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Home My WebLink AboutC2014-337 - 10/14/2014 - Approved DEVELOPMENT AGREEMENT UNDER SECTION 43.035,TEXAS LOCAL GOVERNMENT CODE This Development Agreement under Section 43.035, Texas Local Government Code (the "Agreement") is entered between the City of Corpus Christi, Texas (the "City") and the undersigned property owner(the"Owner"). The term Owner shall include all owners of the Property. The City and the Owner are collectively referred to herein as the"Parties." WHEREAS, the Owner owns approximately 960 acres (+/-) of real property in Nueces County, Texas, which is more particularly described in the attached Exhibit "A" attached hereto (the"Property") that is appraised for ad valorem tax purposes as land for agricultural, wildlife management, or timber land under Chapter 23,Texas Tax Code; WHEREAS,under Section 43.035(b)(1) of the Local Government Code,the City is required to offer to make a development agreement with the Owner that will provide for the continuation of the extraterritorial jurisdiction status of the Property and authorize the enforcement of all regulations and planning authority of the City that do not interfere with the use of the area for agriculture, wildlife management,or timber; WHEREAS, Section 43.035 provides that the restriction or limitation on the City's almexation of all or part of the Property under this Agreement is void if the Owner files any type of subdivision plat or related development document for the Property, regardless of how the area is appraised for ad valorem tax purposes; WHEREAS, the Owner desires to have the Property remain in the City's extraterritorial jurisdiction, in consideration for which the Owner agrees to enter into this Agreement; and WHEREAS, this Agreement is entered into pursuant to Sections 43.035 and 212.172, Texas Local Government Code. NOW, THEREFORE, in consideration of the mutual covenants contained herein, the Parties hereto agree as follows: Section 1. Extraterritorial Jurisdiction Status of Property. The City agrees that the Property shall remain in the City's extraterritorial jurisdiction (the "ETJ") and the City shall not annex the Property during the term of this Agreement,subject to the terms and conditions of this Agreement. Section 2. Owner's Obligations. In consideration of the City's agreement not to annex the Property during the Term of this Agreement, and as a condition of the Property remaining in the City's extraterritorial jurisdiction,the Owner covenants and agrees to the following: (a) The Owner shall use the Property only for the following purposes: (1) agriculture, wildlife management, and/or timber land uses, as those terms are defined in Chapter 23 of the Texas Tax Code that are existing on the Effective Date of this Agreement, (2) single-family residential uses existing on the Property on the Effective Date, (3) all uses authorized in the zoning district applicable to the Property under the City's Unified Development Code; and (4) all other uses authorized by this Agreement. (b) The Owner shall not subdivide the Property, or file for approval of a subdivision plat, site plan, or related development document for the Property with Nueces County or the City until the Property is annexed into and zoned by the City. 2014-337 10/14/14 Res. 030309 Catherine Marie Sims INDEXED (c) Except as otherwise allowed by this Agreement, the Owner shall not construct, or allow to be constructed, any structures on the Property that require a building permit until the Property is annexed into, and zoned by, the City. Accessory structures authorized under the City's Unified Development Code and buildings or structures that are related to and necessary for the use of the Property as authorized under Section 2(a) (excluding new single family residences) are exceptions to this Section 2(c),provided that the Owner obtains required building permits prior to construction. (d) The City's zoning regulations shall apply to the Property, and in addition to the uses authorized by the Unified Development Code and this Agreement, the Property may also be used for wildlife management or timber land, as defined by Chapter 23 of the Texas Tax Code. Fences shall not be subject to setback requirements. The City's building codes and regulations shall apply to the Property except as provided otherwise in this Section 2(d). Any buildings or structures constructed on the Property after the Effective Date shall be constructed in compliance with the applicable provisions of the Unified Development Code and applicable building codes and regulations, provided that building permits and related inspections shall only be required for the construction of a new single family residence and additions to an existing single family residence that are authorized to be located on the Property under this Agreement. (e) Owner acknowledges that it is a party to that certain Wind Energy Lease and Agreement ("Lease Agreement") by and between Owner ( as "Landlord"), and Element Markets, LLC ("Tenant") dated October 1, 2009, a memorandum of which was recorded as document number 2009049298 in the Official Records of Nueces County. Provided that Landlord and Tenant have signed this Agreement expressing their consent to the provisions of this section,the Owner agrees that she shall not construct or allow to be constructed wind energy units on the Property for the commercial sale of wind energy as defined in the Unified Development Code, Section 5.6. Section 3.Development and Annexation of the Property. (a) The following occurrences shall be deemed to be the Owner's petition for voluntary annexation of the Property,and the Property may subsequently be annexed at the discretion of the City Council: (1) The filing of any application for plat approval, site plan approval, building permit or related development document for the Property, or the commencement of development of the Property,except as such actions are specifically authorized herein. (2) The Owner's failure to comply with Section 2, following at least ten (10) days prior written notice to Owner and a reasonable opportunity to cure not to exceed ten(10)days. (3) The Property no longer being appraised for ad valorem tax purposes as land for agricultural, wildlife management, or timber land under Chapter 23, Texas Tax Code, or successor statute, unless the Property is no longer appraised for such purposes because the Legislature has abolished agricultural, wildlife management, or timberland exemptions, provided that the Owner is in compliance with Section 2 of this Agreement. (4) The filing of an application for voluntary annexation of the Property into the City by the Owner. (5) The expiration of this Agreement. Sims Development Agreement Page 2 (b) The Owner agrees that annexation initiated due to an occurrence under Section 3(a) shall be deemed to be voluntary and the Owner hereby consents to such annexation as though a petition for voluntary annexation had been tendered by the Owner. (c) On and after annexation, municipal services shall be provided to the Property in accordance with the adopted municipal services plan. Section 4. Application of City Regulations. Pursuant to Section 43.035(b)(1)(B), Texas Local Government Code,the Property is subject to all of the City's regulations,as they are amended from time to time, and planning authority that do not materially interfere with the use of the Property for agriculture, wildlife management, or timber, or any of the other uses authorized in Section 2 of this Agreement, in the same manner the regulations are enforced within the City's boundaries, and the Owner acknowledges and agrees that the City is hereby authorized to enforce said regulations and planning authority,except as specifically provided otherwise herein. Section 5. Term. The term of this Agreement (the "Term") is fifteen (15) years after the Effective Date. Section 6. Vested Rights Claims. This Agreement is not a permit for the purposes of Chapter 245, Texas Local Government Code. The Owner hereby waives any and all vested rights and claims that the Owner may have under Section 43.002(a)(2)and Chapter 245 of the Texas Local Government Code that would otherwise exist by virtue of any actions Owner takes or has taken in violation of Section 2 herein. The Owner further waives any and all vested rights and claims that the Owner may have under Section 43.002(a)(2)and Chapter 245 of the Texas Local Government Code that would otherwise exist by virtue of any application,plan, plat or construction the Owner may file or initiate with respect to the Property following the expiration of this Agreement prior to annexation of the Property by the City,provided that the City initiates annexation proceedings within one year following the expiration of this Agreement. Section 7. Authorization. All parties and officers signing this Agreement warrant to be duly authorized to execute this Agreement. The Owner acknowledges that each and every owner of the Property must sign this Agreement in order for the Agreement to take full effect.The failure of each and every owner of the Property to sign this Agreement at the time of approval and execution by the City shall result in the Agreement being void, and the City may, with.in its discretion, annex the Property in accordance with applicable law. Section 8.Notice. Any person who sells or conveys any portion of the Property shall,prior to such sale or conveyance, give written notice of this Agreement to the prospective purchaser or grantee, and shall give written notice of the sale or conveyance to the City.Furthermore,the Owner and the Owner's heirs, successor,and assigns shall give the City written notice within 14 days of any change in the agricultural exemption status of the Property. A copy of the notices required by this Section shall be sent by personal delivery or certified mail,return receipt requested,to the City at the following address: City of Corpus Christi Attn: City Manager PO Box 9277 Corpus Christi,Texas 78469-9277 Notices required to be sent to the Owner shall be sent by personal delivery or certified mail, return receipt requested,to the Owner at the following address: Sims Development Agreement Page 3 Catherine Marie Sims 803 Avondale Road Austin,TX 78704 Section 9. Covenant Running with the Land. This Agreement shall run with the Property, and a memorandum of this Agreement in a form substantially similar to that set forth in Exhibit "B"shall be recorded in the Official Public Records of Nueces County,Texas.The Owner and the City acknowledge and agree that this Agreement is binding upon the City and the Owner and their respective successors, executors,heirs, and assigns,as applicable,for the term of this Agreement. Conveyance of the Property, or portions thereof, to subsequent owners does not trigger a request for voluntary annexation unless Section 2 is also violated. Section 10. Severability. If any provision of this Agreement is held by a court of competent and final jurisdiction to be invalid or unenforceable for any reason, then the remainder of the Agreement shall be deemed to be valid and enforceable as if the invalid portion had not been included. Section 11. Amendment and Modifications. This Agreement may be amended or modified only in a written instrument that is executed by both the City and the Owner after it has been authorized by the City Council. Section 12. Gender, Number and Headings. Words of any gender used in this Agreement shall be held and construed to include any other gender, and words in the singular number shall be held to include the plural, unless the context otherwise requires. The headings and section numbers are for convenience only and shall not be considered in interpreting or construing this Agreement. Section 13. Governmental Immunity; Defenses. Nothing in this Agreement shall be deemed to waive, modify, or amend any legal defense available at law or in equity to either the City or Owner, including governmental immunity,nor to create any legal rights or claims on behalf of any third party. Section 14. Enforcement; Waiver.This Agreement may be enforced by any Owner or the City by any proceeding at law or in equity. Failure to do so shall not be deemed a waiver to enforce the provisions of this Agreement thereafter. Section 15. Effect of Future Laws.No subsequent change in the law regarding annexation shall affect the enforceability of this Agreement or the City's ability to annex the properties covered herein pursuant to the terms of this Agreement. Section 16. Venue and Applicable Law. Venue for this Agreement shall be in Nueces County, Texas. This Agreement shall be construed under and in accordance with the laws of the State of Texas. Section 17. Counterparts. This Agreement may be separately executed in individual counterparts and, upon execution,shall constitute one and same instrument. Section 18. Effective Date. This Agreement shall be void and have no further force or effect if the City Council does not simultaneously with the approval of this Agreement approve on Second Reading the Ordinance styled as, "AN ORDINANCE ANNEXING LAURELES FARM TRACTS ADJACENT TO THE CITY LIMITS LOCATED ALONG AND ON BOTH SIDES OF FM 2444, AREAS SOUTH OF FM 2444 AND WEST OF COUNTY ROAD 41, COMMONLY REFERRED TO AS A PORTION OF THE CHAPMAN RANCH AND A PORTION OF THE PROPOSED APEX WIND FARM; PROVIDING FOR A MUNICIPAL SERVICES PLAN FOR THE ANNEXED TRACTS OF LAND; PROVIDING THAT THE OWNERS AND INHABITANTS ARE ENTITLED TO ALL RIGHTS, Sims Development Agreement Page 4 PRIVILEGES,AND BURDENS OF OTHER CITIZENS AND PROPERTY OWNERS OF THE CITY OF CORPUS CHRISTI AND ARE SUBJECT TO AND BOUND BY THE CITY CHARTER, ORDINANCES, RESOLUTIONS, AND RULES; PROVIDING FOR AMENDMENT OF THE OFFICIAL MAPS OF THE CITY OF CORPUS CHRISTI; DESIGNATING AREA TO BE ADDED TO CITY COUNCIL DISTRICT NUMBER 5; PROVIDING FOR SEVERANCE; AND PROVIDING AN EFFECTIVE DATE." Provided that the foregoing condition is met,this Agreement shall be in full force and effect as of the date of approval of this Agreement by the City Council, from and after its execution by the Parties. Section 19. Sections to Survive Termination. This Agreement shall survive its termination to the extent necessary for the implementation of the provisions related to annexation of the Property into the City. ( Entered into and made to be effective on this (r1 day of ""'`,2014. [Signature pages and acknowledgements follow.] Sims Development Agreement Page 5 Owner: CATHERINE MARIE SIMS 803 Avondale Road,Austin,TX 78704 By: Catherine Marie Sims STATE OF TEXAS § COUNTY OF TRAVIS § BEFORE ME the undersigned authority on this day personally appeared Catherine Marie Sims, Owner of the Property, and acknowledged that she is fully authorized to execute the foregoing Development Agreement and that she executed such document for the purposes and consideration therein expressed and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE on this the q YY" day of 590• ,2014. • Notary Pu lic-State of Te).--cea-s))4\le-IP ,,,---- �� KYLIE A BISHOP K,_ -fij� ; I - My Commission Expires November 19, 2016 Sims Development Agreement Page 6 CITY OF CORPUS CHRISTI,TEXAS, A Texas home rule municipality By: V� Printed Na e: 7, li`:TI e C•G. Title: ;5 1rt1W2 ! ATTEST: 1.41AtAi By: Printed Name: e-C 2 c .e`eAr Title: City Secretary ATTEST: By: % A/ aS. II✓ C'u I U Itlt�. Printed Name: l'uti4b\ 6 ft/1\1- 11 I Title: City Attorney SY CUUnt:e�._._._ ... 11r40-�►� SECRETARY STATE OF TEXAS § COUNTY OF NUECES § BEFORE M/yr the undersigned authority on this day personally appeared, u S Tilt/6 v o/vim/36 Z , ,rr ry/*lo r p,q,of the City of Corpus Christi, Texas and acknowledged that s/he is fully authorized to execute the foregoing document and that s/he executed such document for the purposes and consideration therein expressed on behalf of the City of Corpus Christi,Texas. VEN UNDER MY HAND AND SEAL OF OFFICE on this the !�',tki day of „.../ . / JEANNIE HOLLAND _es Pv L 1•��ublic-State of Texas ; : ";�'-. Notary Public.Stole of Tezns 144.s.4.1:�; = M Comm ssion Expires i •;Er= December 23, 2017 Sims Development Agreement Page 7 TENANT: By: CHAPMAN RANCH WIND I, LLC, a Delaware limited liability company, as successor in interest to the original Tenant By: Apex Cie. nergy Holdings, LLC, a Delaware I. ,d liability company, its •. a.er By: Name: M (1 , G60(wn Title: �QS* STATE OF PE4 § The foregoing instrument was acknowledged before me this 1 day of bOOVAP , 2014, by (*PA E(A kAj►(\ as the Zikitatof Apex Clean Energy Holdings, LLC, a Delaware limited liability company, the manager of CHAPMAN RANCH WIND I, LLC, a Delaware limited liability company, on behalf of the company. SOA / &JL SOBA.L. eok Notary Public- State of T'exaa VjcCtir A L LOUD c PQ,P .tio....SF� REGPU8�y O it O rMyC•OMM 59i m"s IEXP! ESiON: LANDLORD: CATHERINE MARIE SIMS w .1,--,(., N(,}41, CATHERINE MARIE SIMS STATE OF TEXAS COUNTY OF TRAVIS The foregoing instrument was acknowledged before me this (9vl day of p\ )Nvoex- ,2014,by CATHERINE MARIE SIMS. /M Notary Publ. — ate of Texas sKYLIE A BISHOP t '� ^ i My Commission Expires November 19, 2016 Sims Development Agreement Page 9 EXHIBIT"A" TO SIMS DEVELOPMENT AGREEMENT THE"PROPERTY" Legal Descriptions of the Property: Nueces CAD Legal Description Geographic ID 159 Acres more or less being out of SE/4 of Sec. 26,Laureles Farm Tracts 425000260001 10 Acres more or less being out of S/2 of Sec. 27,Laureles Farm Tracts 425000270200 309 Acres more or less being out of S/2 of Sec.27,Laureles Farm Tracts 425000270000 160 Acres more or less being out of NE/2 of Sec. 37,Laureles Farm Tracts 425000370000 80 Acres more or less being out of W/2 of NW/4 Sec. 36, Laureles Farm Tracts 425000360100 240 Acres more or less being out of NE/4 & E/2 of NW/4 of Sec. 36, Laureles Farm 425000360300 Tracts 1 Acre more or less being out of SE/4 of Sec. 26,Laureles Farm Tracts 425000260000 1 Acre more or less being out of SE/2 of Sec. 27,Laureles Farm Tracts 425000270005 Sims Development Agreement Page 10 3 2014-04-'54?o MEMORANDUM OF RECORD NOTICE OF DEVELOPMENT AGREEMENT STATE OF TEXAS § COUNTY OF NUECES § Whereas,the undersigned("Owner") and the City of Corpus Christi(the"City"), entered into that certain Development Agreement under Sections 43.035 and 212.172, Texas Local Government Code dated 2014,(the"Agreement"); Whereas, Owner and the City entered the Agreement pursuant to Local Government Code §§ 43.035 and 212.172 which, pursuant to the terms and conditions of the Agreement, effectively guarantees the continuation of the extraterritorial status of Owner's property that is currently appraised for ad valorem tax purposes as agricultural land under Subchapter C or D, Chapter 23 of the Tax Code until the Agreement expires or the Property is developed for purposes other than agriculture or for the existing single family structure; Whereas, Owner is the owner of record for the property described in Exhibit "A" attached hereto and incorporated herein for all purposes(the"Property"); Whereas,recording the entire Agreement in the real property records of Nueces County is impractical and needlessly burdensome;and Whereas, the Owner and City agree to file this Memorandum of Record ("Memorandum") to provide notice of the Agreement encumbering the Property; NOW THEREFORE, the undersigned hereby executes this Memorandum and files the same of record in the Deed Records of Nueces County,Texas,for the purpose of giving notice to all persons that: (1) The Agreement is on file with the City Secretary at the Corpus Christi City Hall, copies of which are available upon request. (2) The Owner is required to perform as agreed and provided in the Agreement,as well as in accordance with all other applicable rules, regulations and codes of the City, except as provided otherwise in the Agreement. (3) The Agreement provides that any person who sells or conveys any portion of the Property shall,prior to such sale or conveyance, give written notice of this Agreement to the prospective purchaser or grantee, and shall give written notice of the sale or conveyance to the City. Furthermore, the Owner and the Owner's heirs, successor, and assigns shall give the City written notice within 14 days of any change in the agricultural exemption status of the applicable portions of the Property. Executed and filed this the?U day of<SE{ifAW,_2014. [Signature and acknowledgement follows.] Sims Development Agreement Page 11 OWNER: Catherine Marie Sims By: ,iL wv) Printed Name: Catherine Marie Sims THE STATE OF TEXAS § COUNTY OF TRAVIS § BEFORE ME, the undersigned authority, a Notary Public in and for said County and State, on this day personally appeared Catherine Marie Sims, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged that she executed the same for the purposes and consideration therein expressed and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE on this the ;9(1 day of ,Cr 2014. _ s_ut �Lf Notary Public-State Texas KYLIE A BISHOP i� My Commission Expires November 19, 2016 After Recording Return to: City of Corpus Christi l./ Attn: City Secretary P.O.Box 9277 Corpus Christi,Texas 78469-9277 Sims Development Agreement Page 12 EXHIBIT"A" TO MEMORANDUM OF RECORD NOTICE OF DEVELOPMENT AGREEMENT CATHERINE MARIE SIMS AND CITY OF CORPUS CHRISTI,TEXAS THE"PROPERTY" Legal Descriptions of the Property: Nueces CAD Legal Description Geographic ID 159 Acres more or less being out of SE/4 of Sec.26,Laureles Farm Tracts 425000260001 10 Acres more or less being out of S/2 of Sec. 27,Laureles Farm Tracts 425000270200 309 Acres more or less being out of S/2 of Sec.27,Laureles Farm Tracts 425000270000 160 Acres more or less being out of NE/2 of Sec. 37,Laureles Farm Tracts 425000370000 80 Acres more or less being out of W/2 of NW/4 Sec. 36,Laureles Farm Tracts 425000360100 240 Acres more or less being out of NE/4 & E/2 of NW/4 of Sec. 36, Laureles Farm 425000360300 Tracts 1 Acre more or less being out of SE/4 of Sec. 26,Laureles Farm Tracts 425000260000 1 Acre more or less being out of SE/2 of Sec. 27,Laureles Farm Tracts 425000270005 Docs S Pages 3 11/21/2014 4:25PM Official Records of NUECES COUNTY MS. DIANA T. BARR:ERA COUNTY CLERK Fees $•2:3.00 Any provision herein which restricts the Saler Rental or use of the described REAL PROPERTY because of Race, Colors Religion, Sexy Handicap: Familial Status: or National Origin is invalid and unenforceable under FEDERAL LAWS 3/12/89. :TATE OF TEXAS COUNTY OF NUECES I. hereby certify that this instrument was FILED in file number sequence on the date and o.t the time stamped herein by me: end was duly RECORDED in the Official Public Records of Nueces Counts: Texas MS. DIANAA T. BARRERA ` (3.4.Arini-o----' y • r •,4.•1-- Sims Development Agreement � } Page 13