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Resolution 2018-13L RESOLUTION NO. 2018-13(R) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WYLIE, TEXAS, REVIEWING AND APPROVING THE CHAPTER 380 AGREEMENT BY AND BETWEEN THE CITY OF WYLIE, TEXAS AND CROSS DEVELOPMENT, LLC; FURTHER AUTHORIZING THE CITY MANAGER TO EXECUTE THE CHAPTER 380 AGREEMENT; FURTHER AUTHORIZING THE CITY MANAGER TO TAKE ANY AND ALL OTHER ACTIONS NECESSARY TO EFFECTUATE THE SAME; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City Council of the City of Wylie, Texas ("City Council") has investigated and determined that it is in the best interest of the City of Wylie, Texas ("Wylie") and its citizens to approve the Chapter 380 Agreement by and between Wylie and Cross Development, LLC (the "380 Agreement"); and WHEREAS, the City Council has further investigated and determined that it is in the best interest of Wylie and its citizens to authorize the City Manager to execute the 380 Agreement and to take any and all other actions necessary to effectuate the 380 Agreement. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF WYLIE, TEXAS: SECTION 1: Findings Incorporated. The findings set forth above are incorporated into the body of this Resolution as if fully set forth herein. SECTION 2: Authority of City Manner to Execute 380 Agreement. The City Manager is hereby authorized and directed to execute the 380 Agreement and to take any and all other actions necessary to effectuate the same. The form of the 380 Agreement is attached hereto as Exhibit A and incorporated herein for all purposes. Should the final executed version of the 380 Agreement be revised from the version attached as Exhibit A, such final executed version shall replace Exhibit A of this Resolution for all purposes. SECTION 3: Effective Date. This Resolution is effective immediately upon its passage. [The remainder of this page intentionally left blank.] Resolution No. 2018-13 (R) Authorizing Execution of 380 Agreement — Page 1 of 3 2391498 DULY PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF WYLIE, TEXAS, on the 13th day of March, 2018. ATTEST: Stephanie Storm, City Secretary Resolution No. 2018-13 (R) Authorizing Execution of 380 Agreement — Page 2 of 3 2391498 1 1 War Exhibit A 380 Agreement [INSERT FORM OF AGREEMENT] Resolution No. 2018-13 (R) Authorizing Execution of 380 Agreement — Page 3 of 3 2391498 L L L CHAPTER 380 AGREEMENT BY AND BETWEEN THE CITY OF WYLIE, TEXAS AND CROSS DEVELOPMENT, LLC This CHAPTER 380 AGREEMENT ("Agreement") is entered into by and between CROSS DEVELOPMENT, LLC, a Texas limited liability company ("Company") and the CITY OF WYLIE, TEXAS, a Texas home -rule municipality ("City"). WITNESSETH: WHEREAS, the City Council of the City of Wylie, Texas ("City Council") has investigated and determined that it is in the best interest of the City and its citizens to encourage programs, including programs for making loans and grants of public money to promote local economic development and stimulate business and commercial activity in the City pursuant to Chapter 380, Texas Local Government Code, as amended, ("Chapter 380"); WHEREAS, Company has entered into a contract to acquire 15.7208 acres of property located in the City, which property is more fully described herein on the attached Exhibit "A" (the "Property"); WHEREAS, Company proposes to construct on the Property a mixed-use development in two phases. Phase one shall consist of at least: (i) 286 multifamily units (the "Multifamily Units"), (ii) 2,300 square feet of general retail space (the "Retail Space"), and approximately (iii) 7,000 square feet of restaurant space which shall be split between two restaurants (the "Restaurant Space" and together with the Multifamily Units and the Retail Space, "Phase One"). Phase two shall consist of approximately 18,600 square feet of office space split between three separate buildings, the first containing approximately 3,500 square feet of office space, the second containing approximately 6,000 square feet of office space, and the third containing approximately 9,100 square feet of office space (collectively, "Phase Two" and together with Phase One, the "Development"), such Development being depicted on the attached Exhibit "B". The total project cost for Phase One shall be not less than Thirty -Two Million Dollars ($32,000,000.00); WHEREAS, Company agrees to provide documentation to the City showing that the total project cost of Phase One is not less than Thirty -Two Million Dollars ($32,000,000.00); WHEREAS, Company agrees to purchase and take title to the Property on or before March 20, 2018 (the "Purchase Deadline"); WHEREAS, Company agrees to commence construction of the Multifamily Units on or before August 1, 2018 (the "Multifamily Commencement Date") and to complete construction of the Multifamily Units and to obtain from the City all corresponding Certificates of Occupancy for the Multifamily Units on or before September 1, 2020 (the "Completion Date"); WHEREAS, Company agrees to complete construction of the Retail Space and at least 3,200 square feet of the Restaurant Space and to obtain from the City all corresponding Certificates Chapter 380 Agreement — Page 1 #2389513 of Completion for the Retail Space and at least 3,200 square feet of the Restaurant Space on or before the Completion Date; WHEREAS, the City will require payment of all development fees associated with construction of the Multifamily Units prior to issuance of a building permit for the Multifamily Units, which development fees include all applicable roadway impact fees, water and sewer impact fees, site plan review fees, final plat fees, development inspection fees, park land dedication fees, fire development impact fees, and permit fees (collectively, the "Development Fees"); WHEREAS, the City has agreed to waive up to $475,000.00 of the Development Fees at the time they are due and payable prior to issuance of a building permit for the Multifamily Units (the "Fee Waiver"); WHEREAS, for a number of years beginning in 1972 and ending prior to 1980, the Property was occupied by Electro Extraction, Inc. which operated a state registered landfill for the disposal of Class III polypropylene and PVC plastic shredded from aluminum and copper wire (the "Contaminants"). The Property was required to be enrolled in the TCEQ Voluntary Cleanup Program in November 2003 and received a Final Certificate of Completion on March 31, 2008. While a Final Certificate of Completion was issued, all or a portion of the Contaminants were allowed to remain on the Property through the date of this Agreement, impacting a sizeable portion of the soil on the Property (the "Impacted Soil"); WHEREAS, Company agrees to expend at least $500,000.00 (the "Minimum Removal Expenditure") for all site work, including the removal of the Contaminants from the Property, and to remove or remediate all Impacted Soil (the "Removal/Remediation Process"); WHEREAS, Company shall complete the Removal/Remediation Process on or before the Completion Date; WHEREAS, Company shall actively market all property south of the Explorer Pipeline Easement, as depicted in Exhibit A, for commercial uses authorized within PD-MF/CR under Zoning Case 2017-12, confirm that the same area is fully accessible to vehicular traffic, and that the same area is free from Contaminates; WHEREAS, the City Council has investigated and determined that Company meets the criteria for providing the assistance described in this Agreement, pursuant to Chapter 380, since the project will promote local economic development and stimulate business and commercial activities in the City ("Approved Project"); and WHEREAS, the City is willing to provide Company with economic assistance on the terms and subject to the conditions stated herein, and Company is willing to accept the same subject to all terms and conditions contained in this Agreement. NOW, THEREFORE, in consideration of the covenants and conditions contained in this Agreement, the City and Company agree as follows: Chapter 380 Agreement — Page 2 #2389513 j J 1 1 L 1. Findings Incorporated. The findings set forth above are made a part of this Agreement as if set forth herein verbatim. 2. Company Obligations. Company shall comply with the following requirements (collectively, the "Company Obligations"): a) Company shall purchase and take title to the Property on or before the Purchase Deadline. b) Company shall complete the plans and specifications for the Development (the "Plans") and submit them to the City for approval prior to commencement of construction. c) Company shall pay all Development Fees related to the Multifamily Units less an amount equal to $475,000.00 prior to the City issuing a building permit for the Multifamily Units. d) Company shall commence construction of the Multifamily Units on or before the Multifamily Commencement Date. e) Company shall complete construction of the Multifamily Units and obtain from the City all corresponding Certificates of Occupancy for the Multifamily Units on or before the Completion Date in substantial accordance with the Plans. f) Company shall complete construction of the Retail Space and at least 3,200 square feet of the Restaurant Space and obtain from the City all corresponding Certificates of Completion for the Retail Space and at least 3,200 square feet of the Restaurant Space on or before the Completion Date in substantial accordance with the Plans. Company shall supply documentation to the City on or before the' Completion Deadline that the project cost of constructing Phase One was at least Thirty -Two Million Dollars ($32,000,000.00).'' g) h) Company shall provide to the City on or before the Completion Deadline documentation confirming that: (i) the Removal/Remediation Process has been completed, and (ii) the Company expended an amount greater than or equal to the Minimum Removal Expenditure in completing the Removal/Remediation Process. i) On or before the Completion Date, Company shall provide documentation to the City evidencing that the property south of the Explorer Pipeline Easement is accessible to vehicular traffic, that the Company has used all reasonable efforts to confirm that the same area is free from Contaminants as confirmed by engineering reports, soils analysis, or historical documents depicting Electro Extraction, Inc. operations, and finally documentation that Company is actively marketing the area south of the Explorer Pipeline Easement as evidenced by a contract with a brokerage firm and installation of a real estate promotional sign. Chapter 380 Agreement — Page 3 #2389513 j) Company shall be solely responsible for any fees related to the Multifamily Units or any other portion of the Development in excess of the Fee Waiver. 3. City Obligations. Subject to the terms and conditions of this Agreement and provided Company is not in default of this Agreement, the City shall comply with the following (the "City Obligations"): a) Subject to Company (i) satisfying the Company Obligations set forth in Sections 2(a) -2(c) above, and (ii) Company paying all Development Fees to the City less an amount equal to Four Hundred Seventy -Five Thousand Dollars ($475,000.00), City will provide the Fee Waiver to Company. As a condition to obtaining from the City a Certificate of Occupancy for the Multifamily Units, Company must either: (i) complete all of the Company Obligations set forth in Section 2 above on or before the Completion Date, or (ii) pay to the City an amount equal to Four Hundred Seventy -Five Thousand Dollars ($475,000.00) as reimbursement for the Development Fees waived pursuant to this Agreement. Once paid, the Development Fees will not be refundable under any circumstances. The cumulative amount of the Fee Waiver shall not under any circumstances exceed Four Hundred Seventy -Five Thousand Dollars ($475,000.00). 4. Default and Remedy Provisions. a) Subject to delay caused by a Force Majeure Event (as hereinafter defined), failure by Company to comply with each of the Company Obligations prior to the deadline for demonstrating the same to the City, shall constitute an event of default following written notice from the City and a thirty (30) day opportunity to cure, following which the City shall have the right but not the obligation, in its sole discretion, to take any of the following actions, as its sole and exclusive remedies: (i) waive the default; (ii) immediately terminate this Agreement by providing written notice thereof to Company; or (iii) if Company has received the Fee Waiver from the City, then the Company shall pay to the City an amount equal to the Fee Waiver. b) Upon the occurrence of default by the City, Company shall give written notice of such default, and if City has not cured the default within thirty (30) days after receipt of said written notice, Company shall have the right to either (i) immediately terminate this Agreement, or (ii) seek specific performance of this Agreement, as its sole and exclusive remedies. 5. Notices. Any notice provided or permitted to be given under this Agreement must be in writing and may be served by depositing same in the United States mail, addressed to the party to be notified, postage pre -paid and registered or certified with return receipt requested, or by delivering the same in person to such party via email or a hand -delivery service, Federal Express or any courier service that provides a return receipt showing the date of actual delivery of same to the addressee thereof. Notice given in accordance herewith shall be effective upon receipt at the address of the addressee, provided that notice given by U.S. mail return receipt shall be deemed to have been received upon deposit with the postal service. For purposes of notice, the addresses of the parties shall be as follows: Chapter 380 Agreement — Page 4 #2389513 1 1 1 If to the City: Copy to: If to Company: Copy to: City of Wylie, Texas Attention: City Manager 300 Country Club Rd., Building 100. 1st Floor Wylie, Texas 75098 Telephone: 972-516-6010 Email: Abernathy, Roeder, Boyd & Hullett, P.C. Attention: G. Randal Hullett 1700 Redbud Blvd., Suite 300 McKinney, Texas 75069 Telephone: (214) 544-4000 Email: rhullett@abernathy-law.com Cross Development, LLC Attention: Steve Rumsey 4336 Marsh Ridge Road Dallas, Texas 75010 Telephone: 214-614-8252 Email: srumsey@crossdevelopment.net Byrd Campbell, P.A. Attention: James S Campbell 180 Park Avenue, Suite 2A Winter Park, FL 32789 Telephone: 407-392-2285 Email: jcampbell@byrdcampbell.com 6. Verification and Compliance. Company will allow the City, at the City's cost (which shall not be a part of the City's Contribution), to audit, if necessary, all of Company's records (other than individual employee files), documents, agreements and other instruments in furtherance of the following purposes: (i) to ensure Company's compliance with the affirmative covenants set forth in this Agreement; (ii) to determine the existence of an event of default under the terms of this Agreement; and (iii) to ensure compliance with any other terms and conditions set -forth herein or any related documents. The City will provide Company with written notice of any request for an audit and shall cooperate with Company to schedule audit activities during Company's normal business hours so as to minimize disruption to Company's normal business operations. 7. Miscellaneous Provisions. a) Binding Agreement. This Agreement shall constitute a valid and binding agreement by and between the City and Company. b) Savings/Severability. If a court of competent jurisdiction finds any provision of this Agreement to be invalid or unenforceable as to any person or circumstance, such finding shall not render that provision invalid or unenforceable as to any Chapter 380 Agreement — Page 5 #2389513 other persons or circumstances, or affect any other provision hereof. It is the intention and agreement of the parties to this Agreement that each such illegal, invalid or unenforceable provision shall be amended by the parties hereto to the extent necessary to make it legal, valid and enforceable while achieving the same objective of such provision, or, if that is not possible, by substituting therefore another provision that is legal, valid and enforceable and achieves the same objectives (or, if such provision cannot be amended or a provision substituted therefore in a manner that is legal, valid and enforceable and achieves the same objectives, then such provision shall be amended or a new provision substituted therefore that achieves as closely as possible the same objectives or economic position as the illegal, invalid or unenforceable provision, irrespective of whether such amendment or substituted provision is materially different than the illegal, invalid or unenforceable provision). c) Default. Notwithstanding any provision in this Agreement to the contrary, Company's and the City's only liability for breaching any provision of this Agreement shall be the remedies expressly set forth in this Agreement. d) Entire Agreement. This Agreement contains the entire agreement of the parties with respect to the matters contained herein and may not be modified or terminated except upon the provisions hereof or by the mutual written agreement of the parties hereto. e) Venue. This Agreement shall be construed in accordance with the laws of the State of Texas and shall be performable in Collin County, Texas. In the event of a lawsuit brought pursuant to this Agreement, exclusive venue shall lie in Collin County, Texas. 0 Consideration. This Agreement is executed by the parties hereto without coercion or duress and for substantial consideration, the sufficiency of which is forever confessed. g) Counterparts. This Agreement may be executed in a number of identical counterparts, each of which shall be deemed an original for all purposes. h) Representations. Each signatory represents this Agreement has been read by the party for which this Agreement is executed and that such party has had an opportunity to confer with its counsel. i) Authority to Execute. The individuals executing 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 individual 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 binding agreement on the party for whom the individual is signing this Agreement and that each individual Chapter 380 Agreement — Page 6 #2389513 1 1 1 j) affixing his or her signature hereto is authorized to do so, and such authorization is valid and effective on the date of this Agreement. No Third-Partv Beneficiaries. Nothing in this Agreement shall be construed to create any right in any third party not a signatory to this Agreement, and the parties do not intend to create any third -party beneficiaries by entering into this Agreement. k) Waiver. Waiver by either party of any breach of this Agreement, or the failure of either party to enforce any of the provisions of this Agreement, at any time, shall not in any way affect, limit or waive such party's right thereafter to enforce and compel strict compliance. 1) Miscellaneous Drafting Provisions. This Agreement shall be deemed drafted equally by all parties hereto. The language of all parts of this Agreement shall be construed as a whole according to its fair meaning, and any presumption or principle that the language herein is to be construed against any party shall' not apply. Headings in this Agreement are for the convenience of the parties and are not intended to be used in construing this document. m) Sovereign Immunity. The parties agree that the City has not waived its sovereign immunity by entering into and performing its obligations under this Agreement. n) Assignment. This Agreement or any part thereof shall not be assigned or transferred by any party without the prior written consent of the other party; provided this Agreement may be assigned (i) by Company to an affiliate of Company (an "affiliate being an entity controlled and majority owned by the Company or its principals) who expressly assumes all of the obligations of Company arising after the date of such assignment, or (ii) by operation of' law in connection with a merger or consolidation of Company so long as Company provides City the name, address, phone number, and email address of the successor entity. In the event of an assignment, the assignment is not effective until written notice is given to the City of the name, address,.phone number, and email address of the assignee. Force Maieure. Notwithstanding anything contained in this Agreement to the contrary, if Company is delayed in performing any obligation under this Agreement due to a Force Majeure Event, then Company's deadline to commence or perform any such obligation shall be extended one (1) day for each day of delay as a result of the Force Majeure Event. It is agreed that if there is a Force Majeure Event that causes the delay of a commencement deadline, then the corresponding completion deadline shall automatically be extended one (1) day for each day the commencement deadline is extended due to a Force Majeure Event. For purposes of this Agreement, a "Force Maieure Event" shall mean any acts of God, riots, strikes, shortages in materials, fires, weather, and public disturbances. [SIGNATURES APPEAR ON THE FOLLOWING PAGES] Chapter 380 Agreement — Page 7 #2389513 IN WITNESS WHEREOF, the parties have executed this Agreement and caused this Agreement to be effective on the day of , 2018 ("Effective Date"). ATTEST: CITY OF WYLIE, TEXAS By: By: Stephanie Storm, City Secretary Mindy Manson, City Manager STATE OF TEXAS COUNTY OF COLLIN BEFORE ME, the undersigned authority, on this day personally appeared MINDY MANSON, known to me to be one of the persons whose names are subscribed to the foregoing instrument; he acknowledged to me he is the duly authorized representative for the CI'fY OF WYLIE, TEXAS, and he executed said instrument for the purposes and consideration therein expressed. GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of , 2018. Notary Public, State of Texas Chapter 380 Agreement —Signature 1'age (City) #2389513 1 1 COMPANY: CROSS DEVELOPMENT, LLC, a Texas limited liability company By: Name: Title: STATE OF TEXAS § § COUNTY OF COLLIN § BEFORE ME, the undersigned authority, on this day personally appeared of CROSS DEVELOPMENT, LLC, a Texas limited liability company, known to me to be one of the persons whose names are subscribed to the foregoing instrument, and who acknowledged to me that he executed the same for the purposes and consideration therein expressed and in the capacity therein stated on behalf of said company. GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of , 2018. Chapter 380 Agreement — Signature Page (Company) #2389513 Notary Public, State of Texas EXHIBIT "A" LEGAL DESCRIPTION OF THE PROPERTY BEING a tract of land located in the City of Wylie, Collin County, Texas, being all of the remainder of Lot 2, Block A, Replat of Lot 1, Block A, Westgate Center, Phase One, an addition to the City of Wylie according to the plat thereof as recorded in Cabinet L, Page 659, Map Records, Collin County, Texas, being all of that tract of land described in deed to Greenway Springs, Ltd. as recorded in Volume 6013, Page 1066, Deed Records, Collin County, and being more particularly described by metes and bounds as follows: BEGINNING at a 1/2" iron rod found for the southeast corner of said Lot 2, being the intersection of the northerly line of the A.T & S.F. Railroad (150' R.O.W.) and the westerly line of Westgate Way (100' R.O.W. at this point); THENCE, along the southerly line of said Lot 2, Block A, South 52 degrees 16 minutes 00 seconds West, a distance of 790.00 feet rod a 5/8" iron rod with cap stamped "SCI" set for the southwest corner of said Lot 2, being the southeast corner of Lot 1, Block A, Sanden Addition as recorded in Cabinet L, Page 457, Map Records, Collin County, Texas; THENCE, departing said Railroad R.O.W., along the east line of said Sanden Addition and the west line of said Lot 2, North 00 degrees 03 minutes 22 seconds East, a distance of 1,392.97 feet to a 5/8" iron rod with cap stamped "Probeck-5187" found for the northwest corner of the herein described tract and the southwest corner of Lot 2A, Block A, Plat of Lot 2A, Block A, West Center Phase One as recorded in Cabinet M, Page 632, Map Records, Collin County, Texas; THENCE, departing the east line of said Sanden Addition, along the south line of said Lot 2A, South 89 degrees 56 minutes 38 seconds East, a distance of 519.10 feet to a 5/8" iron rod found with cap stamped "Probect-5187" being the southeast corner of said Lot 2A, the northeast corner of the herein described tract, being in the westerly right-of-way line of Westgate Way (65' R.O.W. at this point); THENCE, along the westerly line of said Westgate Way and the easterly line of the herein described tract as follows: South 44 degrees 56 minutes 38 seconds East, a distance of 7.05 feet to a 1/2" iron rod found, the beginning of a curve to the right;; Along said curve to the right through a central angle of 49 degrees 30 minutes 38 seconds, a radius of 292.50 feet, an arc length of 252.76 feat, a chord bearing of South 20 degrees 11 minutes 19 seconds East and a chord distance of 244.96 feet to a 1/2" iron rod found; South 04 degrees 34 minutes 00 seconds West, a distance of 493.90 feet to a 1/2" iron rod found, the beginning of a curve to the left; Along said curve to the left through a central angle of 42 degrees 18 minutes 00 seconds, a radius of 262.79 feet, an arc length of 194.01 feet, a chord bearing of South 16 degrees 35 minutes 00 seconds East and a chord distance of 189.63 feet to the POINT OF BEGINNING and containing 684,800 square feet or 15.7208 acres of land more or less. Chapter 380 Agreement — Exhibit A #2389513 L 1 EXHIBIT "B" DEPICTION OF THE DEVELOPMENT Chapter 340 Agreement — Exhibit B #2389513