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.
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Resolution No. 2018-13 (R) Authorizing Execution of 380 Agreement — Page 1 of 3
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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
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Exhibit A
380 Agreement
[INSERT FORM OF AGREEMENT]
Resolution No. 2018-13 (R) Authorizing Execution of 380 Agreement — Page 3 of 3
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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
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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:
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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.
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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:
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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
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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
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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]
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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)
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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)
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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
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EXHIBIT "B"
DEPICTION OF THE DEVELOPMENT
Chapter 340 Agreement — Exhibit B
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