONTROL AND IMPROVEMENT DISTRICT NO. 2 By: Its: President, Board of Directors Date: STATE OF COUNTY OF This instrument was acknowledged before me, on the day of, 201, by, President of the Board of Directors of the Kendall County Water Control and Improvement District No. 2, on behalf of said entity. [SEAL] Notary Public, State of Texas Printed Name: My Commission Expires: and District Consent Agreement Page 13

14 KENDALL COUNTY WATER CONTROL AND IMPROVEMENT DISTRICT NO. 2-A By: Its: President, Board of Directors Date: STATE OF COUNTY OF This instrument was acknowledged before me, on the day of, 201, by, President of the Board of Directors of the Kendall County Water Control and Improvement District No. 2-A, on behalf of said entity. [SEAL] Notary Public, State of Texas Printed Name: My Commission Expires: and District Consent Agreement Page 14