NOTICE OF A SPECIAL CALLED MEETING OF THE

Transcription

NOTICE OF A SPECIAL CALLED MEETING
OF THE GOVERNING BODY
OF THE CITY OF MIDLOTHIAN, TEXAS
Monday, November 17, 2014
6:00 p.m.
Pursuant to the provisions of Chapter 551 VTCA Government Code, notice is hereby given of a
Special Called Meeting of the Midlothian City Council, to be held in the City Council Chambers
at Midlothian City Hall, 104 West Avenue E, Midlothian, Texas
REGULAR AGENDA
Call to Order, Invocation and Pledge of Allegiance
2014-455 Announcements/Presentations
a.
Community Affairs calendar
b.
Administrative announcements related to personnel
2014-456 Citizens to be heard
CONSENT AGENDA
All matters listed under Consent Agenda are considered to be routine by the City Council and will be
enacted by one motion without separate discussion. If discussion is desired, that item will be removed
from the Consent Agenda and will be considered separately.
2014-457 Consider and act upon minutes from City Council meetings of October 27, October 28, and
November 4, 2014.
2014-458
Consider and act upon a resolution authorizing the Reindeer Dash 5K Run. The event will
be hosted by the Midlothian Independent School District on Monday, December 8, 2014,
in accordance with zoning requirements for Special Events as established by the City of
Midlothian Zoning Ordinance 2013-24, as amended, Section 2.04 (Use Table) (Case No.
SEP02-2014)
2014-459
Consider and act upon a resolution authorizing the Southern Star Christmas Celebration
and Parade hosted by the Midlothian Downtown Business Association, Midlothian Rotary
Club and the City of Midlothian on Saturday, December 6, 2014 (if cancelled due to
inclement weather, the event will be rescheduled to the following Saturday, December 13,
2014), in accordance with zoning requirements for Special Events as established by the
City of Midlothian Zoning Ordinance 2013-24, as amended, Section 2.04 (Use Table)
(Case No. SEP03-2014)
2014-460
Consider and act upon the expenditure of funds for pavement resurfacing services with
APAC-Texas, Inc. through the utilization of an interlocal cooperative purchasing
agreement with Dallas County for Sunlit Road and Auger Road at Water Treatment Plant 2
in an amount not to exceed $114,053.33.
2014-461
PUBLIC HEARINGS
Conduct a public hearing and act upon an ordinance requesting a Specific Use Permit
(SUP) for US Polyco to allow a polymer blending operation at MidTexas International
Center. Property is currently zoned Light Industrial (LI) District and contains ± 0.696
acres within MidTexas International Center Block 1, Lot 1, in the City of Midlothian,
Texas. (Case No. SUP06-2013-129)
2014-462
2014-463
2014-464
REGULAR AGENDA
Consider and act upon an ordinance extending the municipal boundary limits of the City of
Midlothian, Texas, by the involuntary annexation of ± 103 acres of the land, described
herein as the Annexation Area, in accordance with Chapter 43 of the Texas Local
Government Code; lying in the P.W. Lowe Survey - Abstract No. 661 (Mockingbird
Acres), the G.W. Smith Survey - Abstract No. 1074, the Argyle W. Tucker Survey –
Abstract No. 1096, and the Granville Kirk Survey – Abstract No. 604, generally located at
the intersection of North Walnut Grove Road and Mockingbird Lane in the extraterritorial
jurisdiction (ETJ) of the City of Midlothian and adjoining the present city limit boundary
lines; providing that the annexed property shall be subject to the ad valorem taxes levied
by the City of Midlothian and that the inhabitants of the annexed property shall be entitled
to all rights and privileges of all the regulations of the City of Midlothian now in effect and
hereinafter adopted; Annexation Area being fully described in the Exhibits “A & B” and a
Service Plan described in Exhibit “C” attached hereto and made a part of this ordinance;
providing a severability clause; providing for an effective date; and providing for the
publication of the caption of this ordinance (Case No. AX08-2013-123)
Midlothian, Texas, by the involuntary annexation of ± 112 acres of the land, described
herein as the Annexation Area, in accordance with Chapter 43 of the Texas Local
Government Code; lying in the Robert Hosford Survey - Abstract No. 533, the John Early
Survey - Abstract No. 343, and the Benjamin F. Witherspoon Survey – Abstract No. 1180,
generally located at the intersections of Walnut Grove Road with Walnut Lane and Clancy
Lane in the extraterritorial jurisdiction (ETJ) of the City of Midlothian and adjoining the
present city limit boundary lines; providing that the annexed property shall be subject to
the ad valorem taxes levied by the City of Midlothian and that the inhabitants of the
annexed property shall be entitled to all rights and privileges of all the regulations of the
City of Midlothian now in effect and hereinafter adopted; Annexation Area being fully
described in the Exhibits “A & B” and a Service Plan described in Exhibit “C” attached
hereto and made a part of this ordinance; providing a severability clause; providing for an
effective date; and providing for the publication of the caption of this ordinance (Case No.
AX09-2013-124)
Consider and act upon a request to allow on-street parking on George Hopper Road for
MidTowne Pharmacy. Property is currently zoned as Planned Development (PD-42)
District and located on the south side of George Hopper Road ±130 feet west of South 14th
Street, in the City of Midlothian, Texas (M04-2014-10)
2014-465
Consider a resolution approving the resolution authorizing the issuance of bonds by the
Midlothian Community Development Corporation (first reading; no action required).
2014-466
Consider and act upon the First Amendment to the Hotel Development Agreement.
2014-467
Consider and act upon a thirty-six (36) month fair market value lease with Dell Computers
for 22 laptops and 35 desktops. The Lease is part of the City’s computer replacement
program as approved in the Capital Equipment Program and the FY 2014-2015 Budget.
2014-468
Consider and act upon Modification No. 1 to a Professional Services Contract with Dunkin
Sims Stoffels, Inc. for design services related to the Community Park Project, Phase I in an
amount not to exceed $48,380.
2014-469
Consider and act upon a proposed tri-party Economic Development Incentive Agreement
with Jerry and Steve Massey (“the Developer”) and Midlothian Economic Development
(“MED” aka “4A”) intended to incentivize the construction of a restaurant by conditionally
committing to reimburse the Developer up to $35,000 of City monies and an amount to be
determined by the MED at their November 17, 2014 meeting, toward the cost of extending
approximately 800 feet of gravity sanitary sewer main to the site.
2014-470
Consider and act upon an Engineering Services Agreement with Halff Associates, Inc. for
the Joe Pool Lake Water Supply System Raw Water Pipeline Alignment and Rehabilitation
Study in an amount not to exceed $90,000.
2014-471
Consider and act upon an ordinance amending the Midlothian Conference Center’s fiscal
year 2014-2015 budget appropriations in an amount not to exceed $49,896 to be paid from
unreserved fund balance, in accordance with Chapter 102, Local Government Code;
appropriating various amounts thereof; providing for a cumulative effect; providing for a
severability clause; and establishing an effective date.
2014-472
Review and approve draft agenda for the January 6th City Council Workshop and direct
staff as necessary.
EXECUTIVE SESSION
Executive Session items are discussed in closed session but any and all action is taken in regular open
session. Executive Session is not open to the public because there is a compelling need of
confidentiality (e.g., certain real estate, litigation, or personnel matters).
1.
Section 551.087 Deliberation regarding economic development negotiations
2.
Section 551.072 Real Estate: Deliberation regarding real property - to deliberate the purchase,
exchange, lease or value of real property
3.
Section 551.071 Legal: Consultation with attorney regarding Supreme Court of Texas Cause
No. 10-0150, ECOM Real Estate Management, Inc. v. City of Midlothian,
Texas.
4.
Section 551.071 Legal: Consultation with attorney based on an ethical duty to advise
regarding potential litigation
This meeting will be conducted pursuant to the Texas Government Code Section 551.001 et seq. At any
time during the meeting the Council reserves the right to adjourn into Executive Session on any of the
above posted agenda items in accordance with the Sections 551.071 (litigation and certain consultation
with attorney), 551.072 (acquisition of interest in real property), 551.073 (contract for gift to city),
551.074 (certain personnel deliberations), 551.076 (deployment/implementation of security personnel
or devices) or 551.087 (economic development negotiations).
REGULAR AGENDA
2014-473 Action resulting from Executive Session, Item #1: Economic Development
2014-474 Action resulting from Executive Session, Item #2: Real Estate
2014-475 Action resulting from Executive Session, Item #3: ECOM
2014-476 Action resulting from Executive Session, Item #4: Contemplated litigation
2014-477 Adjourn
I, Mary McDonald, Deputy City Secretary of the City of Midlothian, Texas, do hereby certify
that this Notice of Meeting was posted on the front window of City Hall, 104 West Avenue E,
Midlothian, Texas, at a place readily accessible to the general public at all times, no later than the
14th day of November, 2014 at or before 6:00 p.m.
This facility is wheelchair accessible and accessible parking spaces are available.
Requests for reasonable accommodations must be made 48 hours prior to this meeting.
Please contact the City Secretary at 775-3481 for further information.
AGENDA ITEM 2014-456
AGENDA CAPTION:
Citizens to be Heard
ITEM SUMMARY/BACKGROUND:
Citizens who have registered with the City Secretary may address Council with comments and/or concerns.
SPECIAL CONSIDERATION:
N/A
FINANCIAL IMPACT/FUNDING SOURCE:
N/A
ATTACHMENTS:
N/A
ALTERNATIVES:
N/A
RECOMMENDATION:
N/A
AGENDA CAPTION:
Consider and act upon minutes from the City Council meetings of October 27, October 28, and
November 4, 2014.
Minutes from the October 27, October 28, and November 4 Council meetings are submitted for
approval or correction.
N/A
N/A
ATTACHMENTS:
1. Minutes from Special-Called Council meeting of October 27, 2014
2. Minutes from Regular Council meeting of October 28, 2014
3. Minutes from Special-Called Council meeting of November 4, 2014
ALTERNATIVES:
Approve or correct
RECOMMENDATION:
Approve as submitted
SUBMITTED AND TO BE PRESENTED BY:
Tammy Varner, City Secretary, for the November 17, 2014 City Council Meeting
APPROVED BY:
MINUTES OF A JOINT MEETING
OF THE MIDLOTHIAN CITY COUNCIL AND THE
MIDLOTHIAN INDEPENDENT SCHOOL DISTRICT BOARD OF TRUSTEES
OCTOBER 27, 2014
The City Council of the City of Midlothian convened in a Joint Meeting with the MISD Board of
Trustees at the Midlothian Conference Center, One Community Circle, Midlothian, Texas with the
meeting having been open to the public and notice of said meeting having been posted as
prescribed by V.T.C.A., Government Code, Chapter 551, with the following members present towit:
City Council
MISD
Bill Houston
Mayor
Todd Hemphill, President (Place 2)
Wayne Sibley
Councilmember Place 1
Keith Hitt (Place 1)
Jimmie L. McClure Councilmember Place 3
Duke Burge (Place 3)
Joe Frizzell
Mayor Pro Tem Place 4
Jim Mentzel (Place 5)
TJ Henley
Carl Smith (Place 6)
Ted Miller
Absent: Matt Sanders, MISD Place 4, Tom Moore MISD Place 7 and
Mike Rodgers, Councilmember Place 2
REGULAR AGENDA – 6:00 PM
1. Call to order by both entities
At 6:12 p.m. Mayor Houston called Council to order and President Hemphill called MISD to order,
each with a quorum of members present. Mayor pro tem Frizzell gave the invocation.
2. DISCUSSION/ACTION ITEMS
A.
Provide growth and development trend update – COM & MISD
Kevin Lasher provided an update on the growth and development trends for the City of Midlothian,
noting a 185% population increase from 2000-2014, with approximately 300 building permits
estimated to be issued for 2014. Residential values continue to increase with over 2,000 finalplatted residential lots.
Dr. Stewart, MISD Superintendent, provided the MISD enrollment history for the last five years
and 3rd quarter 2014 campus projections. Dr. Stewart noted the projected growth at specific
campuses and when those campuses would reach capacity.
B. Receive update on local road and infrastructure projects - COM
Mike Adams introduced new Assistant City Engineer Scott Morrow and provided an update on
local road and infrastructure projects, noting that FM1387 has a projected completion date of early
January 2015 and the FM663 bridge project completion date is estimated to be mid-April 2015.
C. Receive update on Diamond J Development - COM
Kevin Lasher provided an update on the current status of the Diamond J Development, reporting
that the most recent concept plan reviewed by the City shows 3,110 residential lots on 913 acres.
D. Receive update of new development projects, including non-residential projects COM
Item discussed under 2A shown above.
E. Receive update on Community Park construction progress - COM
Billy King gave a presentation of the revised park design and provided a preliminary construction
timeline. Groundbreaking on Phase 1 is anticipated to occur in mid-December to early January.
F. Receive update on Comprehensive Plan - COM
Kevin Lasher provided information on the City’s Comprehensive Plan process. Mr. Lasher
requested the MISD’s participation in a steering committee with a commitment of one Board
member and an alternate. Participation in the steering committee will consist of six to eight
meetings over the next 12 – 16 months. Meetings are projected for Thursday evenings.
G. Receive update on future MISD growth – MISD
Item discussed under 2A shown above.
H. Receive update on Midlothian Heritage High School and Rollout Plan - MISD
Todd Hemphill, MISD Board President, shared dates, times, and locations of upcoming town hall
meetings. During these meetings, the Board will collect information from parents and the
community members in preparation of Heritage High School accommodating 9-11th grade students
for the next school year (2015-2016)
I.
Receive update on boundaries for MISD campuses - MISD
Todd Hemphill explained that following the scheduled town hall meetings, a boundary for
Midlothian High School and Midlothian Heritage High School will be determined. When
construction on Elementary#7 begins, boundaries for elementary campuses will be discussed and
determined closer to the completion of Elementary#7.
J.
Receive update on Irvin Gym - MISD
Duke Burge shared his desire for a task force to be created with committee members from the
MISD Board and City Council to find a use and a source for bringing the historical Irvin Gym to
a functional capacity.
3. Adjourn
With there being no further business to discuss, both entities adjourned at 7:08 p.m.
__________________________________
Bill Houston, Mayor
ATTEST:
__________________________________
Tammy Varner, City Secretary
MINUTES
REGULAR COUNCIL MEETING
OCTOBER 28, 2014
The City Council of the City of Midlothian convened in a Regular Meeting in the Council
Chambers of City Hall, 104 West Avenue E, with the meeting open to the public and notice of
said meeting posted as prescribed by V.T.C.A., Government Code, Chapter 551, with the
following members present to-wit:
Bill Houston
§
Mayor
Wayne Sibley
§
Mike Rodgers
§
Jimmie L. McClure
§
Joe Frizzell
§
T. J. Henley
§
Ted Miller
§
REGULAR AGENDA
Mayor Houston called the meeting to order at 6:00 p.m. with notice of the meeting duly posted and a
quorum present. Councilmember Sibley gave the invocation and led in the pledges.
2014-432 ANNOUNCEMENTS/PRESENTATIONS
A.
COMMUNITY AFFAIRS CALENDAR
Oct. 31 – Downtown Trick-or-Treat from 4 – 6 p.m.
Nov. 11 – Veterans Dinner at Midlothian Conference Center at 6:30 p.m.
B.
ADMINISTRATIVE ANNOUNCEMENTS RELATED TO PERSONNEL
None were received
2014-433 CITIZENS TO BE HEARD
None to be heard
CONSENT AGENDA
2014-434
CONSIDER AND ACT UPON MINUTES FROM CITY COUNCIL MEETINGS OF
OCTOBER 7 AND OCTOBER 14, 2014.
2014-435
CONSIDER AND ACT UPON AN ORDINANCE ELECTING FOR THE CITY TO
MAKE CURRENT SERVICE AND PRIOR SERVICE CONTRIBUTIONS TO THE
CITY’S ACCOUNT IN THE BENEFIT ACCUMULATION FUND OF THE TEXAS
MUNICIPAL RETIREMENT SYSTEM (TMRS) AT THE ACTUARIALLY
DETERMINED RATE OF TOTAL EMPLOYEE COMPENSATION.
2014-436
CONSIDER AND ACT UPON A RESOLUTION AUTHORIZING THE
MIDLOTHIAN POLICE DEPARTMENT TO RECEIVE GRANT FUNDS OF
$78,600 FROM THE JUSTICE ASSISTANCE GRANT (JAG) PROGRAMS
ALLOCATED THROUGH THE GOVERNOR’S CRIMINAL JUSTICE DIVISION
AND TO AUTHORIZE THE CITY MANAGER TO ACCEPT, REJECT, ALTER
OR TERMINATE THAT GRANT.
2014-437
CONSIDER AND ACT UPON A RESOLUTION AUTHORIZING THE ELLIS
COUNTY TOY RUN (MOTORCYCLE PARADE), AN EVENT HOSTED BY THE
GRYPHON MOTORCYCLE CLUB OF ELLIS COUNTY ON SUNDAY,
DECEMBER 14, 2014, IN ACCORDANCE WITH A SPECIAL EVENT PERMIT
AS ESTABLISHED BY THE CITY OF MIDLOTHIAN ZONING ORDINANCE
2013-24, AS AMENDED, SECTION 2.04 (USE TABLE) (CASE NO. SEP01-2014)
Councilmember Sibley moved to approve the Consent Agenda as presented. Motion was seconded by
Councilmember Rodgers and carried unanimously (7-0).
Citing a potential conflict of interest with Item 2014-438, Mayor Houston excused himself from the dais.
PUBLIC HEARINGS
2014-438 CONDUCT A PUBLIC HEARING TO CONSIDER AND ACT UPON AN
ORDINANCE TO REZONE PLANNED DEVELOPMENT (PD-62) DISTRICT
FOR SINGLE FAMILY RESIDENTIAL USES BY AMENDING AND
EXPANDING SAID PD-62, AND ITS ADOPTED REGULATIONS, WITH THE
ADDITION OF ± 63.789 ACRES OF LAND FOR RESIDENTIAL USES (SINGLE
FAMILY LOTS RANGING FROM 8,000 SF TO 14,000 SF) AND OPEN SPACES.
THE SUBJECT ± 63.789 ACRE EXPANSION PROPERTY IS CURRENTLY
ZONED AGRICULTURAL (A) DISTRICT AND IS GENERALLY LOCATED ON
THE WEST SIDE OF WALNUT GROVE ROAD, ± 2,300 FEET SOUTH OF FM
1387 IN THE CITY OF MIDLOTHIAN, TEXAS. (CASE NO. Z20-2013-96)
Mayor pro tem Frizzell opened the Public Hearing and Kevin Lasher presented the PD amendment
request and explained the three appeals by the applicant to staff recommendations. The Planning and
Zoning Commission approved the PD amendment request and appeals at its October 21, 2014 meeting.
With no public input received, Councilmember Miller moved to close the Public Hearing. Motion was
seconded by Councilmember Henley and carried unanimously (6-0-1). Councilmember Sibley moved
to approve Item 2014-438 as presented, including the Planning and Zoning Commission
recommendations. Motion was seconded by Councilmember Rodgers and carried unanimously (6-0-1)
with Mayor Houston abstaining from the vote. Mayor Houston returned to the dais.
2014-439 CONDUCT A PUBLIC HEARING OF CASE NO. AX08-2013-123, THE SECOND
OF TWO PUBLIC HEARINGS FOR A PROPOSED ANNEXATION AND
SERVICE PLAN FOR THE PROVISION OF PUBLIC SERVICES OF
APPROXIMATELY ± 103 ACRES OF THE LAND, DESCRIBED HEREIN AS
THE ANNEXATION AREA, LYING IN THE P.W. LOWE SURVEY - ABSTRACT
NO. 661 (MOCKINGBIRD ACRES), THE G.W. SMITH SURVEY - ABSTRACT
NO. 1074, THE ARGYLE W. TUCKER SURVEY – ABSTRACT NO. 1096, AND
THE GRANVILLE KIRK SURVEY – ABSTRACT NO. 604, GENERALLY
LOCATED AT THE INTERSECTION OF NORTH WALNUT GROVE ROAD
AND MOCKINGBIRD LANE IN THE EXTRATERRITORIAL JURISDICTION
(ETJ) OF THE CITY OF MIDLOTHIAN AND ADJOINING THE PRESENT CITY
LIMIT BOUNDARY LINES. THE PROPOSED ANNEXATION AND SERVICE
PLAN BEING FULLY DESCRIBED IN ATTACHMENTS 1 AND 3 ATTACHED
HERETO AND MADE A PART HEREOF FOR ALL PURPOSES OF THE
ANNEXATION PROCEDURES, IN ACCORDANCE WITH CHAPTER 43 OF THE
TEXAS LOCAL GOVERNMENT CODE
Mayor Houston opened the Public Hearing and Kevin Lasher presented the Item, giving a brief
presentation on the annexation process in Texas and noting that the vote on the annexation will occur on
November 17. Speakers in opposition to the annexation were:
Robert D. McMurray
Shirley Taylor
Violet Brown
1329 Bluebird Lane
1324 Dove Dr.
1304 Dove Dr.
Midlothian, TX
Midlothian, TX
Midlothian, TX
Tanya Bartholomew
1320 Bluebird Lane
Midlothian, TX
James Lather
1341 Dove Dr.
Midlothian, TX
A petition opposing the annexation was presented to Council. With no further public input received,
Councilmember Sibley moved to close the Public Hearing. Motion was seconded by Mayor pro tem
Frizzell and carried unanimously (7-0).
2014-440 CONDUCT A PUBLIC HEARING OF CASE NO. AX09-2013-124, THE SECOND
OF TWO PUBLIC HEARINGS FOR A PROPOSED ANNEXATION AND
SERVICE PLAN FOR THE PROVISION OF PUBLIC SERVICES OF
APPROXIMATELY ± 112 ACRES OF THE LAND, DESCRIBED HEREIN AS
THE ANNEXATION AREA, LYING IN THE ROBERT HOSFORD SURVEY ABSTRACT NO. 533, THE JOHN EARLY SURVEY - ABSTRACT NO. 343, AND
THE BENJAMIN F. WITHERSPOON SURVEY – ABSTRACT NO. 1180,
GENERALLY LOCATED AT THE INTERSECTIONS OF WALNUT GROVE
ROAD WITH WALNUT LANE AND CLANCY LANE, LYING WITHIN THE
EXTRATERRITORIAL JURISDICTION (ETJ) OF THE CITY OF MIDLOTHIAN
AND ADJOINING THE PRESENT CITY LIMIT BOUNDARY LINES. THE
PROPOSED ANNEXATION AND SERVICE PLAN BEING FULLY DESCRIBED
IN ATTACHMENTS 1 AND 3 ATTACHED HERETO AND MADE A PART
HEREOF FOR ALL PURPOSES OF THE ANNEXATION PROCEDURES, IN
ACCORDANCE WITH CHAPTER 43 OF THE TEXAS LOCAL GOVERNMENT
CODE.
Mayor Houston opened the Public Hearing and Kevin Lasher presented the Item noting that the
annexation vote will occur on November 17. Speakers in opposition to the annexation were:
Barbara and James McKeever, 4020 Walnut Lane, Midlothian, TX 76065
With no further public input received, Councilmember Sibley moved to close the Public Hearing.
Motion was seconded by Councilmember McClure and carried unanimously (7-0).
REGULAR AGENDA
2014-441 CONSIDER AND ACT UPON A REQUEST FOR WAIVER OF BUILDING
PERMIT FEE FOR THE CASHMERE RANCH APARTMENTS, PHASE II, AS
SUBMITTED BY DEVELOPER TERRACORP CAPITAL. SAID APARTMENTS
BEING PLATTED AS TURTLE COVE ADDITION, BLOCK A, LOT 2,
CONTAINING ±4.389 ACRES, BEING GENERALLY LOCATED EAST OF 9TH
STREET AND NORTH OF HENDERSON STREET, IN THE CITY OF
MIDLOTHIAN, ELLIS COUNTY, TEXAS (CASE NO. M01-2014-04)
Kevin Lasher presented the Item explaining that the developer was required to cover the costs related to
the upgrade of a sanitary sewer force main line from a lift station on Pebble Creek Drive to Rolling Hills
Drive. The addition of the proposed apartment complex will put the existing 4” diameter force main
over capacity and forces the upgrade improvement. Staff is recommending denial of the request for
waiver of the $19,478.75 permit fee. Councilmember Henley moved to reject the request for waiver of
the building permit fee. Motion was seconded by Councilmember Rodgers and carried unanimously (60) with Councilmember McClure away from the dais.
2014-442
CONSIDER AND ACT UPON A RESOLUTION APPROVING THE ISSUANCE
OF BONDS BY MIDLOTHIAN ECONOMIC DEVELOPMENT PROVIDING
FUNDS TO CONSTRUCT INFRASTRUCTURE IMPROVEMENTS FOR THE
NEW MIDLOTHIAN BUSINESS PARK.
Larry Barnett presented the Item for the issuance of $4,042,500 in Limited Sales and Use Tax Bonds
and $457,000 in Limited Sales and Use Tax Bonds, Taxable Series for infrastructure improvements,
including but not limited to streets, water, sewer and wastewater facilities, facilities for electric or gas
utilities, drainage, site improvements and related improvements to promote or develop the new
Midlothian Business Park and the cost of professional services incurred in connection with design and
construction. Mayor pro tem Frizzell moved to approve Item 2014-442 as presented. Motion was
seconded by Councilmember Sibley and carried by a vote of 6-1 with Councilmember Miller voting in
opposition.
2014-443 CONSIDER AND ACT UPON ADOPTING FINAL RECOMMENDATIONS AS
PRESENTED IN, "BUILDING A BETTER MIDLOTHIAN: AN ECONOMIC
DEVELOPMENT STRATEGY FOR THE CITY OF MIDLOTHIAN, TEXAS"
Larry Barnett requested that Council table the Item to allow for a workshop and further discussion on
the final recommendations between Midlothian Economic Development and City Council.
Councilmember Sibley moved to table the Item. Motion was seconded by Councilmember Rodgers and
carried unanimously (7-0).
2014-444
CONSIDER AND ACT UPON A JOINT RESOLUTION AUTHORIZING
MIDLOTHIAN ECONOMIC DEVELOPMENT TO AMEND THE RESTATED
CERTIFICATE OF FORMATION, TO REDUCE THE NUMBER OF MEMBERS
ON THE BOARD OF DIRECTORS.
Larry Barnett presented the Item explaining that the bylaw change that was approved by City Council in
May of 2013 needs to be clarified and amended in the Restated Certificate of Formation for Midlothian
Economic Development. Councilmember Sibley moved to approve Item 2014-444 as presented.
Motion was seconded by Councilmember Rodgers and carried unanimously (7-0).
2014-445
REVIEW AND APPROVE DRAFT AGENDA FOR THE NOVEMBER 4TH CITY
COUNCIL WORKSHOP; REVIEW CITY COUNCIL PRIORITIZED ISSUES/
PROJECTS LIST; AND DIRECT STAFF AS NECESSARY
It was the consensus of Council to add a discussion topic regarding the ad hoc committee for Board and
Commission term limits to the November 4 workshop agenda.
Council moved to Executive Session at 7:33 p.m. for the purpose of discussing Items 1 and 2 with the
following present: Mayor Houston, Mayor pro tem Frizzell, Councilmembers Sibley, Rodgers,
McClure, Henley, Miller; Interim City Manager, City Attorney, Planning Director and Larry Barnett.
1.
2.
3.
SECTION
551.087
SECTION
551.072
SECTION
551.071
EXECUTIVE SESSION
DELIBERATION REGARDING ECONOMIC DEVELOPMENT
NEGOTIATIONS
REAL ESTATE: DELIBERATION REGARDING REAL PROPERTY
- TO DELIBERATE THE PURCHASE, EXCHANGE, LEASE OR
VALUE OF REAL PROPERTY
LEGAL:
CONSULTATION WITH ATTORNEY REGARDING
SUPREME COURT OF TEXAS CAUSE NO. 10-0150, ECOM REAL
ESTATE MANAGEMENT, INC. V. CITY OF MIDLOTHIAN,
TEXAS.
4.
SECTION
551.071
LEGAL: CONSULTATION WITH ATTORNEY BASED ON AN
ETHICAL DUTY TO ADVISE REGARDING POTENTIAL
LITIGATION
Council reconvened in Regular Session at 8:44 p.m. with no action taken in Executive Session
REGULAR AGENDA
2014-446 ACTION RESULTING FROM EXECUTIVE SESSION, ITEM #1: ECONOMIC
DEVELOPMENT
No action taken following Executive Session.
2014-447 ACTION RESULTING FROM EXECUTIVE SESSION, ITEM #2: REAL ESTATE
No action taken following Executive Session.
2014-448 ACTION RESULTING FROM EXECUTIVE SESSION, ITEM #3: ECOM
No discussion or action taken following Executive Session.
2014-449 ACTION
RESULTING
FROM
EXECUTIVE
SESSION,
ITEM
#4:
CONTEMPLATED LITIGATION
No discussion or action taken following Executive Session.
2014-450 ADJOURN
With there being no further business to discuss, Mayor Houston adjourned the meeting at 8:44 p.m.
_________________________
Bill Houston, Mayor
ATTEST:
_________________________
MINUTES
CALLED MEETING/WORK SESSION
TUESDAY, NOVEMBER 4, 2014
The City Council of the City of Midlothian convened in a Regular Meeting in the Council
Chambers of City Hall, 104 West Avenue E, with the meeting open to the public and notice of said
meeting posted as prescribed by V.T.C.A., Government Code, Chapter 551, with the following
members present to-wit:
Bill Houston
Mike Rodgers
Jimmie L. McClure
Joe Frizzell
T. J. Henley
Ted Miller
§
§
§
§
§
§
Mayor
Absent: Wayne Sibley
WORK SESSION AGENDA
2014-451
CALL TO ORDER
Mayor Houston called the meeting to order at 6:03 p.m. with notice of the meeting duly posted and
a quorum present. Mayor pro tem Frizzell gave the invocation and led in the pledges.
2014-452
CONSIDER AND DISCUSS THE AD HOC COMMITTEE FOR BOARD AND
COMMISSION TERM LIMITS AND DIRECT STAFF ACCORDINGLY
Council discussed the possibility of term limits for the City’s Boards and Commissions. It was the
consensus of Council to conduct a workshop on January 6th, 2015 to review each Board’s bylaws
and attendance policies and make recommendations at that time.
2014-453
CONSIDER AND DISCUSS THE COMPREHENSIVE PLAN AND DIRECT
STAFF ACCORDINGLY
Kevin Lasher provided the compilation of participants selected for the Comprehensive Plan steering
committee to date, noting that participants were still needed from Midlothian Economic
Development (4A), Midlothian Community Development Corporation (4B) and MISD. Six to eight
public meetings are anticipated during the 12 to 18-month process. A proposal for the oversight of
the Comprehensive Plan process was received from Brad Moulton and Rick Leister from La Terra
Studio in Dallas.
2014-454
ADJOURN
With there being no further business to discuss, Mayor Houston adjourned the meeting at 9:10 p.m.
ATTEST:
_________________________
_________________________
Bill Houston, Mayor
AGENDA CAPTION:
Consider and act upon a resolution authorizing the Reindeer Dash 5K Run. The event will be hosted by
the Midlothian Independent School District on Monday, December 8, 2014, in accordance with zoning
requirements for Special Events as established by the City of Midlothian Zoning Ordinance 2013-24, as
amended, Section 2.04 (Use Table) (Case No. SEP02-2014)
The Midlothian Independent School District is requesting authorization to host the 5K Run on Monday,
December 8, 2014.
The 5K Run will commence on Don Floyd Drive at 6:00 pm and proceed south along 14th Street and
turn east onto the Hwy 287 southbound service road, then south along South Midlothian Parkway, west
onto Mount Zion Road, then north on South 14th Street to the finish line at Don Floyd Drive (as shown
in Attachment 1). The event will end approximately at 8:00 pm. The Midlothian Police and Fire
Department are prepared for the routing of this event. Applicant has submitted all necessary
documentation for the requested special event.
The Midlothian Independent School District requests that the Special Event Application Fee of $25.00
be waived considering the event will benefit Special Olympians and Midlothian High School Partners
in PE & PALS.
ATTACHMENTS:
1. Map of Event Route
2. Proposed Resolution
ALTERNATIVES:
Approve or Deny
RECOMMENDATION:
Staff recommends approval of the attached resolution for this special event and a waiver of the
associated application fee, which does meet the requirements set forth in the City of Midlothian Zoning
Ordinance 2013-24, as amended.
REVIEWED AND TO BE PRESENTED BY: Kevin Lasher, AICP, Planning Director
Monday, November 17, 2014, City Council Meeting
REVIEWED BY:
APPROVED BY:
Page 1 of 3
ATTACHMENT 1
Page 2 of 3
ATTACHMENT 2
RESOLUTION 2014A RESOLUTION AUTHORIZING THE REINDEER DASH 5K RUN. THE EVENT WILL BE
HOSTED BY THE MIDLOTHIAN INDEPENDENT SCHOOL DISTRICT ON MONDAY,
DECEMBER 8, 2014, IN ACCORDANCE WITH ZONING REQUIREMENTS FOR SPECIAL
EVENTS AS ESTABLISHED BY THE CITY OF MIDLOTHIAN ZONING ORDINANCE
2013-24, AS AMENDED, SECTION 2.04
WHEREAS, Section 2.04 of the Zoning Ordinance of the City of Midlothian requires that a
circus, carnival, fairgrounds, or special event will be allowed only by resolution of the City Council for
a specified period of time; and
WHEREAS, Midlothian Independent School District shall provide adequate insurance
coverage and any other pertaining information as required by the City; and,
WHEREAS, before this event occurs, Midlothian Independent School District must comply
with any and all public safety directives issued by the City Fire, Police or Building Inspection
Departments; and,
WHEREAS, the location and route has been approved by the City of Midlothian;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
MIDLOTHIAN, TEXAS THAT:
The City Manager or his designee is hereby authorized to waive the associated application fee and to
allow Midlothian Independent School District 5K Run on Monday, December 8, 2014.
The Reindeer Dash 5K Run will commence on Don Floyd Drive at 6:00 pm and proceed south along
14th Street and turn east onto the Hwy 287 southbound service road, then south along South Midlothian
Parkway, west onto Mount Zion Road, then north on South 14th Street to the finish line at Don Floyd
Drive. The event will end approximately at 9:00 pm. The Midlothian Police and Fire Department are
prepared for the routing of this event. Applicant has submitted all necessary documentation for the
requested event.
This Resolution is hereby authorized on the condition that the Midlothian Independent School District
satisfies the above conditions and all life-safety permit requirements, following the City Council
approval.
READ, PASSED, AND, APPROVED this 17th day of November, 2014.
_______________________________
Bill Houston, Mayor
ATTEST:
______________________________
Page 3 of 3
AGENDA CAPTION:
Consider and act upon a resolution authorizing the Southern Star Christmas Celebration and Parade
hosted by the Midlothian Downtown Business Association, Midlothian Rotary Club and the City of
Midlothian on Saturday, December 6, 2014 (if cancelled due to inclement weather, the event will be
rescheduled to the following Saturday, December 13, 2014), in accordance with zoning requirements for
Special Events as established by the City of Midlothian Zoning Ordinance 2013-24, as amended, Section
2.04 (Use Table) (Case No. SEP03-2014)
Midlothian Downtown Business Association, Midlothian Rotary Club and the City of Midlothian are
requesting authorization to host the Southern Star Christmas Celebration and Parade on Saturday,
December 6, 2014.
The celebration timeline is as follows:
11:00 AM
Activity/Vendor/Entertainment Setup-Barricades placed at Heritage Park and Back Alley to secure
setup area (with in/out area in front of Fire Station #1) on 8th Street from W. Avenue E through W.
Avenue F with traffic detoured west on W. Avenue E at 8th Street (as shown in Attachment 1).
• The W. Avenue F & 8th Street intersection will half close (with barricades from northwest corner to
southeast corner) to allow thru traffic
• Barricade at E. Avenue F at North 10th Street (to secure Back Alley)
• Barricades at W. Avenue F at City Hall (south entrances to secure Back Alley Plaza)
• Stage setup on 8th Street in front of Roger Kemp property located at 207 N. 8th Street
1:00 PM – 8:00 PM
Celebration Event
• 1:00-7:00 p.m. Vendor fair,
• 1:00-4:00 p.m. Entertainment
• 1:00-4:00 p.m. Pictures with Santa
3:00 PM
Barricade setup on 8th Street at W. Avenue B (for staging to begin north of the 8th Street Bridge)
4:00 PM
All barricades setup on parade route.
5:00 PM - 6:30 PM
Lighted Christmas parade.
The parade will commence on the north side of the 8th Street Bridge (staging will be located in the
Midlothian Police Department parking lot) and proceed south along 8th Street and turning west onto
W. Avenue F, continuing down W. Avenue F, turning north on Eric Street to the ending point and
participants dispersing in the north side of Walmart parking lot (as shown in Attachment 2). The
street sections are to be reopened around 6:30 pm. The Midlothian Police and Fire Departments are
prepared for the routing of this parade.
6:30 PM - 8:00 PM
Christmas tree lighting ceremony at Heritage Park.
Page 1 of 5
ATTACHMENTS:
1. Map of Southern Star Christmas Celebration event site
2. Map of Southern Star Christmas Celebration parade route
3. Proposed Resolution
ALTERNATIVES:
1. Approve or Deny
RECOMMENDATION:
Staff recommends approval of the attached resolution authorizing this special event and a waiver of the
associated application fee, which does meet the requirements set forth in the City of Midlothian Zoning
Ordinance 2013-24, as amended.
REVIEWED AND PRESENTED BY: Kevin Lasher, AICP, Planning Director
REVIEWED BY:
APPROVED BY:
Page 2 of 5
ATTACHMENT 1
Page 3 of 5
ATTACHMENT 2
Page 4 of 5
RESOLUTION 2014A RESOLUTION AUTHORIZING THE SOUTHERN STAR CHRISTMAS CELEBRATION
AND PARADE HOSTED BY THE MIDLOTHIAN DOWNTOWN BUSINESS ASSOCIATION,
MIDLOTHIAN ROTARY CLUB AND THE CITY OF MIDLOTHIAN ON SATURDAY,
DECEMBER 6, 2014 (IF CANCELLED DUE TO INCLEMENT WEATHER, THE EVENT
WILL BE RESCHEDULED TO THE FOLLOWING SATURDAY, DECEMBER 13, 2014), IN
ACCORDANCE WITH ZONING REQUIREMENTS FOR SPECIAL EVENTS AS
ESTABLISHED BY THE CITY OF MIDLOTHIAN ZONING ORDINANCE 2013-24, AS
AMENDED, SECTION 2.04
WHEREAS, Section 2.04 of the Zoning Ordinance of the City of Midlothian requires that a
circus, carnival, fairgrounds, or special event will be allowed only by resolution of the City Council for a
specified period of time; and
WHEREAS, Before this event occurs (if inclement weather cancels this event, the event will be
rescheduled to the following Saturday, December 13th, 2014), the Midlothian Downtown Business
Association, Midlothian Rotary Club and the City of Midlothian must comply with any and all public
safety directives issued by the City Fire, Police or Building Inspection Departments; and
WHEREAS, the location and route has been approved by the City of Midlothian; and
WHEREAS, the City Council has waived the Special Event Permit Fee;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
MIDLOTHIAN, TEXAS THAT:
The City Manager or his designee is hereby authorized to allow the parade to commence on the north
side of the 8th Street Bridge (staging will be located in the Midlothian Police Department parking lot)
and proceed south along 8th Street and turning west onto W. Avenue F, continuing down W. Avenue F,
turning north on Eric Street to the ending point and participant dispersal area in the north side of the
Walmart parking lot. The street sections are to be reopened around 6:30 pm. The Midlothian Police and
Fire Departments are prepared for the routing of this parade.
The authorization of this parade is on the condition that the Midlothian Downtown Business
Association, Midlothian Rotary Club and the City of Midlothian satisfy the above conditions and all lifesafety permit requirements, following this City Council approval.
READ, PASSED, AND, APPROVED this 17th day of November, 2014.
__________________________________
Bill Houston, Mayor
ATTEST:
______________________________
Page 5 of 5
AGENDA CAPTION:
Consider and act upon the expenditure of funds for pavement resurfacing services with APAC-Texas,
Inc. through the utilization of an interlocal cooperative purchasing agreement with Dallas County for
Sunlit Road and Auger Road at Water Treatment Plant 2 in an amount not to exceed $114,053.33.
During the budget process for fiscal year (FY) 2014 - 2015, these roads were identified in the City’s
roadway rehabilitation strategic plan for improvements.
The City of Midlothian has an interlocal agreement with Dallas County. Section 271.102 of the Texas
Local Government Code states; “a local government may participate in a cooperative purchasing
program with another local government or a local cooperative organization. A local government that
purchases goods or services under this subchapter satisfies any state law requiring the local government
to seek competitive bids for the purchase of goods or services”.
Dallas County currently has a yearly pavement resurfacing services agreement for HMAC with APACTexas, Inc., which staff is requesting to utilize for this work.
Staff received a quote from APAC-Texas which includes separate pricing for both roads. The
approximate total pricing for all these roads is $114,053.33.
Prior to APAC-Texas performing the necessary level up and overlay work, the City’s Public Works
department will perform the necessary preparation work (base repairs, culvert and ditch cleaning) along
these roads.
Funding for these road projects was included in the FY 14-15 budget in line 105-620-644,
Street/Drainage Rehabilitation and 205-639-746, Street Maintenance.
ATTACHMENTS:
1. Cost Estimate (dated 11/04/2014)
ALTERNATIVES:
Approve, Deny or Table
RECOMMENDATION:
Staff recommends approval as presented.
SUBMITTED BY and TO BE PRESENTED BY:
Adam Mergener, Director of Public Works
For the November 17, 2014 City Council meeting
REVIEWED BY:
APPROVED BY:
Attachment 1
AGENDA CAPTION:
Conduct a public hearing and act upon an ordinance requesting a Specific Use Permit (SUP) for
US Polyco to allow a polymer blending operation at MidTexas International Center. Property is
currently zoned Light Industrial (LI) District and contains ± 0.696 acres within MidTexas
International Center Block 1, Lot 1, in the City of Midlothian, Texas. (Case No. SUP06-2013-129)
RECOMMENDATION:
On October 21, 2014, the Planning and Zoning Commission recommended approval of this SUP
request for a polymer blending operation on this site subject to the attached conditions of approval
as found in the Recap Section. Staff also recommends approval, as presented.
BACKGROUND INFORMATION:
Purpose:
The applicants, Daniel DeJarnette and Dave Harlan of US Polyco, are requesting a Specific Use
Permit (SUP) for an approximate 30,000-square foot polymer blending processing plant on
property zoned Light Industrial (LI) District. The blending operation performed at this facility is
for the production of asphaltic coatings that are applied to roof shingles. The coatings extend the
usable life of the shingle material and are developed through the blending of granulated polymer
material at a 400 degree temperature. Staff from the Planning and Fire departments have visited
an existing blending facility in Ennis. From that visit and other research, staff is comfortable that
all necessary life safety requirements can be fulfilled for this operation at the proposed location.
Prior Action/History:
A minor plat of this property was filed with the Ellis County Clerk on October 15, 2012. The
property was zoned Light Industrial (LI) District in 1989 as part of the City-wide comprehensive
rezone.
ANALYSIS:
Zoning and Land Uses:
Direction:
Existing Land Use:
Subject prop.
North
South
East
West
Vacant/Undeveloped
Vacant/Undeveloped
AutoPark uses
Vacant/Undeveloped
AutoPark uses
Existing Zoning
Classification:
Light Industrial (LI) District
PD-59
PD-59
Future Land Use
Classification:
Industrial Module
Industrial Module
Industrial Module
Industrial Module
Industrial Module
Comprehensive Plan/Future Land Use Plan:
The Comprehensive Plan’s Future Land Use Plan shows this property located in the Industrial
Module, which “provides areas for existing industrial facilities as well as future heavy and light
industrial opportunities. Other uses within the module are supportive of those prominent land
uses.” This use conforms to the goals and objectives of the Industrial Module.
Thoroughfare Plan/Transportation:
Per the Comprehensive Plan’s Master Thoroughfare Plan, there are no thoroughfares proposed
within the vicinity of this location, therefore no right-of-way dedication will be required.
Page 1 of 17
Water and Sanitary Sewer Services:
Both City water and City sewer currently service this site.
Environmental Considerations:
No portion of the subject site lies within the 2013 FEMA floodplain maps. Drainage plans must
be reviewed to ensure compliance with any storm water management regulations during the
engineering plan review stage.
Site Layout/Building Architecture:
US Polyco proposes to construct a building that will house the blending activity. This building
measures 125 feet by 125 feet and will house the warehouse/storage space (10,091 square feet) a
laboratory and an office area (2,767 square feet each). An exterior area measuring 120 feet by 120
feet, will house the blending area. The buildings are located 60 feet from the new Texas Central
Business rail spurs.
The height of the proposed buildings would be 30 feet to the roof plate (45 feet to the top of the
roof pitch). All proposed buildings have an all-metal exterior. Section 4.5503 of the Zoning
Ordinance state that, “Buildings or structures inside private developments containing 50 acres or
more with no public access and located 500 feet or more from all public rights-of-way are not
required to comply with the provisions of subsection (a) above” (70% masonry coverage). The
proposed buildings will be in excess of 500 feet from Midlothian Parkway.
Parking/Landscaping:
Per the Parking Regulations, a minimum 16 parking spaces are required. Based on the submitted
site plan, 17 spaces are provided. The parking provided exceeds the parking requirement for this
proposed use. As this area is entirely concrete, there is no opportunity for any landscaping on this
site and therefore staff will recommend this use be exempt from the Landscaping Regulations.
Fencing:
No fence is required for nonresidential uses abutting each other. No fence design is provided in
the submitted site plan.
Signage:
Although there are no signage plans provided, the Light Industrial (LI) District allows up to 20%
of the wall area for signage purposes. Any signage provided shall adhere to these requirements.
LEGAL REQUIREMENTS:
Specific Use Permits, like zoning, are considered discretionary. Therefore, the Planning and
Zoning Commission and the City Council are not obligated to approve the request presented before
them, even if the request satisfies all the City requirements and the adopted Comprehensive Plan.
Notifications were provided to the surrounding property owners within 200 feet as required by
state law. A total of five (5) notification letters were sent out. To date, staff has not received any
letters regarding this request. Advertisement of this agenda item appeared in the October 29, 2014
edition of the Midlothian Mirror.
CONCLUSION:
This site is located more than 1,700 feet from Midlothian Parkway. Any noise, smell or other
potential negative impact produced from this proposed use will be mitigated given its distance and
visibility from any public right-of-way.
Page 2 of 17
ACTION NEEDED:
1.
Close the public hearing and recommend approval of this SUP request
2.
Close the public hearing and recommend denial of this SUP request
3.
Continue this public hearing to another date
4.
Close the public hearing and table this SUP request to another date
RECOMMENDATION (RECAP):
Staff recommends approval of this SUP request for a polymer blending operations on this site
subject to the attached conditions of approval listed below:
1)
This SUP shall be exclusively for an approximate 30,000-square foot polymer blending
processing plant as shown in Exhibit B and shall be limited to the 0.696 acres as shown in
Exhibit C.
2)
All buildings shall not exceed the maximum height of 35 feet (to the top of the roof plate)
and shall have an all-metal exterior. All other structures shall not exceed a height of 50
feet.
3)
A minimum total 17 parking spaces shall be provided for this use.
4)
This site shall be exempt from the City’s Landscaping Regulations.
5)
Any ground sign or building signage installed shall meet the City’s adopted Sign
Regulations.
6)
All fire-related codes, state and federal regulations, and industry-related guidelines related
to safety shall be followed at all times.
ATTACHMENTS:
1.
Location Map
3.
PON forms
5.
Draft Ordinance
2.
4.
Site and Building Plans
News Notice
REVIEWED AND PRESENTED BY:
Kevin J. Lasher, AICP, Director of Planning
REVIEWED BY:
APPROVED BY:
Page 3 of 17
ATTACHMENT 1
Page 4 of 17
ATTACHMENT 2
Page 5 of 17
Page 6 of 17
Page 7 of 17
ATTACHMENT 3
PON’s RECEIVED
(NONE)
Page 8 of 17
ATTACHMENT 4
Page 9 of 17
ATTACHMENT 5
ORDINANCE NO. 2014An ordinance granting a Specific Use Permit (SUP) for US Polyco to allow a polymer blending
operation at MidTexas International Center. Property is currently zoned Light Industrial (LI)
District and contains ± 0.696 acres within MidTexas International Center Block 1, Lot 1, in the
City of Midlothian, Texas; meeting all other conditions, restrictions and safeguards imposed
herein; correcting the Official Zoning Map; preserving all other portions of the Zoning Ordinance;
providing a conflicts clause; providing a severability clause, and determining that the public
interests, morals and general welfare warrant the issuance of a Specific Use Permit (SUP);
providing a penalty of fine not to exceed the sum of two thousand dollars ($2,000.00) for each
offense, and a separate offense shall be deemed committed each day during or on which an offense
occurs or continues; and providing an effective date
WHEREAS, an application was made requesting issuance of a Specific Use Permit (SUP)
by making applications for same with the Planning and Zoning Commission of the City of
Midlothian, Texas, as required by State statutes and the Zoning Ordinance of the City of
Midlothian, Texas, and all the legal requirements, conditions and prerequisites having been
complied with, the case having come before the City Council of the City of Midlothian, Texas,
after all legal notices, requirements, conditions and prerequisites having been complied with; and,
WHEREAS, the City Council of the City of Midlothian, Texas at a public hearing called
by the City Council did consider general land use planning factors in making a determination as
to whether this requested Specific Use Permit (SUP) should be granted or denied; and,
WHEREAS, all of the requirements of Section 5.200 of Ordinance 2013-24 have been
satisfied by the submission of evidence at a public hearing; and,
WHEREAS, the City Council of the City of Midlothian, Texas, does find that the Specific
Use Permit (SUP) provides for adequate parking for said use and occupancy, avoids excessive
congestion in the streets, helps secure safety from fire, panic and other dangers, prevents the
overcrowding of land, avoids undue concentration of population, facilitates the adequate
provisions of transportation, water, sewerage, schools, parks and other public requirements; and,
WHEREAS, the City Council of the City of Midlothian, Texas, has determined that there
is a necessity and need for this Specific Use Permit (SUP), feels that the issuance of the Specific
Use Permit (SUP) for the particular piece of property is needed, is called for, and is in the best
interest of the public at large, the citizens of the City of Midlothian, Texas, and helps promote the
general health, safety and welfare of this community.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
MIDLOTHIAN, TEXAS:
Section 1.
Recitals. The above premises are found to be true and correct, and shall be
incorporated into the body of this ordinance as if fully set forth.
Section 2.
Issuance of a Specific Use Permit (SUP). That the City does hereby issue
a Specific Use Permit (SUP) for a polymer blending operations at MidTexas International Center.
Property is currently zoned Light Industrial (LI) District and contains ± 0.696 acres within
MidTexas International Center Block 1, Lot 1, in the City of Midlothian, Texas; property details
are more fully and completely described on the attached exhibits included herein, and pursuant to
said Ordinance 2013-24, and all other conditions, restrictions, and safeguards imposed herein.
Page 10 of 17
Section 3.
Conditions for the Specific Use Permit (SUP).
1)
This SUP shall be exclusively for an approximate 30,000-square foot polymer
blending processing plant as shown in Exhibit B and shall be limited to the 0.696 acres as
shown in Exhibit C.
2)
All buildings shall not exceed the maximum height of 35 feet (to the top of the roof
plate) and shall have an all-metal exterior. All other structures shall not exceed a height
of 50 feet.
3)
A minimum total 17 parking spaces shall be provided for this use.
4)
This site shall be exempt from the City’s Landscaping Regulations.
5)
Any ground sign or building signage installed shall meet the City’s adopted Sign
Regulations.
6)
All fire-related codes, state and federal regulations, and industry-related guidelines
related to safety shall be followed at all times.
Section 4.
Correction of Official Zoning Map. The City Manager is hereby directed
to correct the official zoning map of the City of Midlothian, Texas to reflect the herein Specific
Use Permit (SUP).
Section 5.
Subject to all Applicable Regulations. That in all other respects, the use
of the tract or tracts of land herein above described shall be subject to all the applicable regulations
contained in said City of Midlothian zoning ordinances and all other applicable and pertinent
ordinances of the City of Midlothian, Texas.
Section 6.
Conflicts.
This ordinance shall be cumulative of all provisions of
ordinances and the Code of the City of Midlothian, Texas, except where the provisions of this
ordinance are in direct conflict with the provisions of such ordinances or Code provisions, in which
event the conflicting provisions of such ordinances are hereby superseded.
Section 7.
Severability Clause. If any section, article, paragraph, sentence, clause,
phrase or word in this ordinance, or application thereto any person or circumstances is held invalid
or unconstitutional by a court of competent jurisdiction, such holding shall not affect the validity
of the remaining portions of this ordinance; and the City Council hereby declares it would have
passed such remaining portions of the ordinance despite such invalidity, which remaining portions
shall remain in full force and effect.
Section 8.
Penalty. Any person violating any of the provisions of this ordinance shall
be deemed guilty of a misdemeanor and upon conviction thereof shall be fined in a sum not to
exceed Two Thousand Dollars ($2,000) and a separate offense shall be deemed committed upon
each day during or on which a violation occurs or continues.
Section 9.
Effective Date. This ordinance shall become effective from and after the
date of its passage, and it is accordingly so ordained.
Section 10. Termination of Specific Use Consistent with State law and the City of
Midlothian Zoning Ordinance, this Specific Use Permit (SUP) may be terminated by the City
Council at any time based upon findings of repeated violations of this Specific Use Permit (SUP)
adopting ordinance, State laws, or local ordinances.
Section 11. Expiration of Specific Use Permit (SUP). This Specific Use Permit (SUP)
shall become null and void if and when the approved use suspends operation for six or more
consecutive months.
Page 11 of 17
PASSED AND APPROVED BY THE CITY COUNCIL THIS THE 17TH DAY OF
NOVEMBER, 2014
APPROVED:
_________________________________
Bill Houston, Mayor
ATTEST:
___________________________________
APPROVED AS TO FORM:
__________________________________
Don Stout, City Attorney
Page 12 of 17
EXHIBIT A
Location Map
Page 13 of 17
Exhibit B
Site and Building Plans
Page 14 of 17
Page 15 of 17
Page 16 of 17
Exhibit C
Legal Description
Page 17 of 17
AGENDA CAPTION:
Midlothian, Texas, by the involuntary annexation of ± 103 acres of the land, described herein as
the Annexation Area, in accordance with Chapter 43 of the Texas Local Government Code; lying
in the P.W. Lowe Survey - Abstract No. 661 (Mockingbird Acres), the G.W. Smith Survey Abstract No. 1074, the Argyle W. Tucker Survey – Abstract No. 1096, and the Granville Kirk
Survey – Abstract No. 604, generally located at the intersection of North Walnut Grove Road and
Mockingbird Lane in the extraterritorial jurisdiction (ETJ) of the City of Midlothian and
adjoining the present city limit boundary lines; providing that the annexed property shall be
subject to the ad valorem taxes levied by the City of Midlothian and that the inhabitants of the
annexed property shall be entitled to all rights and privileges of all the regulations of the City of
Midlothian now in effect and hereinafter adopted; Annexation Area being fully described in the
Exhibits “A & B” and a Service Plan described in Exhibit “C” attached hereto and made a part of
this ordinance; providing a severability clause; providing for an effective date; and providing for
the publication of the caption of this ordinance (Case No. AX08-2013-123)
RECOMMENDATION:
Staff recommends approval of the attached ordinance, exhibits, and service plan as presented.
History:
In the summer of 2014, the City Council directed staff to begin annexation proceedings for this
Annexation Area. On September 9, 2014, the City Council adopted a resolution to set into
motion the formal involuntary annexation process as required by Chapter 43 of the Texas Local
Government Code. The review process approved is as follows:
1)
First public hearing:
Tuesday, October 14, 2014
(public hearing held and closed; several residents
spoke)
2)
Second public hearing:
spoke)
3)
Formal City Council action: *Monday, November 17, 2014 (special-called meeting)
Based on the 20-40 day window in which the public hearings have to be held from the final
adoption of the annexation ordinance, this special-called meeting of the City Council ensures
compliance with Chapter 43 of the Texas Local Government Code. The schedule below followed
all the requirements found in Texas Local Government Code.
Page 1 of 13
Proposed Tracts:
Tracts
Approximate
Acreage
Number
of homes
P.W. Lowe Survey - Abstract No. 661 (Mockingbird Acres)
G.W. Smith Survey - Abstract No. 1074
Argyle W. Tucker Survey – Abstract No. 1096
Granville Kirk Survey – Abstract No. 604
±103 acres
±46
Service Plan:
The Service Plan for this tract is attached at the end of this item and has been available on the
City website since the first public hearing and becomes effective upon adoption.
Comprehensive Plan:
The Future Land Use Plan designates the Annexation Area as Suburban Module. If annexation is
successful, this area will be zoned Agricultural (A) as stated in Section 3.1 of the Zoning
Ordinance.
CONCLUSION:
This annexation petition meets all legal requirements and is consistent with, and supports, the
goals of the City’s adopted Comprehensive Plan.
Page 2 of 13
LEGAL CONSIDERATIONS:
Texas Local Government Code Chapter 43.052 allows cities to annex land without a Municipal
Annexation Plan (and without the 3-year waiting period) if the tract of land contains fewer than
100 tracts with one or more dwelling units per tract.
Notifications were sent to all affected property owners, the school district, utility providers, and
other public entities on Thursday, September 11, 2014. Per state law, these notifications must be
sent at least 30 days prior to the first public hearing date.
State law also allows cities to annex up to 10% of their area each year. Cities are allowed to
carry over unused annexation provided that no more than 30% may be annexed in any one
calendar year.
Total City Area
Annexation Area:
% of total City Area:
34,245.45 acres (53.50 square miles)
±103 acres (0.160 square miles)
0.30% added by this annexation
ACTION NEEDED:
1.
Approve the annexation ordinance to extend the City limits
2.
Deny the annexation ordinance to extend the City limits
3.
Table this annexation ordinance to another date
RECOMMENDATION (recap):
Staff recommends approval of the attached Ordinance and exhibits, as presented.
ATTACHMENTS:
1.
Map Location
2.
Annexation Ordinance with Service Plan
PRESENTED AND REVIEWED BY:
REVIEWD BY:
APPROVED BY:
Page 3 of 13
ATTACHMENT 1
Page 4 of 13
ATTACHMENT 2
ORDINANCE NO. 2014An ordinance extending the municipal boundary limits of the City of Midlothian, Texas, by the
involuntary annexation of ± 103 acres of the land, described herein as the Annexation Area, in
accordance with Chapter 43 of the Texas Local Government Code; lying in the P.W. Lowe
Survey - Abstract No. 661 (Mockingbird Acres), the G.W. Smith Survey - Abstract No. 1074, the
Argyle W. Tucker Survey – Abstract No. 1096, and the Granville Kirk Survey – Abstract No.
604, generally located at the intersection of North Walnut Grove Road and Mockingbird Lane in
the extraterritorial jurisdiction (ETJ) of the City of Midlothian and adjoining the present city
limit boundary lines; providing that the annexed property shall be subject to the ad valorem taxes
levied by the City of Midlothian and that the inhabitants of the annexed property shall be entitled
to all rights and privileges of all the regulations of the City of Midlothian now in effect and
hereinafter adopted; Annexation Area being fully described in the Exhibits “A & B” and a
Service Plan described in Exhibit “C” attached hereto and made a part of this ordinance;
providing a severability clause; providing for an effective date; and providing for the publication
of the caption of this ordinance.
WHEREAS, the City of Midlothian initiated this involuntary annexation consistent with
Texas Local Government Code Chapter 43 for real property described in Exhibit “A” and
generally depicted in Exhibit “B” attached here to; and
WHEREAS, the City Council of the City of Midlothian, Texas did direct the initiation of
support of said annexation; and
WHEREAS, the City Council of the City of Midlothian, Texas (“City Council”) finds that
two public hearings were held before the City Council of the City of Midlothian, Texas where all
interested persons were given an opportunity to be heard on the proposed annexation of the
territory described in Exhibit “A” and graphically represented in Exhibit “B” attached hereto and
made a part hereof by reference (“hereinafter called the “Annexation Area”), and Exhibit C
describes the Service Plan
WHEREAS, the City Council finds that the population of the City of Midlothian, Texas is
approximately 20,540 inhabitants as of January 1, 2014 in accordance with estimates established
by the North Central Texas Council of Governments; and
WHEREAS, the City Council finds that the total corporate area of the City of Midlothian,
Texas is approximately 53.50 sq. mi; and
WHEREAS, the City Council finds compliance with the Texas Local Government Code §
43 and all other applicable annexation laws, setting for municipal services and provisions to
extend such services to the Annexation Area; and
WHEREAS, the City Council finds that the Annexation Area lies within the extraterritorial
jurisdiction of the City of Midlothian, Texas; and
Page 5 of 13
WHEREAS, the City Council finds that the Annexation Area contains approximately ± 103
acres of land; and
WHEREAS, the City Council finds that the Annexation Area is adjacent to and adjoins the
current corporate boundaries of the City of Midlothian, Texas; and
WHEREAS, the City Council finds that the Service Plan was made available for public
inspection and explained to the inhabitants of the Annexation Area at each of the public hearings;
and
WHEREAS, the City Council finds that all legal notices required for annexation have been
given in the time, manner and form provided by law; and
WHEREAS, the City Council finds that it has completed the annexation process in
compliance with the City Charter of the City of Midlothian and with all applicable statutes; and
WHEREAS, the City Council finds that it is beneficial, advantageous and in the public
interest to annex the Annexation Area into the corporate limits of the City of Midlothian, Texas;
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY
OF MIDLOTHIAN, TEXAS:
SECTION 1: The findings of the City Council set forth above are incorporated into the body
of this ordinance as is fully set forth herein.
SECTION 2: The Annexation Area fully described in Exhibits “A & B” is hereby added and
annexed to the City of Midlothian, Texas so that said Annexation Area is within the corporate
limits of the City of Midlothian, Texas
SECTION 3: That from and after the passage of this ordinance the Annexation Area shall be
a part of the City of Midlothian and subject to the ad valorem taxes levied by the City of
Midlothian, and the inhabitants thereof shall be entitled to all rights and privileges of all citizens
of Midlothian and shall be bound by the acts, ordinances, resolutions and regulations of the City
of Midlothian, Texas now in effect and hereinafter adopted.
SECTION 4: Should any part or portion of this ordinance be declared unconstitutional or
invalid by a court of competent jurisdiction, it is expressly provided that any and all remaining
parts or portions of this ordinance shall remain in full force and effect.
SECTION 5: This Ordinance shall be effective immediately from and after final publication.
The City Council directs that the caption of this ordinance be published in the manner required
by law and Section 4.07 of the City Charter of Midlothian, Texas.
Page 6 of 13
PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF
MIDLOTHIAN, TEXAS on the 17th day of November, 2014.
APPROVED:
______________________________
Bill Houston, Mayor
ATTEST:
_____________________________
______________________________
Page 7 of 13
Exhibit “A”
Metes and Bounds
Being approximately ±103 acres of land lying in the P.W. Lowe Survey - Abstract No. 661, the
G.W. Smith Survey - Abstract No. 1074, the Argyle W. Tucker Survey – Abstract No. 1096, and
the Granville Kirk Survey – Abstract No. 604 in Ellis County, Texas, and being more particularly
described as follows:
BEGINNING at an ell corner of City of Midlothian Ordinance No. 97-19, dated July 29, 1997,
being in an interior line of City of Midlothian Ordinance No. 2004-13, dated February 24, 2004,
and being near the intersection of the south line of Mockingbird Lane with the west line of N.
Walnut Grove Road;
THENCE in a Westerly direction, departing said N. Walnut Grove Road, along a northerly line
of said Ordinance No. 97-19 and said south line of Mockingbird Lane, an approximate distance
of 2,770 feet to an ell corner of said Ordinance No. 2004-13;
THENCE departing said northerly line of Ordinance No. 97-19 and said south line of
Mockingbird Lane, along said Ordinance No. 2004-13, the following seven (7) courses and
distances:
1) Northerly, an approximate distance of 1,070 feet;
2) Northeasterly, an approximate distance of 170 feet;
3) Easterly, an approximate distance of 230 feet;
4) Northerly, an approximate distance of 200 feet;
5) Northeasterly, an approximate distance of 700 feet;
6) Northerly, an approximate distance of 90 feet;
7) Easterly, an approximate distance of 1,810 feet to said west line of N. Walnut Grove
Road;
THENCE in a Southerly direction, along an interior line of said Ordinance No. 2004-13 and
along said west line of N. Walnut Grove Road, an approximate distance of 1,740 feet to the
POINT OF BEGINNING.
CONTAINING within the metes recited approximately 103 acres (0.161 square miles) of land,
more or less
Page 8 of 13
EXHIBIT “B”
Location Map
Page 9 of 13
SERVICE PLAN FOR PROPOSED INVOLUNTARY ANNEXATION
The P.W. Lowe Survey - Abstract No. 661 (Mockingbird Acres), the G.W. Smith Survey Abstract No. 1074, the Argyle W. Tucker Survey – Abstract No. 1096, and the Granville
Kirk Survey – Abstract No. 604 area containing approx. ±103 acres
The following is a plan whereby full municipal services as defined in Section 43.056 of the
Texas Local Government Code will be provided by the City of Midlothian (the “City”) in
territory to be annexed, being approximately ±103 acres of land (the “Annexation Area”) located
adjacent to the present City limits.
Municipal facilities and services will be provided to the Annexation Area at the following levels
and in accordance with the following schedule:
A.
Police Protection:
The City provides municipal police protection to its residents, including routine patrols
throughout the City and law enforcement services upon call. Upon effective date of the
annexation, said services will also be made available to the Annexation Area on the same basis
as they are made available to other parts of the City with land uses and population densities
similar to those reasonably contemplated or projected in the Annexation Area.
B.
Fire Protection and Emergency Medical Services:
The City has full-time firefighter units, under the direction of the Fire Chief, Deputy Fire Chief,
and Fire Marshall, to provide fire protection and emergency medical services. Upon the effective
date of the annexation, said services will also be made available to the Annexation Area on the
same basis as they are made available to other parts of the City with land uses and population
densities similar to those reasonably contemplated or projected in the proposed annexation area.
The existing residents in the Annexation Area already have this service at their disposal since it
is a part of the Emergency Services District #2.
C.
Solid Waste Collection:
The City’s solid waste collection is provided by a private company contracted by the City. Upon
the effective date of the annexation, the City will provide solid waste collection to the
Annexation Area on the same basis as it is made available to other parts of the City with land
uses and population densities similar to those reasonably contemplated or projected in the
Annexation Area. Individual property owners who have an existing contract with private waste
collection providers shall be allowed to continue such service for a period not to exceed 2 years
from the date of the annexation. A City fee for waste collection services shall not be applied to
any such property owner who at the time of annexation utilizes and continues to utilize a private
solid waste collection service. Such prohibition on the application of a City fee shall be
established for a maximum of 2 years from the effective date of annexation. City fees and
prohibitions on solid waste collection may be imposed by the City after said 2-year time period.
D.
Water and Wastewater Service and Maintenance
Water
Routine maintenance of the existing public water system, which is not within the service area of
other water service providers, will begin in the Annexation Area on the same basis as other parts
of the City with land uses and population densities similar to those reasonably contemplated or
projected in the Annexation Area (upon the effective date of annexation). Except, however,
Page 10 of 13
areas served by other water service providers will have their existing service maintained under
that provider’s jurisdiction. Private water lines and mains shall be maintained by their owner(s)
in accordance with City policies applicable throughout the City.
In locations where exclusive rights have been granted to another water utility (e.g., Sardis-Lone
Elm WSC or Mountain Peak SUD), by contract or through a Certificate of Convenience and
Necessity (CCN) for the provision of water service, the City shall petition said water provider for
the extension of said system to serve properties within the annexed land area. Such petition shall
be in accordance with current City policies and the City’s Subdivision Ordinance such that said
properties shall be served to an extent and on the same basis as other parts of the City with
similar topography, land uses, population densities and other applicable criteria.
Where such properties do not fall within the exclusive service area of another water service
provider, service shall be made in conjunction with new development in accordance with the
City’s policies contained in the City’s Subdivision Rules and Regulations, adopted by Ordinance
No. 88-14, as may be amended from time to time. After the installation and dedication of such
improvements, by the relevant property owner, and acceptance by the City, the City shall
maintain said facilities. If no such new development occurs, the City shall extend its water
system to service properties in the Annexation Areas on the same basis as other areas of the City
with topography, land uses and population densities similar to those reasonably contemplated or
projected in the Annexation Area. Any required construction of capital improvements necessary
to meet this objective will begin within two and one-half (2½) years after the effective date of
annexation and be substantially complete within four and one-half (4½) years after that date or in
accordance with applicable law. Appropriate facilities to be constructed shall generally conform
to the water facilities plan.
Wastewater
Wastewater treatment in the Annexation Area, where such facilities exist, is currently provided
by individually owned and maintained on-site systems. Improvements to and extension of the
City’s sewer system, to service the annexed properties, will be made in conjunction with new
development in accordance with City policies and the City’s Subdivision Rules and Regulations,
adopted by Ordinance No. 88-14, as may be amended from time to time, such that construction
of said sewer facilities shall be required by the relevant land owners. After installation and
dedication of such facilities by the relevant property owner and acceptance by the City, the City
shall maintain said facilities.
If no such new development occurs, the City shall extend its sewer system to service properties
in the Annexation Areas on the same basis as other areas of the City with land uses and
population densities similar to those reasonably contemplated or projected in the Annexation
Area. Connections to City sanitary sewer lines and mains will be accomplished in accordance
with City rules and policies applicable to the City in general, and as wastewater collection
systems are extended to this general area. Development within the Annexation Area may initially
be subject to utilization of individually owned and maintained on-site treatment systems.
Wastewater service to the Annexation Area will be provided on the same basis as other areas of
the City with topography, land uses and population densities similar to those reasonably
contemplated or projected in the Annexation Area. Any required construction of capital
improvements necessary to meet this objective will begin within two and one-half (2½) years
after the effective date of annexation and be substantially complete within four and one-half (4
Page 11 of 13
½) years after that date or in accordance with applicable law. Appropriate facilities to be
constructed shall generally conform to the wastewater facilities plan.
The City, may by mutual consent with affected property owners, agree to postpone this schedule
for the provision of capital improvements where both the City and the relevant land owners agree
that such an extension of the City sewer system would not be in the mutual interests of all parties
to such an agreement.
E.
Maintenance of Roads, Streets, and Street Lighting:
Public roads and streets exist within the annexed property. The City shall begin maintenance of
current roads and streets within the Annexation Areas upon the effective date of the annexation.
Such streets and roads shall be maintained in their current condition and shall be included in the
City’s Capital Improvements Plan for upgrading, resurfacing and/or improvement on the same
basis as other areas in the City with topography, land uses and population densities similar to
those reasonably contemplated or projected in the Annexation Area. Any such resurfacing or
upgrade shall be made in accordance with current City policies and adopted Standard
Construction Details or as approved by the City Engineer.
Improvements will be made in conjunction with new development in accordance with City
policies and adopted Standard Construction Details or as approved by the City Engineer, after
installation and dedication of such improvements by the relevant property owner and acceptance
by the City. Future streets within the Annexation Area will be upgraded in accordance with an
approved City of Midlothian Capital Improvements Program and Future Thoroughfare Plan, as
may be amended from time to time, on the same basis as other areas in the City with land uses
and population densities to those reasonably contemplated or projected in the Annexation Area.
F.
Parks, Playgrounds and other Public Recreation Facilities and Services:
Existing public parks, playgrounds, and other public recreation facilities, if any exist and
dedicated to and accepted by the City within the Annexation Area will be maintained in their
present condition by the City upon the effective date of the annexation. Property owners and
residents of the Annexation Area may use the existing public parks, playgrounds, and other
recreation facilities and service of the City on the same basis as other residents of the City.
G.
Public Library Services and Other Publicly Owned Facilities, Buildings and
Services:
Existing public libraries and other publicly owned facilities and buildings, if any exist and
dedicated to and accepted by the City within the Annexation Area, will be maintained in their
residents of the Annexation Area may use the existing public libraries and other publicly owned
facilities, buildings, and services within the City on the same basis as other residents of the City.
H.
General Municipal Administration:
General municipal administration services will be available to the Annexation Area upon the
effective date of the annexation.
This Service Plan provides for full municipal services to the Annexation Area that are adequate
to serve the Annexation Area on the same basis as municipal services are made available to other
parts of the City with land uses and population densities similar to those reasonably contemplated
or projected in the Annexation Area. Further, said municipal services are equal to or greater than
the services and level of such services in existence in the Annexation Area immediately
Page 12 of 13
preceding the effective date of annexation. This Service Plan does not constitute a right to a
superior level of services in the Annexation Area. The City retains its authority to adjust
programs on a city-wide basis to provide more effective services through changes in operating
procedures and standards. The City also retains the authority to adjust services on a city-wide
basis should economic or emergency circumstances dictate. This service plan shall be valid for a
term of 10 years. The service plan shall not be amended unless public hearings are held in
accordance with Section 43.052 of the Local Government Code.
Page 13 of 13
AGENDA CAPTION:
Midlothian, Texas, by the involuntary annexation of ± 112 acres of the land, described herein as
the Annexation Area, in accordance with Chapter 43 of the Texas Local Government Code; lying
in the Robert Hosford Survey - Abstract No. 533, the John Early Survey - Abstract No. 343, and
the Benjamin F. Witherspoon Survey – Abstract No. 1180, generally located at the intersections
of Walnut Grove Road with Walnut Lane and Clancy Lane in the extraterritorial jurisdiction
(ETJ) of the City of Midlothian and adjoining the present city limit boundary lines; providing
that the annexed property shall be subject to the ad valorem taxes levied by the City of
Midlothian and that the inhabitants of the annexed property shall be entitled to all rights and
privileges of all the regulations of the City of Midlothian now in effect and hereinafter adopted;
Annexation Area being fully described in the Exhibits “A & B” and a Service Plan described in
Exhibit “C” attached hereto and made a part of this ordinance; providing a severability clause;
providing for an effective date; and providing for the publication of the caption of this ordinance
(Case No. AX09-2013-124)
RECOMMENDATION:
Staff recommends approval of the attached ordinance, exhibits, and service plan as presented.
History:
In the summer of 2014, the City Council directed staff to begin annexation proceedings for this
Annexation Area. On September 9, 2014, the City Council adopted a resolution to set into
motion the formal involuntary annexation process as required by Chapter 43 of the Texas Local
Government Code. The review process approved is as follows:
1)
First public hearing:
spoke)
2)
Second public hearing:
spoke)
3)
Formal City Council action: *Monday, November 17, 2014 (special-called meeting)
Based on the 20-40 day window in which the public hearings have to be held from the final
adoption of the annexation ordinance, this special-called meeting of the City Council ensures
compliance with Chapter 43 of the Texas Local Government Code. The schedule below followed
all the requirements found in Texas Local Government Code.
Page 1 of 13
Proposed Tracts:
Tracts
Approximate
Acreage
Number
of homes
Robert Hosford Survey - Abstract No. 533
John Early Survey - Abstract No. 343
Benjamin F. Witherspoon Survey – Abstract No. 1180
±112 acres
±35
Service Plan:
The Service Plan for this tract is attached at the end of this item and has been available on the
City website since the first public hearing and becomes effective upon adoption.
Comprehensive Plan:
The Future Land Use Plan designates the Annexation Area as Suburban Module. If annexation is
successful, this area will be zoned Agricultural (A) as stated in Section 3.1 of the Zoning
Ordinance.
CONCLUSION:
This annexation petition meets all legal requirements and is consistent with, and supports, the
goals of the City’s adopted Comprehensive Plan.
Page 2 of 13
LEGAL CONSIDERATIONS:
Texas Local Government Code Chapter 43.052 allows cities to annex land without a Municipal
Annexation Plan (and without the 3-year waiting period) if the tract of land contains fewer than
100 tracts with one or more dwelling units per tract.
Notifications were sent to all affected property owners, the school district, utility providers, and
other public entities on Thursday, September 11, 2014. Per state law, these notifications must be
sent at least 30 days prior to the first public hearing date.
State law also allows cities to annex up to 10% of their area each year. Cities are allowed to
carry over unused annexation provided that no more than 30% may be annexed in any one
calendar year.
Total City Area
Annexation Area:
% of total City Area:
34,245.45 acres (53.50 square miles)
±112 acres (0.160 square miles)
0.30% added by this annexation
ACTION NEEDED:
1.
Approve the annexation ordinance to extend the City limits
2.
Deny the annexation ordinance to extend the City limits
3.
Table this annexation ordinance to another date
RECOMMENDATION (recap):
Staff recommends approval of the attached ordinance and exhibits, as presented.
ATTACHMENTS:
1.
Map Location
2.
Annexation Ordinance with Service Plan
PRESENTED AND REVIEWED BY:
REVIEWED BY:
APPROVED BY:
Page 3 of 13
ATTACHMENT 1
Page 4 of 13
ATTACHMENT 2
ORDINANCE NO. 2014An ordinance extending the municipal boundary limits of the City of Midlothian, Texas, by the
involuntary annexation of ± 112 acres of the land, described herein as the Annexation Area, in
accordance with Chapter 43 of the Texas Local Government Code; lying in the Robert Hosford
Survey - Abstract No. 533, the John Early Survey - Abstract No. 343, and the Benjamin F.
Witherspoon Survey – Abstract No. 1180, generally located at the intersections of Walnut Grove
Road with Walnut Lane and Clancy Lane in the extraterritorial jurisdiction (ETJ) of the City of
Midlothian and adjoining the present city limit boundary lines; providing that the annexed
property shall be subject to the ad valorem taxes levied by the City of Midlothian and that the
inhabitants of the annexed property shall be entitled to all rights and privileges of all the
regulations of the City of Midlothian now in effect and hereinafter adopted; Annexation Area
being fully described in the Exhibits “A & B” and a Service Plan described in Exhibit “C”
attached hereto and made a part of this ordinance; providing a severability clause; providing for
an effective date; and providing for the publication of the caption of this ordinance.
WHEREAS, the City of Midlothian initiated this involuntary annexation consistent with
Texas Local Government Code Chapter 43 for real property described in Exhibit “A” and
generally depicted in Exhibit “B” attached here to; and
WHEREAS, the City Council of the City of Midlothian, Texas did direct the initiation of
support of said annexation; and
WHEREAS, the City Council of the City of Midlothian, Texas (“City Council”) finds that
two public hearings were held before the City Council of the City of Midlothian, Texas where all
interested persons were given an opportunity to be heard on the proposed annexation of the
territory described in Exhibit “A” and graphically represented in Exhibit “B” attached hereto and
made a part hereof by reference (“hereinafter called the “Annexation Area”), and Exhibit C
describes the Service Plan
WHEREAS, the City Council finds that the population of the City of Midlothian, Texas is
approximately 20,540 inhabitants as of January 1, 2014 in accordance with estimates established
by the North Central Texas Council of Governments; and
WHEREAS, the City Council finds that the total corporate area of the City of Midlothian,
Texas is approximately 53.50 sq. mi; and
WHEREAS, the City Council finds compliance with the Texas Local Government Code §
43 and all other applicable annexation laws, setting for municipal services and provisions to
extend such services to the Annexation Area; and
WHEREAS, the City Council finds that the Annexation Area lies within the extraterritorial
jurisdiction of the City of Midlothian, Texas; and
WHEREAS, the City Council finds that the Annexation Area contains approximately ± 112
acres of land; and
Page 5 of 13
WHEREAS, the City Council finds that the Annexation Area is adjacent to and adjoins the
current corporate boundaries of the City of Midlothian, Texas; and
WHEREAS, the City Council finds that the Service Plan was made available for public
inspection and explained to the inhabitants of the Annexation Area at each of the public hearings;
and
WHEREAS, the City Council finds that all legal notices required for annexation have been
given in the time, manner and form provided by law; and
WHEREAS, the City Council finds that it has completed the annexation process in
compliance with the City Charter of the City of Midlothian and with all applicable statutes; and
WHEREAS, the City Council finds that it is beneficial, advantageous and in the public
interest to annex the Annexation Area into the corporate limits of the City of Midlothian, Texas;
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY
OF MIDLOTHIAN, TEXAS:
SECTION 1: The findings of the City Council set forth above are incorporated into the body
of this ordinance as if fully set forth herein.
SECTION 2: The Annexation Area fully described in Exhibits “A & B” is hereby added and
annexed to the City of Midlothian, Texas so that said Annexation Area is within the corporate
limits of the City of Midlothian, Texas
SECTION 3: That from and after the passage of this ordinance the Annexation Area shall be
a part of the City of Midlothian and subject to the ad valorem taxes levied by the City of
Midlothian, and the inhabitants thereof shall be entitled to all rights and privileges of all citizens
of Midlothian and shall be bound by the acts, ordinances, resolutions and regulations of the City
of Midlothian, Texas now in effect and hereinafter adopted.
SECTION 4: Should any part or portion of this ordinance be declared unconstitutional or
invalid by a court of competent jurisdiction, it is expressly provided that any and all remaining
parts or portions of this ordinance shall remain in full force and effect.
SECTION 5: This ordinance shall be effective immediately from and after final publication.
The City Council directs that the caption of this ordinance be published in the manner required
by law and Section 4.07 of the City Charter of Midlothian, Texas.
Page 6 of 13
PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF
MIDLOTHIAN, TEXAS on the 17th day of November, 2014.
APPROVED:
______________________________
Bill Houston, Mayor
ATTEST:
_____________________________
______________________________
Page 7 of 13
Exhibit “A”
Metes and Bounds
Being approximately 112 acres of land lying in the Robert Hosford Survey - Abstract No. 533, the John
Early Survey - Abstract No. 343, and the Benjamin F. Witherspoon Survey – Abstract No. 1180 in Ellis
County, Texas, and being more particularly described as follows:
BEGINNING at the northwest corner of City of Midlothian Ordinance No. 99-48, dated September 14,
1999, being in an easterly line of City of Midlothian Ordinance No. 89-23 (Area “E”), dated August 31,
1989, and being in the west line of S. Walnut Grove Road;
THENCE in a Northerly direction, departing said Ordinance No. 99-48, along said easterly line of
Ordinance No. 89-23 and west line of S. Walnut Grove Road, an approximate distance of 140 feet to an
ell corner of said Ordinance No. 89-23;
THENCE in a Westerly direction, departing said west line of S. Walnut Grove Road, along an interior
line of said Ordinance No. 89-23 and south line of the Copycat Subdivision, an approximate distance of
1,199 feet to another ell corner of said Ordinance No. 89-23, being at the southwest corner of said
Copycat Subdivision;
THENCE in a Northerly direction, along an interior line of said Ordinance No. 89-23 and the west lines
of said Copycat Subdivision and Walnut Grove Estates, an approximate distance of 1,810 feet to another
ell corner of said Ordinance No. 89-23, being at the northwest corner of said Walnut Grove Estates;
THENCE in an Easterly direction, along an interior line of said Ordinance No. 89-23 and the north line
of said Walnut Grove Estates, an approximate distance of 1,181 feet to another ell corner of said
Ordinance No. 89-23, being in the westerly line of City of Midlothian Ordinance No. 2011-07, dated
March 8, 2011, and being in the west line of said S. Walnut Grove Road;
THENCE in a Southerly direction, departing said Ordinance No. 89-23, along said westerly line of
Ordinance No. 2011-07 and said west line of S. Walnut Grove Road, an approximate distance of 356 feet
to an ell corner of said Ordinance No. 2011-07;
THENCE in an Easterly direction, departing said west line of S. Walnut Grove Road, along the southerly
line of said Ordinance No. 2011-07, an approximate distance of 1,700 feet to the northwest corner of City
of Midlothian Ordinance No. 2004-12, dated February 24, 2004;
THENCE in a Southerly direction, departing said southerly line of Ordinance No. 2011-07, along the
westerly line of said Ordinance No. 2004-12, an approximate distance of 1,600 feet to an ell corner of the
aforementioned Ordinance No. 99-48;
THENCE in a Westerly direction, departing said westerly line of Ordinance No. 2004-12, along a
northerly line of said Ordinance No. 99-48, an approximate distance of 1,680 feet to the POINT OF
BEGINNING.
CONTAINING within the metes recited approximately 112 acres (0.174 square miles) of land, more or
less
Page 8 of 13
EXHIBIT “B”
Location Map
Page 9 of 13
SERVICE PLAN FOR PROPOSED INVOLUNTARY ANNEXATION
Robert Hosford Survey - Abstract No. 533, the John Early Survey - Abstract No. 343, and
the Benjamin F. Witherspoon Survey – Abstract No. 1180 area
containing approx. ±112 acres
The following is a plan whereby full municipal services as defined in Section 43.056 of the
Texas Local Government Code will be provided by the City of Midlothian (the “City”) in
territory to be annexed, being approximately ±112 acres of land (the “Annexation Area”) located
adjacent to the present City limits.
Municipal facilities and services will be provided to the Annexation Area at the following levels
and in accordance with the following schedule:
A.
Police Protection:
The City provides municipal police protection to its residents, including routine patrols
throughout the City and law enforcement services upon call. Upon effective date of the
annexation, said services will also be made available to the Annexation Area on the same basis
as they are made available to other parts of the City with land uses and population densities
similar to those reasonably contemplated or projected in the Annexation Area.
B.
Fire Protection and Emergency Medical Services:
The City has full-time firefighter units, under the direction of the Fire Chief, Deputy Fire Chief,
and Fire Marshall, to provide fire protection and emergency medical services. Upon the effective
date of the annexation, said services will also be made available to the Annexation Area on the
same basis as they are made available to other parts of the City with land uses and population
densities similar to those reasonably contemplated or projected in the proposed annexation area.
The existing residents in the Annexation Area already have this service at their disposal since it
is a part of the Emergency Services District #2.
C.
Solid Waste Collection:
The City’s solid waste collection is provided by a private company contracted by the City. Upon
the effective date of the annexation, the City will provide solid waste collection to the
Annexation Area on the same basis as it is made available to other parts of the City with land
uses and population densities similar to those reasonably contemplated or projected in the
Annexation Area. Individual property owners who have an existing contract with private waste
collection providers shall be allowed to continue such service for a period not to exceed 2 years
from the date of the annexation. A City fee for waste collection services shall not be applied to
any such property owner who at the time of annexation utilizes and continues to utilize a private
solid waste collection service. Such prohibition on the application of a City fee shall be
established for a maximum of 2 years from the effective date of annexation. City fees and
prohibitions on solid waste collection may be imposed by the City after said 2-year time period.
D.
Water and Wastewater Service and Maintenance
Water
Routine maintenance of the existing public water system, which is not within the service area of
other water service providers, will begin in the Annexation Area on the same basis as other parts
of the City with land uses and population densities similar to those reasonably contemplated or
projected in the Annexation Area (upon the effective date of annexation). Except, however,
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areas served by other water service providers will have their existing service maintained under
that provider’s jurisdiction. Private water lines and mains shall be maintained by their owner(s)
in accordance with City policies applicable throughout the City.
In locations where exclusive rights have been granted to another water utility (e.g., Sardis-Lone
Elm WSC or Mountain Peak SUD), by contract or through a Certificate of Convenience and
Necessity (CCN) for the provision of water service, the City shall petition said water provider for
the extension of said system to serve properties within the annexed land area. Such petition shall
be in accordance with current City policies and the City’s Subdivision Ordinance such that said
properties shall be served to an extent and on the same basis as other parts of the City with
similar topography, land uses, population densities and other applicable criteria.
Where such properties do not fall within the exclusive service area of another water service
provider, service shall be made in conjunction with new development in accordance with the
City’s policies contained in the City’s Subdivision Rules and Regulations, adopted by Ordinance
No. 88-14, as may be amended from time to time. After the installation and dedication of such
improvements, by the relevant property owner, and acceptance by the City, the City shall
maintain said facilities. If no such new development occurs, the City shall extend its water
system to service properties in the Annexation Areas on the same basis as other areas of the City
with topography, land uses and population densities similar to those reasonably contemplated or
projected in the Annexation Area. Any required construction of capital improvements necessary
to meet this objective will begin within two and one-half (2½) years after the effective date of
annexation and be substantially complete within four and one-half (4½) years after that date or in
accordance with applicable law. Appropriate facilities to be constructed shall generally conform
to the water facilities plan.
Wastewater
Wastewater treatment in the Annexation Area, where such facilities exist, is currently provided
by individually owned and maintained on-site systems. Improvements to and extension of the
City’s sewer system, to service the annexed properties, will be made in conjunction with new
development in accordance with City policies and the City’s Subdivision Rules and Regulations,
adopted by Ordinance No. 88-14, as may be amended from time to time, such that construction
of said sewer facilities shall be required by the relevant land owners. After installation and
dedication of such facilities by the relevant property owner and acceptance by the City, the City
shall maintain said facilities.
If no such new development occurs, the City shall extend its sewer system to service properties
in the Annexation Areas on the same basis as other areas of the City with land uses and
population densities similar to those reasonably contemplated or projected in the Annexation
Area. Connections to City sanitary sewer lines and mains will be accomplished in accordance
with City rules and policies applicable to the City in general, and as wastewater collection
systems are extended to this general area. Development within the Annexation Area may initially
be subject to utilization of individually owned and maintained on-site treatment systems.
Wastewater service to the Annexation Area will be provided on the same basis as other areas of
the City with topography, land uses and population densities similar to those reasonably
contemplated or projected in the Annexation Area. Any required construction of capital
improvements necessary to meet this objective will begin within two and one-half (2½) years
after the effective date of annexation and be substantially complete within four and one-half (4
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½) years after that date or in accordance with applicable law. Appropriate facilities to be
constructed shall generally conform to the wastewater facilities plan.
The City, may by mutual consent with affected property owners, agree to postpone this schedule
for the provision of capital improvements where both the City and the relevant land owners agree
that such an extension of the City sewer system would not be in the mutual interests of all parties
to such an agreement.
E.
Maintenance of Roads, Streets, and Street Lighting:
Public roads and streets exist within the annexed property. The City shall begin maintenance of
current roads and streets within the Annexation Areas upon the effective date of the annexation.
Such streets and roads shall be maintained in their current condition and shall be included in the
City’s Capital Improvements Plan for upgrading, resurfacing and/or improvement on the same
basis as other areas in the City with topography, land uses and population densities similar to
those reasonably contemplated or projected in the Annexation Area. Any such resurfacing or
upgrade shall be made in accordance with current City policies and adopted Standard
Construction Details or as approved by the City Engineer.
Improvements will be made in conjunction with new development in accordance with City
policies and adopted Standard Construction Details or as approved by the City Engineer, after
installation and dedication of such improvements by the relevant property owner and acceptance
by the City. Future streets within the Annexation Area will be upgraded in accordance with an
approved City of Midlothian Capital Improvements Program and Future Thoroughfare Plan, as
may be amended from time to time, on the same basis as other areas in the City with land uses
and population densities to those reasonably contemplated or projected in the Annexation Area.
F.
Parks, Playgrounds and other Public Recreation Facilities and Services:
Existing public parks, playgrounds, and other public recreation facilities, if any exist and
dedicated to and accepted by the City within the Annexation Area will be maintained in their
residents of the Annexation Area may use the existing public parks, playgrounds, and other
recreation facilities and service of the City on the same basis as other residents of the City.
G.
Public Library Services and Other Publicly Owned Facilities, Buildings and
Services:
Existing public libraries and other publicly owned facilities and buildings, if any exist and
dedicated to and accepted by the City within the Annexation Area, will be maintained in their
residents of the Annexation Area may use the existing public libraries and other publicly owned
facilities, buildings, and services within the City on the same basis as other residents of the City.
H.
General Municipal Administration:
General municipal administration services will be available to the Annexation Area upon the
effective date of the annexation.
This Service Plan provides for full municipal services to the Annexation Area that are adequate
to serve the Annexation Area on the same basis as municipal services are made available to other
parts of the City with land uses and population densities similar to those reasonably contemplated
or projected in the Annexation Area. Further, said municipal services are equal to or greater than
the services and level of such services in existence in the Annexation Area immediately
Page 12 of 13
preceding the effective date of annexation. This Service Plan does not constitute a right to a
superior level of services in the Annexation Area. The City retains its authority to adjust
programs on a city-wide basis to provide more effective services through changes in operating
procedures and standards. The City also retains the authority to adjust services on a city-wide
basis should economic or emergency circumstances dictate. This service plan shall be valid for a
term of 10 years. The service plan shall not be amended unless public hearings are held in
accordance with Section 43.052 of the Local Government Code.
Page 13 of 13
AGENDA CAPTION:
Consider and act upon a request to allow on-street parking on George Hopper Road for MidTowne
Pharmacy. Property is currently zoned as Planned Development (PD-42) District and located on
the south side of George Hopper Road ±130 feet west of South 14th Street, in the City of
Midlothian, Texas (M04-2014-10)
RECOMMENDATION:
Staff recommends approval for on-street parking on the south side of George Hopper Road with
the following conditions:
1. All parking stall widths not mentioned in PD-42 shall conform to the City’s NonResidential Parking Regulations.
2. Landscape planting near on-street parking stalls shall be designed to provide unobstructed
visibility, particularly at the intersection of Alex Lane and George Hopper Road.
3. Trees may be permitted in the area mentioned above (#2) provided they are trimmed in
such a manner that no limbs or foliage extends into the visibility area for on-street parking
stalls.
ITEM SUMMARY/BACKGROUND INFORMATION:
Purpose:
The developer of MidTowne is seeking to add nine (9) on-street parking spaces on the south side
of George Hopper Road within PD-42. The angled head-in parking will be adjacent to the
proposed MidTowne Pharmacy and a future retail site.
In 1999, George Hopper Road was approved as a bond project for a 5-lane road between then-U.S.
Highway 287 and FM 663. When MidTowne was approved by City Council in March 2007, the
ordinance allowed for the use of on-street parking; however it required the approval of the City
Engineer. As this plan would require a change in road infrastructure as approved by the voters,
staff determined any on-street parking request was a policy directive that requires City Council
input and action.
On March 8, 2011, City Council approved on-street parking on the north side of George Hopper
Road and left parking on the south side as conceptual for Council action in the future. On October
21, 2014, the Planning and Zoning (P&Z) Commission reviewed the MidTowne Pharmacy site
plan which included proposed on-street parking on George Hopper and approved the plans with
stalls.
Thoroughfare Plan/Transportation/Parking:
As a major collector road, George Hopper requires no additional right-of-way dedication as the
City obtained all the necessary right-of-way in 1999 when it was constructed as a bond-approved
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road. Per Zoning Ordinance Section 4.5607, the minimum stall widths shall be 10 feet. Sidewalks
will also be installed to provide for pedestrian access.
Landscaping:
Staff recommends landscape planting near on-street parking stalls be designed to provide
unobstructed visibility for vehicles exiting on-street stalls and approaching traffic.
RECOMMENDATION:
Staff recommends approval for on-street parking on the south side of George Hopper Road with
stalls.
ATTACHMENTS:
1.
Location Map
3.
Landscape Plan
2.
Site Plan
REVIEWED AND APPROVED BY:
REVIEWED BY:
APPROVED BY:
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ATTACHMENT 1
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ATTACHMENT 2
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ATTACHMENT 3
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AGENDA CAPTION:
Consider a resolution approving the resolution authorizing the issuance of bonds by the Midlothian
Community Development Corporation (first reading; no action required).
This is the first of two readings on a resolution to authorize the issuance of MCDC Sales Tax Revenue
Bonds, the proceeds of which will provide the Mezzanine Loan for the construction of the Courtyard by
Marriott Hotel adjacent to the Midlothian Conference Center. The second reading will take place at the
December 9, 2014 City Council meeting at which time action would be necessary in order to issue the
bonds.
On October 15, 2014, notice of the public hearing and the proposed undertaking of the Project was
published in the Midlothian Mirror, a newspaper of general circulation in the City and a newspaper of
the type described in Section 2051.044 of the Texas Government Code.
SPECIAL CONSIDERATION: N/A
The bonds will be an issuance of the Midlothian Community Development Corporation and paid solely
from the sales tax collections of the MCDC.
ATTACHMENT:
1. Resolution
ALTERNATIVES: Approve, Amend, Table, Deny
RECOMMENDATION: Conduct the first reading of the Resolution but take no action.
Chris Dick, CPA, Interim City Manager for the November 17, 2014 City Council meeting
REVIEWED BY:
APPROVED BY:
RESOLUTION NO. 2014RESOLUTION APPROVING THE RESOLUTION AUTHORIZING THE ISSUANCE OF
BONDS BY THE MIDLOTHIAN COMMUNITY DEVELOPMENT CORPORATION
WHEREAS, Midlothian Community Development Corporation (the "Corporation") was
created under the auspices of the City of Midlothian (the "City") to act on behalf of the City in
accordance with the provisions of Chapter 505, Texas Local Government Code (the "Act"); and
WHEREAS, the Corporation and the City have entered into a Sales Tax Remittance
Agreement dated as of December 1, 2001 (the "Remittance Agreement"), pursuant to which the City
agreed to collect an economic development sales and use tax approved by the voters of the City at an
election held August 8, 1998 (defined in the Remittance Agreement as the "Economic Development
Sales Tax"), which Economic Development Sales Tax is pledged to bonds issued by the Corporation
including, without limitation, the bonds hereinafter described; and
WHEREAS, the Corporation desires to issue bonds, secured by the sales tax approved by the
voters of the City at an election held for such purpose on August 8, 1998, to finance the construction
of a hotel on approximately 1.83 acres of land located within the City (the "Project"), under authority
of Section 505.158 of the Act; and
WHEREAS, Section 505.159 of the Act requires a public hearing be held before the
Corporation may spend money on a project in excess of $10,000; and
WHEREAS, Section 505.160 of the Act authorizes the Corporation to undertake the Project
unless, not later than the 60th day after the date notice of the project is first published, the governing
body of the City receives a petition from more than 10 percent of the registered voters of the City
requesting that an election be held before the Project is undertaken; and
WHEREAS, on October 15, 2014, notice of the public hearing and the proposed undertaking
of the Project was published in the Midlothian Mirror, a newspaper of general circulation in the City
and a newspaper of the type described in Section 2051.044 of the Texas Government Code; and
WHEREAS, it is deemed necessary and advisable that this Resolution be adopted.
THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
MIDLOTHIAN THAT:
Section 1. The resolution (the "Resolution") adopted by the Corporation, in substantially the
form and substance as attached to this Resolution and made a part hereof for all purposes, is hereby
approved, and sales tax revenue bonds in an aggregate principal amount not to exceed $4,400,000
(the "Bonds"), may be issued for the purpose of funding the Project; and the Resolution and the
issuance of the Bonds for such purpose is hereby approved.
Section 2. The City hereby affirms its obligations under the Remittance Agreement to collect
and transfer to the Corporation the Economic Development Sales Tax for so long as the Bonds and
any Parity Bonds (as defined in the Resolution) remain outstanding and unpaid.
Section 3. This Resolution has been read twice at meetings of the City Council, the first
reading occurring on November 17, 2014 and the second reading occurring on December 9, 2014.
Notice of each meeting at which a reading of this Resolution occurred was provided to each
Councilmember and posted in accordance with the provisions of Chapter 551 of the Texas
Government Code (the "Texas Open Meetings Act").
Section 4. This Resolution shall be effective immediately upon its adoption; provided, that in
no event shall the Corporation proceed with the delivery of the Bonds to provide funds for
undertaking the Project if on or before December 15, 2014, the City receives a petition signed by
more than 10 percent of the registered voters of the City requesting that an election be held before
the Project is undertaken.
SIGNED AND SEALED the 9th day of December, 2014.
_________________________
SEAL
___________________________
Bill Houston, Mayor
AGENDA CAPTION:
Consider and act upon the First Amendment to the Hotel Development Agreement.
Since approval of the original Hotel Development Agreement (HDA) several items have come up which
require an amendment to the agreement. The first of which is a requirement by Marriott that the Owner
grant to Approved Franchisor a second-priority lien on the Hotel Site, the Hotel and fixtures and
equipment therein to secure Owner’s potential obligations to Approved Franchisor for unpaid franchise
fees, marketing fund fees, reimburseables, termination for liquidated damages and attorneys’ fees due
under the Franchise Agreement in the event of a default thereunder up to a maximum amount of
$2,000,000. This provision makes the MCDC subordinate to Marriott in the event of a default. Another
item is the extension of the “Required Site Transfer Date” from December 1 to December 31 to
accommodate the closing of the bond sale. In addition, the amount of the Mezzanine Loan is being
increased from $4,000,000 to $4,290,726. The original $4,000,000 amount in the HDA was based on the
amount of the bond issuance being discussed at the time and not the actual hotel budget.
SPECIAL CONSIDERATION: N/A
FINANCIAL IMPACT/FUNDING SOURCE: N/A
ATTACHMENT:
1. First Amendment to Hotel Development Agreement
2. First Amendment to Hotel Development Agreement – Section Analysis Redline Version
3. First Amendment to Hotel Development Agreement – Section Analysis Clean Version
4. Hotel Development Agreement as adopted August 26, 2014
RECOMMENDATION: Approve the First Amendment to the Hotel Development Agreement as
presented.
Tami Tobey, MCDC President for the November 17, 2014 City Council meeting
REVIEWED BY:
APPROVED BY:
FIRST AMENDMENT TO HOTEL DEVELOPMENT AGREEMENT
This FIRST AMENDMENT TO HOTEL DEVELOPMENT AGREEMENT ("Amendment") is
made and entered into effective as of __________, 2014 by and among THE CITY OF
MIDLOTHIAN, TEXAS, a municipal corporation organized and existing pursuant to the laws of the
State of Texas (the “City”); MIDLOTHIAN COMMUNITY DEVELOPMENT CORPORATION,
a Texas nonprofit corporation (“MCDC”); GATEHOUSE MIDLOTHIAN OWNERSHIP, LLC,
a Texas limited liability company (“Owner”); GATEHOUSE MIDLOTHIAN
DEVELOPMENT, LLC, a Texas limited liability company (“Developer”); and MAURICE P.
COLLINS, JR., an individual (“Collins”).
RECITALS
A.
City, MCDC, Owner, and Developer are parties to that certain Hotel Development
Agreement dated effective as of August 26, 2014 (the "Agreement"), relating to the development of the
Hotel on the Hotel Site. Except as otherwise expressly provided for herein, capitalized terms used herein
shall have the same meanings as set forth in the Agreement.
B.
As a condition to granting the franchise under the Franchise Agreement to Owner for the
Hotel, Approved Franchisor has required that (i) Owner grant to Approved Franchisor a second-priority
lien on the Hotel Site, the Hotel and fixtures and equipment therein to secure Owner’s potential
obligations to Approved Franchisor for unpaid franchise fees, marketing fund fees, reimburseables,
termination for liquidated damages and attorneys’ fees due under the Franchise Agreement in the event of
a default thereunder up to a maximum amount of $2,000,000.00 (the “Franchisor Lien”), (ii) Collins
execute and deliver a guaranty of all other amounts due under the Franchise Agreement and not covered
by the Franchisor Lien (the “Collins Franchise Guaranty”), and (iii) MCDC and Construction Lender (as
hereinafter defined) enter into an intercreditor agreement with respect to Mezzanine Loan and
Construction Loan and Approved Franchisor’s rights and remedies under the Franchise Lien (the
“Franchisor Intercreditor Agreement”; together with the Franchisor Lien and the Collins Guaranty, the
“Franchisor Security Documents”).
C.
The parties desire to amend the Agreement as provided herein.
AGREEMENT:
NOW THEREFORE, in consideration of the mutual covenants and agreements contained
herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties hereby agree as follows:
1.
Franchise Security Documents. On or before the Required Site Transfer Date, (a) Owner
agrees to execute and deliver, for the benefit of Approved Franchisor, the Franchisor Lien in a form and
substances reasonably acceptable to Owner, the City Parties and Citizens National Bank of Texas or a
replacement bank reasonably acceptable to Owner and City making the Construction Loan (the
“Construction Lender”), (b) Collins agrees to execute and deliver, for the benefit of Approved
Franchisor, the Collins Franchise Guaranty in a form and substance reasonably acceptable to Collins and
Approved Franchisor, and (c) MCDC agrees to execute and deliver, for the benefit of Approved
Franchisor, the Franchisor Intercreditor Agreement in a form and substance reasonably acceptable to
MCDC, Construction Lender and Approved Franchisor. The City Parties hereby consent to Owner
granting the Franchisor Lien in favor of Approved Franchisor.
First Amendment to Hotel Development Agreement
Midlothian Courtyard Hotel
1
2.
Required Site Transfer Date. The definition of “Required Site Transfer Date” in Section
1.1 is hereby amended to delete “December 1, 2014” and replace such deletion with “December 31,
2014.”
3.
Site Transfer Conditions. The following item is hereby added at the end of the definition
of “Site Transfer Conditions” in Section 1.1:
“and (k) the Franchisor Security Documents have been executed and delivered by
MCDC, Construction Lender, Owner, and Collins to Approved Franchisor.”
4.
Mezzanine Loan. The Parties hereby acknowledge and agree that, notwithstanding the
provisions of Section 5.1 of the Agreement, the amount of the Mezzanine Loan shall be $4,290,726.00
and that the Mezzanine Loan will be fully advanced prior to any advance of the Construction Loan by
Construction Lender.
5.
Right of Reverter in favor of MCDC. The Parties hereby acknowledge and agree that (a)
the grantor of the deed transferring title to the Hotel Site to Owner and the beneficiary of the right of
reverter in such deed as described in Section 2.3.2 is MCDC and not the City, and (b) the right of reverter
in favor of MCDC contained in such deed shall be subordinate to the rights and remedies of (i) the
Construction Lender under its deed of trust securing the Construction Loan and (ii) Approved Franchisor
under the Franchisor Lien. Subject to the foregoing acknowledgement, Section 2.3.2 is hereby deleted in
its entirety and replaced with the following:
2.3.2 Subject to Force Majeure, if (i) Owner purchases the Hotel Site but the Developer Parties
fail to satisfy the requirement of Section 2.3.1 above by the Required Commencement Date or fail
to meet any of the construction milestones set forth on Exhibit "F" hereto, or cease progress of
the Site Work or Construction Work for fifteen (15) Business Days or more within any 45-day
period, and (ii) the Developer Parties and Construction Lender fail to cure such failure within one
hundred twenty (120) days following written notice to the Developer Parties and Construction
Lender from the City Parties, and (iii) during the term of the Construction Loan, the Construction
Lender has not undertaken or is not undertaking good faith efforts to cure, foreclose its interest,
and/or become a Transferee, then the City Parties shall have the option to Terminate this
Agreement, in which case: (a) MCDC may exercise the right of reverter contained in the deed
conveying the Hotel Site to Owner; and (b) the City and MCDC shall have the rights and
remedies set forth in Section 7.2.2.
6.
Right of Reverter in favor of the City. The Parties hereby acknowledge and agree that (a)
the Special Warranty Deed dated May 24, 2012, transferring title to the Hotel Site from the City to
MCDC and recorded in Volume 2631 at page 86 of the Official Public Records of Ellis County, Texas,
contains a right of reverter in favor of the City in Section 1 of such deed (the “City Right of Reverter”),
and (b) the City Right of Reverter shall be subordinate to the rights and remedies of (i) the Construction
Lender under its deed of trust securing the Construction Loan and (ii) Approved Franchisor under the
Franchisor Lien.
7.
Permitted Assignment by the Developer Parties. The Parties hereby acknowledge and
agree that the Collateral Assignment described in Section 8.5 is superior to and not affected by the
limitation of the rights of the Developer Parties to assign their rights, titles, interests, or obligations under
this Agreement to any third party as described in Section 6.2.2.
8.
Mortgagee as Transferee. The following language is hereby added at the end of Section
6.2.4: "When and if Mortgagee acquires the interest of Owner or Developer in the Project encumbered by
2
a Mortgage or Collateral Assignment, such Mortgagee may become a Transferee by delivering written
notice to the Parties within thirty (30) days of Mortgagee's acquisition of such interest."
9.
Notice of Default to Mortgagee. The Parties agree that any and all Notices of Default
shall be sent to Mortgagee, irrespective of whether Mortgagee has sent a Notice Request to the Parties.
This provision shall override any conflicting portions of Section 8.3.
10.
Form of Special Warranty Deed. The parties agree that the form of deed conveying the
Hotel Site from MCDC to Owner to be delivered by MCDC in accordance with the terms of the
Agreement on or before the Required Site Transfer Date is attached hereto as Schedule 1.
11.
Form of Comfort Letter. The parties agree that the form of comfort letter from Approved
Franchisor attached hereto as Schedule 2 is acceptable to and approved by the City Parties and hereby
replaces the form of comfort letter attached to the Agreement as Exhibit “C”.
12.
Form of Memorandum of Agreement. The form of Memorandum of Agreement attached
to the Agreement as Exhibit “H” is hereby replaced with the form of Memorandum of Agreement
attached hereto as Schedule 2.
13.
Ratification of Agreement. Except as expressly modified hereby, the Agreement shall
remain in full force and effect.
14.
Counterparts; Facsimile and Electronic Execution. This Amendment may be executed in
one or more counterparts (including facsimile and electronic counterparts), each of which shall be deemed
an original for all purposes, and all such counterparts together shall constitute one and the same
instrument. In making proof of this Amendment, it shall not be necessary to produce or account for more
than one such counterpart. This Amendment may be executed by facsimile or e-mail, and a facsimile
signature (or signature transmitted by e-mail) shall constitute an original signature, and executed facsimile
or e-mail counterparts (or copies thereof) shall each be treated as an original.
[Signature page follows.]
3
IN WITNESS WHEREOF, this Amendment is executed effective as of the date first written
above.
CITY:
THE CITY OF MIDLOTHIAN, TEXAS,
a municipal corporation
By:
Name:
Its:
MCDC:
MIDLOTHIAN COMMUNITY DEVELOPMENT
CORPORATION,
a Texas nonprofit corporation
By:
Name:
Its:
DEVELOPER:
GATEHOUSE MIDLOTHIAN DEVELOPMENT,
LLC,
a Texas limited liability company
By:
Name: Maurice P. Collins, Jr.
Its:
Manager
OWNER:
GATEHOUSE MIDLOTHIAN OWNERSHIP, LLC,
By:
Its:
Manager
COLLINS:
(solely with respect to Section 1(b))
MAURICE P. COLLINS, JR., an individual
Signature Page
SCHEDULE 1
FORM OF SPECIAL WARRANTY DEED
NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY
REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM ANY
INSTRUMENT THAT TRANSFERS AN INTEREST IN REAL PROPERTY BEFORE IT IS
FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER
OR YOUR DRIVER’S LICENSE NUMBER.
SPECIAL WARRANTY DEED
THE STATE OF TEXAS
COUNTY OF ELLIS
§
§
§
KNOW ALL PERSONS BY THESE PRESENTS:
THIS SPECIAL WARRANTY DEED (this “Deed”) is made as of the ____ day of __________,
2014, by MIDLOTHIAN COMMUNITY DEVELOPMENT CORPORATION, a Texas non-profit
corporation (hereinafter referred to as “Grantor”) to GATEHOUSE MIDLOTHIAN OWNERSHIP,
LLC, a Texas limited liability company (hereinafter referred to as “Grantee”).
IN CONSIDERATION of the sum of Ten Dollars ($10.00) and other good and valuable
consideration paid by Grantee to Grantor, the receipt and sufficiency of which are hereby acknowledged,
Grantor has sold, conveyed and granted and does hereby sell, convey and grant unto Grantee, its
successors and assigns, with special warranty, that certain property lying and being situated in Ellis
County, Texas, and described on Exhibit A attached hereto and incorporated herein by reference,
together with all improvements thereon, as well as all development rights, land use entitlements,
including without limitation, air rights, water, water rights, wastewater and other utility commitments,
allocations, and permits, and related rights appurtenant to the land, if any, and all of Grantor’s right, title
and interest as of the date hereof in and to: (a) all privileges, rights, easements and appurtenances
belonging to such land; (b) all streets, alleys, passages and other rights-of-way or appurtenances; (c) any
strips or gores of land between such land, included in and adjacent to said property (collectively, the
“Property”), subject, however, to the exceptions and reservations set forth below;
Grantee assumes all liability for and shall pay all taxes due for the Property for the year 2014 and
all subsequent years.
To have and to hold the premises aforesaid with all and singular, the rights, privileges,
appurtenances and immunities thereto belonging or in any wise appertaining unto Grantee and Grantee’s
successors and assigns forever. Grantor shall warrant specially and defend the title to said premises unto
the said Grantee and unto Grantee’s successors and assigns forever, against the lawful claims and
demands of all persons claiming by, under or through Grantor, but not otherwise, subject however, to
(i) the Permitted Encumbrances (herein so called) described on Exhibit B attached hereto and expressly
made a part hereof, and (ii) a possibility of reverter hereby retained in favor of Grantor pursuant to which
the conveyance hereunder may be declared to be void and the estate granted shall be terminated and
forfeited, without the necessity of any notice (except as expressly provided in that certain Hotel
Development Agreement between Grantor, Grantee, the City of Midlothian, Texas, and Gatehouse
Midlothian Development, LLC dated August 26, 2014 (as amended, the “HDA”)), election or re-entry
whatsoever, in the event Grantee or the Developer Parties (as defined in the HDA) fail to comply with
Section 2.3.2 of the HDA, the provisions of which are incorporated herein by this reference. Upon the
election of Grantor to effect such possibility of reverter, all right, title and interest in and to the Property
Sch. 1-1
and all improvements then existing thereon conveyed hereby shall automatically revert to Grantor or
Grantor’s successors and assigns. It is the express intention of Grantor and Grantee that Grantor is
conveying to Grantee an estate in fee simple determinable in and to the Property and that the provisions of
this paragraph shall constitute conditional limitations upon the estate such that fee simple title to the
Property, together with improvements then existing thereon, shall automatically revert to Grantor or
Grantor’s successors and assigns, and no notice (except as expressly provided in the HDA), election, or
re-entry upon the Property shall be required to vest title to the Property and all improvements then
existing thereon, in Grantor or Grantor’s successors and assigns. Except as provided in the HDA, neither
the occurrence of a condition due to an act or failure to act by a third party, nor impossibility or inability
of Grantee to prevent the occurrence of a condition, shall excuse such occurrence or condition or prevent
the termination of the determinable fee estate conveyed hereby. Upon Substantial Completion (as defined
in the HDA) of the Hotel Complex (as defined in the HDA) in accordance with the HDA, Grantor’s
possibility of reverter retained herein shall automatically expire and at Grantee’s request, Grantor agrees
to record an instrument evidencing as such in the Official Records of Ellis County, Texas.
Notwithstanding anything contained to the contrary, Grantor’s right to effect the possibility of reverter
herein shall at all times be subject to the rights a Mortgagee (as defined in the HDA) to cure Grantee’s
defaults under Section 2.3.2 of the HDA as provided in Article VIII of the HDA.
[SIGNATURE PAGE FOLLOWS]
Sch. 1-2
IN WITNESS WHEREOF, Grantor has caused this Deed to be executed and delivered as of the
date first written above.
GRANTOR:
MIDLOTHIAN COMMUNITY DEVELOPMENT
CORPORATION,
a Texas non-profit corporation
By: ___________________________
Name: _________________________
Its:____________________________
STATE OF TEXAS
COUNTY OF ELLIS
§
§
§
This instrument was acknowledged before me on this ___ day of _____________, 2014, by
______________, the ___________ of Midlothian Community Development Corporation, a Texas nonprofit corporation, on behalf of said corporation.
Notary Public, State of Texas
My Commission Expires:
(Notary Seal)
After Recording, Return to:
Sch. 1-3
EXHIBIT “A”
[TO BE INSERTED AT THE REQUIRED SITE TRANSFER DATE]
Sch. 1-4
EXHIBIT “B”
Sch. 1-4
SCHEDULE 2
FORM OF COMFORT LETTER
[SEE ATTACHED]
Sch. 2-1
SCHEDULE 3
FORM OF MEMORANDUM OF AGREEMENT
MEMORANDUM OF HOTEL DEVELOPMENT AGREEMENT
STATE OF TEXAS
COUNTY OF ELLIS
§
§
§
THIS MEMORANDUM OF HOTEL DEVELOPMENT AGREEMENT (this
“Memorandum”) is executed to be effective as of August 26, 2014 (the “Effective Date”) by and
between THE CITY OF MIDLOTHIAN, TEXAS, a municipal corporation organized and
existing pursuant to the laws of the State of Texas (the “City”), MIDLOTHIAN COMMUNITY
DEVELOPMENT CORPORATION, a Texas non-profit corporation (“MCDC”), GATEHOUSE
MIDLOTHIAN OWNERSHIP, LLC, a Texas limited liability company (“Owner”); and
GATEHOUSE MIDLOTHIAN DEVELOPMENT, LLC, a Texas limited liability company
(“Developer”).
W I T N E S S E T H:
WHEREAS, the City, MCDC, Owner and Developer have entered into that certain Hotel
Development Agreement dated August 26, 2014, as amended by First Amendment to Hotel
Development Agreement dated __________, 2014 (“HDA”) covering and describing that certain
Hotel Site (as defined in the HDA) which is part of the real property described in the attached
Exhibit A;
NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS THAT:
D.
The City, MCDC, Owner and Developer have agreed on the terms and conditions
set forth in the HDA regarding the purchase and sale, ownership, development of the Hotel Site
and other matters affecting and related to the Hotel Site and the respective rights and obligations
of the parties to the HDA with respect thereto. The HDA is hereby incorporated herein by
reference as fully and for all purposes as if set forth in this Memorandum in its entirety.
E.
The initial term of the HDA is twenty (20) years, commencing on August 26,
2014. The term of the HDA may be extended under certain terms and conditions as provided
therein.
F.
Certain terms of the HDA burden the Hotel Site for the term of the HDA.
G.
More information concerning the HDA can be obtained from the City, MCDC,
Owner and Developer at the following addresses:
THE CITY:
The City of Midlothian, Texas
104 West Avenue E
Sch. 3-7
Midlothian, Texas 76065
Attn: City Manager
MCDC:
Midlothian Community Development Corporation
104 West Avenue E
Attn: Chairman
OWNER OR DEVELOPER:
Gatehouse Midlothian Ownership, LLC
Gatehouse Midlothian Development, LLC
1501 Dragon Street, Suite 101
Dallas, Texas 75207
Attn: Marty Collins
H.
This Memorandum is executed by the City, MCDC, Owner and Developer for the
sole purpose of evidencing of record the existence of the HDA and shall not alter, affect, amend
or change any term or provision of the HDA.
I.
This Memorandum may be executed in multiple counterparts, each of which shall
be deemed an original.
IN WITNESS WHEREOF, the parties have executed this Memorandum to be effective as
of the Effective Date.
[Signatures Appear on Next Pages]
Sch. 3-7
CITY:
By:
Name:
Its:
STATE OF TEXAS
§
COUNTY OF ELLIS
§
This instrument was acknowledged before me on this _____ day of ___________, 2014,
by _______________, the _______________ of The City of Midlothian, Texas, a municipal
corporation, on behalf of such municipal corporation.
My Commission Expires: __________
Sch. 3-7
MCDC:
MIDLOTHIAN COMMUNITY
DEVELOPMENT CORPORATION,
By: ______________________________________
Name: ___________________________________
Its: ______________________________________
STATE OF TEXAS
§
COUNTY OF ________
§
by _______________, the _______________ of Midlothian Community Development
Corporation, a Texas non-profit corporation, on behalf of said corporation.
Sch. 3-7
DEVELOPER:
GATEHOUSE MIDLOTHIAN
DEVELOPMENT, LLC,
By:
Its:
Manager
STATE OF TEXAS
§
COUNTY OF ____
§
by Maurice P. Collins, Jr., the Manager of Gatehouse Midlothian Development, LLC, a Texas
limited liability company, on behalf of such limited liability company.
Sch. 3-7
OWNER:
GATEHOUSE MIDLOTHIAN OWNERSHIP,
LLC,
By:
Its:
Manager
STATE OF TEXAS
§
COUNTY OF _____
§
by Maurice P. Collins, Jr., the Manager of Gatehouse Midlothian Ownership, LLC, a Texas
limited liability company, on behalf of said limited liability company.
Sch. 3-7
EXHIBIT A
Sch. 3-7
First Amendment to Hotel Development Agreement – Changes
SECTION 1 – FRANCHISE SECURITY DOCUMENTS (NEW)
SECTION 2 – DEFINITION OF REQUIRED TRANSFER DATE
“Required Site Transfer Date” means December 1,31, 2014, which date shall be subject to
extension due to delays caused by Force Majeure events.
SECTION 3 – DEFINITION OF SITE TRANSFER CONDITIONS
“Site Transfer Conditions” collectively means all of the following conditions: (a) Developer
has delivered to the City and MCDC an executed Construction Contract for the construction of
the Hotel Complex; (b) Developer has delivered to the City and MCDC a copy of the duly issued
Construction Payment Bond for the construction of the Hotel Complex; (c) the Developer
Parties have delivered to the City Parties a fully executed Construction Loan Agreement from
Citizens National Bank of Texas (or a replacement bank reasonably acceptable to Owner and
City) committing to fund an amount which equals all of the Hotel Development Costs not to be
covered by advances on the Mezzanine Loan (the “Construction Loan”), with an interest rate
not to exceed 4.25% per annum, payable in equal monthly payments based on a 30-year
amortization with a 20-year balloon; (d) the Intercreditor Agreement has been delivered to the
City Parties; (e) the Franchise Agreement has been delivered to the City Parties; (f) an
acceptable comfort letter (attached hereto as Exhibit “C” is a form acceptable to City Parties)
from the franchisor under the Franchise Agreement has been delivered to the City Parties; (g)
the Approved Budget has been delivered to the City Parties; (h) the City Parties have received
the Hotel Management Agreement; (i) the Approved Plans for the Site Work have been
received by the City Parties; and (j) the Developer Parties have demonstrated to the City
Parties, through budgeted reserves, coverage of anticipated operating net revenue shortfalls for
the first two-years of operation of the Hotel; and (k) the Franchisor Security Documents have
been executed and delivered by MCDC, Construction Lender, Owner, and Collins to Approved
Franchisor.
SECTION 4 – INCREASE IN MEZZANINE LOAN AMOUNT (SECTION 5.1)
MCDC shall extend a loan to Owner in the amount of up to $4,000,000.004,290,726.00 to be
advanced to pay Hotel Development Costs as they are actually incurred. Advances on such
loan shall bear interest at a rate of two percent (2%) per annum until repaid and the entire
principal amount of the loan shall be due and payable ten (10) years after the date hereof. The
obligation of Owner to repay the note shall be represented by a promissory note executed by
Owner and delivered to MCDC of even date herewith.
From Amendment: “the Mezzanine Loan will be fully advanced prior to any advance of the
Construction Loan by Construction Lender”
SECTION 5 – RIGHT OF REVERTER IN FAVOR OF MCDC (SECTION 2.3.2)
Subject to Force Majeure, if (i) Owner purchases the Hotel Site but the Developer Parties fail to satisfy
the requirement of Section 2.3.1 above by the Required Commencement Date or failsfail to meet any of
the construction milestones set forth on Exhibit “"F”" hereto, or ceasescease progress of the Site Work or
Construction Work for fifteen (15) Business Days or more within any 45-day period, and (ii) the
Developer Parties and Construction Lender fail to cure such failure within sixty (60one hundred twenty
(120) days following written notice from the City Parties, then the City Parties, acting through the City,to
the Developer Parties and Construction Lender from the City Parties, and (iii) during the term of the
Construction Loan, the Construction Lender has not undertaken or is not undertaking good faith efforts to
cure, foreclose its interest, and/or become a Transferee, then the City Parties shall have the option to
Terminate this Agreement, in which case: (a) the CityMCDC may exercise the right of reverter
contained in the deed conveying the Hotel Site to Owner; and (b) the City and MCDC shall have the
rights and remedies set forth in Section 7.2.2.
SECTION 6 – RIGHT OF REVERTER IN FAVOR OF CITY (NEW)
SECTION 7 – PERMITTED ASSIGNMENT BY DEVELOPER PARTIES (NEW)
SECTION 8 – MORTGAGEE AS TRANSFEREE (SECTION 6.2.4)
Mortgagee as Transferee. The Senior Mortgage and any refinancing thereof that does not increase the
principal amount of indebtedness, shall not constitute a Transfer. When and if Mortgagee acquires the
interest of Owner or Developer in the Project encumbered by a Mortgage or Collateral Assignment, such
Mortgagee may become a Transferee by delivering written notice to the Parties within thirty (30) days of
Mortgagee's acquisition of such interest.
SECTION 9 – NOTICE OF DEFAULT TO MORTGAGEE (NEW)
SECTION 10 – FORM OF SPECIAL WARRANTY DEED (NEW)
SECTION 11 – FORM OF COMFORT LETTER
SECTION 12 – FORM OF MEMORANDUM OF AGREEMENT
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Development Agreement - Section analysis
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Development Agreement - Section analysis
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First Amendment to Hotel Development Agreement – Changes
SECTION 1 – FRANCHISE SECURITY DOCUMENTS (NEW)
SECTION 2 – DEFINITION OF REQUIRED TRANSFER DATE
“Required Site Transfer Date” means December 31, 2014, which date shall be subject to
SECTION 3 – DEFINITION OF SITE TRANSFER CONDITIONS
has delivered to the City and MCDC an executed Construction Contract for the construction of
the Hotel Complex; (b) Developer has delivered to the City and MCDC a copy of the duly issued
Construction Payment Bond for the construction of the Hotel Complex; (c) the Developer Parties
have delivered to the City Parties a fully executed Construction Loan Agreement from Citizens
National Bank of Texas (or a replacement bank reasonably acceptable to Owner and City)
committing to fund an amount which equals all of the Hotel Development Costs not to be
covered by advances on the Mezzanine Loan (the “Construction Loan”), with an interest rate not
to exceed 4.25% per annum, payable in equal monthly payments based on a 30-year
amortization with a 20-year balloon; (d) the Intercreditor Agreement has been delivered to the
City Parties; (e) the Franchise Agreement has been delivered to the City Parties; (f) an
acceptable comfort letter (attached hereto as Exhibit “C” is a form acceptable to City Parties)
from the franchisor under the Franchise Agreement has been delivered to the City Parties; (g)
the Approved Budget has been delivered to the City Parties; (h) the City Parties have received
the Hotel Management Agreement; (i) the Approved Plans for the Site Work have been received
by the City Parties; and (j) the Developer Parties have demonstrated to the City Parties, through
budgeted reserves, coverage of anticipated operating net revenue shortfalls for the first twoyears of operation of the Hotel; and (k) the Franchisor Security Documents have been executed
and delivered by MCDC, Construction Lender, Owner, and Collins to Approved Franchisor.
SECTION 4 – INCREASE IN MEZZANINE LOAN AMOUNT (SECTION 5.1)
MCDC shall extend a loan to Owner in the amount of up to $4,290,726.00 to be advanced to
pay Hotel Development Costs as they are actually incurred. Advances on such loan shall bear
interest at a rate of two percent (2%) per annum until repaid and the entire principal amount of
the loan shall be due and payable ten (10) years after the date hereof. The obligation of Owner
to repay the note shall be represented by a promissory note executed by Owner and delivered
to MCDC of even date herewith.
From Amendment: “the Mezzanine Loan will be fully advanced prior to any advance of the
Construction Loan by Construction Lender”
SECTION 5 – RIGHT OF REVERTER IN FAVOR OF MCDC (SECTION 2.3.2)
Subject to Force Majeure, if (i) Owner purchases the Hotel Site but the Developer Parties fail to
satisfy the requirement of Section 2.3.1 above by the Required Commencement Date or fail to
meet any of the construction milestones set forth on Exhibit "F" hereto, or cease progress of the
Site Work or Construction Work for fifteen (15) Business Days or more within any 45-day period,
and (ii) the Developer Parties and Construction Lender fail to cure such failure within one
hundred twenty (120) days following written notice to the Developer Parties and Construction
Lender from the City Parties, and (iii) during the term of the Construction Loan, the Construction
Lender has not undertaken or is not undertaking good faith efforts to cure, foreclose its interest,
and/or become a Transferee, then the City Parties shall have the option to Terminate this
Agreement, in which case: (a) MCDC may exercise the right of reverter contained in the deed
conveying the Hotel Site to Owner; and (b) the City and MCDC shall have the rights and
remedies set forth in Section 7.2.2.
SECTION 6 – RIGHT OF REVERTER IN FAVOR OF CITY (NEW)
SECTION 7 – PERMITTED ASSIGNMENT BY DEVELOPER PARTIES (NEW)
SECTION 8 – MORTGAGEE AS TRANSFEREE (SECTION 6.2.4)
Mortgagee as Transferee. The Senior Mortgage and any refinancing thereof that does not
increase the principal amount of indebtedness, shall not constitute a Transfer. When and if
Mortgagee acquires the interest of Owner or Developer in the Project encumbered by a
Mortgage or Collateral Assignment, such Mortgagee may become a Transferee by delivering
written notice to the Parties within thirty (30) days of Mortgagee's acquisition of such interest.
SECTION 9 – NOTICE OF DEFAULT TO MORTGAGEE (NEW)
SECTION 10 – FORM OF SPECIAL WARRANTY DEED (NEW)
SECTION 11 – FORM OF COMFORT LETTER
SECTION 12 – FORM OF MEMORANDUM OF AGREEMENT
HOTEL DEVELOPMENT AGREEMENT
by and among
THE CITY OF MIDLOTHIAN, TEXAS, a
municipal corporation
and
MIDLOTHIAN COMMUNITY DEVELOPMENT CORPORATION,
and
GATEHOUSE MIDLOTHIAN OWNERSHIP, LLC,
and
GATEHOUSE MIDLOTHIAN DEVELOPMENT, LLC,
i_5803584v.8
This Hotel Development Agreement (this “Agreement”) is entered into by and among
THE CITY OF MIDLOTHIAN, TEXAS, a municipal corporation organized and existing pursuant
to the laws of the State of Texas (the “City”); MIDLOTHIAN COMMUNITY DEVELOPMENT
CORPORATION, a Texas nonprofit corporation (“MCDC”); GATEHOUSE MIDLOTHIAN
OWNERSHIP, LLC, a Texas limited liability company (“Owner”); and GATEHOUSE
MIDLOTHIAN DEVELOPMENT, LLC, a Texas limited liability company (“Developer”).
RECITALS
A.
MCDC is the owner of approximately one and eighty-three one-hundreds (1.83) acres
of real property at the location shown on the conceptual site plan that is attached as Exhibit “A” to the
(the “Hotel Site”).
B.
Owner desires to acquire the Hotel Site from MCDC and to engage Developer to
construct thereon the Hotel, as more particularly described herein.
C.
MCDC is agreeable to making a Mezzanine Loan to Owner to provide funds for the
development of a Hotel on the terms described herein.
THEREFORE, pursuant to the authority granted to the City under the Laws, and in
consideration of the foregoing recitals and the mutual covenants and promises of the City,
MCDC, Owner, and Developer set forth in this Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the City, MCDC,
Owner, and Developer hereby agree as follows:
AGREEMENT
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
1.1
Defined Terms.
“Adoption Date” means the date upon which the City Council adopted the Authorizing Resolution
authorizing and approving this Agreement.
“Affiliate” means any Person directly or indirectly Controlling, Controlled by or under Common
Control with Owner or Developer.
“Agreement” shall mean this Hotel Development Agreement, by and between the City,
MCDC, Owner, and Developer.
“Applicable Rate” means the one (1) month LIBOR rate plus 400 basis points.
“Approval” shall have the meaning set forth in Section 11.2 hereof.
“Approved Budget” means a budget showing all Hotel Development Costs by line item
category, approved in form and substance by the City Parties.
i_5803584v.8
-2
“Approved Franchisor” means Marriott International, Inc.
“Approved Plans” means 100% construction drawings for the construction of the Hotel
Project, approved in form and substance by the City Parties.
“Assumption Agreement” shall have the meaning set forth in Section 6.2.3.
“Authorizing Resolution” means Resolution No. ____________, enacted by the City Council
on _____________, authorizing and approving this Agreement and any related agreements and
authorizing the City Manager to execute this Agreement on behalf of the City.
“City” shall have the meaning set forth in the introductory paragraph of this Agreement.
“City Approvals” means permits or approvals required under City Regulations in order to
develop, use and operate the Hotel Complex.
“City Council” means the City Council of the City or its designee.
“City Development Fees” means fees or assessments charged or required by the City in
connection with any City Approval: (a) to defray, offset or otherwise cover the cost of public services,
improvements or facilities; or (b) that are imposed for a public purpose. “City Development Fees”
shall include, without limitation, impact fees, for roads, water, and waste water facilities, and meter
fees, but shall exclude building permit fees for the Hotel Complex.
“City Parties” collectively means the City and MCDC.
“City Regulations” means the Zoning Ordinance and all other ordinances, resolutions, codes,
rules, regulations and policies of the City Parties in effect as of the time in question.
“City Review Delays” means: (a) with respect to the review by the City of plans for the Site
Work submitted by Developer and the issuance by the City of the Site Work Permit (i) the amount of
calendar days beyond a period of ten (10) business days for the City to review and provide corrections
to Developer on the initial set of 100% civil plans for the Site Work for the Hotel Site submitted by
Developer to the City, and (ii) the amount of calendar days beyond a period of five (5) business days
for the City to issue the Site Work Permit after the City has approved the 100% civil plans for the Site
Work for the Hotel Site, and the Developer has paid all City fees required for the issuance of the Site
Work Permit; and (b) with respect to the review by the City of schematic, design development and
construction plans (conceptual plans have already been approved) for the Construction Work
submitted by Developer and the issuance by the City of the Construction Permit (i) the amount of
calendar days beyond a period of fifteen (15) business days for the City to review and provide
corrections to Developer on the initial set, or a period of five (5) business days for the City to review
and provide corrections to Developer on any corrected or resubmitted set, of 100% schematic, design
development or construction working drawings for the Construction Work for the Hotel Complex
submitted by Developer to the City, and (ii) the amount of calendar days beyond a period of five (5)
business days for the City to approve the schematic or design development plans after the City has
approved 100% schematic or design development plans, as applicable, or, with respect to the
construction working drawings, to issue the Construction Permit after the City has approved 100%
construction working drawings for the Construction Work for the Hotel Complex and, for the
construction working drawings, the Developer has paid all City fees required for the issuance of the
i_5803584v.8
-3
Construction Permit. For the purposes of subclauses (i) and (ii) of clauses (a) and (b), the date of
submittal of the applicable plans by the Developer shall not be considered in the number of days that
the City is allowed for review and correction.
“Collateral Assignment” shall have the meaning set forth in Section 8.5 hereof.
“Common Control” means that two Persons are both Controlled by the same Person.
“Conceptual Site Plan” means the site plan for the development of the Project Site attached
hereto as Exhibit “A” and made a part hereof.
“Construction Contract” means a contract or contracts between Owner or its Affiliate and a
Licensed Contractor for the performance of the Construction Work and the Site Work for the Hotel
Complex in accordance with the Construction Permits, and any amendment to such contracts to
include any change orders, in form and in substance approved by the City Parties.
“Construction Costs” means amounts earned by and payable to the Licensed Contractor
pursuant to the Construction Contract between the Owner or its Affiliates and a Licensed Contractor
for the performance of the Construction Work.
“Construction Loan” means the construction loan referenced in subpart (c) of the definition of
“Site Transfer Conditions”.
“Construction Payment Bond” means a payment and performance bond or bonds provided by
the Licensed Contractor under the Construction Contract, in an amount equal to One hundred ten
percent (110%) of the contract sum due under the Construction Contract, that: (a) has been duly
issued by a surety licensed to do business in the State of Texas; (b) names Owner, Developer, MCDC
and the City as joint obligees; and (c) that insures (i) the payment of the contract sum due under the
Construction Contract and the performance by the Licensed Contractor under the Construction
Contract.
“Construction Permits” means a building permit or permits issued by the City for all or any
part of the Site Work or Construction Work for the Hotel Complex.
“Construction Work” means the construction of all foundations and vertical buildings,
structures and other improvements required to be constructed as part of the Hotel Complex.
“Control” means the ownership (direct or indirect) by one Person of an interest in the profits
and capital and the right to manage and control the day to day affairs of another Person. The term
“Control” includes any grammatical variation thereof, including “Controlled” and “Controlling”.
“Developer” means Gatehouse Midlothian Development, LLC, a Texas limited liability
company. The term “Developer” shall also refer to any Transferees of Developer, as the context may
require, including for this purpose, any Affiliates of Developer.
“Developer Parties” means collectively Owner and Developer.
“Event of Default” shall have the meaning set forth in Section 7.1.
i_5803584v.8
-4
“Exactions” collectively means any sewer, water, roadway and other mitigation measures or
requirements, including without limitation, any additional on-site or offsite public improvements, that
are required or imposed by the City or the Owner, Developer, or their Affiliates as a condition or
requirement of the issuance or approval by the City of any City Approvals for the Hotel Complex.
The term “Exactions” does not include any City Development Fees which are charged to Developer
in connection with the development of the Hotel Complex.
“Extended Stay Hotel” means a hotel in which most of the guest rooms are designed for
extended stays by business travelers of one week or more and include amenities for such extended
stays, such as complete kitchens and separate living and sleeping areas.
“Force Majeure” collectively means a delay in performance caused by: (a) war, terrorist acts,
insurrection, strikes or other labor disturbances, walk-outs, riots, floods, earthquakes, fires, casualties,
or acts of God; (b) days lost in whole or in part due to or resulting from rain or adverse weather
conditions that are in excess of the average number of days lost in whole or in part due to or resulting
from rain or adverse weather conditions in the Dallas metropolitan area during the comparable period
in the ten (10) years immediately prior to the Effective Date of this Agreement as set forth on Exhibit
“B” attached hereto and also to be attached to the Construction Contract; (c) the enactment of Laws
that prevent, delay or preclude compliance ·by a Party with any material provision of this Agreement;
(d) litigation relating to the Hotel Complex or the Hotel Site brought by Persons other than a Party, or
Affiliate of a Party that impairs or delays (i) the construction of the Hotel Complex or (ii) obtaining
any City Approvals required for the Hotel Complex; and (e) the failure by any Governmental Agency
to issue any Government Agency Approval required for the development, construction, operation,
occupancy or use of the Hotel Complex if Developer has submitted a completed application eligible
for approval, or any portion thereof; and (f) City Review Delays.
“Franchise Agreement” shall mean an executed franchise agreement between Owner and the
Franchisor, in form and substance approved by the City Parties.
“Franchise Termination Payment” means a sum equal to the product of dividing (i) the
Imputed Hotel Incentive, by (ii) one hundred eighty (180).
“Franchisor” means a company which engages in the lodging business and which grants to a
developer or owner of a hotel the right and license to own and operate the hotel in the name of the
hotel brand registered by the Franchisor pursuant to a Franchise Agreement between the Owner and
the Franchisor.
“GAAP” means Generally Accepted Accounting Principles.
“Governmental Agencies” means all governmental or quasi-governmental agencies (such as
public utilities) having jurisdiction over, or the authority to regulate development of, the Hotel
Complex. As used in this Agreement; however, the term “Governmental Agencies” does not include
the City Parties or any of the departments of the City.
“Governmental Agency Approvals” means all permits and approvals required by
Governmental Agencies under Governmental Agency Regulations for construction, development,
operation, use or occupancy of the Hotel Complex.
i_5803584v.8
-5
“Governmental Agency Regulations” mean the Laws, ordinances, resolutions, codes, rules,
regulations and official policies of Governmental Agencies in effect as of the time in question.
“Hotel” and “Hotel Complex” shall have the meaning set forth in Sections 2.1 and 2.2.
“Hotel Development Costs” means all hard and soft costs in connection with the design and
construction of the Hotel Complex, including but not limited to, the cost of installation of FF&E and
OSE, Governmental Agency Approvals, Exactions, Standard Development Fees, franchise fees,
development fees to Developer, debt service, insurance, and reserves for operating shortfalls, all as
set forth in the Approved Budget.
“Hotel Management Agreement” means an agreement with Aimbridge Hospitality for
management of operations of the Hotel, in form and substance acceptable to the City Parties.
“Hotel Owner’s Policy” shall have the meaning set forth in Section 1.4.2.
“Hotel Site” means the site, consisting of approximately one and eighty-three one-hundreds
(1.83) acres, at the location shown on the Conceptual Site Plan.
“Hotel Site Transfer Date” shall have the meaning set forth in Section 1.4.1.
“Imputed Hotel Incentive” means $628,897.00.
“Intercreditor Agreement” means an agreement between Citizens National Bank of Texas or
such replacement bank as is holding the senior mortgage on the Hotel Site acceptable to the City
Parties.
“Laws” means the Constitution and laws of the State, the United States, and any codes,
statutes, regulations, or executive mandates thereunder, and any court decision, State or federal,
thereunder.
“Licensed Contractor” means UEB or such other contractor that is licensed by the State of
Texas to perform the type of work for which it has been retained by Owner or Developer or
Developer’s Affiliate in accordance with this Agreement.
“Mandatory Franchise Period” means the period commencing on the issuance of the certificate
of occupancy for the Hotel Complex and continuing for a period of fifteen (15) years thereafter.
“MCDC” shall have the meaning set forth in the introductory paragraph of this Agreement.
“Mezzanine Loan” means a loan to be made by MCDC to the Owner as further provided in
Article V herein.
“Mezzanine Loan Advances” means the aggregate sum of the advances made by MCDC to
Owner pursuant to the Mezzanine Loan.
“Mortgage” means: (a) a mortgage or deed of trust, or other similar transaction, in which
Owner conveys or pledges a security of its interest in the Hotel Project, or a portion thereof, or interest
therein, or any buildings or improvements thereon for the purpose of (i) financing the acquisition of
i_5803584v.8
-6
the Hotel Site and the development of the Hotel Complex, or any portion thereof, (ii) refinancing any
of the foregoing, or (iii) obtaining financing proceeds by encumbering the Hotel Complex or a portion
thereof; or (b) a sale and leaseback arrangement, in which Owner sells and leases back concurrently
therewith its interest in the Hotel Complex, or a portion thereof, or interest therein, or improvements
thereon for the purpose of (i) financing the acquisition of the Hotel Complex, or the development of
the Hotel Complex, or any portion thereof, (ii) refinancing any of the foregoing, or (iii) obtaining
financing proceeds by encumbering the Hotel Complex or a portion thereof; or (c) a leasehold
mortgage or deed of trust, or similar transaction, in which an Affiliate Ground Lessee conveys or
pledges a security interest in an Affiliate Ground Lease and/or in the Hotel Project or portions thereof
which is the subject of the Affiliate Ground Lease, for the purpose of (i) financing the development
of Hotel Complex, or (ii) refinancing the foregoing.
“Mortgagee” means: (a) the holder of the beneficial interest under a Mortgage; (b) the lessor
under a sale and leaseback Mortgage; and (c) any successors, assigns and designees of the foregoing.
“Notice of Default” shall have the meaning set forth in Section 7.1.
“Notices” shall have the meaning set forth in Section 10.1 hereof.
“Notice Request” shall have the meaning set forth in Section 8.3 hereof.
“Official Records” means the official records of Ellis County, Texas.
“Owner” means Gatehouse Midlothian Ownership, LLC, a Texas limited liability company.
“Parties” collectively means the City, MCDC, Owner and Developer (or Owner’s Transferees,
as applicable, determined as of the time in question).
“Person” means an individual, partnership, firm, association, corporation, trust, governmental
agency, administrative tribunal or other form of business or legal entity.
“Planning Commission” means the Planning and Zoning Commission of the City.
“Project Architect” shall mean BOKA Powell.
“Replacement Franchisor” means a Franchisor selected by Owner with which Owner enters
into a Franchise Agreement for the Hotel following any termination of the Franchise Agreement with
the Approved Franchisor.
“Required Commencement Date” means date which is the later of (i) January 1, 2015, or (ii) 30
days after the Required Site Transfer Date, which date shall be subject to extension due to delays
caused by Force Majeure events.
“Required Completion Date” means 390 days after the Required Site Transfer Date, which
date shall be subject to extension due to delays caused by Force Majeure events.
“Required Site Transfer Date” means December 1, 2014, which date shall be subject to
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“Senior Loan” shall mean the loan described in clause (c) of the definition of “Site Transfer
Conditions.”
has delivered to the City and MCDC an executed Construction Contract for the construction of the
Hotel Complex; (b) Developer has delivered to the City and MCDC a copy of the duly issued
Construction Payment Bond for the construction of the Hotel Complex; (c) the Developer Parties have
delivered to the City Parties a fully executed Construction Loan Agreement from Citizens National
Bank of Texas (or a replacement bank reasonably acceptable to Owner and City) committing to fund
an amount which equals all of the Hotel Development Costs not to be covered by advances on the
Mezzanine Loan (the “Construction Loan”), with an interest rate not to exceed 4.25% per annum,
payable in equal monthly payments based on a 30-year amortization with a 20-year balloon; (d) the
Intercreditor Agreement has been delivered to the City Parties; (e) the Franchise Agreement has been
delivered to the City Parties; (f) an acceptable comfort letter (attached hereto as Exhibit “C” is a form
acceptable to City Parties) from the franchisor under the Franchise Agreement has been delivered to
the City Parties; (g) the Approved Budget has been delivered to the City Parties; (h) the City Parties
have received the Hotel Management Agreement; (i) the Approved Plans for the Site Work have been
received by the City Parties; and (j) the Developer Parties have demonstrated to the City Parties,
through budgeted reserves, coverage of anticipated operating net revenue shortfalls for the first twoyears of operation of the Hotel.
“Site Work” means: (a) the grading of the Hotel Site; (b) the installation of underground
utilities and drainage required for the Hotel Site; and (c) the installation of paving on the Hotel Site.
“Site Work Permit” means a permit issued by the City for the performance of the Site Work
on the Hotel Site.
“Standard Development Fees” means the City Development Fees, based upon the amounts
and rates listed on Exhibit “D” of this Agreement, which constitute the City’s projection of the
aggregate City Development Fees that will be imposed by the City in connection with the acquisition
of the Hotel Complex by Owner and the construction and development of the Hotel Complex.
“State” means the State of Texas and any department or agency acting on behalf of the State.
“Substantially Complete” or “Substantial Completion” means the stage in the progress of the
construction of the Hotel Complex where the work is sufficiently complete in accordance with the
Construction Contract so that the Hotel Complex can be occupied and utilized for its intended use.
“Term” means the term of this Agreement, as determined pursuant to Article III below, unless
sooner Terminated as provided in this Agreement.
“Terminate” means the expiration of the Term of this Agreement, whether by the passage of
time or by any earlier occurrence pursuant to any provision of this Agreement. The term “Terminate”
includes any grammatical variant thereof, including “Termination” or “Terminated”.
“Title Company” means Ellis County Abstract Company, as agent for Safeco Land Title
Company.
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“Transfer” means the sale, assignment, or other transfer by the Developer Parties of this
Agreement, or any right, duty or obligation of the Developer Parties in the Hotel Site, including by
foreclosure, trustee sale, or deed in lieu of foreclosure, under a Mortgage and including the granting
of any Mortgage except the Senior Mortgage or a Mortgage given to refinance the principal balance
thereof with no increase in the principal amount of indebtedness, but excluding: (a) a dedication of
any portion of the Hotel Project to the City or a Governmental Agency; (b) a Mortgage; (c) leases,
subleases, licenses and operating agreements entered into by Owner for occupancy of space in the
Hotel Project (together with any appurtenant tenant rights and controls customarily included in such
leases or subleases), and any assignment or transfer of any such lease, sublease, license or operating
agreement by either party thereto; and (d) any Collateral Assignment of this Agreement to a
Mortgagee.
“Transferee” means the Person to whom a Transfer is affected.
“Variances” shall have the meaning set forth in Section 2.10.
“Zoning Ordinance” means the City’s adopted zoning ordinance.
1.2
Acknowledgement of Approved Franchisor.
The City has approved Marriott International, Inc. as an Approved Franchisor for a Courtyard
by Marriott® Hotel. The hotel shall include those services and amenities generally offered by threestar hotels in the United States; however it shall not include an Extended Stay Hotel. The City
Parties acknowledge that neither Approved Franchisor nor its Affiliates: (a) will own the Hotel;
(b) are a party to this Agreement; or (c) have provided or reviewed or are responsible for, any
disclosures or other information set forth in this Agreement. It is anticipated that payment of the
franchise fees and other payments to the Franchisor shall be prior and superior to any lien securing
payment of the Construction Loan.
1.3
Subdivision.
Prior to the Hotel Site Transfer Date, the Developer Parties shall apply for and obtain all
approvals from the City and any other Governmental Agencies that are required under applicable Laws
and City Regulations to subdivide the Hotel Site as a separately platted lot. Owner, Developer and
the City Parties shall cooperate with the City in the processing and approval of the applications
under this Section 1.3.
1.4
Transfer of Hotel Site.
1.4.1 Provided Owner and Developer have satisfied all of the Site Transfer
Conditions for the Hotel Site, then on (i) the Required Site Transfer Date, or (ii) such other date that
may be mutually agreed upon by the City and Owner (the “Hotel Site Transfer Date”), the City shall
transfer fee simple title to the Hotel Site to Owner for the total purchase price of One Dollar ($1.00).
The deed transferring title to the Hotel Site shall contain a right of reverter (which shall be subordinate
to the Construction Loan) as further described in Section 2.3.2.
1.4.2 On the Hotel Site Transfer Date, the City shall cause the Title Company to issue
to the Owner a TLTA Form T-1 Owner Policy of Title Insurance insuring title to the Hotel Site,
which lists only the exceptions listed on Exhibit “E” of this Agreement. Owner and Developer
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shall be responsible for the premium for the Hotel Owner’s Policy and any escrow costs in
connection with the transfer of the Hotel Site to Owner.
1.4.3 Owner shall be liable for the payment of any prorated property taxes caused
by Owner’s acquisition or use of the Hotel Site.
1.5
Failure to Purchase Hotel Site.
1.5.1 If on or prior to the Required Site Transfer Date the Developer Parties
either (i) fail to satisfy all of the Site Transfer Conditions, or (ii) otherwise fails to purchase the Hotel
Site, and Owner fails to cure such failure within thirty (30) days following the Required Site Transfer
Date, then the City Parties may elect to Terminate this Agreement, effective upon written notice to
Owner and Developer.
1.5.2 In the event that this Agreement is Terminated pursuant to Section 1.5.1: (a)
neither the City Parties nor the Developer Parties shall have any rights or obligations under this
Agreement nor any other agreements executed in connection herewith; provided, however, MCDC
shall be obligated to fund solely to the extent of eligible advances on the Mezzanine Loan all Hotel
Development Costs incurred by Owner prior to the Termination (with the exception of any unpaid
fees due to Developer) and Owner shall provide MCDC its draws for same within thirty (30) days
following Termination; (b) Owner shall have no further right to purchase the Hotel Site; (d) Owner
and Developer shall have no further right or obligation to develop the Hotel Complex on the Hotel
Site; and (e) the City Parties shall be free to negotiate with third parties for the development of a hotel
on the Hotel Site.
ARTICLE II
GENERAL DEVELOPMENT STANDARDS & REQUIREMENTS
2.1
Project Development.
Developer shall have the right and obligation to develop the Hotel Complex in accordance
with the terms and conditions of this Agreement and the City Parties shall have the right to control
(i.e., approve of) the development of the Hotel Complex in accordance with the provisions of this
Agreement. The Hotel Complex shall include: (a) the Hotel Site; (b) Hotel and all buildings and
structures ancillary thereto; and (c) the internal common areas, pedestrian walkways, parking and
core infrastructure for the Hotel Site.
2.2
Hotel.
Subject to the terms and conditions of this Agreement, a hotel shall be developed on the
Hotel Site (the “Hotel”), in accordance with the Approved Plans. The Hotel shall be a three-star
hotel consisting of a minimum of 102 guest rooms and related amenities and space for providing the
services necessary to meet the operational requirements of the Franchise Agreement. The Hotel shall
be open to the public and shall serve the business community and citizens of the City and visitors to
the City and adjacent communities. The Hotel shall be constructed and developed in accordance with
the standards required under the City Regulations and the Franchise Agreement.
2.3
Commencement and Continuation of Construction.
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2.3.1 If the Owner purchases the Hotel Site, the Developer Parties shall be required
to obtain a Construction Permit for the initiation of construction of the Hotel Complex and to
commence the Site Work no later than the Required Commencement Date.
2.3.2 Subject to Force Majeure, if (i) Owner purchases the Hotel Site but the
Developer Parties fail to satisfy the requirement of Section 2.3.1 above by the Required
Commencement Date or fails to meet any of the construction milestones set forth on Exhibit “F”
hereto, or ceases progress of the Site Work or Construction Work for fifteen (15) Business Days or
more within any 45-day period, and (ii) the Developer Parties fail to cure such failure within sixty
(60) days following written notice from the City Parties, then the City Parties, acting through the City,
shall have the option to Terminate this Agreement, in which case: (a) the City may exercise the
right of reverter contained in the deed conveying the Hotel Site to Owner; and (b) the City and
MCDC shall have the rights and remedies set forth in Section 7.2.2.
2.3.3 In the event that this Agreement is Terminated pursuant to Section 2.3.2, (a)
neither the City Parties nor the Developer Parties shall have any rights or obligations under this
Agreement nor any other agreements executed in connection herewith; provided, however, MCDC
shall be obligated to fund all Hotel Development Costs incurred by Owner prior to the Termination
(with the exception of any unpaid fees due to Developer) and Owner shall provide MCDC its draws
for same within thirty (30) days following Termination; (b) Owner shall have no further right to
purchase the Hotel Site; (c) Developer shall have no further right or obligation to develop the Hotel
Complex on the Hotel Site; and (d) the City Parties shall be free to negotiate with third parties for the
development of a hotel on the Hotel Site.
2.4
Completion of Hotel Complex.
2.4.1 Developer agrees to Substantially Complete the Hotel Complex, on or prior
to the Required Completion Date, subject to delays caused by Force Majeure events.
2.4.2 The Construction Contract with the Licensed Contractor shall provide that, if
Licensed Contractor fails to achieve Substantial Completion of the Hotel Complex by the Required
Completion Date), subject to Force Majeure, Licensed Constructor shall pay liquidated damages to the
City at a rate of Seven Hundred Fifty Dollars ($750.00) per day for each day after the Required
Completion Date until the earlier to occur of the date on which: (i) the Hotel Complex is
Substantially Completed; or (ii) this Agreement is terminated by the City Parties pursuant to
Section 2.4.3.
2.4.3 If Developer fails to achieve Substantial Completion within one (1) year after
the Required Completion Date, the City Parties, acting through the City, shall have the right to
Terminate this Agreement. If the City Parties Terminate this Agreement pursuant to this Section 2.4.3,
the following shall apply:
(a)
the Mezzanine Loan shall be accelerated and shall be due and payable
(b)
Mezzanine Loan;
Owner shall not be entitled to any further advances under the
in full;
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(c)
The City Parties may exercise the right of reverter in the deed
conveying the hotel site to Owner; and
(d)
The City Parties may terminate all City Incentives described in Section
2.13.
2.5
Design Criteria. The Hotel Complex shall comply with the Approved Plans and all
design criteria established in or pursuant to the City Regulations, subject to any amendments or
variance thereto reasonably approved by the City. The City shall to the extent it can do so without
violating City Regulations, reasonably consider and approve any modifications to such design
criteria requested by the Approved Franchisor or a Replacement Franchisor, provided that: (a) if
such modifications are requested in order to comply with the design standards then utilized by the
Approved Franchisor or the Replacement Franchisor, as applicable, a copy of which shall be
provided by the Developer Parties to the City Parties; and (b) such modifications shall not be
incompatible with or reduce or diminish the quality standards in the design criteria established in or
pursuant to the City Regulations.
2.6
Review and Processing of City Approvals. Subject to Section 11.2 hereof, t he City
Approvals required for the construction and development of the Hotel Complex shall be issued
pursuant to the requirements of the City Regulations and the standard procedures of the City. The
City Approvals covered under this Section 2.6 include building permits, green cards and certificates
of occupancy. The City shall cooperate with Developer to facilitate prompt and timely review
and processing of all applications for City Approvals, including the timely processing and checking
of all maps, plans, permits, building plans, construction work, subdivision plats, and other plans
relating to development of the Hotel Complex filed by Developer. In connection with any City
Approval, the City shall exercise its discretion or take action in a manner which complies with and
is consistent with City Regulations, applicable state or local law, and, to the extent not inconsistent
therewith, this Agreement.
2.7
Project Signage.
Owner shall have the right to signage for the Hotel Complex that is permitted in the City
Regulations. The City Parties will support the Developer Parties in securing approval from TxDOT
and/or Lone Star Logo and Sign for logo and directional signage on Highway 67 and 287 for the
benefit of the Developer Parties. Notwithstanding the foregoing, Developer shall have the right to
submit an alternative plan depicting Developer’s proposed signage for the Hotel Site (including,
without limitation, a proposed pylon sign with a video board, and proposed monument signs,
building signs, directional signs and way finding signs) to the City Council for its review. Upon
approval by the City Council, such alternative sign plan shall govern the signage rights of Owner
under this Agreement.
2.8
Governmental Agency Approvals. Developer shall apply for and pursue all
required Governmental Agency Approvals from Governmental Agencies which are required
during the course of design, development, construction, use or occupancy of the Hotel Complex.
Developer shall take such reasonable steps as are necessary to obtain all such Governmental
Agency Approvals and shall bear all costs and expenses for obtaining such Governmental
Agency Approvals (subject to the right of Owner to receive Mezzanine Loan Advances from MCDC).
When and if obtained, copies of all such Governmental Agency Approvals shall be submitted to the
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City promptly by Developer. Developer shall comply with, and shall cause the Hotel Complex to
comply with, all Governmental Agency Regulations and Laws related to the development of the Hotel
Complex. The City shall cooperate with Developer in such applications for Governmental Agency
Approvals upon Developer’s written request for such cooperation.
2.9
Exactions and City Development Fees. The Developer Parties agree to construct
and perform the Exactions and pay the City Development Fees that are imposed by the City in
connection with the acquisition of the Hotel Site by Owner or the construction and development of
the Hotel Complex by Developer.
2.10 Variances. Nothing in this Agreement is intended, should be construed or shall
operate to preclude or otherwise impair the rights of the Developer Parties during the Term of this
Agreement from applying to the City for a variance or exception under the City Regulations with
respect to any proposed buildings and improvements in the Hotel Complex (collectively, the
“Variances”) in accordance with the procedures applicable to Variances under the City Regulations
then in effect. The City shall process, review and approve or disapprove any application for a
Variance filed by Owner or Developer in accordance with such City Regulations. The approval by
the City of an application by Owner or Developer for a Variance shall not require an amendment
of this Agreement.
2.11 Foundations and Concrete Structural Frame. Upon approval by the City of full
structural drawings for the Hotel Complex submitted by Developer, the City shall provide to
Developer such approvals or permits as are necessary for Developer to commence construction of
foundations and the concrete structural frame for the Hotel Complex.
2.12 Affiliate Transactions. The Developer Parties shall fully disclose, prior to approval of
the Approved Budget by the City Parties, all Hotel Development Costs which constitute direct or
indirect payments to be made by the Developer Parties to Affiliates, including but not limited to,
development fees paid by Owner to Developer, prices in excess of those obtained from unaffiliated
third parties on procurement contracts for goods or services, or otherwise. No payments of Hotel
Development Costs shall be made by the Developer Parties to Affiliates except as disclosed to the
City Parties.
2.13 City Incentives. As set forth in the Approved Budget and in separate agreements
executed by the City Parties, the City Parties and Midlothian Economic Development have agreed to
provide, and will provide, the following economic incentives to the Owner: land contribution, waiver
of fees for building permits for construction per the Approved Budget, construction sales tax, sales
tax credit (2% of actual taxable sales generated for the first 8 years of operations), property tax credit
(80% of City of Midlothian property taxes for the first 8 years of operations), Transient Occupancy
Tax (7% of rooms revenue, rebate of 80% for the first 8 years of operations). Collectively, the “City
Incentives,” the City Incentives with respect to sales tax, property tax, and transient occupancy taxes
are subject to the terms and conditions of the specific separate agreements between the City Parties
and the Developer Parties.
2.14 Developer Fees. As set forth in the Approved Budget, the Developer shall be paid a
development fee for services to be provided hereunder in an amount equal to $547,039, which
represents 4% of the total development cost and which amounts have been or shall be paid as follows:
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$153,215 paid through July, 2014, and the balance in monthly installments over the remaining predevelopment and development period of approximately 18 months.
ARTICLE III
TERM
3.1
Term Commencement. The rights, duties and obligations of the Parties hereunder
shall be effective, and the Term shall commence, as of the Adoption Date. Not later than five (5)
business days after the Adoption Date, each of the City Parties shall execute and acknowledge
this Agreement.
3.2
Expiration of Term. Unless sooner Terminated pursuant to the applicable provisions
of this Agreement, the Term shall expire on December 31 of the calendar year in which the
twentieth (20th) anniversary of the Adoption Date falls.
ARTICLE IV
HOTEL OPERATIONS
The operation of the Hotel Complex shall comply with all criteria established in the City
Regulations, subject to any amendments or Variances thereto reasonably approved by the City.
Developer shall construct, and Owner shall continuously maintain and operate the Hotel in
accordance with the standards in the Franchise Agreement and City Regulations.
ARTICLE V
MEZZANINE LOAN
5.1
Loan Advances. MCDC shall extend a loan to Owner in the amount of up to
$4,000,000.00 to be advanced to pay Hotel Development Costs as they are actually incurred.
Advances on such loan shall bear interest at a rate of two percent (2%) per annum until repaid and the
entire principal amount of the loan shall be due and payable ten (10) years after the date hereof. The
obligation of Owner to repay the note shall be represented by a promissory note executed by Owner
and delivered to MCDC of even date herewith.
5.2
Collateral. Payment of such loan shall be secured by the following:
(a)
A first lien security interest on 100% of the membership interests in
Owner to be evidenced by a security agreement executed by the owners of all of such interests
(such security interest shall also secure any payment of the Imputed City Incentive and
Franchise Termination Payment required herein);
(b)
A first lien security interest on all City Incentives, including but not
limited to, the hotel occupancy tax, sales tax and ad valorem tax refunds or rebates receivable
by Owner from the City with regard to the Hotel Project under separate agreements between
the City and Owner.
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5.3
Mandatory Prepayment. Sixty-five percent (65%) of the monthly net cash flow
available to Owner from the Hotel Project will be applied as a prepayment on the loan to MCDC, to
be credited against the principal balance of the loan and not to interest.
5.4
follows:
Procedures for Loan Advances. The MCDC shall make advances on the loan as
5.4.1 Within thirty (30) days following written draw requests to MCDC, MCDC shall
pay Owner for actual Hotel Development Costs incurred and, for actual hard construction costs,
verified by the Project Architect as work in place on such draw request, less 10% retainage on
Construction Costs reflected within such draw request, such retainage to be funded within thirty (30)
days after final completion of the work under the Construction Contract.
5.4.2 In the event that the time of the submittal by Owner of a draw request to MCDC
there is an Event of Default on the part of the Developer Parties that remains uncured following written
notice to the Developer Parties, then except as provided in Section 1.5.2 and 2.3.3 hereof, MCDC
shall not be required to make such advance until the default is cured.
5.5
Contingent Interest. Upon a Transfer to a Party other than a Developer Party or an
Affiliate of a Developer Party, the Developer Parties shall pay to MCDC a profit participation in the
amount of 70% of the net proceeds to the Developer Parties received upon such Transfer and
remaining after payment of all closing costs, the Senior Loan and the Mezzanine Loan, limited to the
amount of such payment that may be recovered by the City Parties without violation of Texas usury
law. For purposes hereof, net proceeds shall mean the gross proceeds reduced by customary and
reasonable transactional costs payable to parties other than the Developer Parties or their Affiliates.
This provision shall survive expiration of the Term, payment of the Mezzanine Loan, and all Transfers
to a Developer Party or an Affiliate of a Developer Party.
ARTICLE VI
TERMINATION; ASSIGNMENT
6.1
Effect of Termination.
6.1.1 Except as otherwise expressly provided in this Agreement: (a) upon any
Termination of this Agreement, each Party shall retain any and all of the respective benefits,
including money or land, that each Party has received as of the date of Termination under or in
connection with this Agreement; and (b) termination of this Agreement shall not (i) alter, impair or
otherwise affect any City Approvals for the Hotel Complex that were issued by the City prior to the
date of Termination, or (ii) prevent, impair or delay Developer from electing, in its sole discretion,
to commence, perform or complete the construction of any buildings or improvements in the Hotel
Complex or obtain any certificates of occupancy or similar approvals from the City for the use and
occupancy of completed buildings or improvements in the Hotel Complex, that were authorized
pursuant to City Approvals for such construction issued by the City prior to the date of Termination.
6.1.2 Nothing herein shall preclude the City, in its discretion, from taking any
action authorized by Laws or City Regulations to prevent stop or correct any violation of Laws or
City Regulations occurring before, during or after construction of the buildings and improvements
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in the Hotel Complex by Developer, or from exercising any rights under the Mezzanine Loan note and
related documents.
6.2
Assignment.
6.2.1 City Parties. The City Parties shall not have the right to assign, pledge,
transfer or convey their respective rights, titles, interest, or obligations under this Agreement other
than to another City Party.
6.2.2 Developer. Prior to the issuance of the certificate of occupancy for the Hotel
Complex and payment in full of the Mezzanine Loan, the Developer Parties shall not have the right
to assign their rights, titles, interests, or obligations under this Agreement to any third party,
including an Affiliate of Owner and/or to Developer or Owner, without the prior written consent
of the City and MCDC, which consent may be withheld in the City Parties’ sole discretion.
Following the issuance of a certificate of occupancy for the Hotel Complex and payment in full of the
Mezzanine Loan, and subject to the provisions of Section 5.5, Owner shall have the right to sell or
assign all or any part of the Hotel Complex and the right to assign some or all of its rights, title and
interests or obligations under the Agreement to any Person upon the delivery to the City Parties of a
written Assumption Agreement, signed by the Owner and its Transferee, but without the consent or
approval of the City Parties. Any assignment by the Owner shall be subject to the provisions and
restrictions of this Agreement.
6.2.3 Assumption Agreement. As a condition to any assignment by Owner pursuant
to this Section 6.2, the Developer Parties shall deliver to the City Parties an executed and
acknowledged assignment and assumption agreement (the “Assumption Agreement”) in recordable
form. Such Assumption Agreement shall include provisions regarding: (a) the rights and interest
proposed to be Transferred to the proposed Transferee; (b) the obligations of the Developer Parties
under this Agreement that the proposed Transferee will assume; and (c) the proposed Transferee’s
acknowledgment that such Transferee has reviewed and agrees to be bound by this Agreement. The
Assumption Agreement shall also include the name, form of entity, and address of the proposed
Transferee. The Assumption Agreement shall be recorded in the Official Records concurrently with
the consummation of the Transfer.
6.2.4 Mortgagee as Transferee. The Senior Mortgage and any refinancing thereof
that does not increase the principal amount of indebtedness, shall not constitute a Transfer.
6.2.5 Effect of Transfer. A Transferee shall become a Party to this Agreement only
to the extent set forth in the Assumption Agreement delivered under Section 6.2.3.
ARTICLE VII
EVENTS OF DEFAULT; REMEDIES; ESTOPPEL CERTIFICATES
7.1
Events of Default. Any failure by a Party to perform any material term or provision
of this Agreement (including but not limited to the failure of a Party to approve a matter or take
an action within the applicable time periods governing such performance under this Agreement)
shall, subject to the provisions of this Agreement to the contrary, constitute an “Event of Default”,
if: (a) such defaulting Party does not cure such failure within ten (10) business days following
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delivery of a Notice (as hereinafter defined) of default from the other Party (“Notice of Default”),
where such failure is of a nature that can be cured within such ten (10) business day period; or (b)
where such failure is not of a nature which can be cured within such ten (10) business day period, the
defaulting Party does not within such ten (10) business day period provide written notice to all other
Parties of the time reasonably needed to cure and why such additional time is needed and commence
substantial efforts to cure such failure, or thereafter does not within a reasonable time prosecute to
completion with diligence and continuity the curing of such failure and cure such failure within a
maximum of ninety (90) days. The failure to pay money shall not constitute a default allowing cure
under clause (b) above. Any Notice of Default given hereunder shall specify in reasonable detail
the nature of the failures in performance by the defaulting Party and the manner in which such
failures of performance may be satisfactorily cured in accordance with the terms and conditions
of this Agreement.
7.2
General Remedies.
7.2.1 Upon the occurrence of an Event of Default by the City Parties, the Developer
Parties shall have the right, in addition to all other rights and remedies available under this
Agreement, to: (a) bring any proceeding in the nature of specific performance, injunctive relief or
mandamus; and/or (b) bring any action at law or in equity as may be permitted by Laws or this
Agreement.
7.2.2 Except as otherwise provided in this Agreement, upon the occurrence of an
Event of Default by the Developer Parties, the City Parties shall have the right, in addition to all
other rights and remedies available under this Agreement, to: (a) bring any proceeding in the nature
of injunctive relief or mandamus; and/or (b) bring any action at law or in equity as may be
permitted by Laws or this Agreement. In addition to any other remedy provided in this Agreement,
the City Parties shall be entitled to a lien on the Hotel Complex to the extent that any specific
remedy provided for in this Agreement does not adequately compensate the City Parties for their
damages related to an Event of Default on the part of Developer Parties, provided that any such
lien shall be expressly subordinate to the Construction Loan and any Mortgage on the Hotel.
7.2.3 The Developer Parties acknowledge and agree that: (a) the City Parties shall
have all governmental and sovereign immunities provided by Law and that no immunities are waived
by entering into this Agreement; and (b) this Agreement is not a contract for goods and services under
Chapter 271, Subchapter H of the Texas Local Government Code.
7.3
Termination of Franchise Agreement with the Approved Franchisor.
7.3.1 In the event that the Franchise Agreement with the Approved Franchisor is
Terminated during the Mandatory Franchise Period, the following provisions shall apply:
(a)
If the Approved Franchisor Terminates the Franchise Agreement due to
a default by the Developer Parties under the Franchise Agreement and Owner fails to enter
into a new Franchise Agreement with a Replacement Franchisor approved by the City within
thirty (30) days thereafter, then on the first day of each calendar month during the period
commencing on the expiration of the Hotel under the new Franchise Agreement with the
Approved Replacement Franchisor begins, or (ii) the last day of the Mandatory Franchise
Period, the Developer Parties shall pay to the City the Franchise Termination Payment. The
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City shall not withhold, condition or delay its approval of the Replacement Franchisor if the
Replacement Franchisor has a history, with respect to full service hotels, of being the hotel
franchisor of primarily three-star hotels in the United States (pursuant to the hotel rating
criteria and standards reasonably acceptable to the City).
(b)
If the Franchise Agreement is Terminated for any reason other than a
Termination by the Approved Franchisor due to a default by Owner under the Franchise
Agreement (including without limitation, if Franchisor ceases to exist as a separate brand
name of hotel or if certain franchise locations, including the Hotel, are sold to a new
franchisor), and (ii) Owner fails to exercise reasonable and diligent efforts to apply for and enter
into a new Franchise Agreement with a Replacement Franchisor approved by the City within
twelve (12) months thereafter, then Developer shall pay the Franchise Termination Payment
to the City for each month during the period commencing on the expiration of that twelve (12)
month period and concluding on the earlier of: (x) the date that the operation of the Hotel
under the new Franchise Agreement with the approved Replacement Franchisor begins; or (y)
the last day of the Mandatory Franchise Period. The City shall not withhold, condition or
delay its approval of the Replacement Franchisor if the Replacement Franchisor has a
history of being the hotel franchisor of primarily three-star hotels in the United States
(pursuant to hotel rating criteria and standards reasonably acceptable to the City). The types
of hotels rated as three-star are Hyatt Place, Hilton Garden Inn, Hampton Inn, FourPoints,
SpringHill Suites, and Fairfield Inn and Suites.
7.4
Waiver; Remedies Cumulative. Failure by a Party to insist upon the strict or timely
performance of any of the provisions of this Agreement by the other Party, irrespective of the length
of time for which such failure continues, shall not constitute a waiver of such Party’s right to demand
strict compliance by such other Party in the future. No waiver by a Party of any failure of
performance, including an Event of Default, shall be effective or binding upon such Party unless
made in writing by such Party, and no such waiver shall be implied from any omission by a
Party to take any action with respect to such failure. No express written waiver shall affect any
other action or inaction, or cover any other period of time, other than any action or inaction and/or
period of time specified in such express waiver. One or more written waivers under any provision of
this Agreement shall not be deemed to be a waiver of any subsequent action or inaction. Nothing
in this Agreement shall limit or waive any other right or remedy available to a Party to seek
injunctive relief or other expedited judicial and/or administrative relief to prevent irreparable harm.
7.5
Estoppel Certificate. If required to facilitate refinancing of the Construction Loan or
the Mezzanine Loan, any Party may, at any time, and from time to time, deliver written notice to
another Party requesting such other Party to certify in writing: (a) that this Agreement is in full
force and effect and a binding obligation of the Parties; (b) that this Agreement has not been
amended or modified either orally or in writing, and if so amended, identifying the amendments;
(c) to the reasonable knowledge and belief of such other Party, that no Party has committed an Event
of Default under this Agreement, or if an Event of Default has to such other Party’s knowledge
occurred, to describe the nature of any such Event of Default; and (d) such other certifications that
may be reasonably requested by the other Party or a Mortgagee. A Party receiving a request hereunder
shall use reasonable efforts to execute and return such certificate within twenty (20) days following
the receipt thereof. Notwithstanding the foregoing, the Developer Parties agree that action by the
City Parties promptly after the next regularly scheduled meeting date of the respective governing
bodies. Each Party acknowledges that a certificate hereunder may be relied upon by Mortgagees.
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No Party shall, however, be liable to the requesting Party, or third Person requesting or receiving a
certificate hereunder, on account of any information therein contained, notwithstanding the
omission for any reason to disclose correct and/or relevant information.
7.6
Limited Liability. Notwithstanding any other provision of this Agreement, no Party
shall in any circumstances be liable to any other Party under, arising out of or in any way connected
with this Agreement for any consequential loss or damage or special or punitive damages, whether
arising in contract or tort, including negligence.
ARTICLE VIII
MORTGAGEE PROTECTION
8.1
Mortgagee Protection. Except as otherwise provided herein, this Agreement shall be
superior and senior to the conveyance of any Mortgage encumbering any interest in the Hotel
Complex. Notwithstanding the foregoing, no Event of Default shall defeat, render invalid,
diminish or impair the conveyance of any Mortgage made for value, but, subject to the provisions of
Section 9.2, all of the terms and conditions contained in this Agreement shall be binding upon
and effective against any Person (including any Mortgagee) who acquires title to the Hotel Complex,
or any portion thereof or interest therein or improvement thereon, by foreclosure, trustee’s sale,
deed-in-lieu of foreclosure, or otherwise.
8.2
Mortgagee Not Obligated; Mortgagee as Transferee. No Mortgagee shall have any
obligation or duty under this Agreement whatsoever, including but not limited to, any obligation
to construct the Hotel Complex or any portion thereof, except that nothing contained in this
Agreement shall be deemed to permit or authorize any Mortgagee to undertake any new construction
or improvement on the Hotel Site, or to otherwise have the benefit of any rights of Developer, or to
enforce any obligation of the City Parties, under this Agreement, unless and until such Mortgagee
elects to become a Transferee pursuant to Article VI. Any Mortgagee that affirmatively elects to
become a Transferee shall be later released from all obligations and liabilities under this
Agreement upon the subsequent Transfer by the Mortgagee of its interest as a Transferee to another
Person.
8.3
Notice of Default to Mortgagee; Right of Mortgagee to Cure. If any of the City
Parties receives notice from a Mortgagee requesting that a copy of any future Notice of Default that
may be given Developer Parties hereunder and specifying the address for service thereof (‘Notice
Request”), then the City Parties shall deliver to such Mortgagee, concurrently with service
thereon to Developer Parties, any Notice of Default thereafter given to Developer Parties. Such
Mortgagee shall have the right (but not the obligation) to cure or remedy, or to commence to cure or
remedy, the Event of Default claimed within the applicable time periods for cure specified in this
Agreement. If, however, the Event of Default or such noncompliance is of a nature which can only
be remedied or cured by such Mortgagee upon obtaining possession of the Hotel Complex, or portion
thereof, such Mortgagee shall seek to obtain possession with diligence and continuity (but in no
event later than ninety (90) days after a copy of the Notice of Default is given to Mortgagee) through
a receiver or otherwise, and shall thereafter remedy or cure such Event of Default or noncompliance
promptly and with diligence and dispatch after obtaining possession. Other than an Event of Default
or noncompliance (i) for failure to pay money or (ii) that is reasonably susceptible of remedy or cure
prior to a Mortgagee obtaining possession, so long as such Mortgagee is pursuing cure of the
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Event of Default or noncompliance in conformance with the requirements of this Section 8.3, none
of the City Parties shall exercise any right or remedy under this Agreement on account of such
Event of Default or noncompliance. When and if a Mortgagee acquires the interest of Owner
encumbered by such Mortgagee’s Mortgage and such Mortgagee elects in writing to become a
Transferee pursuant to this Section 8.3, then such Mortgagee shall promptly cure all monetary or
other Events of Default or noncompliance then reasonably susceptible of being cured by such
Mortgagee to the extent such that such Events of Default or noncompliance are not cured prior to such
Mortgagee’s becoming a Transferee pursuant to Section 8.3.
8.4
Priority of Mortgages. For purposes of exercising any remedy of a Mortgagee
pursuant to this Article VIII, the applicable Laws of the State of Texas shall govern the rights,
remedies and priorities of each Mortgagee, absent a written agreement between Mortgagees
otherwise providing.
8.5
Collateral Assignment. As additional security to a Mortgagee under a Mortgage on
the Project or any portion thereof, the Developer Parties shall have the right to execute a collateral
assignment of the Developer Parties’ rights, benefits and remedies under this Agreement in favor
of the Mortgagee (“Collateral Assignment”) on the standard form provided by the Mortgagee.
ARTICLE IX
COVENANTS RUNNING WITH THE LAND
During the Term of this Agreement, all of the provisions, agreements, rights, powers,
standards, terms, covenants and obligations contained in this Agreement shall be binding upon the
Parties (and their respective heirs, successors (by merger, consolidation, or otherwise) and assigns,
devisees, administrators, representatives, lessees, and all other Persons that acquire a legal or equitable
interest of Owner in the Hotel Complex, or any portion thereof,·whether by operation of Laws or in
any manner whatsoever, and shall inure to the benefit of the Parties and their respective heirs, successors
(by merger, consolidation or otherwise) and permitted assigns as Transferees, as covenants running
with the land.
ARTICLE X
NOTICES
10.1 Delivery of Notices. All notices, statements, demands, consents and other
communications (“Notices”) required or permitted to be given by any Party to another Party
pursuant to this Agreement or pursuant to any applicable law or requirement of public authority
shall be properly given only if the Notice is: (a) made in writing (whether or not so stated
elsewhere in this Agreement; (b) given by one of the methods prescribed in Section 1 0 . 2 ; and (c)
sent to the Party to which it is addressed at the address set forth below or at such other address as
such Party may hereafter specify by at least five (5) calendar days prior written notice:
If to City:
City of Midlothian
104 West Avenue E
Attn: City Manager
Facsimile: 972-995-7122
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If to MCDC
Midlothian Community Development Corporation
104 West Avenue E
Attn: Chairman
Facsimile: 972-995-7122
and to:
David G. Drumm
Carrington Coleman
901 Main Street, Suite 5500
Dallas, Texas 75202
Facsimile: 214-758-3732
If to Developer:
Gatehouse Midlothian Development, Inc.
Dallas, TX 75207
Attn: Marty Collins
If to Owner:
Gatehouse Midlothian Ownership, LLC
Dallas, TX 75207
Attn: Marty Collins
and to:
Rick Kopf
Munsch Hardt Kopf Harr, PC
3800 Ross Tower, 500 N. Akard
Dallas, Texas 75201
Facsimile: 214-978-4360
10.2 Methods of Delivery. All Notices required or permitted to be given hereunder
shall be deemed to be duly given: (a) at the time of delivery, if such Notice is personally delivered;
or (b) on the third business day after mailing, if such Notice is deposited with the United
States Postal Service, postage prepaid, for mailing via certified mail, return receipt requested; or (c)
on the next business day, if such Notice is sent by a nationally recognized overnight courier
which maintains evidence of receipt; or (d) upon receipt of delivery, if such Notice is sent by
facsimile transmission before 5:00 p.m. C.S.T. with a confirmation copy delivered the following
day by a nationally recognized overnight courier which maintains evidence of receipt. Notices
shall be effective on the date of receipt. If any Notice is not received or cannot be delivered
due to a change in address of the receiving Party, of which notice was not properly given to the
sending Party, or due to a refusal to accept by the receiving Party, such Notice shall be effective
on the date delivery is attempted.
10.3 Franchise Agreement Notices. The Developer Parties shall notify the City Parties of
its receipt of any notice or result of inspection by the Franchisor within thirty (30) days of the
receipt of the same, and upon request, the City Parties shall be entitled to a copy of any
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correspondence from Franchisor or the Owner to Owner’s lender regarding the Franchise
Agreement. Owner shall notify the City Parties of any Termination, modification, amendment or
other material change to the Franchise Agreement within thirty (30) days of its receipt of the
same. In addition to the foregoing, the existence of a default under the Franchise Agreement shall
be disclosed in writing pursuant to the notice requirements of this Article X as soon as is
reasonably possible, but in any event, within three (3) business days of the Developer Parties
learning of said default.
ARTICLE XI
GENERAL PROVISIONS
11.1 Negation of Partnership. The Parties specifically acknowledge that the Hotel
Complex is a private development, that no Party is acting as the agent of any other in any respect
hereunder, and that each Party is an independent contracting entity with respect to the terms,
covenants and conditions contained in this Agreement. None of the terms or provisions of this
Agreement shall be deemed to create a partnership between or among the Parties in the businesses of
the Developer Parties, the affairs of the City Parties, or otherwise, or cause them to be considered
joint venturers or members of any joint enterprise. This Agreement is not intended and shall not
be construed to create any third Party beneficiary rights in any Person who is not a Party or a
Transferee; and nothing in this Agreement shall limit or waive any rights Owner or Developer
may have or acquire against any third Person with respect to the terms, covenants or conditions of
this Agreement.
11.2 Approvals and Assistance. Unless otherwise provided in this Agreement, whenever
approval, consent, satisfaction, or decision (herein collectively referred to as an “Approval”), is
required of a Party pursuant to this Agreement, it shall not be unreasonably withheld or delayed.
If a Party shall disapprove, the reasons therefore shall be stated in reasonable detail in writing.
Approval by a Party to or of any act or request by the other Party shall not be deemed to waive or
render unnecessary approval to or of any similar or subsequent acts or requests. Whenever, under
this Agreement, the term “approve” (or any grammatical variant thereof, such as “approved” or
“approval”) is used in connection with the right, power or duty of the City Parties, or any
representative board, commission, committee or official of the City Parties, to act in connection
with any City Approval, such term shall only include the right to approve, conditionally approve, or
disapprove in accordance with the applicable terms, standards and conditions of City Regulations,
applicable state or local law and to the extent not inconsistent therewith, this Agreement. In the
event the City proposes a Law that the Developer Parties identify to the City as adverse or burdensome
on the construction, development, occupancy, use or operation of the Hotel Complex or any portion
thereof, City agrees to exercise good faith in hearing the expressed concerns of the Developer Parties
to consider potential alternatives to said Law that achieves the Law’s stated public purpose while
minimizing unnecessary negative impacts on the Hotel Complex, at the request of the Developer
Parties.
11.3 Not A Public Dedication. Except as shown on any approved final plat of the Hotel
Site, nothing herein contained shall be deemed to be a gift or dedication of the Hotel Site or any
buildings or improvements constructed on the Hotel Site, to the general public, for the general
public, or for any public use or purpose whatsoever (except those public benefits described in this
Agreement which accrue to the City through the development of local business activity, employment
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and development, none of which in any way entitle the City or any other governmental or quasigovernmental entity to any gift or dedication of the Hotel Site as private property), it being the
intention and understanding of the Parties that this Agreement be strictly limited to and for the
purposes herein expressed for the development of the Hotel Site as private property.
11.4 Severability. Invalidation of any of the provisions contained in this Agreement, or
of the application thereof to any Person, by judgment or court order, shall in no way affect any of the
other provisions hereof or the application thereof to any other Person or circumstance and the same
shall remain in full force and effect, unless enforcement of this Agreement as so invalidated
would be unreasonable or grossly inequitable under all the circumstances or would frustrate the
purposes of this Agreement.
11.5 Exhibits. The Exhibits, to which reference is made herein, are deemed incorporated
into this Agreement in their entirety by reference thereto.
11.6 Amendment or Termination. Except as expressly provided in this Agreement, this
Agreement may be Terminated, modified or amended only by the written consent of the Parties.
11.7 Entire Agreement. This written Agreement and the Exhibits hereto and the additional
documents referenced herein, contain all the representations and the entire agreement among the
Parties with respect to the subject matter hereof. Upon execution of this Agreement, any prior or
contemporaneous correspondence, memoranda, agreements, warranties or representations, are
superseded in total by this Agreement and Exhibits hereto. Neither the conduct nor actions of the
Parties, nor the course of dealing or other custom or practice between the Parties, shall constitute
a waiver or modification of any term or provision of this Agreement. This Agreement may be
modified or amended only in the manner specified in this Agreement.
11.8 Construction of Agreement. All of the provisions of this Agreement have been
negotiated at arms-length among the Parties and after advice by counsel and other representatives
chosen by each Party, and the Parties are fully informed with respect thereto. Therefore, this
Agreement shall not be construed for or against any Party by reason of the authorship or alleged
authorship of any provisions hereof, or by reason of the status of either Party. The provisions of
this Agreement and the Exhibits hereto shall be construed as a whole according to their common
meaning and not strictly for or against any Party and consistent with the provisions hereof, in order
to achieve the objectives and purpose of the Parties hereunder. The captions preceding the text of
each Article and Section are included only for convenience of reference and shall be disregarded in
the construction and interpretation of this Agreement.
11.9 Further Assurances; Covenant to Sign Documents. Each Party shall take all
actions and do all things, and execute, with acknowledgment or affidavit if required, any and all
documents and writings, which may be necessary or proper to achieve the purposes and objectives
of this Agreement.
11.10 Governing Law. This Agreement, and the rights and obligations of the Parties,
shall be governed by and interpreted in accordance with the laws of the State. All actions to interpret
or enforce this Agreement shall be brought in the district courts sitting in and for Ellis County, Texas.
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11.11 Signature Pages. For convenience, the signatures of the Parties to this Agreement may
be executed and acknowledged on separate pages which, when attached to this Agreement, shall
constitute this as one complete Agreement.
11.12 Recording. The Parties agree that this Agreement shall not be recorded. In lieu
thereof, the Parties shall prepare a separate Memorandum of Agreement, a form of which is
attached hereto as Exhibit “H”, to be recorded in the Official Records of Ellis County, Texas.
11.13 Time. Time is of the essence of this Agreement and of each and every term and
condition hereof.
11.14 No Personal Liability. No member of Developer or Owner shall have any personal
liability, directly or indirectly, under or in connection with this Agreement or any agreement made
or entered into under or pursuant to the provisions of this Agreement. The City Parties shall look
solely to the Hotel and the assets of Owner for the payment of any claim under this Agreement.
{signatures on the following page}
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The Parties hereto have duly executed this Agreement to be effective as of the Adoption Date.
CITY:
By:
Name:
Its:
MCDC:
MIDLOTHIAN COMMUNITY
DEVELOPMENT CORPORATION,
By:
Name:
Its:
DEVELOPER:
GATEHOUSE MIDLOTHIAN
DEVELOPMENT, LLC,
By:
Name:
Its:
OWNER:
GATEHOUSE MIDLOTHIAN OWNERSHIP,
LLC,
By:
Name:
Its:
[Type text]
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EXHIBIT “A”
Conceptual Site Plan
[see attached]
Exhibit A – Page 1
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Exhibit A – Page 2
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EXHIBIT “B”
Average Bad Weather Day Count
[see attached]
Exhibit B – Page 1
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Exhibit B – Page 2
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EXHIBIT “C”
Form of Comfort Letter
[to be attached]
Exhibit C
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EXHIBIT “D”
Standard Development Fees
[see attached]
Exhibit D – Page 1
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EXHIBIT “E”
Permitted Title Exceptions
[see attached]
Exhibit E – Page 1
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Exhibit E – Page 2
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EXHIBIT “F”
Construction Milestones
[see attached]
Exhibit F – Page 1
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Exhibit F – Page 2
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EXHIBIT “G”
Form of Memorandum of Agreement
[to be attached]
Exhibit G
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AGENDA CAPTION:
Consider and act upon a thirty-six (36) month fair market value lease with Dell Computers for 22 laptops and
35 desktops. The Lease is part of the City’s computer replacement program as approved in the Capital
Equipment Program and the FY 2014-2015 Budget.
The purpose of this action is to initiate the replacement of prior leased Dell workstations and laptops. Our
Capital Equipment Program and the lease program call for computers and laptops to be replaced every three (3)
years. This practice helps promote software and hardware compatibility for the City as well as providing stable,
up-to-date technological tools for City employees. In addition, it eliminates the problem of disposing of
outdated equipment through auction. Leasing is more cost effective than purchasing due to the rapid
obsolescence of computer equipment. Also, additional costs for maintaining, extending warranties, and
downtime associated with failed equipment is avoided. These computers are part of the State of Texas
Cooperative Purchasing Program through the Texas Procurement and Support Services.
This is a budgeted expenditure. The City has continuously leased its computer equipment from Dell since
2001. In that time, we have had an exemplary service record of both tech support and the equipment itself.
The lease would include three (3) payments of $28,941.03 for a total of $86,823.09 on equipment valued at
$89,749.92. This purchase has been approved in the FY 2014-2015 budget, line item #105-627-526.
ATTACHMENTS:
1. Dell Financial Services Lease Proposal
ALTERNATIVES:
Approve, deny, table, or amend lease of computers, monitors, and laptops on a three (3) year contract.
RECOMMENDATION:
Approve lease with Dell Financial Services Leasing Program as presented.
Mike Weiss, IT Director
For the November 17, 2014 Council meeting
REVIEWED BY:
APPROVED BY:
DELL FINANCIAL SERVICES LEASE PROPOSAL
CITY OF MIDLOTHIAN
November 4, 2014
Thank you for the opportunity to provide leasing information to you on the proposed acquisition of Dell products. Dell Financial Services (DFS) is
a leasing institution fully integrated into Dell Computers’ systems and operations allowing you to benefit from one stop shopping for all your
hardware, software, peripherals, service, support, and financing needs.
If you have any questions or comments, please don't hesitate to call me at 512-724-5095.
Thank you for your interest in Dell Financial Services.
Sincerely,
Missy Totten
Dell Financial Services
Fair Market Value
LEASE PROGRAM:
Unit Price
Payment
Frequency
Lease
Term
(months)
Lease Rate
Factor
31,147.90
Annual
36
0.30949
$
9,639.96
$
56,100.20
Annual
36
0.30949
$
17,362.45
$
2,501.82
Annual
36
0.30949
$
774.29
$
89,749.92
0.012973
$
1,164.33
$
28,941.03
Total Amount
Financed
Quote #
Equipment
Qty.
693349461
OptiPlex 7020 SFF
$
889.94
35
$
693345867
Latitude E6430 ATG
$
2,805.01
20
694952580
Latitude 14 5000
$
1,250.91
2
Property Management Fee:
Lease Payments
(In Advance)
END OF LEASE OPTIONS:
Fair Market Value
Options available to lessee upon completion of the base lease term are as follows:
1) Exercise the option to purchase the products for its then fair market value.
2) Return all products to lessor at lessee’s expense. Or 3) Renew the Lease on a fair market renewal basis.
LESSEE:
LESSOR:
CITY OF MIDLOTHIAN
Dell Financial Services LP, and/or its successors and assigns.
LEASE QUOTE: The Lease Quote is exclusive of shipping costs, maintenance fees, filing fees, licensing fees, property or use taxes, insurance
premiums and similar items which shall be for Lessee's account. Lessee will pay Payments and all other amounts without set-off, abatement or
reduction for any reason whatsoever. Additionally, Lessee shall declare and pay all sales, use and personal property taxes to the appropriate taxing
authorities. If you are sales tax exempt, please fax a copy of your Exemption Certificate with the Lease Contract.
PURCHASE ORDER: The Purchase Order will be made out to Dell Financial Services, One Dell Way, RR3 Box 8405, Round Rock, TX 78682. The
Purchase Order will include the quote number, quantity and description of the equipment. Please be sure to indicate that the PO is for a lease order
and shows the type of lease, the term length, and payment frequency. The date of the lease quote referenced should be included. Please be sure to
include any applicable shipping costs as a line item. Please include your address as the SHIP TO destination.
INSURANCE: The risk of loss on the Equipment is borne solely by the Lessee. Lessee shall be required to purchase and maintain during the Term
(i) comprehensive public liability insurance naming Lessor as additional insured; (ii) "all-risk" physical damage insurance in a minimum amount of
the Purchase Price, naming Lessor as first loss payee; and, (iii) workmen's compensation insurance.
APPROPRIATION COVENANT: The Lease shall contain an appropriation of funds clause. The Lessee will covenant that it shall do all things legally
within its power to obtain and maintain funds from which the payments may be paid and Lessee will not give priority or parity in the application of
funds to any functionally similar equipment.
DOCUMENTATION: Duly executed Agreement and other appropriate documents, including, opinions of counsel, UCC financing statements, audited
financials and such other documentation as is reasonably requested by Lessor.
PROPOSAL VALIDITY/APPROVALS: This is a proposal based upon market conditions and is valid for 30 days, is subject to final credit approval,
review of the economics of the transaction, and execution of mutually acceptable documentation.
AGENDA CAPTION:
Consider and act upon Modification No. 1 to a Professional Services Contract with Dunkin Sims
Stoffels, Inc. for design services related to the Community Park Project, Phase I in an amount not to
exceed $48,380.
On Tuesday, February 11, 2014, the City Council approved a Professional Services Contract with
Dunkin Sims Stoffels, Inc. for the Phase I design of the Community Park Project in an amount not to
exceed $584,750 (Agenda Item 2014-50). This work included design development services
(construction documents and specifications, bidding and contract award, Construction Manager at Risk
and construction administration) and additional services (site grading plan for the entire park site and
preliminary grading for future 14th Street) related to the Phase I improvements.
The scope of services for the Phase I design work included the design, specifications, bidding and
construction of two (2) lanes of S. 14th Street, from just north of Ashford Lane to the northern park
entrance. The additional services also included the preliminary grading of S. 14th Street, from this
northern entrance to the northern park boundary.
At a past City Council workshop, staff was directed to include the design and construction of two (2)
lanes of S. 14th Street through the entire park property as part of the Phase I work. In addition, staff
discussed the need to install a gravity sanitary sewer main along this segment of S. 14th Street, from the
Lawson Farms lift station to Ashford Lane. This modification addresses these two additional services.
FINANCIAL IMPACT/ FUNDING SOURCE:
Funding for the extension of S. 14th Street in the amount $30,315 is included as part of the General
Obligation Issuance. Funding for the design of the sanitary sewer main in the amount of $19,065 is
available from the Special Utility Project line item (638-926) which has a current balance of $150,000.
ATTACHMENTS:
1. Professional Services Contract – Modification No. 1
2. Agenda Item 2014-50
3. Community Park Master Layout Plan, Phase I
4. Comments from Don Stout, City Attorney
ALTERNATIVES:
RECOMMENDATION:
Mike Adams, P.E., Executive Director of Engineering & Utilities
REVIEWED BY:
APPROVED BY:
Attachment 1
THE STATE OF TEXAS
COUNTY OF ELLIS
§
§
§
PROFESSIONAL SERVICES CONTRACT MODIFICATION
Community Park, Phase I
Know all men by these presents:
This Modification No. 1 made and entered into by and between the City of
Midlothian, “City” and Dunkin Sims Stoffels, Inc., “Consultant.”
WHEREAS, City and Consultant entered into a professional services contract “Contract,”
for design services for Phase I of the Community Park, said Contract being dated January
29, 2014; and
WHEREAS, City requests a modification to said Contract for additional professional
services.
NOW THEREFORE FOR AND IN CONSIDERATION of the covenants, duties and
obligations herein contained, City and Consultant agree that said Contract is incorporated
herein as if written word for word. Except as provided below, all other terms and
conditions of the Contract shall remain unchanged and shall remain in full force and
effect. In the event of any conflict or inconsistency between the provisions set forth in the
modification and the Contract, this modification shall govern and control. In
consideration of the foregoing and for other good and valuable consideration, the parties
agree as follows:
1. Consultant has submitted a proposal for additional professional services, as provided
in Exhibit “A”, attached hereto and made a part hereof for all purposes.
2. Consideration to be paid to Consultant by the City shall be as set forth in Exhibit “A”.
3. Any disputes between the parties shall be resolved in Ellis County, Texas.
4. Consultant agrees to abide by all terms and conditions set forth in Exhibit “A”
attached hereto.
5. Termination – This Contract may be terminated at any time by the City, without
penalty or liability except as may be specified herein. Payment to the Consultant for
completed services will be as provided in Exhibit “A”.
Page 1 of 2
EXECUTED this ________ day of _________________, 2014.
City of Midlothian
Dunkin Sims Stoffels, Inc.
By: ___________________________
Bill Houston, Mayor
By: ______________________________
Dennis Sims, President
Attest:
Attest:
______________________________
______________________________
Page 2 of 2
Exhibit "A"
Attachment 2
AGENDA ITEM 2014-50
AGENDA CAPTION:
Consider and act upon a contract with Dunkin Sims Stoffels Inc. for the Community Park Phase 1,
scope of services; said contract being divided into two phases: Phase 1- basic design services and
construction documents pertaining to Phase I; and Phase II- address additional services related to the
project for the Community Park; in a combined total amount not to exceed $584,750.00
The purpose of this agreement will cover the Basic Design Services & Construction Documents for
Phase 1 which will include Design Development Services, Construction Documents and
Specifications, Bidding and Contract Award, Selection of Construction Manager at Risk, and
construction Administration. Also will include for Phase II- Additional Services which will consist of:
Site Grading Plan for the Entire Park Site, Preliminary Grading for Future 14th Street and some
Reimbursable Expenses.
This Park was approved in the 2006 Bond Election. After 8 years staff, the Parks Board and the citizens
of Midlothian are eager to see this project move forward.
Funding for the professional services agreement is available from the $7.8 Million General Obligation
Bond ($6.0 million of which was for Parks) that was issued by the City in March of 2013. Based on the
construction estimate, as provided in the proposal, additional funding will be necessary to complete
Phase I and all future phases of the project.
ATTACHMENTS:
1. Contract for scope of Services from Dunkin Sims and Stoffels Inc.
2. City Attorney comments
ALTERNATIVES:
Approve, deny, amend or table.
RECOMMENDATION:
The Parks and Recreation Board and staff recommend approving the attached contract for the
Community Park Project with Dunkin Sims, and Stoffels Inc.
SUBMITTED BY and TO BE PRESENTED BY: Billy King, Parks and Recreation Manager
For the February 11th, 2014 City Council Meeting
REVIEWED BY: Kevin J. Lasher, AICP, Director of Planning
For the February 11th, 2014 City Council Meeting
REVIEWED BY:
APPROVED BY:
Attachment 1
ATTACHMENT 2
ATTACHMENT
3
6
3
2
1
PHASE I - LEGEND:
1. NORTHWEST SATELLITE PARKING
2. SOCCER FIELDS
3. RESTROOM/CONCESSION/PLAYGROUND
4. FOOTBALL FIELD WITH ¼ MILE WALKING TRAIL
5. FOOTBALL FIELD WITH BLEACHERS
6. PHASE I MAIN PARKING
CITY OF MIDLOTHIAN, TEXAS
2
5
MIDLOTHIAN COMMUNITY PARK
4
PHASE I
Attachment 3
Attachment 4
AGENDA CAPTION:
Consider and act upon a proposed tri-party Economic Development Incentive Agreement with Jerry
and Steve Massey (“the Developer”) and Midlothian Economic Development (“MED” aka “4A”)
intended to incentivize the construction of a restaurant by conditionally committing to reimburse the
Developer up to $35,000 of City monies and an amount to be determined by the MED at their
November 17, 2014 meeting, toward the cost of extending approximately 800 feet of gravity sanitary
sewer main to the site.
On Tuesday, October 14, 2014, the City Council approved a Specific Use Permit (SUP) for a Beef O’
Brady’s Restaurant, located east of the Midlothian Skilled Nursing Facility on George Hopper Road
(Agenda Item 2014-410). As part of the staff report contained within the agenda item, City utilities
(i.e., water and sanitary sewer) are available for this site; however, both utilities need to be extended in
order to provide these services, with the sanitary sewer being located off-site (south of Auto Zone).
The Developer has agreed to construct the sanitary sewer improvements contingent upon local
reimbursement for these costs, which will benefit future developments within this area.
In March 2012, the MED and City Council adopted an incentive policy, “Commercial/Retail Area
Developments” via Resolution 2015-05 (Agenda Item 2012-86). Although this policy was not
continued by Council and expired in March of this year, this requested incentive falls within the criteria
set forth within the policy.
• The length of the off-site gravity sanitary sewer extension will be approximately 800 feet and will
serve future developments within the area.
• Construction of the facility must commence within six (6) months of the execution date of this
Agreement and shall be completed within twelve (12) months of the execution date of this
Agreement.
• The Developer shall submit a preliminary plat, final plat, site plan, elevations and landscaping plan
for approval. All standards in the Zoning Ordinance and Subdivision Regulations are required to be
met.
• The Developer shall design and construct the Sanitary Sewer Project or cause the Project to be
designed and constructed in accordance with the City’s Standard Construction Details.
• The Developer will dedicate or cause the dedication of a 15-foot-wide easement along George
Hopper Road to the City for the Sanitary Sewer Project.
• Reimbursement of these monies shall occur after acceptance of the Sanitary Sewer Project by the City
and the issuance of a Certificate of Occupancy (C.O.) for the restaurant.
This item is scheduled for consideration by the 4A Board at their regular meeting on Monday,
November 17, 2014.
The preliminary construction cost estimate for this sanitary sewer project is $50,200. City funding, up
to the $35,000, is available from the Transfer to Capital Projects line item (638-840), which has a
current balance of $600,000.
ATTACHMENTS:
1. Location Map
2. Draft Site Plan
3. Draft Economic Development Incentive Agreement
ALTERNATIVES:
Approve, Deny, Modify or Table
RECOMMENDATION:
Staff recommends approval as presented, contingent upon approval by the 4A Board.
REVIEWED BY:
APPROVED BY:
Attachment 1
Attachment 2
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CIVIL ENGINEERING SURVEYING
STATE OF TEXAS
COUNTY OF ELLIS
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ECONOMIC DEVELOPMENT INCENTIVE AGREEMENT
This Economic Development Incentive Agreement (“Agreement”) is made by and among
the City of Midlothian, Texas (the “City”), Midlothian Economic Development (the “MED”),
and Jerry and Steve Massey (the “Developer”) (each a “Party” and collectively the “Parties”),
acting by and through their respective authorized representatives.
W I T N E S S E T H:
WHEREAS, Developer is the owner of the real property described in Exhibit “A” (the
“Property”) which consists of an approximately 1.32± acre tract of land in Midlothian, Ellis
County, Texas, generally located south of George Hopper Road and approximately 450 feet east
of Silken Crossing as depicted on the Site Plan.
WHEREAS, the Developer intends to construct on the Property a 4,800 square foot sitdown restaurant with outdoor seating area and other ancillary facilities, such as reasonably
required parking and landscaping, more fully described in the submittals filed by Developer with the
City, from time to time, in order to obtain one or more building permits (hereinafter defined as the
“Facility”); and
WHEREAS, the Developer has advised the City and the MED that a contributing factor
that would induce the Developer to construct the Facility would be an agreement with the City
and the MED to participate in the costs of construction of certain public infrastructure necessary
for the Facility consisting of the extension of approximately 800 linear feet of sanitary sewer and
associated appurtenances to the property (hereinafter defined as the “Sanitary Sewer Project”)
through economic development grants and incentives as set forth herein; and
WHEREAS, the City and MED desire to encourage new and expanded business
enterprises within the City that will add employment opportunities, property tax base and
generate additional sales tax and other revenue for the City; and
WHEREAS, the City and MED each intend to contribute an amount not to exceed
Thirty-five Thousand Dollars and __________Thousand Dollars, respectively ($35,000 and
$________, respectively) toward the cost of the Sanitary Sewer Project; and
WHEREAS, the promotion of new business enterprises and the expansion of existing
businesses within the City will promote economic development, stimulate commercial activity,
generate additional sales tax and will enhance the property tax base and economic vitality of the
City; and
WHEREAS, the City has adopted programs for promoting economic development, and
this Agreement and the economic development incentives set forth herein are given and provided
by the City pursuant to and in accordance with those programs; and
1
WHEREAS, the City is authorized by Article III, Section 52-a of the Texas Constitution
and Texas Local Government Code Chapter 380 to provide economic development grants to
promote local economic development and to stimulate business and commercial activity in the
City; and
WHEREAS, the City has determined that making an economic development grant to the
Developer in accordance with this Agreement is in accordance with the City Economic
Development Program and will: (i) further the objectives of the City; (ii) benefit the City and the
City’s inhabitants; and (iii) promote local economic development and stimulate business and
commercial activity in the City; and
WHEREAS, the MED has adopted programs for promoting economic development; and
WHEREAS, the Development Corporation Act, Title 12, Subtitle C1, Chapter 501-505
of the Texas Local Government Code (the “Act”) authorizes the MED to provide funding and
economic development grants for infrastructure suitable for new or expanded business
enterprises; and
WHEREAS, the MED has determined that the Sanitary Sewer Project constitutes
“Infrastructure” as that term is defined in the Act; and
WHEREAS, the MED has determined that the Grant (hereinafter defined) for the
Sanitary Sewer Project to be made hereunder is required or suitable to promote or develop new
or expanded business enterprises and constitutes a “project,” as that term is defined in the Act;
and
WHEREAS, the MED has determined that making the Grant for the Sanitary Sewer
Project in accordance with this Agreement will further the objectives of the MED, will benefit
the City and the City’s inhabitants and will promote local economic development and stimulate
business and commercial activity in the City; and
NOW THEREFORE, in consideration of the foregoing, and on the terms and conditions
hereinafter set forth, and other valuable consideration the receipt and sufficiency of which are
hereby acknowledged, the Parties agree as follows:
Article I
Definitions
For purposes of this Agreement, each of the following words and phrases shall have the
meaning set forth herein unless the context clearly indicates otherwise:
“Act” or “Development Corporation Act” shall have the meaning ascribed in the
Recitals above.
2
“Bankruptcy or Insolvency” shall mean the dissolution or termination of a Party’s
existence as a going business, insolvency, appointment of receiver for any part of such
party’s property and such appointment is not terminated within ninety (90) days after
such appointment is initially made, any general assignment for the benefit of creditors, or
the commencement of any proceeding under any bankruptcy or insolvency laws by or
against such Party and such proceeding is not dismissed within ninety (90) days after the
filing thereof.
“Capital Investment” shall mean the Developer’s capitalized cost of the Facility,
including the costs for the design, construction and equipment of the Facility.
“City” shall have the meaning ascribed in the Recitals above.
“City Grant” shall mean an economic development grant to defray a portion of the
final verified costs to design and construct the Sanitary Sewer Project not to exceed
Thirty-five Thousand Dollars ($35,000), to be paid as set forth herein.
“Commencement of Construction” shall mean that: (i) the plans have been
prepared and all approvals thereof required by applicable governmental authorities have
been obtained for construction of the Facility and the Sanitary Sewer Project, as the case
may be; (ii) all necessary permits for the construction of the Facility and the Sanitary
Sewer Project, as the case may be, have been issued by the applicable governmental
authorities; (iii) excavation for the construction of the Sanitary Sewer Project has
commenced; and (iv) in the case of the Facility, vertical elements of construction has
commenced. For purposes herein “vertical elements of construction” shall mean the
pouring of foundation for the Facility.
“Completion of Construction” shall mean that (i) construction of the Sanitary
Sewer Project and the Facility have been substantially completed, (ii) the City has
inspected and accepted the Sanitary Sewer Project, and (iii) the City has issued a final
certificate of occupancy for the Facility.
“Developer” shall have the meaning ascribed in the Recitals above.
“Easement” shall mean necessary off-site easement for the Sanitary Sewer Project
consisting of 15 feet in width, which is to be dedicated or conveyed (or caused by
Developer to be dedicated or conveyed) by subdivision plat or separate instrument to the
City by the Developer.
“Effective Date” shall mean the date that authorized representatives of all of the
Parties have signed this Agreement.
“Expiration Date” shall mean the date that all Parties have fully satisfied their
respective obligations herein.
“Facility” shall have the meaning ascribed in the Recitals above and is generally
depicted in the site plan attached as Exhibit “A” (the “Site Plan”).
3
“Force Majeure” shall mean any contingency or cause beyond the reasonable control
of a party including, without limitation, acts of God or the public enemy, war, terrorist act,
or threat thereof, riot, civil commotion, insurrection, government action or inaction (unless
caused by the intentionally wrongful acts or omissions of the party), fires, earthquake,
tornado, hurricane, explosions, floods, strikes, slowdowns or work stoppages.
“Grants” shall collectively mean (i) the MED Grant; and (ii) the City Grants.
“Impositions” shall mean all taxes, assessments, use and occupancy taxes,
charges, excises, license and permit fees, and other charges by public or governmental
authority, general and special, ordinary and extraordinary, foreseen and unforeseen,
which are or may be assessed, charged, levied, or imposed by any public or governmental
authority on Developer or any property or any business owned by the developer or any of
its affiliates or related entities.
“MED” shall have the meaning ascribed in the Recitals above.
“MED Grant” shall mean an economic development grant to defray a portion of
the final verified costs to design and construct the Sanitary Sewer Project not to exceed
______________ Thousand Dollars ($_________), to be paid as set forth herein.
“Payment Request” means a written request from the Developer to the City and
MED, respectively, for payment of the Grants, accompanied by copies of invoices, bills,
receipts and such other information as may reasonably be requested by the City and
MED, reflecting the final, actual costs incurred and paid by the Developer for the design
and construction of the Sanitary Sewer Project.
“Property” shall have the meaning ascribed in the Recitals above.
“Related Agreement” shall mean any agreement (other than this Agreement) by
and between the City and/or the MED and the Developer.
“Sanitary Sewer Project” shall have the meaning ascribed in the Recitals above.
Article II
Term
The term of this Agreement shall begin on the last date of execution hereof (the
“Effective Date”) and continue until the Expiration Date, unless sooner terminated as provided
herein.
4
Article III
Projects
3.1
Facility. (a) The Developer shall construct or cause the Facility to be
constructed in accordance with this Agreement. Developer shall, subject to events of Force
Majeure, cause Commencement of Construction of the Facility to occur not later than six (6)
months after the Effective Date, and subject to events of Force Majeure, cause Completion of
Construction of the Facility to occur not later than twelve (12) months after the Effective Date.
(b)
Development of the Property. The Developer understands and acknowledges that
approval of a final plat and site plan for the Property by the City are required prior to
Commencement of Construction of the Sanitary Sewer Project and the Facility. The Developer
shall submit and use diligent, good faith efforts to make application for and obtain from the City
preliminary plat and final plat approval of the Property for the Facility not later than ninety (90)
days after the Effective Date. The Developer shall submit and use diligent, good faith efforts to
obtain from the City approval of a site plan, elevations and landscaping plan for the Facility not
later than ninety (90) days after the Effective Date. The Facility shall be constructed and
operated in accordance with the site plan, building elevations, and landscape plan approved by
the City. The development and use of the Property shall comply with the standards and
regulations of the Midlothian Comprehensive Zoning and Subdivision Ordinances, as amended.
3.2
Sanitary Sewer Project. (a) The Developer shall, subject to the cost participation
by the MED and City set forth in Section 3.2 (b) below, design and construct the Sanitary Sewer
Project, or cause the Sanitary Sewer Project to be designed and constructed in accordance with
the City Standard Construction Details and in accordance with the plans and specifications
approved by the City. Developer shall, subject to events of Force Majeure, cause
Commencement of Construction of the Sanitary Sewer Project to occur not later than six (6)
months after the Effective Date, and shall, subject to events of Force Majeure, cause Completion
of Construction of the Sanitary Sewer Project to occur not later than twelve (12) months after the
Effective Date.
(b)
Cost Participation. The City and MED each agree to contribute to the final
verified actual costs of the design and construction of the Sanitary Sewer Project through the
payment of the Grants, to be paid not later than thirty (30) days after the date the last of the
following events to occur: (i) City and MED’s receipt of the Payment Request; (ii) Completion
of Construction of the Sanitary Sewer Project and acceptance by the City; (iii) the date of
issuance of a final certificate of occupancy by the City for the Facility, and (iv) City verification,
on behalf of the City and the MED, of the final actual costs incurred and paid by the Developer
for the design and construction of the Sanitary Sewer Project.
(c)
Sanitary Sewer Cost Verification. Developer shall, not later than thirty (30) days
after Completion of the Sanitary Sewer Project, submit to the City the Payment Request
accompanied by the receipts, records and invoices for the payment of the costs to design and
construction of the Sanitary Sewer Project, and such other records as the City may reasonably
request to verify such the final actual costs (“Expenditure Information”). The City shall verify
the Expenditure Information within fifteen (15) days after receipt thereof.
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3.3
Easement. Developer shall, without cost or expense to the City, dedicate, or
cause to be dedicated, the necessary easement consisting of fifteen (15) feet in width for the
Sanitary Sewer Project to the City by plat or separate instrument, reasonably acceptable to the
City, not later than thirty (30) days after the Effective Date.
Article IV
Conditions to Grant Payments
The obligation of the MED and City to pay the Grants hereunder shall be conditioned
upon the compliance and satisfaction of each of the terms and conditions of this Agreement by
the Developer, and each of the terms and conditions set forth below:
4.1
Payment Request. Developer shall have provided the City and the MED with the
Payment Request.
4.2
Good Standing. Developer shall not have an uncured breach of this Agreement or
a Related Agreement.
Article V
Termination
5.1
Termination. This Agreement terminates on the Expiration Date, and may, prior
to the Expiration Date, be terminated upon any one or more of the following:
(a)
(b)
(c)
(d)
(e)
by mutual written agreement of all the Parties;
by the City and/or the MED, if the Developer defaults or breaches any of
the terms or conditions of this Agreement or a Related Agreement and
such default or breach is not cured within thirty (30) days after written
notice thereof;
by the City or the MED, if any Impositions owed to the City or the State
of Texas by the Developer shall have become delinquent (provided,
however, the Developer retains the right to timely and properly protest and
contest any such taxes or Impositions);
by the City or the MED, if the Developer suffers an event of Bankruptcy
or Insolvency; or
by any Party if any subsequent Federal or State legislation or any decision
of a court of competent jurisdiction declares or renders this Agreement
invalid, illegal or unenforceable.
5.2
Offsets. If, and only if Developer is in default under this Agreement beyond any
applicable notice and cure periods, the City and/or the MED may, at their option, but upon prior
written notice to Developer, offset any amounts due and payable under this Agreement against
any debt (including taxes) lawfully due to the City and/or the MED from the Developer,
regardless of whether the amount due arises pursuant to the terms of this Agreement, a Related
Agreement, or otherwise, and regardless of whether or not the debt due the City and/or the MED
has been reduced to judgment by a court. If the City and/or the MED exercise this right of offset,
6
the City and/or the MED (as applicable) shall provide Developer with a detailed accounting of
funds setting forth (i) the amounts due under this Agreement, (ii) what portion of those amounts
due under this Agreement were used to pay other debts due and payable to the City, and (iii)
what other debts were paid and in what amounts.
Article VI
Miscellaneous
6.1
Binding Agreement. The terms and conditions of this Agreement are binding
upon the successors and permitted assigns of the Parties hereto; provided, however the right of
the Developer to receive the Grants shall be personal to the Developer and shall not transfer to
the Developer’s successors and assigns unless expressly agreed to in writing signed by both the
Developer and such successor/assignee.
6.2
Limitation on Liability. It is understood and agreed between the Parties that the
Parties, in satisfying the conditions of this Agreement, have acted independently, and the City
and the MED assume no responsibilities or liabilities to third parties in connection with these
actions.
6.3
No Joint Venture. It is acknowledged and agreed by the Parties that the terms
hereof are not intended to and shall not be deemed to create a partnership or joint venture among
the Parties.
6.4
Authorization. Each Party represents that it has full capacity and authority to
grant all rights and assume all obligations that are granted and assumed under this Agreement.
The undersigned officers and/or agents of the Parties hereto are the properly authorized officials
and have the necessary authority to execute this Agreement on behalf of the Parties hereto.
6.5
Notice. Any notice required or permitted to be delivered hereunder shall be
deemed received three (3) days thereafter sent by United States Mail, postage prepaid, certified
mail, return receipt requested, addressed to the party at the address set forth below (or such other
address as such party may subsequently designate in writing), or on the day actually received if
sent by courier or otherwise hand delivered.
7
If intended for City, to:
Attn: City Manager
City of Midlothian, Texas
104 West Avenue E
If intended for MED, to:
Attn: President
Midlothian Economic Development
310 North 9th Street, Suite A
If intended for Developer, to:
Attn: Jerry and Steve Massey
________________________
________________________
6.6
Entire Agreement. This Agreement is the entire Agreement among the Parties
with respect to the subject matter covered in this Agreement. There is no other collateral oral or
written Agreement among the Parties that in any manner relates to the subject matter of this
Agreement.
6.7
Governing Law. The Agreement shall be governed by the laws of the State of
Texas, without giving effect to any conflicts of law rule or principle that might result in the
application of the laws of another jurisdiction; and exclusive venue for any action concerning
this Agreement shall be in the State District Court of Ellis County, Texas. The Parties agree to
submit to the personal and subject matter jurisdiction of said court.
6.8
Amendment.
agreement of the Parties.
This Agreement may only be amended by the mutual written
6.9
Legal Construction. In the event any one or more of the provisions contained in
this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect,
such invalidity, illegality, or unenforceability shall not affect other provisions, and it is the
intention of the parties to this Agreement that in lieu of each provision that is found to be illegal,
invalid, or unenforceable, a provision shall be added to this Agreement which is legal, valid and
enforceable and is as similar in terms as possible to the provision found to be illegal, invalid or
unenforceable.
6.10 Exhibits. All exhibits to this Agreement are incorporated herein by reference for
all purposes wherever reference is made to the same.
6.11 Successors and Assigns. This Agreement may not be assigned by any Party
without the prior written consent of all other Parties.
8
6.12
Recitals. The recitals to this Agreement are incorporated herein.
6.13 Counterparts. This Agreement may be executed in counterparts. Each of the
counterparts shall be deemed an original instrument, but all of the counterparts shall constitute
one and the same instrument.
6.14 Survival of Covenants. Any of the representations, warranties, covenants, and
obligations of the parties, as well as any rights and benefits of the Parties, pertaining to a period
of time following the termination of this Agreement shall survive termination.
6.15 Consents and Approvals. Unless stated otherwise in this Agreement, whenever a
Party is required to consent to or approve of the action of another Party pursuant to Agreement,
such consent or approval shall not be unreasonably withheld, denied, or delayed.
6.16 Employment of Undocumented Workers. During the term of this Agreement, the
Developer agrees not to knowingly employ any undocumented workers, and if convicted of a
violation under 8 U.S.C. Section 1324a (f), the Developer shall repay the Grants herein and any
other funds received by the Developer from the City and/or the MED as of the date of such
violation within 120 days after the date the Developer is notified by the City and/or the MED of
such violation, plus interest at the rate of 6% compounded annually from the date of violation
until paid. The Developer is not liable for a violation of this Section by a subsidiary, affiliate, or
franchisees of the Developer or by a person or entity with whom the Developer contracts.
[Signature Page to Follow]
9
EXECUTED on this _______ day of _____________________, 2014.
CITY OF MIDLOTHIAN, TEXAS
By:
Chris Dick, Interim City Manager
ATTEST:
By:
By:
City Attorney
EXECUTED on this _______ day of ______________________, 2014.
MIDLOTHIAN ECONOMIC DEVELOPMENT
By:
Larry S. Barnett, President
EXECUTED on this _______ day of ______________________, 2014.
DEVELOPER: JERRY AND STEVE MASSEY
By:
Jerry Massey
By:
Steve Massey
10
Attachment 4
AGENDA ITEM 2012-86
AGENDA CAPTION:
Consider and act upon a resolution to approve the City of Midlothian and the Economic
Development of Midlothian (CEDM) Commercial/Retail Area Infrastructure Investments
Strategies Program (Case # RES07-2011-23)
The CEDM at their Regular meeting on Tuesday, February 21, 2012, considered Agenda Item #
7 “Receive and take possible action regarding CEDM Retail Incentives Policy.” Final CEDM
action is pending subject to City Council action on this item.
This is a temporary, two-year trial program to incentivize commercial and retail development
during this time of economic recession. Priorities will be guided by the 2011 Catalyst Retail
Analysis Merchandising Plan. Infrastructure investment should create a catalyst for further retail
development within a defined area. The City, CEDM and developer/ land-owner will share in
the project costs.
FINANCIAL IMPACT: N/A
ATTACHMENTS:
1. Proposed Program and Criteria Commercial/Retail Area Infrastructure Investment Strategies
2. Resolution
3. Map of Retail Target Areas (from 2011 Catalyst Study)
ALTERNATIVES:
Approve, Deny, Amend or Table
RECOMMENDATION:
Approve as presented.
SUBMITTED AND TO BE PRESENTED
BY:
John A. Garfield, AICP, Director of Planning
For the March 13, 2012 Council meeting
Page 1 of 9
REVIEWED BY:
APPROVED BY:
Page 2 of 9
Attachment 1
DRAFT
Proposed Program & Criteria
COMMERCIAL/RETAIL AREA INFRASTRUCTURE
INVESTMENT STRATEGIES
for
Targeted Area Developments
1. Incentive Program Process & Requirements
This is a temporary, two-year trial program to incentivize commercial
and retail development during this time of economic recession. Priorities will
be guided by the 2011 Catalyst Retail Analysis Merchandising Plan.
Infrastructure investment should create a catalyst for further retail development
within a defined area. The City, CEDM and developer/ land-owner will share
in the project costs.
Purpose:
Commercial use is considered to be “any activity conducted with
the intent of realizing a profit from the sale of goods or services to others” (e.g.
medical services, banks, dry cleaners, restaurant, auto repair). Retail is
considered to be “the direct sale of merchandise or commodities to consumers”
(e.g. hardware, clothing, electonics).
Definitions:
Steps:
 Review the 16 “Priority Retail Sites” from the Catalyst Retail Analysis Plan
to identify potential (hereby designated) “Retail Hot Spots” that may need
incentivizing through infrastructure improvements.
 Prepare a ‘Needs Assessment’ Budget for each site based on:
o The Capital Improvement Plan (CIP)
o Critical Off-Site Road, Water and Sewer needs
o Priority of 4-5 potential project “Hot Spot” areas
 Determine short-term infrastructure budget based on fund availability and
prioritization of target areas
o Potential City funds include:
 Water Impact Fee Funds
 Sewer Impact Fee Funds
 Utility Fund – Infrastructure
 General Fund (very limited)
o CEDM Funds
Page 3 of 9
o State and Federal grants, etc.
 Priority for funding will be given to a private development deal that has
pending contracts for construction and lease/purchase (use) of the facilities.
 A Development Agreement may be required under the Texas Local
Government Code, Chapter 380 agreement authorization.
 In cases where the public Return on Investment (ROI) is marginal or in
question, a Fiscal Impact Analysis may be required to demonstrate a positive
net return within 10 years.
2. Criteria for Qualifying Commercial/Retail Developments
 The proposed development must be located within an area designated as a
Primary Trade Area by the Catalyst Retail Analysis and Merchandising Plan
(2011 Study or as amended by CEDM and City Council) with preference to
selected “Retail Hot Spots”.
 The proposed development must be consistent with the City of Midlothian
Comprehensive Plan and Capital Improvement Plan for sewer, water and
roadway improvements.
 The proposed development must comply with the City Zoning, Subdivision,
and Impact Fee Ordinances, as well as all other applicable City
requirements.
 The proposed development must generate enough ROI over 10 years to yield
a net positive fiscal impact within 10 years. If this is in question, a formal
study may be required. All developments shall provide for a net job gain to
be reported annually to CEDM.
 Participating property owners shall collectively contribute 50% of the total
costs of needed road and/or drainage infrastructure improvements. If funds
are available, the City and/or CEDM may pay more than a 50% share toward
off-site water and sewer costs.
 Road projects to be incentivized must be designated on the City of
Midlothian Thoroughfare Plan, or, meet the criteria for thoroughfare design
standards.
 Incentivized infrastructure must benefit a broader area and multiple property
owners.
 The consideration of all incentive requests shall be subject to the availability
of City and/or CEDM funds.
 BEFORE CITY OR CEDM EXPENDS MONEY ON CONSTRUCTION:
o Developer(s) shall provide a letter of intent;
o City and CEDM will pass a Resolution of Intent containing terms of
incentive(s);
Page 4 of 9
o Within the Resolution, a specified time period (typically one year but
not more than 18 months) for project initiation will be established
along with provision by the Developer of escrow monies equal to
150% of his share of infrastructure costs, or, a letter of commitment
from an approved financial institution for the developer’s share with a
performance bond equal to the cost of the infrastructure
improvements.
o Performance-based loans will be considered on a case-by-case basis.
o Other Development Agreement steps shall apply per Section 3, below.
3. DEVELOPMENT AGREEMENT STEPS AND
REQUIREMENTS
Each involved property owner will be required to enter into a Developer’s
Agreement with the City and the CEDM which provides for the following
terms:
o All involved property is plated per City of Midlothian Subdivision
Regulations;
o property owner shall dedicate any required right-of-way by plat or
other acceptable instrument without cost to the city prior to the award
of any contracts for the construction of the infrastructure;
o city may elect to bid and award a contract(s) for the design and
construction of the infrastructure;
o prior to the city award of design contract for the infrastructure,
property owner and/or developer provides an acceptable financial
instrument of commitment for developer’s share of the estimated costs
of the design work;
o city obtains engineer’s cost estimate of the project;
o prior to the award of contract(s) for the construction of infrastructure,
the property owner/Developer shall provide required financial
guarantees with the city for the developer’s estimated share of the
infrastructure costs;
o cost overruns shall be shared equally by the property owner/developer
and the City/CEDM;
o city is required to refund any unexpended escrowed funds to the
property owner if the project costs at completion are less than the
escrowed amount;
o escrowed funds shall be deposited in interest bearing city accounts
with interest applied toward project costs or any interest earned may
Page 5 of 9
o property owner/Developer is required to cause the commencement of
construction of a certain amount of building area containing certain
minimum square footage of space and required parking on or before
certain date and to cause completion of construction thereof within a
certain time period thereafter;
o property owner/developer shall submit any required zoning
application, if applicable, by specified date including a concept site
plan with landscape and elevation plans for the property
improvements which shall be subject to city approval by date certain;
o each property owner must execute a Developer’s Agreement with the
City/CEDM and provide acceptable financial guarantees with bond
commitment to cover required funds in order for the city to proceed
with the infrastructure improvements;
o the obligations of the property owner/Developer may include the
recording of covenants which shall run with the land;
o the property owner/Developer is obligated to reimburse the city 50%
of the city costs of the infrastructure if the property owner does not
construct the required on-site improvements;
o the City and CEDM will enter into an infrastructure support
agreement for the CEDM to pay up to 25% of the estimated costs of
the project to the city and to pay 25% of any costs in excess of the
estimated costs of the infrastructure improvements.
Page 6 of 9
RESOLUTION 2012-??
A RESOLUTION ADOPTING THE CITY OF MIDLOTHIAN AND THE
CORPORATION OF ECONOMIC DEVELOPMENT FOR MIDLOTHIAN (CEDM)
COMMERCIAL/RETAIL AREA INFRASTRUCTURE INVESTMENTS STRATEGIES
PROGRAM
WHEREAS, the City of Midlothian and the Corporation of Economic Development for
Midlothian (CEDM); desires to enter into a program to incentivize commercial and retail
development in the City of Midlothian, and:
WHEREAS, the two-year trial program will be guided by the 2011 Catalyst Retail Analysis
Merchandising Plan, and;
WHEREAS, the shared infrastructure investment should create a catalyst for further retail
development within a defined area, and;
WHEREAS, The City, Corporation of Economic Development for Midlothian (CEDM) and
developer/ land-owner will contribute to the program costs.
NOW, THEREFORE, BE IT RESOLVED
That the City of Midlothian and the Corporation of Economic Development for Midlothian
(CEDM) agrees to partake in a Commercial/Retail Area Infrastructure Investments Strategies
Program, set forth in Exhibit A; and
BE IT FURTHER RESOLOVED
That this program shall expire in two years from the date of adoption unless continued by the
City Council. Any active program approved prior to this date shall continue until completed.
PASSED, ADOPTED AND APPROVED by the City Council of the City of Midlothian this the
13th day of March 2012.
APPROVED:
______________________________
Bill Houston, Mayor
ATTEST:
_________________________________
Lou Jameson, City Secretary
Page 7 of 9
EXHIBIT A
DRAFT
Proposed Program & Criteria
COMMERCIAL/RETAIL AREA INFRASTRUCTURE
INVESTMENT STRATEGIES
for
Targeted Area Developments
(will be attached to resolution when approved and finalized)
Attachment 3
Page 8 of 9
Page 9 of 9
Attachment 5
AGENDA CAPTION:
Conduct a public hearing and act upon an ordinance to allow a Specific Use Permit (SUP) request
for Beef O’Brady Restaurant. Property is currently zoned Community Retail (CR) District, and
contains ± 1.316 acres, being in the William Hawkins Survey, Abstract No. 465 and the B.F.
Hawkins Survey, Abstract No. 464, and generally located south of George Hopper Road ± 500
feet east of Silken Crossing, in the City of Midlothian, Texas. (Case No. SUP04-2013-115)
RECOMMENDATION:
On September 16, 2014, the Planning & Zoning Commission voted unanimously to recommend
approval of this SUP request for this restaurant on property zoned Community Retail (CR),
subject to the conditions as stated in the Recap section. Staff also recommends approval as
presented.
Purpose:
The applicant, Brad Golden, is seeking a Specific Use Permit (SUP) to build a 4,800-square foot
sit-down restaurant with an outdoor seating area. Under the Use Table found in Section 2.02 of
the Zoning Ordinance, an SUP is required for restaurants measuring over 1,000 square feet in area
within the Community Retail (CR) District.
This property was zoned to Community Retail (CR) under Ordinance 99-56. There is no prior
subdivision history on this property. A preliminary and final plat were approved by the Planning
and Zoning Commission on September 17, 2013 for the skilled nursing site to the west. A
preliminary & final plat will be required for this site as well.
ANALYSIS:
Zoning and Land Uses:
Direction:
Existing Land Use:
Subject prop.
North
South
East
West
Proposed restaurant
Shopping center
Vacant/Undeveloped
Vacant/Undeveloped
Skilled nursing home
Existing Zoning
Classification:
Community Retail (CR)
Commercial (C)
Future Land Use
Classification
New Town Module
New Town Module
New Town Module
New Town Module
New Town Module
Comprehensive Plan/Future Land Use Plan:
The Comprehensive Plan’s Future Land Use Plan shows this property located in the New Town
Module, which has a mix of uses that transition between “traditional neighborhood development”
and more “contemporary suburban development” in terms of land use and development patterns.
This module is designed to take advantage of its proximity to the US 287 Bypass while
complimenting Midlothian’s Original Town.
Thoroughfare Plan/Transportation:
There is only one thoroughfare adjacent to this property, per the City’s adopted Thoroughfare Plan,
and that is George Hopper Road. No additional right-of-way width is necessary as it was
previously purchased by the City in 1999 to widen and provide a connection from South 9th Street
to (at that time) Highway 287, which later became Main Street after the Bypass was built.
The site plan shows an access easement along the front side that matches the one next to the skilled
nursing center and the drive cut aligns with the one across the street, which will facilitate easier
traffic movements and circulation. In addition, a road stub to the east is also provided to allow
cross traffic movement across the future developments. Also, if the future adjacent use to the south
is compatible to this use, a road stub to the south should be provided, at the cost of the future
adjacent property owner, with the approval of the property owner and City Engineer.
Water and Sanitary Sewer Services:
Both city water and city sewer service is available to this site, however, both utility lines will need
to be extended from off-site locations in order to provide service.
Environmental Considerations:
Although this property is not located within the 2013 FEMA-designated 100-year floodplain, any
drainage plans must be reviewed to ensure compliance with any storm water management
regulations during the engineering plan review stage.
Architecture/Site Layout:
This site is located east of the skilled nursing home, currently under construction, and south of an
existing shopping center. The site plan for this proposed restaurant shows a 4,800 square foot
building along with a 1,200 square foot outdoor seating area with a covered patio and 79 parking
spaces. Overall, the building is proposed to be constructed of stucco, with a stone entrance,
windows, awnings, pilasters, and split-face block at the bottom wrapping around the building. The
south elevation shows a long blank wall that needs to be broken up in order to avoid that
appearance and meet the City’s articulation requirements. With the strong possibility that whatever
develops to the south will likely either be a rear or side-facing wall, staff recommends an enhanced
landscape plan to what is currently shown, or have additional windows (real or faux) with awning
covers to help break up that long façade. Although the west façade, which faces the skilled nursing
center, has a section that appears to be a long blank wall, it meets the City’s articulation
requirements. Outside of the south elevation, the proposed architecture, materials, design and
articulation meet or exceed the City’s architectural requirements for non-residential structures.
Landscaping:
The landscaping plan indicates street trees along George Hopper Road staggered every 30 feet
(city requirement is max. 40 feet) along with shrubs to screen vehicles. In addition, ornamental
trees inside each landscape island are provided. The landscape species provided adhere to the
City’s recently-updated species list that is designed to provide more Texas native and drought
resistant landscaping. Also, the rear of the building shows additional enhanced landscaping to
serve as an alternative to dressing up the blank wall along the south elevation. That enhanced
landscaping shows Glossy Abelia shrubs, which grow up to heights of 5-9 feet high with evergreen
bronze foliage, and Verbena ground cover. In addition to these, staff recommends ornamental
grasses and ornamental trees be added as well to provide a better mix to the enhanced landscaping
in the rear. Overall, the landscaping plans shown meet the City’s landscaping requirements.
Fencing:
Per the adopted Fencing Regulations, there is no requirement to place a screening device between
non-residentially zoned properties or non-residential uses. There are no plans to provide any
perimeter fencing on this site. The dumpster in the rear will require a 6-foot screening that matches
the building along with wooden doors.
Parking:
Per the adopted Parking Regulations, a restaurant requires 1 parking space for every 100 square
feet. With the restaurant providing approximately 6,000 square feet (4,800 square feet inside and
1,200 square feet outside), a total of 60 parking spaces is required. This site plan provided is
showing 79 parking spaces, exceeding the minimum requirement for this use.
Signage:
Although no signage plans were submitted, any signage placed shall adhere to the City’s adopted
regulations. The adopted City Sign Regulations state no pole signs are allowed.
Ground/monument signs are allowed with a maximum height of 10 feet and 60 square feet in area
with a landscaped base. In addition, for freestanding buildings, a cumulative of 150 square feet is
allowed for building signage.
LEGAL REQUIREMENTS:
Specific Use Permits, like zoning, are considered discretionary. Therefore, the Planning and
Zoning Commission and the City Council are not obligated to approve the request presented before
them, even if the request satisfies all the City requirements and the adopted Comprehensive Plan.
Notifications were provided to the surrounding property owners within 200 feet as required by
state law. A total of 7 notification letters were sent out. To date, staff has received one (1) letter
in support of this request. Advertisement appeared in the Wednesday, September 24, 2014 edition
of the Midlothian Mirror.
CONCLUSION:
As this is the first sit-down restaurant with a national brand opening its doors to the Midlothian
community, staff wants to ensure the development standards proposed for this use will help set the
standard for others that will follow. Overall, the plans submitted for review have provided a design
that is of high quality and substantially conforms to the City’s regulations.
ACTION NEEDED:
1.
Close the public hearing and approve this SUP request with conditions
2.
Close the public hearing and deny this SUP request
3.
Continue this public hearing to another date
4.
Close the public hearing and table this SUP request to another date
RECOMMENDATION (RECAP):
At the September 16, 2014 meeting, the Planning & Zoning Commission voted unanimously to
recommend approval of this SUP request for this restaurant on property zoned Community Retail
(CR), subject to the conditions listed below. Staff also recommends approval, as presented.
1)
This SUP shall only be for restaurant uses with an outdoor seating area.
2)
New drive cut off of George Hopper Road shall align with the existing drive cuts across
the street. A road stub to the east shall be required. If the future adjacent use to the south
is compatible to this use, a road stub to the south shall be provided, at the cost of the future
3)
Compliance required with any storm water management regulations and any other
engineering-related ordinance.
4)
Based on the site plan submitted, this use shall provide 79 parking spaces.
5)
The design of the building shall be based on the plans submitted and found in Attachment
#2.
6)
The landscaping plan shall be approved as shown in Attachment #4 with street trees along
George Hopper Road staggered every 30 feet along with shrubs to screen the vehicles.
7)
To avoid the appearance of a long blank wall along the south elevation, ornamental grasses
and ornamental trees shall be added to the existing proposal of Glossy Abelia shrub and
Verbena groundcover.
8)
Any ground sign or building signage installed shall meet the City’s Sign Regulations. No
pole signs shall be allowed.
9)
All fire-related codes, building and health-related codes shall be followed at all times.
ATTACHMENTS:
1.
Location Map
2.
Elevations
3.
Site Plan
4.
Landscaping Plans
5.
PON forms (one (1) in support)
6.
News Notice
7.
Draft Ordinance
SUBMITTED AND TO BE PRESENTED BY:
Tuesday, October 14, 2014, City Council Meeting
REVIEWED BY:
APPROVED BY:
ATTACHMENT 1
ATTACHMENT 2
ATTACHMENT 3
ATTACHMENT 4
ATTACHMENT 5
ATTACHMENT 6
ATTACHMENT 7
ORDINANCE NO. 2014An Ordinance granting a Specific Use Permit (SUP) for Beef O’Brady Restaurant. Property is
currently zoned Community Retail (CR) District, and contains ± 1.316 acres, being in the William
Hawkins Survey, Abstract No. 465 and the B.F. Hawkins Survey, Abstract No. 464, and generally
located south of George Hopper Road ± 500 feet east of Silken Crossing, in the City of Midlothian,
Texas; meeting all other conditions, restrictions and safeguards imposed herein; correcting the
Official Zoning Map; preserving all other portions of the Zoning Ordinance; providing a conflicts
clause; providing a severability clause, and determining that the public interests, morals and
general welfare warrant the issuance of a Specific Use Permit (SUP); providing a penalty of fine
not to exceed the sum of two thousand dollars ($2,000.00) for each offense, and a separate offense
shall be deemed committed each day during or on which an offense occurs or continues; and
providing an effective date
WHEREAS, an application was made requesting issuance of a Specific Use Permit (SUP)
by making applications for same with the Planning and Zoning Commission of the City of
Midlothian, Texas, as required by State statutes and the Zoning Ordinance of the City of
Midlothian, Texas, and all the legal requirements, conditions and prerequisites having been
complied with, the case having come before the City Council of the City of Midlothian, Texas,
after all legal notices, requirements, conditions and prerequisites having been complied with; and,
WHEREAS, the City Council of the City of Midlothian, Texas at a public hearing called
by the City Council did consider general land use planning factors in making a determination as
to whether this requested Specific Use Permit (SUP) should be granted or denied; and,
WHEREAS, all of the requirements of Section 5.200 of Ordinance 2013-24 have been
satisfied by the submission of evidence at a public hearing; and,
WHEREAS, the City Council of the City of Midlothian, Texas, does find that the Specific
Use Permit (SUP) provides for adequate parking for said use and occupancy, avoids excessive
congestion in the streets, helps secure safety from fire, panic and other dangers, prevents the
overcrowding of land, avoids undue concentration of population, facilitates the adequate
provisions of transportation, water, sewerage, schools, parks and other public requirements; and,
WHEREAS, the City Council of the City of Midlothian, Texas, has determined that there
is a necessity and need for this Specific Use Permit (SUP), feels that the issuance of the Specific
Use Permit (SUP) for the particular piece of property is needed, is called for, and is in the best
interest of the public at large, the citizens of the City of Midlothian, Texas, and helps promote the
general health, safety and welfare of this community.
MIDLOTHIAN, TEXAS:
Section 1.
Recitals. The above premises are found to be true and correct, and shall be
incorporated into the body of this ordinance as if fully set forth.
Section 2.
Issuance of a Specific Use Permit (SUP). That the City does hereby issue
to allow a Beef O’Brady Restaurant. Property is currently zoned Community Retail (CR) District,
and contains ± 1.316 acres, being in the William Hawkins Survey, Abstract No. 465 and the B.F.
Hawkins Survey, Abstract No. 464, and generally located south of George Hopper Road ± 500
feet east of Silken Crossing, in the City of Midlothian, Texas.; property details are more fully and
completely described on the attached exhibits included herein, and pursuant to said Ordinance
2013-24, and all other conditions, restrictions, and safeguards imposed herein.
1)
2)
3)
4)
5)
6)
7)
8)
9)
Section 3.
Conditions for the Specific Use Permit (SUP).
This SUP shall only be for restaurant uses with an outdoor seating area.
New drive cut off of George Hopper Road shall align with the existing drive cuts across
the street. A road stub to the east shall be required. If the future adjacent use to the south
is compatible to this use, a road stub to the south shall be provided, at the cost of the future
Compliance required with any storm water management regulations and any other
engineering-related ordinance.
Based on the site plan submitted, this use shall provide 79 parking spaces.
The design of the building shall be based on the plans submitted and found in Exhibit C.
The landscaping plan shall be approved as shown in Exhibit C with street trees along
George Hopper Road staggered every 30 feet along with shrubs to screen the vehicles.
To avoid the appearance of a long blank wall along the south elevation, ornamental grasses
and ornamental trees shall be added to the existing proposal of Glossy Abelia shrub and
Verbena groundcover.
Any ground sign or building signage installed shall meet the City’s Sign Regulations. No
pole signs shall be allowed.
All fire-related codes, building and health-related codes shall be followed at all times.
Section 4.
Correction of Official Zoning Map. The City Manager is hereby directed
to correct the official zoning map of the City of Midlothian, Texas to reflect the herein Specific
Use Permit (SUP).
Section 5.
Subject to all Applicable Regulations. That in all other respects, the use
of the tract or tracts of land herein above described shall be subject to all the applicable regulations
contained in said City of Midlothian zoning ordinances and all other applicable and pertinent
ordinances of the City of Midlothian, Texas.
Section 6.
Conflicts.
This ordinance shall be cumulative of all provisions of
ordinances and the Code of the City of Midlothian, Texas, except where the provisions of this
ordinance are in direct conflict with the provisions of such ordinances or Code provisions, in which
event the conflicting provisions of such ordinances are hereby superseded.
Section 7.
Severability Clause. If any section, article, paragraph, sentence, clause,
phrase or word in this ordinance, or application thereto any person or circumstances is held invalid
or unconstitutional by a court of competent jurisdiction, such holding shall not affect the validity
of the remaining portions of this ordinance; and the City Council hereby declares it would have
passed such remaining portions of the ordinance despite such invalidity, which remaining portions
shall remain in full force and effect.
Section 8.
Penalty. Any person violating any of the provisions of this ordinance shall
be deemed guilty of a misdemeanor and upon conviction thereof shall be fined in a sum not to
exceed Two Thousand Dollars ($2,000) and a separate offense shall be deemed committed upon
each day during or on which a violations occurs or continues.
Section 9.
Effective Date. This ordinance shall become effective from and after the
date of its passage, and it is accordingly so ordained.
Section 10. Termination of Specific Use Consistent with State law and the City of
Midlothian Zoning Ordinance, this Specific Use Permit (SUP) may be terminated by the City
Council at any time based upon findings of repeated violations of this Specific Use Permit (SUP)
adopting ordinance, State laws, or local ordinances.
Section 11. Expiration of Specific Use Permit (SUP). This Specific Use Permit (SUP)
shall become null and void if and when the approved use suspends operation for six or more
consecutive months.
PASSED AND APPROVED BY THE CITY COUNCIL THIS THE 14TH DAY OF
OCTOBER, 2014
APPROVED:
_________________________________
Bill Houston, Mayor
ATTEST:
___________________________________
__________________________________
EXHIBIT A
Location Map
EXHIBIT B
Legal Description
All that certain tract or parcel of land located in the City of Midlothian, Ellis County, Texas, and being out of the
William Hawkins Survey, Abstract No. 465 and the B.F. Hawkins Survey, Abstract No. 464, and being part of a
76.45 acre tract conveyed to Clifton D. and Francis K. Massey in Volume 700, Page 998, Deed Records, Ellis
County, Texas (D.R.E.C.T.), and being more particularly described as follows:
BEGINNING at a I/2-inch found iron rod for the northeast corner of the Midlothian Skilled Nursing Center addition
to the City of Midlothian, as recorded in Cabinet I, Slide 227, Plat Records, Ellis County, Texas (P.R.E.C.T.), said
corner being on the south right-of-way line of George Hopper Road (variable width right-of-way) and also in the
north line of the said Massey tract;
THENCE South 83 degrees 20 minutes 42 seconds East. along the south right-of-way line of said George Hopper
Road and along the north line of the said Massey tract, a distance of 226.63 feet to a 1/2-inch iron rod set with cap;
THENCE South 00 degrees 13 minutes 24 seconds East, leaving the south right-of-way line of the said George
Hopper Road and the north line of the said Massey tract, a distance of 241.70 feet to a 1/2 inch iron set with a cap;
THENCE WEST, a distance of 225.00 feet to a 1/2 inch set iron rod with cap in the east line of the said Midlothian
Skilled Nursing addition;;
THENCE North 00 degrees 13 minutes 24 seconds West, along the east line of said Midlothian Skilled Nursing
Center addition, a distance of 267.97 feet the POINT OF BEGINNING AND CONTAINING 57,338 square feet or
1.316 acres of land more or less.
Exhibit C
Elevations, Site Plan, Landscaping Plans
Attachment 6
Judy Ford
From:
Sent:
To:
Subject:
Raquel Littlejohn
Monday, November 10, 2014 8:01 AM
Judy Ford
FW: Draft Economic Dev. Incentive Agreement
etÖâxÄ _|ààÄx}É{Ç
Engineering Department City of Midlothian Direct‐ 972‐775‐7199 Fax ‐ 972‐775‐7171 IMPORTANT/CONFIDENTIAL: This transmission from the City of Midlothian, Texas is intended only for the use of the addressee (s) shown. It contains information that may be privileged, confidential and/or exempt from disclosure under applicable law. If you are not the intended recipient of this transmission, you are hereby notified that the copying, use, or distribution of any information or materials transmitted herewith is strictly prohibited. If you have received this e‐
mail by mistake please immediately respond to this e‐mail to notify the sender. From: Frontdesk [mailto:receptionistcs@sbcglobal.net] Sent: Friday, November 07, 2014 3:08 PM To: Raquel Littlejohn Subject: RE: Draft Economic Dev. Incentive Agreement Raquel‐ I have no issue as to the legal form of the above. I, of course, cannot speak to the various monetary contributions of the parties. Call if you have additional questions. Thanks, Don DRS/mtz
receptionistcs@sbcglobal.net
From: Don Stout [mailto:colvinstout@sbcglobal.net]
Sent: Friday, November 07, 2014 11:52 AM
To: receptionistcs@sbcglobal.net
Subject: FW: Draft Economic Dev. Incentive Agreement
1
From: Raquel Littlejohn [mailto:Raquel.Littlejohn@Midlothian.tx.us] Sent: Friday, November 7, 2014 11:50 AM To: colvinstout@sbcglobal.net Cc: Judy Ford; Jennie Ciardo Subject: Draft Economic Dev. Incentive Agreement Mr. Stout, Would you please review the attached Draft Economic Dev. Incentive Agreement for the November 17th Council meeting. Please let us (me and Judy) know if all is in legal order for Council approval on the November 17th council meeting. Packets are due Monday for this meeting our apologizes for the late notice. If you should have any questions please let us know. etÖâxÄ _|ààÄx}É{Ç
Engineering Department City of Midlothian Direct‐ 972‐775‐7199 Fax ‐ 972‐775‐7171 IMPORTANT/CONFIDENTIAL: This transmission from the City of Midlothian, Texas is intended only for the use of the addressee (s) shown. It contains information that may be privileged, confidential and/or exempt from disclosure under applicable law. If you are not the intended recipient of this transmission, you are hereby notified that the copying, use, or distribution of any information or materials transmitted herewith is strictly prohibited. If you have received this e‐
mail by mistake please immediately respond to this e‐mail to notify the sender. 2
AGENDA CAPTION:
Consider and act upon an Engineering Services Agreement with Halff Associates, Inc. for the Joe Pool
Lake Water Supply System Raw Water Pipeline Alignment and Rehabilitation Study in an amount not to
exceed $90,000.
As part of the Tayman Road water supply and treatment project in the mid-1980’s, approximately five (5)
miles of 24-inch-diameter reinforced concrete cylinder pipeline (RCCP) were installed within an easement
from the raw water pump station at Joe Pool Lake to the Tayman plant. A large segment of this raw water
pipeline (a little over 2.5 miles) runs parallel and adjacent to Lake Ridge Parkway. Since the installation
of this pipeline, the area along Lake Ridge Parkway has significantly developed to the point that there are
homes immediately adjacent to the pipeline easement and other improvements (driveways, fences,
sidewalks, utilities, parking areas, landscaping, etc.) either adjacent to or encroaching into this easement.
Although this existing easement has adequate width for a second, parallel or replacement pipeline, the
existing improvements adjacent to this easement will present installation challenges, as well as have
possible cost implications. Therefore, as part of the scope of work, Halff will perform an alternate pipeline
alignment study, assessing three (3) potential routes and an order of magnitude cost estimate for each of
these routes vs. the installation of a new pipeline within the existing easement. Additionally, the life cycle
power costs will be analyzed for each alignment, in order to assess both installation and operational costs.
In addition to the alignment study, the following tasks will be performed as part of this scope of work:
● Survey services to set new monumentation along the existing raw water pipeline
easement and to tie down the City’s existing improvements within this easement;
● Support services for the raw water pipeline inspection; and
● Feasibility study (based on results of pipeline inspection) on various pipeline
rehabilitation options, including costs, pull lengths, wall thickness reduction and
changes in pipe friction and capacity.
On Monday, August 25, 2014, staff met with the City Council Utility Subcommittee and Utility
Advisory Board (UAB) to discuss this item. At the meeting the UAB requested that the scope of work
be modified to include a new pipeline alignment study, which this agreement addresses.
Funding for this work is available from the Capital Distribution – RWPL line item (634-648), which has a
current balance of $175,000.
ATTACHMENTS:
1. Engineering Services Agreement
ALTERNATIVES:
RECOMMENDATION:
REVIEWED BY:
APPROVED BY:
Attachment 1
Attachment 2
AGENDA CAPTION:
Consider and act upon an ordinance amending the Midlothian Conference Center’s fiscal year 20142015 budget appropriations in an amount not to exceed $49,896 to be paid from unreserved fund balance,
in accordance with Chapter 102, Local Government Code; appropriating various amounts thereof;
providing for a cumulative effect; providing for a severability clause; and establishing an effective date.
The Midlothian Conference Center originally planned for construction of additional storage space to be
built in FY 13-14. However, it was later discovered that the storage addition would have to be structurally
engineered. This delayed the process while a structural engineer was contracted and plans were drawn.
It also resulted in project bids that were substantially more costly than originally thought. Also, since the
design plans and bids were not received until October, this project missed the deadlines to be included
in the 14-15 Budget. Thus, a budget amendment needs to be adopted to formally appropriate the funds.
The Conference Center Fund has sufficient unreserved fund balance to cover the project.
Additional storage capacity is needed at the Midlothian Conference Center. As special events and
activities at the Conference Center have increased, more room is required to store chairs, large banquet
tables and other large equipment. The additional storage will not only house these larger items but will
make it more efficient for staff in setup and takedown between events.
The existing storage room at the Midlothian Conference Center will be expanded to increase the square
footage. This construction will include demo to one side of the existing structure where the additional
capacity will be added, a new slab foundation with piers, installation of matching walls and roof, as
well as cleanup and removal of debris.
Three quotes were received for this project with P3 Builds coming in the lowest at $49,896 including a
three percent construction contingency of $1,497. Another important factor is that P3 Builds can
accommodate the tight scheduling window of the Conference Center to minimize and/or eliminate
revenue loss and disruption to the Center.
Increased appropriations will be funded by unreserved fund balance, which has $74,544 (unaudited)
currently available.
ATTACHMENT:
1. Ordinance amending the 627-Midlothian Conference Center’s FY 2014-2015 budget
RECOMMENDATION: Approve the attached ordinance amending the FY 2014-2015
627-Midlothian Conference Center’s budget appropriation in an amount not to exceed $49,896
Chris Dick, CPA, Interim City Manager for the November 17, 2014 City Council meeting
REVIEWED BY:
APPROVED BY:
ORDINANCE 2014-xx
AN ORDINANCE AMENDING THE MIDLOTHIAN CONFERENCE CENTER’S
FISCAL YEAR 2014-2015 BUDGET APPROPRIATIONS IN AN AMOUNT NOT TO
EXCEED $49,896 TO BE PAID FROM UNRESERVED FUND BALANCE, IN
ACCORDANCE WITH CHAPTER 102, LOCAL GOVERNMENT CODE;
APPROPRIATING VARIOUS AMOUNTS THEREOF; PROVIDING FOR A
CUMULATIVE EFFECT; PROVIDING FOR A SEVERABILITY CLAUSE; AND
ESTABLISHING AN EFFECTIVE DATE.
WHEREAS, appropriations were not budgeted in the FY 2014-2015 Conference Center Budget
WHEREAS, it is the desire of the City Council to expend these funds for the purpose of increasing
storage capacity for the Midlothian Conference Center.
MIDLOTHIAN, TEXAS:
SECTION 1. Budget Amended. That the City of Midlothian Conference Center’s fiscal year
2014-2015 budget appropriations are hereby amended by increasing the appropriations for
payments of expenditures and payments of the Conference Center Fund as follows:
APPROPRIATED FUND
Conference Center
FY 2014-2015
$49,896
SECTION 2. Cumulative Effect. That this ordinance shall be and is hereby declared to be
cumulative of all other ordinances of the City of Midlothian, Texas and shall not repeal any
provisions of such ordinances, except in those instances where provisions of such ordinances are
in direct conflict with the provisions of this Ordinance.
SECTION 2. Severability. That if any section, subsection, sentence, clause or phrase of this
ordinance is for any reason held to be unconstitutional, illegal, or invalid, such holding shall not
affect the validity of any other section, subsection, sentence, clause or phrase of this ordinance.
SECTION 3. Effective Date. That this ordinance shall become effective immediately from and
after the date of its passage.
ADOPTED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF MIDLOTHIAN,
TEXAS ON THIS, THE 17TH DAY OF NOVEMBER 2014.
APPROVED:
Bill Houston, Mayor
ATTEST:
AGENDA CAPTION:
Review and approve draft agenda for the January 6th City Council Workshop and direct staff as necessary
Council input is sought to finalize the agenda and start/end times for the upcoming workshops:
January 6:
City Board and Commissions bylaw review
In addition to, or in lieu of, the above items, the City Council may wish to schedule other topics.
N/A
N/A
ATTACHMENTS:
ALTERNATIVES:
N/A
RECOMMENDATION:
Council Prerogative: Finalize agenda topics; confirm an official workshop start time of 6:00 p.m. for the
January 6, 2015 Workshop

NOTICE OF A SPECIAL CALLED MEETING OF THE

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