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Home My WebLink AboutResolution No. 09-020 CITY OF THE COLONY, TEXAS RESOLUTION NO. 09-D:lO A RESOLUTION OF THE CITY OF THE COLONY, TEXAS, APPROVING THE AMENDMENT TO THE DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF THE COLONY AND BILLINGSLEY DEVELOPMENT CORPORATION; AUTHORIZING THE CITY MANAGER TO EXECUTE THE AMENDMENT; PROVIDING AN EFFECTIVE DATE WHEREAS, in 2004 and 2008 the City entered into Development Agreements concerning the development of the master-planned multiuse project known as "Austin Ranch" located in The Colony; and WHEREAS, the City and Billingsley Development Corporation desire to amend the original Development Agreements by adding the Amendment to the Development Agreement which includes Billingsley Development Corporation's use of water well for irrigation on Phase 5 which is currently under construction. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS: Section 1. The Amendment to the Development Agreement, which is attached and incorporated hereto as Exhibit "A", having been reviewed by the City Council of the City of The Colony, Texas, and found to be acceptable and in the best interest of the City and its citizens, be, and the same is hereby, in all things approved, and the City Manager is hereby authorized to execute the Amendment Agreement on behalf of the City of The Colony, Texas. Section 2. That this Resolution shall take effect immediately from and after its adoption and it is so resolved. PASSED, APPROVED and EFFECTIVE this 2nd day of March. 2009. J n Dillard, Mayor . of The Colony, Texas AMENDMENT TO THE DEVELOPMENT AGREEMENT BY AND BETWEEN BILLINGSLEY DEVELOPMENT CORPORATION AND THE CITY OF THE COLONY, TEXAS This Amended Development Agreement ("Agreement") is made to be effective as of the 2nd day of March , 2009, by and between the CITY OF THE COLONY, TEXAS (the "City"), and BILLINGSLEY DEVELOPMENT CORPORA TION (the "Developer"), acting by and through their duly authorized representatives. R E C I TAL S: WHEREAS, the City and Developer have previously entered into Development Agreements (hereinafter defined as the 2004 Development Agreement and the 2008 Development Agreement) concerning the development of the master-planned multiuse project known as "Austin Ranch" located in the City; and WHEREAS, the Developer has and continues to develop Austin Ranch; and WHEREAS, the Developer desires to construct, operate and maintain an irrigation system using well water as the supply within Austin Ranch Phases 1 through 5; and NOW THEREFORE, the parties agree and amend their 2008 Agreement and 2004 Agreement, respectively, as follows: Section 1. That the 2004 Agreement shall be amended by amending Section 3.1, Subsection A.(ii) by changing the current Phases 1 through 4 to Phases 1 through 5, which shall read as follows: "3.1 Irrigation System. A. License for Irrigation System: (ii) The initial phase of the Irrigation System will irrigate Austin Ranch, Phases 1 through 5, as depicted on Exhibit "A", and the Windhaven right-of-way east of the BNSF Railroad. The Developer shall have the right, at Developer's sole cost, to expand the system to achieve economies of scale, provided that (i) the Irrigation System shall not be installed outside the boundaries of Austin Ranch Property without the consent and approval of the City, to the extent of its jurisdiction, and (ii) expansion of the irrigation System shall be made in accordance with Applicable Laws. If the Developer shall expand the Irrigation System in the future, the City agrees to cooperate with the Developer and Association in modifying the system License to incorporate additional AMENDMENTS TO THE 2008 & 2004 DEVELOPMENT AGREEMENTS PAGE 1 medians and parkways within the boundaries of the Austin Ranch Property which the Association maintains and irrigates at the Association's costs." Section 2. That the 2008 Agreement shall be amended by deleting all references to Sage Valley Subdivision and replacing the same with Somerset Water Subdivision. Section 3. Miscellaneous A. That the 2008 Agreement and the 2004 Agreement by and between the Parties shall remain in full force and effect, except as amended herein. B. Compliance with Laws. Developer shall fully comply with all local, state and federal laws, including all Applicable Laws, applying to the subject matter of this Agreement. C. Severability. In the event any section, subsection, paragraph, sentence, phrase or word herein is held invalid, illegal or unconstitutional, the balance of this Agreement shall be enforceable and shall be enforces as if the parties intended at all times to delete said invalid section, subsection, paragraph, sentence, phrase or word. D. Governinz Law. The validity of this Agreement and any of its terms and provision, as well as the rights and duties of the parties, shall be governed by the laws of the State of Texas; and venue for any action concerning this Agreement shall be in State District Court of Denton County, Texas. E. Notices. All notices, demands, requests, consents. approvals or other communications (the "Notices") required or permitted to be given by this Agreement shall be in writing and shall be either personally delivered, or sent via telecopy with receipt confirmation, or by Federal Express or other regularly scheduled overnight courier or sent by United States mail, registered or certified with return receipt requested, properly addressed and with full postage prepaid. Said Notices shall be deemed received and effective on the earlier of (i) the date actually received (which, in the case of telecopied notice, shall be the date such telecopy is transmitted with electronic confirmation of receipt) or (ii) three (3) business days after being placed in the United States Mail as aforesaid. Notices shall be sent to the parties hereto at the following addresses, unless otherwise notified in writing: To City: With a copy to: Dale Cheatham, City Manager City of The Colony 6800 Main Street The Colony, Texas 75056 Facsimile: 972-624-2312 Gordon Scruggs, City Engineer City of The Colony 6800 Main Street The Colony, Texas 75056 Facsimile: 972-624-2317 AMENDMENTS TO THE 2008 & 2004 DEVELOPMENT AGREEMENTS PAGE 2 TM 31983.76.000 With another copy to: Robert E. Hager, City Attorney NICHOLS, JACKSON, DILLARD, HAGER & SMITH, L.L.P. 1800 Lincoln Plaza 500 North Akard Dallas, Texas 75201 Facsimile: 214-965-0010 To Developer: With a copy to: Billingsley Development Corporation Att'n: Joel M. Overton, Jr. 4100 International Parkway Suite 1100 Carrollton, TX 75007 Facsimile: 972-820-2201 Charles C. Jordan Carrington, Coleman, Sloman & Blumenthal, L.L.P. 901 Main Street, Suite 5500 Dallas, Texas 75202 Facsimile: (214) 758-3721 F. Incorvoration of Recitals. The determinations recited and declared III the preambles to this Agreement are hereby incorporated herein as part of this Agreement. G. Countervarts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and constitute one and the same instrument. H. 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. I. Covenants and Representations. Developer represents, warrants and covenants that it has the authority to: (i) enter into this Agreement and to execute and deliver this Agreement and (ii) perform and comply with all of the terms, covenants and conditions to be performed and complied with by the Developer hereunder. The City represents warrants and covenants that it has the authority to; (i) enter into this Agreement and to execute and deliver this Agreement; and (ii) perform and comply with all of the terms, covenants and conditions to be performed and complied with by the City hereunder. All said covenants in this Agreement shall be hereby deemed to run with the land. (SIGNATURE PAGES TO FOLLOW) AMENDMENTS TO THE 2008 & 2004 DEVELOPMENT AGREEMENTS PAGE 3 TM 31983.76.000 1 EXECUTED in duplicate originals this ~Y of j1'!tl>v, 2009. CITY: ATTEST'L /~. -. BY:( . //.Cu !J~1 _0' Christie Wilson, City Secretary By: AMENDMENTS TO THE 2008 & 2004 DEVELOPMENT AGREEMENTS CITY OF THE COLONY, TEXAS By: f C\ ~ .f\ " );/..9 () )~~>>A^ Dale Cheatham, City Manager PAGE 4 TM 31983.76.000 EXECUTED in duplicate originals this the 10th day of February, 2009. DEVELOPER: AMENDMENTS TO THE 2008 & 2004 DEVELOPMENT AGREEMENTS BILLINGSLEY DEVELOPMENT CORPORATION ~ By: Title: . ve on, Jr. Senior Vice President -$ PAGE 5 TM 31983.76.000 CITY'S ACKNOWLEDGEMENT STATE OF TEXAS ~ ~ COUNTY OF DENTON ~ d.Y!FS )l'strument was acknowledged before me on the,J/.0Lday of ! l 1t{J'"(!JiL, ,2009, by Dale Cheatham, City Manager of the City of The Colony, a Texas municipality, on behalf of said municipality. (Seal) ~""""""""""'~""~ i ~"~~"IlU"'~ i ~ .to~\"""l(,\ U""'.~'lA KEllY ~ ~ !~$~~("I. ~ ~ ~ ~; \l~.l;ll'lot.ry Publk. State of 'kus ~ ~ ~~'l~ftf' My COIIIIDIIMon bplJa09-0a.l 0 ~ ~ ~"IIII""\\: i' """"""""""""'" AMENDMENTS TO THE 2008 & 2004 DEVELOPMENT AGREEMENTS PAGE 6 TM 31983.76.000 3RD Di'~1Iit 1fJ/;}.!!(X1JIfJ/fj) DEVELOPER'S ACKNOWLEDGEMENT STATE OF TEXAS s ~ COUNTY OF ~-/n-Jon ~ This instrument was acknowledged before me on the 10th day of February, 2009, by Joel M. Overton, Jr., Senior Vice President of Billingsley Development Corporation on behalf of said corporation. \\\\\\\\\\11 lJ II I/Jilflllll \\\\ \\ '" \-\ A 11///; -$' Or '.,..., ~ ~ 0",........... \:>' ~ $ "0 .... ^ p.R Y ..c .... OA~ "''-v' 0' ",'//-:'- t a('~: ~~....)E\ '" '. ~"~0 'f'...J:: ~ '. (:- \'-: '2 ~ ".(:- Or: TE-l- ." $ % 0 ..:t~/RES ...... ~ ~~ q..t30........ ':'\'~ 1//11//1, - 2 01 \) \\\\\\" (1/11(1111/'111\\\\\\\\\ {(JJM OJM/ Notary Public, State ofTe s (Seal) DEVELOPMENT AGREEMENT PAGE 7 lM......".~ '\ll.l-I:t pi llllllJH'r nWll:-ii\....1l r ,\.Sl :'S,1.VI-l) ;;1 V, n.~. ,-,.;.~.~. l-'\o.~ "1-".;' i'101 r~-~~~ lioft ''''-'\oSlo J'~n ;or S,,,, ,".., .~"".ul'IH_,'-'" .~~.'-.t-n ".j 15,~~ ffi.'I1J.I~\',' - ,NIH '1; 1.'_11-> ;:l>olH ('l> ,.\,,~ j~" I HI.."I 1',""", \ ,1<_1I~' n..~ I ilt.,;~, l"~.'''' f 'J-l <II '".....1 Hi.-"~. l"'~ ~ :~...... 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