Contract - Waters At Sunrise, LP - 10/9/2014 DEVELOPMENT AGREEMENT
This Development Agreement ("the Agreement") is made by and between the City of
Round Rock, Texas (the "City"), and Waters at Sunrise, LP, a Texas limited partnership (the
"Developer"), to be effective of { , 2014.
RECITALS
WHEREAS, Developer is proposing to build a mixed-income housing development
with up to 300 residential units (the "Project") on approximately 17.64 acres of land located at
2750 Sunrise Road, within the City, such land being more particularly shown in Exhibit "A",
attached hereto, and
WHEREAS, the Developer proposes to apply for financing for the Project, specifically
Low Income Housing Tax Credits ("Tax Credits") from the Texas Department of Housing and
Community Affairs ("TDHCA") and tax exempt bonds to be issued by Capital Area Housing
Finance Corporation; and
WHEREAS, the Developer has, pursuant to Section 2306.67071 of the Texas
Government Code (the "Code"), provided notice to the City of its intent to file for Tax Credits
with TDHCA; and
WHEREAS, the City has had sufficient opportunity to obtain a response from the
Developer regarding any questions or concerns the City has about the Project as described in
Section 2306.67071 of the Code; and
WHEREAS, the City has held a public hearing regarding the Project as required by
Section 2306.67071 of the Code; and
WHEREAS, pursuant to Section 2306.67071 of the Code, after due consideration of the
information provided by the Developer, the City must decide that it does not object to the
Developer's application for Tax Credits to the TDHCA.
NOW THEREFORE, for good and valuable consideration the receipt and sufficiency of
which are hereby confirmed, the parties hereto agree as follows:
ARTICLE I
1. Recitals. The City hereby acknowledges and agrees that the Recitals stated above are
true and correct.
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2. No Objections. Subject to the conditions stated herein in Section 4, the City hereby
approves Developer's application for Tax Credits with the TDHCA and agrees to pass a
resolution (the "Resolution") at the City's October 9, 2014, City Council Meeting that
provides as follows:
(a) The City has received notice and information from the Developer with regard to
the Development;
(b) The City has had sufficient opportunity to obtain a response from the Developer
regarding any questions or concerns it may have about the Development;
(c) The City has conducted a public hearing with respect thereto; and
(d) After due consideration of the information provided by the Development and the
comments from the public, the City does not object to the Developer's application for Tax
Credits to TDHCA in connection with the Development.
3. Plans. The City acknowledges and agrees that it has approved of(a) the site plan of the
Development as evidenced by that Site Development Permit Approval dated August 8,
2014, issued by the City, as updated by that Landscape Permit Plan dated September 4,
2014, prepared by Meloncon Design Group, Inc. bearing Project No. 157-1401, and (b)
the building elevations and the masonry content for the Development as described on the
Building Elevations prepare by Hatch + Ulland Owen Architects dated June 20, 2014, as
amended and resubmitted to the City on September 4, 2014 (collectively, the "Approved
Plans").
4. Developer's Obligations. The Developer, in consideration for the City's approval as
stated above and its agreement to execute the Resolutions, agrees to the following:
(a) The Developer, its successors and assigns, hereby agree to forego any vesting
claims that could be made pursuant to Chapter 245 of the Texas Local Government Code
regarding architectural standards and will comply with the MF-2 Multi-family design
standards found in Section 46.140(e) in the City of Round Rock Code of Ordinances as of
the date hereof (the "Current Code"); provided however, notwithstanding the foregoing
and/or anything else herein to the contrary, to the extent the Approved Plans do not
comply with the Current Code, the construction of the Development in accordance with.
the Approved Plans shall be deemed to comply with the Current Code.
(b) The Developer, its successors and assigns, agree to not pursue or accept any ad
valorem tax exemptions or abatements for the Project, including without limitation, the
tax exemption available under Section 11.1825 of the Texas Tax Code; provided,
however, the Developer may, by appropriate proceedings, contest the validity,
2.
applicability, and/or amount of any asserted tax, assessment, and/or assessed value, and
such shall not be deemed to be a default under this Section 4(b).
(c) Upon the Developer's receipt of the applicable permits from the City, the
Developer agrees to pay to the City the sum of $759,559 in fees. This sum includes
building permit fees, fire inspection fees, landscape fees, irrigation impact fees, structural
steel inspection fees, impact fees, wastewater discharge permit fees, oversize fees,
regional detention fees, water/sewer line inspection fees and water meter fees. Any other
fees not listed above shall be due and owing as provided for in the Round Rock Code of
Ordinances.
The City will not charge the Developer for any additional impact fees in connection with
the Developer's construction of the Development substantially in accordance with the
Approved Plans.
ARTICLE II
1. No Joint Venture. It is acknowledges and agreed by the parties hereto that the terms of
this Agreement are not intended to and shall not be deemed to create a partnership of joint
venture among parties. Neither party shall have any authority to act on behalf of the other party
under any circumstances.
2. Notice of Bankruptcy. In the event Developer files for bankruptcy, whether
involuntarily or voluntary, Developer shall provide written notice to the City within three (3)
business days of such event.
3. 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
4. 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.
3.
If Intended for the City:
City of Round Rock, Texas
Attention: Laurie Hadley
City Manager
221 E. Main Street
Round Rock, Texas 78664
With a copy to:
City of Round Rock, Texas
Attention: Steve Sheets
City Attorney
309 E. Main Street
Round Rock, Texas 78664
If intended for the Developer:
Waters at Sunrise, LP
c/o Atlantic Housing Foundation, Inc.
Attention: Michael N. Nguyen, President
5910 N. Central Expressway, Suite 1310
Dallas, Texas 75206
5. Entire Agreement. This Agreement is the entire Agreement between the parties with
respect to the subject matter covered in this Agreement. There is no collateral oral or written
agreement between parties that in any matter relates to the subject matter of this Agreement.
6. Governing Law. This Agreement shall be governed and construed in accordance with 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. Venue for any action
concerning the Agreement shall be in Williamson County, Texas.
7. Amendment. This Agreement may only be amended by the mutual written agreement of
the parties.
8. Severability. In the event one or more of the provisions contained in this Agreement
shall for any reason be held 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
4.
and is as similar in terms as possible to the provision found to be illegal, invalid or
unenforceable.
9. Assignment. This Agreement may not be assigned without the written consent of the
parties hereto.
10. Authorized to Bind. The parties hereto hereby each represent and warrant as to itself that
the persons who execute their signatures to this Agreement and any certifications related to this
Agreement on their behalf are authorized to sign and bind their respective parties to all of the
terms and conditions contained herein.
11. Counterparts. This Agreement may execute in counterparts. Each of the counterparts
shall be deemed an original instrument, but all of the counterparts shall constitute one and the
same instrument.
[Executed on the following page]
5.
Executed to be effective as of the date first set forth above.
DEVELOPER:
WATERS AT SUNRISE, LP,
a Texas limited partnership
By: AHF - WATERS AT SUNRISE, LLC,
a Texas limited liability company,
its general partner
By: -4-1' cele
Michael N. Nguyen, Managing Member
CITY:
ROUND OCK. TEXAS
By:
Alan McGraw, Mayor
Attest:
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Sara White, City Clerk
6.
ACKNOWLEDGMENT
STATE OF TEXAS
COUNTY OF WILLIAMSON
This instrument was acknowledged before me on 6C- 1 1:11- , 2014,
by Alan McGraw, Mayor of the City of Round Rock, Texas, on behalf of said city.
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ACKNOWLEDGMENT
STATE OF TEXAS
COUNTY OF DALLAS
This instrument was acknowledged before me on 0 ,-Gr 2014,
by Michael N. Nguyen, Managing Member of AHF - Waters At Sunrise, LLC, a Texas limited
liability company, general partner of Waters at Sunrise, LP, a Texas limited partnership, on
behalf of said limited partnership.
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September 17,2017
My Commission expires: Ly1 2 Oil
7.
After recording, return to:
Sheets & Crossfield, P.C.
309 East Main Street
Round Rock, Texas 78664
8.
Exhibit "A"
Lot 4A, Block A, CHANDLER CROSSING, REPLAT OF LOT 4, a subdivision in Williamson
County, Texas according to the map or plat recorded in Cabinet DD, Slides 338-339, Plat
Records of Williamson County, Texas.
Exhibit A
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