HomeMy Public PortalAboutResolution No. 229-05 07-12-2005
• RESOLUTION NO. 229-05
A RESOLUTION TERMINATING A DEVELOPER AGREEMENT PREVIOUSLY
ENTERED INTO WITH BARCLAY TEXAS HOLDINGS ID, LP PURSUANT TO
CHAPTER 380 OF THE TEXAS LOCAL GOVERNMENT CODE, AND
PROVIDING AN EFFECTIVE DATE.
WHEREAS, on or about on or about April 21, 2003, the City of Richland Hills,
acting through the City Council, entered into a certain economic development
agreement with Barclay Texas Holdings III, LP (hereinafter referred to as "the
Company"), pursuant to Chapter 380 of the Texas Local Government Code; and
WHEREAS, that agreement provided that:
[C]onstruction of the Grocery and In-line Improvements is to commence no
later than December 1, 2003 and be substantially completed no later than
December 1, 2004. The date of substantial completion of the Grocery
Improvements shall be defined as the date Certificates of Occupancy or
Certificates of Completion by the City have been issued for the Grocery
Improvements. The date of substantial completion of the In-line Improvements
shall be defined as the date Certificates of Occupancy or Certificates of
Completion by the City have been issued for the In-line Improvements.
• and
WHEREAS, Those deadlines clearly were not satisfied; and
WHEREAS, the agreement further provided:
In the event that:... (2) The Grocery Improvements are not timely completed
and the grocery store opened for sales operations within the time limits specified
in this Agreement (with any extensions allowed under this Agreement); ...then
the Company shall be in default of this Agreement. In the event that the
Company defaults, then the City or the RHDC shall give the Company written
notice of such default. Notice shall be in writing as provided below.
and
WHEREAS, in satisfaction of this provision, the Company was notified on or
about May 10, 2005 that it was in default under the terms of the agreement, and that the
default was unexcused, and
WHEREAS, the agreement further provided that the deadlines may be extended
upon request by the Company, but the Company never requested an extension of the
• deadlines in the agreement, so that such extension provision was never invoked; and
RESOLUTION TERMINATING ECONOMIC DEVELOPMENT AGREEMENT WITH BARCLAYITEXAS HOLDINGS III, LP
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• WHEREAS, in any event, except for force majeure, any extension was
dependent upon the Company making substantial progress towards completion of the
Grocery and In-line Improvements, and clearly, no such progress has been made; and
WHEREAS, force majeure does not excuse the Company's failure because
"force majeure" was defined as the following:
[ A] contingency or cause beyond the reasonable control of the Company
including, without limitation, unilateral decision by Albertson's not to proceed as
described herein (provided such decision is not based upon statements or acts of
the Company intended or designed to cause or encourage such decision by
Albertson's), acts of God or a public enemy, war, riot, civil commotion,
insurrection, strike (unless caused by acts or omissions of the Company),
governmental or de facto governmental action (unless caused by acts or
omissions of the Company), fire, explosion, flood, or other natural catastrophe.
and
WHEREAS, in any event, because the agreement did not contain a deadline for
any extension, so that a reasonable time was presumed, and the deadline for
commencement of construction is now 18 months beyond the express deadline, clearly
• more than a reasonable time; and
WHEREAS, with that in mind, the Company was formally notified that it is in
default under the agreement, and that if the Company did not cure the default within
(30) days of said written notice, then it would be in breach of the agreement, and the
City Council intended to terminate the agreement, and the Company has now failed to
cure the default, and the thirty (30) day cure period bas expired.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF RICHLAND HILLS, TEXAS:
SECTION I.
Termination of Economic Development Agreement with
Barclay/Texas Holdings III, LP.
The City Council has considered the above-described default of Barclay/Texas
Holdings m, LP under the terms of the agreement, and determined that such agreement
should be and is hereby terminated, and is no longer in effect.
•
RESOLUTION TERMINATING ECONOMIC DEVELOPMENT AGREEMENT WITH BARCLAY/TEXAS HOLDINGS III, LP
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• SECTION 2.
Authorization of Notice of Termination of Economic Development
Agreement with Barclay/TexasHoldings, LP.
Based on the above-referenced findings, the City Council directs the City
Attorney to notify Barclay/Texas Holdings III, LP of such termination on behalf of the
City.
SECTION 3.
Effective Date
This resolution shall take effect immediately from and after its adoption.
Passed and approved this 12T" day of July 2005.
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CITY OF RICHLAND HILLS, TEXAS
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Th Honorable Nelda Stroder, Mayor
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ATTEST:
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Ki Sutter, TRMC, City Secretary
APPROVE AS O RM AND LEGALITY:
Tim G. Sralla, City Attorney
•
RESOLUTION TERMINATING ECONOMIC DEVELOPMENT AGREEMENT WITH BARCLAY/TEXAS HOLDINGS III, LP
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