HomeMy WebLinkAboutResolution No. 07-091
RESOLUTION NO. 07- Cq/ ORIGINAL
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF THE
COLONY, TEXAS, APPROVING THE TERMS AND CONDITIONS OF
THE DEVELOPMENT AGREEMENT BY AND BETWEEN
BILLINGSLEY DEVELOPMENT CORPORATION AND THE CITY OF
THE COLONY, WHICH IS ATTACHED HERETO AND
INCORPORATED HEREIN AS EXHIBIT A; AUTHORIZING THE CITY
MANAGER TO EXECUTE SAID AGREEMENT; AND PROVIDING AN
EFFECTIVE DATE
WHEREAS, the City of The Colony ("City") and the Billingsley Development
Corporation ("Developer") previously entered into two (2) Development Agreements concerning
the development of Austin Ranch located in the City; and
WHEREAS, the Developer has developed and continues to develop Austin Ranch; and
WHEREAS, the City and Developer desire to enter into an agreement relating to the
design and construction of the wastewater system; and
WHEREAS, the City Council has determined it is in the best interest of the City to enter
into the development agreement, which is attached hereto and incorporated herein as Exhibit
"A," with the Billingsley Development Corporation for the construction of wastewater lines
located in Austin Ranch.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF THE COLONY, TEXAS THAT:
Section 1. That the terms and conditions of the Development Agreement by and between
the City of The Colony and the Billingsley Development Corporation, which is attached hereto
and incorporated herein as Exhibit "A," for the construction of wastewater lines located in
Austin Ranch is hereby approved and the City Manager is authorized to execute the same on
behalf of the City.
Section 2. This Resolution shall become effective immediately from and after its
passage, as the law and charter in such cases provides.
PASSED, APPROVED and EFFECTIVE this 22nd day of October, 2007.
J n Dillard, Mayor
ATTEST:
s
Angie Kel , Deputy City Set & ry
des
41
APP E A TO FORM:
Robert E. Hage , ity Attorney (REH/cdb) (10/19/2007)
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DEVELOPMENT AGREEMENT
BY AND BETWEEN
BILLINGSLEY DEVELOPMENT CORPORATION
AND THE CITY OF THE COLONY, TEXAS
JAr~ ~ This Development Agreement ("Agreement") is made to be effective as of the tay of
J , , by and between the CITY OF THE COLONY, TEXAS (the "City"), and BILLINGSLEY
DEVELOPMENT CORPORATION (the "Developer"), acting by and through their duly authorized
representatives.
RECITALS:
WHEREAS, the City and Developer have previously entered into two Development
Agreements (hereinafter defined as the 1998 Development Agreement and the 2004
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, in order to serve existing residents of Austin Ranch, City has previously
considered installation of a wastewater collection system, including wastewater collection lines,
a lift station, and associated facilities; and
WHEREAS, City and Developer anticipate future development in Austin Ranch and the
vicinity, and City intends to plan for such anticipated future development by construction of
additional public water and wastewater infrastructure as provided herein and, in addition, by
amendment of the City's wastewater master plan and impact fee ordinance to include collection
lines and one additional lift station of adequate capacity to serve development in the area
generally described as the portion of the City limits north of McKamy Trail and south of
Highway 121; and
WHEREAS, the wastewater system planned for Austin Ranch (the "Project System")
will serve existing and future development of a portion of Austin Ranch and the Tsai Tract after
oversizing the initial conceptual design in accordance with City's requirements to a collection
capacity of 2.66 MGD; and
WHEREAS, subject to the fulfillment of certain conditions for a confirmation of
uninterrupted service from North Texas Municipal Water District through the wastewater
transmission and treatment system currently serving Austin Ranch, Developer has agreed to
design and construct the Project System, and City and Developer have agreed to participate in
the cost of the Project System, in all respects on the terms of this Agreement; and
WHEREAS, upon completion of the Project System, Developer will dedicate the Project
System to the City, subject to the Capacity Reservation, and the City will assume maintenance
thereof and be responsible for operating and maintaining said facilities; and
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WHEREAS, in order to facilitate improvements to the City's water transmission system
and thereby provide for future growth of the City, Developer or Developer's Affiliates to grant to
the City the option to purchase easements for the installation of water and/or wastewater utility
lines if the City decides that the need exists to improve its water and/or wastewater utility
facilities; and
WHEREAS, the parties desire to enter into an agreement pursuant to TEXAS LOCAL
GOVERNMENT CODE, Section 212.071 et seq., relating to the design and construction of the
Project System described herein and to otherwise amend previous development agreements
concerning Austin Ranch to the extent expressly set forth in this Agreement, and to ratify and
confirm such prior agreements as amended hereby.
NOW THEREFORE, in consideration of the premises and the mutual covenants
contained herein and other valuable consideration the receipt and sufficiency of which are hereby
acknowledged, the City and Developer agree as follows:
ARTICLE I.
TERM; PRIOR DEVELOPMENT AGREEMENTS
1.1 Term. The term of this Agreement shall commence on the last date of execution
of this Agreement (the "Effective Date") and shall be coterminous with the 1998 and 2004
Development Agreements, unless sooner completed or terminated as provided herein.
1.2 1998 Development Agreement.
A. Section 4.1 of the Development Agreement dated January 20, 1998 (the
"1998 Development Agreement") between Developer and City (as such provisions have been
subsequently amended) is amended by the provisions of Section 6.2 of this Agreement.
B. Section 5.2.A.2., and A.3., 5.2.B.2., and 5.2.C of the 1998 Development
Agreement is hereby deleted in its entirety.
C. Section 5.2.D. of the 1998 Development Agreement is amended by the
provisions of Article III of this Agreement, relating to City's option for and cost in acquiring
certain Waterline Easements from the Developer and/or Developer's Affiliates, in order to
provide for the dedication of certain easements without consideration, and the conveyance of
additional easements for agreed consideration, as provided in this Agreement; except nothing
contained herein shall relieve the Developer or Developer Affiliates, or its successors and
assigns, to dedicate future rights-of-way or easements not expressly provided herein under the
ordinances of the City.
1.3 Ratification and Confirmation of Remaining Provisions. City and Developer
hereby ratify and confirm all provisions of the 1998 Development Agreement and 2004
Development Agreement which are not expressly amended or deleted pursuant to this
Agreement. Without limiting the generality of the foregoing, those provisions in the 1998
Development Agreement which relate to reimbursement of the Developer's and City's respective
infrastructure expenditures out of future impact fees collected in accordance with State law in
Austin Ranch are hereby acknowledged, ratified, and confirmed in all respects, except as
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provided in Section 1.2. In no event shall Developer receive or be reimbursed impact fees
attributable to development of the Tsai Tract (unless such impact fees are in fact paid by
Developer), which tract is hereby excluded from Section 5.3 of the 1998 Development
Agreement.
1.4 Condition Precedent. The obligations of both City and Developer under this
Agreement are expressly conditioned on North Texas Municipal Water District's (hereinafter
"NTMWD") extension (the date such extension is granted is referred to herein as the "Service
Extension Date") of the pending deadline of May 17, 2008, for termination of service to Austin
Ranch residents for a minimum period of twenty-four (24) months from its current expiration,
providing for continuing support of City's wastewater treatment services for Austin Ranch
residents in accordance with the status quo, and such additional projects as the City may permit
during the extension period, during the design and construction of the Project System. City and
Developer shall cooperate in good faith in seeking such extension within sixty (60) days after the
Effective Date, provided neither party is required to incur any material expense in seeking or
securing such extension. If the required extension is not granted within such period, this
Agreement shall automatically terminate, unless the parties mutually agree to extend its
effectiveness. If the extension is granted, and transition of the units now served through
NTMWD to the Project System is completed prior to the extended deadline, earlier termination
of NTMWD's service shall occur if acceptable to City and NTMWD.
ARTICLE II.
DEFINITIONS
2.1 "Affiliate" shall mean with respect to a specified person or entity, any person or
entity that directly or indirectly controls, is controlled by, or is under common control with, the
specified person or entity; any person or entity that directly or indirectly owns an ownership
interest in the entity; and any entity in which such person or entity owns an interest; and any
person or entity managed by, managing, or under common management with , such specified
person or entity. As used in this definition, the term "control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and policies of an
entity, whether through ownership of voting securities, by contract or otherwise.
2.2 "Applicable Laws" shall mean the federal and laws of the State of Texas, codes,
ordinances, and regulations administered by the City applicable by.their terms to a construction
or development project described in this Agreement.
2.3 "Austin Ranch Property" or "Austin Ranch" shall mean the real property located
solely in the City of The Colony, Denton County, Texas, known generally as the Austin Ranch
development, owned, managed, or developed by Developer or a Developer Affiliate, as depicted
on ExhibitA to this Agreement, excluding the Tsai Tract.
2.4 "Capacity Reservation" shall mean a permanent reservation of wastewater
collection capacity as set forth in Section 4.8 of this Agreement.
2.5 "City" shall mean the city of The Colony, Texas.
2.6 "Developer" shall mean Billingsley Development Corporation.
DEVELOPMENT AGREEMENT PAGE 3
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C.
2.7 "Developer Affiliate" shall mean a person, real or corporate, partnership, limited
liability company, corporation, trust, or other legal entity which is an Affiliate, as defined herein,
of the Developer.
2.8 "Effective Date" shall mean the last date of execution of this Agreement.
2.9 "Force Majeure" shall have the meaning set forth in Section 9.7.
2.10 "Project Funds" shall have the meaning set forth in Section 4.2.B.
2.11 "Project Specifications" shall mean specifications meeting or exceeding the
preliminary specifications for the Project System attached as Exhibit B to this Agreement,
modified as contemplated in the Recitals for City oversizing, and located as shown in conceptual
form on Exhibit C to this Agreement.
2.12 "Project System" shall mean the wastewater collection system located in Austin
Ranch and the Tsai Tract (or alternate force main routing) which is comprised of certain lift
station with a flow meter, wastewater collection lines, and facilities as identified on Exhibit B
and Exhibit C.
2.13 "Shared Segments" in reference to the Project System shall mean (a) the lift
station planned to be installed west of Plano Parkway, and (b) the force mains to be installed
west of Plano Parkway. The Shared Segments exclude the gravity main segment and northern
planned lift station, to be installed east of Plano Parkway.
2.14 "Tsai Tract" shall mean the real property containing 73 acres, more or less, more
particularly described on Exhibit D to this Agreement. The Tsai Tract is located within the
boundaries of Austin Ranch, but is not owned by Developer or Developer's Affiliates.
ARTICLE III.
WATER LINE AND WASTEWATER LINE EASEMENTS
3.1 Option for Waterline Easements. City plans to establish water transmission
facilities [specific location south of Austin Ranch] for potable water supply to portions of the
City in addition to Austin Ranch. In order to construct a water transmission system, City may
require an easement over property of Developer and Developer's Affiliates, as identified on
Schedule 1. The Developer and Developer's Affiliates ("Grantors") hereby grant to City an
option (the "Option") to purchase the easements over the property described in Schedules 3A,
313, 3C, 3D, 3E, 3F, and 3G, which are attached hereto and incorporated herein, subject to the
following terms and conditions:
A. The purchase price for the Waterline Easement shall be Four and No/100
Dollars ($4.00) per square foot as indicated in Schedule 3, with price escalation to accrue at the
rate of eight percent (8%) per annum simple interest from the date sixty (60) days after the
Effective Date through the date of the City's acquisition. If the City is ready, willing and able to
close within sixty (60) days after the Effective Date, there shall be no price escalation. The
Developer will dedicate the twenty foot (20') wide easement in Schedule 3A as part of the
Project System, and the City will pay the Developer for the excess easement area within such
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dedicated easement area over 10,000 square feet; the 10,000 square feet shall be dedicated
without compensation.
B. That the easements in Schedules 3A through 3F shall be executed by the
Developer or Developer's Affiliates within thirty (30) days of the Effective Date and deposited in
the escrow with the Escrow Agent, with instructions to deliver such instruments upon
disbursement of payment in full to the appropriate Developer's Affiliates. The City is obligated
to escrow payment for such easements within sixty (60) days of the Effective Date. The Escrow
Agent shall be authorized to deliver the easements for recording and disburse the compensation
upon receipt of both.
C. The easement reflected in Schedule 3G is an alternate to a proposed
parallel easement within a pre-existing 75-foot wide easement granted to Texas Utilities Electric
Company (TXU) or its successors (hereinafter collectively, "TXU"). The easement within the
TXU easement is subject to TXU's prior approval. City agrees to have an easement within the
TXU easement prepared at its expense and to pursue such approval, in good faith and with
reasonable diligence, with Developer's cooperation. If such approval is not obtained within 180
days of the Effective Date, the City will purchase the easement in Schedule 3G, subject to
Developer's right of relocation in the future in the event that TXU's approval is granted
subsequent to such 180 day period and City has not improved such easement at the time
Developer notifies City in writing of the receipt of such approval and of Developer's intention to
relocate the City's prior-granted easement, and provided that surveying and documentation of
such relocation shall be at Developer's sole expense. That the easement shall be executed by the
Developer or Developer's Affiliates within two-hundred ten (210) days of the Effective Date and
deposited in the escrow with the Escrow Agent, with instructions to deliver such instruments
upon disbursement of payment in full to the appropriate Developer's Affiliate. The City is
obligated to escrow payment for such easement within two-hundred forty (240) days of the
Effective Date. The Escrow Agent shall be authorized to deliver the easement for recording and
disburse the compensation upon receipt of both.
D. Developer, Developer's successors and assigns shall have the right to
continue to enjoy the use of the Easements for any and all purposes, including, without
limitation, use of the surface for or permitting the use of the surface for parking, driving or
landscaping, which do not unreasonably interfere with or prevent the exercise of the rights
granted to the City hereunder. Without limiting the generality of the foregoing, there is hereby
reserved to Developer, Developer's successors and assigns the exclusive rights to install paving,
curbing, landscaping, and lighting on the Easements in accordance with the development
regulations of the municipality where the property is located.
Construction in and operation and maintenance of the City's facilities
within the Easement shall be at the sole expense of the City. The easement rights and privileges
herein granted shall be used only for the purpose of constructing, grading, operating, repairing,
maintaining, re-building, replacing, relocating and removing utility lines and all appurtenances
thereto. The Easements shall be maintained in a neat and clean condition. Notwithstanding any
term or provision hereof to the contrary, improvements installed pursuant to this Agreement
which protrude above the surface of the property are expressly prohibited except for lines and
appurtenances which are necessary for the operation and maintenance of the facilities which
DEVELOPMENT AGREEMENT PAGE 5 .t~
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shall be located and screened in a manner as to not unreasonably interfere with Developer's use
of the surface. City will at all times after doing any work in connection with the construction,
operation, or repair of facilities within the Easement, restore the surface of the property subject
to the Easement as close to the condition in which it was found before such work was undertaken
as is reasonably practicable.
3.2 Utility and Gravity Flow Wastewater Line Easement(s). In order to prepare for
anticipated development, City has expressed an interest in acquiring easements for the future
utility services of the Tsai Tract and Austin Ranch through the Project System, for the purpose of
connecting the Tsai Tract with the planned lift station west of Plano Parkway, and for other
municipal utility purposes (the "Utility Easement"). The City's acquisition shall be subject to the
following terms:
A. Developer's Affiliates identified on Schedule 2 (collectively, the
"Grantors") hereby agree to convey the Utility Easement in accordance with the terms of this
Section 3.2. All improvements to the Utility Easement shall be subsurface, exclusive of
appropriate service entry points and routine maintenance and operational appurtenances.
B. The purchase price for the Utility Easements shall be Four and No/100
Dollars ($4.00) per square foot, with price escalation to accrue at the rate of eight percent (8%)
from the date sixty (60) days after the date of Developer's delivery of the force main alignment
description pursuant to Section 3.2.C, through the date of the City's acquisition. If the City is
ready, willing and able to close within sixty (60) days after such delivery date, there shall be no
price escalation.
C. The Utility Easement shall be located within the following described
Easement segments:
A ten foot (10') wide Utility Easement, which will be parallel and
contiguous to the east side of the force main easement provided
under Section 4.7 of this Agreement, within the utility segment of
the Utility Easement between the southern boundary of the Tsai
Tract and the planned lift station site west of Plano Parkway, along
the alignment shown on Exhibit E as the "gravity line corridor."
Square footage of easements shall be determined by survey of the easement area by a licensed
professional surveyor engaged by City, at City's sole cost and expense, after Developer's delivery
to City of a boundary description of such force main easement area, pursuant to Section 4.3 of
this Agreement.
D. The closing of the City's purchase of the Utility Easement will occur on or
before the first anniversary date of the date of Developer's delivery of the force main alignment
description pursuant to Section 3.2.C. The City shall pay for the Utility Easement all in cash or
other good funds. Grantor will deliver to the City for recording an easement deed with special
warranty of title, conveying the Utility Easement subject to existing easements, restrictions, and
encumbrances of record (except for deeds of trust or other liens created by or through Grantor,
which Grantor shall cause to be released).
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E. Developer, Developer's successors and assigns shall have the right to
continue to enjoy the use of the Easements for any and all purposes, including, without
limitation, use of the surface for or permitting the use of the surface for parking, driving or
landscaping, which do not unreasonably interfere with or prevent the exercise of the rights
granted to the City hereunder. Without limiting the generality of the foregoing, there is hereby
reserved to Developer, Developer's successors and assigns the exclusive rights to install paving,
curbing, landscaping, and lighting on the Easements hereto in any fashion determined by the fee
owner of such property, in such owner's sole and absolute discretion.
Construction in and operation and maintenance of the City's facilities
within the Easement shall be at the sole expense of the City. The easement rights and privileges
herein granted shall be used only for the purpose of constructing, grading, operating, repairing,
maintaining, re-building, replacing, relocating and removing utility lines and all appurtenances
thereto. The Easements shall be maintained in a neat and clean condition. Notwithstanding any
term or provision hereof to the contrary, improvements installed pursuant to this Agreement
which protrude above the surface of the property are expressly prohibited except for lines and
appurtenances which are necessary for the operation and maintenance of the facilities which
shall be located and screened in a manner as to not unreasonably interfere with Developer's use
of the surface. City will at all times after doing any work in connection with the construction,
operation, or repair of facilities within the Easement, restore the surface of the property subject
to the Easement as close to the condition in which it was found before such work was undertaken
as is reasonably practicable.
3.3 Tsai Tract Easement. The Project System has been designed to incorporate an
easement of a minimum twenty (20') feet in width located over the Tsai Tract for routing of a
force main. City hereby agrees to use its best efforts to acquire such pipeline easement, on terms
satisfactory to City, permitting Developer's contractors customary temporary construction
easements for the purpose of constructing the portion of the Project System located thereon. At
such time as an easement over the Tsai Tract may be conveyed to the City, the City shall notify
Developer and cooperate in good faith with grants, licenses, and temporary construction
easements reasonably required by Developer's contractors for work on the Project System within
such easement area, on the same terms as public works carried out by other developers within
City rights-of-way. If despite the City's good faith efforts to acquire such easement (without,
however, a requirement that the City proceed to condemnation), the City is unable to do so
within four (4) weeks after the Effective Date, Developer will cause its Affiliates to agree to sell
and City will commit to purchase an easement of twenty (20') feet in width circumventing the
third party landowners' properties at a price of $4.00 per square foot, within areas owned by
Developer's Affiliates, along the "Alternate Force Main Route" identified on Exhibit C as such.
The closing of the transfer of the easement for such Alternate Force Main Route shall occur
coincident with the dedication of easements under Section 4.7 of this Agreement.
3.4 Nothing contained in this Agreement shall act as a waiver of the Developer or
Developer's Affiliates obligations to dedicate right-of-way or easements by a process in
conformity with the City Code of Ordinances and the development regulations.
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ARTICLE IV.
WASTEWATER PROJECT SYSTEM
4.1 Project System. In order to provide for future service to later-constructed
improvements in Austin Ranch through installation of oversized sanitary sewer facilities,
Developer has proposed to the City that if the City would contribute the amount of $970,000,
plus nineteen percent (19%) of the Shared Segments cost (determined without reference to
voluntary additions to or improvements of the Project System undertaken by Developer to
increase collection capacity over 2.66 MGD)(which 19% portion is currently estimated to be
$352,831.58) and provide treatment capacity through its Stewart Creek plant, Developer would
assume responsibility for funding the balance of costs necessary to design and install the Project
System and any additions to or improvements of such system to increase collection capacity. In
no event shall any voluntary additions to or improvements of the Project System undertaken by
Developer to increase transmission capacity over 2.66 MGD result in an increase of City's
nineteen percent (19%) share, which shall be applied to the bid costs of the Project System
without such additions or improvements in order to determine City's contribution.
The Project Specifications describe a gravity main, lift station, and force main. Such
facilities will be sized at a minimum to convey the flows as specified with the line segments in
Exhibit G as follows:
Existing System to Point B 2.88 million gallons per day (mgd)
Points B to C 3.23 mgd
Points C to C 1 3.43 mgd
Points Cl to D 3.88 mgd
Points D to DA 4.26 mgd
Points DA to D1 4.35 mgd
Lift Station & Force Main 2.66 mgd
City and Developer agree that Developer will construct the Project System, and City and
Developer will contribute toward the cost of the Project System, on the terms set forth in this
Agreement. Developer understands that development of Austin Ranch that causes the flows to
increase above these design flows will require expansion at the Developer's sole cost.
4.2 Contribution of Project Funds. City's and Developer's financial participation in
the cost of the Project System shall be funded in the amounts and according to the terms of this
Section 4.2.
A. Within thirty (30) days after the award of the bid for the construction of
the Project System, the City will escrow the cash sum equal to $970,000.00 plus its nineteen
percent (19%) share of the Shared Segment costs (determined without reference to voluntary
additions to or improvements of the Project System undertaken by Developer to increase
collection capacity over 2.66 MGD)(currently estimated to be $352,831.58). Within the same
time period, Developer will escrow the cash sum equal to balance of Project System costs. The
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escrow shall be placed with Republic Title Company, 2626 Howell Street, 10th floor, Dallas, TX
75204. Such escrow of funds shall be subject to the terms of an escrow agreement by and among
City, Developer, and Republic Title Company ("Escrow Agent"), to be executed
contemporaneously with the City's and Developer's escrow of funds. The escrow agreement
shall incorporate a stipulation that Escrow Agent's disbursements shall be made to engineers and
contractors (the "Approved Payees") listed by Developer's general contractor(s) in the general
contract(s) for the Project System installation let by Developer, or to City or Developer if either
party shall provide paid invoices and corresponding lien releases and apply for reimbursement
rather than direct payment of contractor(s). The escrow agreement shall authorize the Escrow
Agent to disburse Escrow Funds to Approved Payees (and to no other parties) based on the
Project System's engineer's certification submitted on standard AIA Form G702, submitted to the
escrow agent by Developer with copy to City, unless and until the Escrow Agent receives notice
from the City that Developer is in default under this Agreement. No other disbursements shall
be permitted without the mutual approval of City and Developer during the pendency of a default
by Developer hereunder, or after the occurrence of any act or event which would constitute an
event of default under this Agreement (collectively, "Review Events"), or for a draw which is not
accompanied by the Project System engineer's certification as required herein.
In the event an agreement cannot be consummated with Lonzar
Development, Inc., or its successors in interest regarding the Tsai Tract, then the City would not
be required to deposit the Shared Segment amount as required herein, or purchase the Utility
Easement as provided in Section 3.2.C, unless it elects to proceed with oversizing of the Shared
Segments.
B. The escrowed funds (herein referred to as the "Project Funds") are
currently estimated to be $2,919,307.14 in the aggregate, subject to adjustment as provided in
Subsection 4.2.C and to increase, if Developer elects to expand the Project System scope and
increase the estimated cost thereof (which increase, if any, Developer shall fund, without impact
to the City's share of Shared Segment costs based on the Project System described in Exhibits B
and Q. The Project Funds will be available for funding of periodic payments to Approved
Payees (or to Developer in reimbursement of such payments by Developer) as hereafter
provided.
C. Developer shall deliver to City a true, correct, and complete copy of each
invoice or application for payment from an engineer or contractor identified as an Approved
Payee in connection with the Project System. The Escrow Agent shall not process for payment
such invoice or application unless the Developer and the City have authorized payment. The
City shall have five (5) business days to review and authorize a payment. Submissions shall be
no more frequent than biweekly. If, after the occurrence of a Review Event, City has not
approved the invoice or application, it shall notify Developer within five (5) business days of
receipt (the "Review Period"); otherwise, the invoice or application shall be deemed to be
approved by City. In the event that the City objects to payment without good cause, the City
shall be liable to the Developer for interest on the invoice amount accruing at ten percent (10%)
simple interest from the date of City's objection to the date such objection is resolved in
Developer's favor. Good cause as used in this subsection shall mean not built in accordance with
the approved plans or other default of this Agreement. Developer may make direct payment to
Approved Payees and apply for reimbursement of such payments from Project Funds, so long as
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evidence of Developer's payments in the form of cancelled checks, receipts, and mechanics lien
releases are delivered to Escrow Agent with the application for payment. Within fifteen (15)
days after receipt of an invoice or application for payment conforming with the terms of the
escrow agreement, Escrow Agent shall pay the invoices or applications to Approved Payees or to
Developer in the event of Developer's verified prepayment. Items to which the City objects after
the occurrence of a Review Event shall be reserved from disbursement and the balance of
invoices and applications for payment shall be paid from the Project Funds. All costs of the
Project System in excess of the Project Funds shall be paid by Developer. All objections to
payment, or other disputes concerning the Project Funds or payment to the Project System
contractors, shall be resolved first through mediation convened within thirty (30) as provided in
Article VII.
4.3 Design of Project System. The pipeline routing for the Project System shall be as
set forth on Exhibit C, provided that City and Developer acknowledge that two alternate force
main routes are planned, pending City's identification of the route it elects pursuant to Section
3.2 of this Agreement over or around the Tsai Tract. Developer, at its sole cost, will cause
design of the Project System to begin on the schedule set forth in Section 4.5, and based on
completed plans, will cause the preparation and submission to the City of the necessary permit
application and construction drawings for the Project System, based on the Project Specifications
determined in the course of the design process. The City staff will process such application and
construction drawings in accordance with applicable provisions of City Code and any other
Applicable Laws. City processing of the permit application would be completed on the schedule
set forth in Section 4.5, excluding any processing delay pending City's receipt of information
requested from Developer pertaining to the permit application.
4.4 Project System Modifications.
A. By City. No modification of the plans, drawings, and specifications for
the Project System for oversizing will be required to be made, in light of City's election to
oversize the initially planned Project System to accommodate wastewater flows of 500,000
gallons per day, provided that Developer shall cooperate in good faith in modifying such plans,
drawings, and specifications to the extent that City's subsequent request for additional oversizing
does not prejudice Developer or materially increase the Project System design costs or otherwise
delay or impair the design or construction of the Project System.
B. Future Additional Capacity. The proposed 2.66 mgd lift station and force
main of the Project System includes capacity for the Tsai Tract (0.5 mgd), existing development
east of the railroad in Austin Ranch (0.6 mgd), and some additional development in Austin
Ranch both east and west of the railroad (1.56 mgd). The 1.56 mgd capacity for additional
development in Austin Ranch will be for the sole wastewater collection service of Austin Ranch
as defined in Section 2.3 and depicted in Exhibit A to this Agreement. With each new
development in Austin Ranch, the Developer's engineer will provide a Wastewater System
collection map with total projected wastewater flows including inflow and infiltration for City
approval. Developer understands that the proposed project system only provides wastewater
collection service for a portion of Austin Ranch and that for development of Austin Ranch
exceeding the capacity of the Project System, expansion of the system will be necessary. During
or after completion of construction of the Project System, both the Developer and the City have
DEVELOPMENT AGREEMENT PAGE 10 r
TM 21467.76.000 l
the right to expand the system beyond the proposed capacities, subject to the terms of this
Agreement.
C. Capacity Determinations. All capacities for the Project System and future
additions to the Project System will be determined for design, permit, and all other purposes
based on accepted engineering practices consistent with the City of The Colony, Texas'
Wastewater Master Plan, as amended, using metered wastewater flows. Neither City nor
Developer intends to require or develop infrastructure in excess of what is absolutely necessary
based on sound engineering judgment using actual metered flows and meeting applicable TCEQ
requirements.
4.5 Construction of Project System.
A. Developer will bid the general contract for the installation of the Project
System in accordance with TEXAS LOCAL GOVERNMENT CODE, Section 212.071 et seq., and
cause the contractor(s) to complete installation of the Project System, all in accordance with the
Project Specifications (with change orders effected by Developer) as provided in Section 5.6 of
this Agreement. The schedule for the completion of the Project System anticipated by Developer
is as follows:
Completion Date (expressed as
days subsequent to Service
Task Extension Date as defined in
Section 1.4)
Executed contract for engineering services + 30 days
Complete contract for lift station,
force main and gravity line design,
bid phase and construction phase
services
Engineering plans submitted to City + 180 days
100% complete engineering design
plans and legal descriptions for
easements for lift station, force main
and gravity line submitted to City
Engineering Design Plans Approved by City + 210 days
Bid Project + 240 days
Receive bids from contractors for
construction of lift station, force
main and gravity line based on City
approved plans
DEVELOPMENT AGREEMENT PAGE 1 1 k TM 21467.76.000 {
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Begin Construction + 270 days
Execute contract with contractor that
is lowest responsible bidder, hold
preconstruction meeting, pay
inspection fees and begin work at site
for construction of lift station, force
main, and gravity line
Construction Substantially Complete + 635 days
Construction substantially complete
for lift station, force main and gravity
line
Any default by Developer in constructing the Project System, after applicable notice and
opportunity to cure, will entitle the City to assume control and complete construction of the
Project System to the extent of available Project Funds (as provided in Article VIII). Project
Funds shall not be applied by either Developer or the City to any infrastructure improvements or
for any other purpose, other than the Project System.
B. Developer anticipates that the schedule for design and construction of the
Project System will substantially conform with the foregoing project schedule. Commencement
of on-site development activity would occur no later than sixty (60) days after City approval of
the construction plans for the Project System. Developer shall be deemed to be in default under
this Agreement if on-site development activity in connection with the Project System has not
occurred on or before sixty (60) days after City approval of the Project System construction
plans, or if after commencement construction activity ceases for more than sixty (60) consecutive
days, for reasons other than force majeure delay.
4.6 Final Com letion. In the event that the Project Funds exceed the disbursed costs
of the Project System, any excess funds shall be refunded to Developer within seven (7) days
after the City's acceptance of dedication of the Project System, in accordance with Section 4.7,
below. If the disbursed costs of the Project System exceed the Project Funds, Developer shall be
solely responsible for payment of such excess costs, and after the City's escrow of funds in the
amount contemplated in subsection 4.2.A, above, Developer will indemnify, defend, and hold the
City harmless from all claims for additional Project System costs by Project System engineers
and contractors. The City's participation in the Project System shall be limited to the
contribution amount set forth in subsection 4.2.A., above. It is the parties' mutual intention that
the Developer shall bear all costs of the Project System over and above such contribution
amount.
4.7 Dedication. Within thirty (30) days after the award of the bid for the construction
of the Project System, Developer will deliver to the Escrow Agent executed easements necessary
to construct and operate the Project System, to be held by the Escrow Agent and delivered at the
time of dedication of the Project System. The escrow agreement shall describe the parties'
respective rights and obligations concerning such escrowed instruments.
DEVELOPMENT AGREEMENT PAGE 12
TM 21467.76.000
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4.8 Capacity Reservation. The Capacity Reservation, for the benefit of the parties
provided hereafter, assures that the tracts of property which currently comprise Austin Ranch
shall have a minimum of 2.16 mgd wastewater collection capacity upon substantial completion
of the Project System for so long as the Project System may be in operation.
A. Developer's Capacity Reservation shall benefit all properties within Austin
Ranch currently owned by Developer or Developer Affiliates. City covenants and agrees that in
no event shall any of the collection capacity subject to the Capacity Reservation be permitted to
be utilized by any applicant whose property is located outside the boundaries of Austin Ranch as
defined in Sect. 2.3 of this agreement.
B. City is proceeding with an amendment to its Wastewater Master Plan and
Impact Fee Ordinance (the "Master Plan Amendment") which would have the effect of adding an
additional lift station to the City's master plan for the area south of Highway 121 to be of
adequate capacity to serve development in the area north of McKamy Trail and east and west of
the BNSF rail line (which area is referred to herein as the "McKamy Trail Basin"). The Master
Plan Amendment, if adopted, would support Developer's Capacity Reservation in the Project
System by providing for the construction of a supplemental wastewater collection system in the
Upper Indian Creek Watershed (north of Austin Ranch) to serve other developments in such
watershed, consistent with Developer's Capacity Reservation. However, City has not at this time
approved the Master Plan Amendment. In order to assure that Developer achieves the benefit of
its bargain under this Agreement with respect to the Capacity Reservation, in the event that at
any time during the term of the Capacity Reservation, City authorizes the connection to the
Project System (collectively, the "Unauthorized Taps"') of any development project not within
Austin Ranch as defined Sect. 2.3 of this agreement, such action shall immediately obligate the
City, at no expense to Developer, Developer's Affiliates, or any owner of Austin Ranch
properties, to construct additions to the Shared Segments offsetting the reduction in capacity of
the Shared Segments attributable to the Unauthorized Taps on a gallon-for-gallon basis,
maintaining the identical unused collection capacity in the Shared Segments for the benefit of
properties within Austin Ranch. Such Shared Segment additions are required to be commenced
on the ground within ninety (90) days after the date of authorization of the Unauthorized Tap,
pursued with reasonable commercial diligence to conclusion, and completed in any event on or
before the eighteenth (18th) month after the date of City's authorization of the Unauthorized
Tap.
C. If City shall have elected to oversize the Shared Segments for the benefit
of the Tsai Tract, in the event that at any time during the term of the Capacity Reservation,
development projects within Austin Ranch when determined using the parameters in this
Agreement to require more than 2.16 MGD collection capacity in the Shared Segments, such
action shall immediately obligate Developer, at no expense to City, to construct additions to the
Shared Segments offsetting the reduction in capacity of the Shared Segments allocated to the
Tsai Tract on a gallon-for-gallon basis, maintaining .5 MGD collection capacity in the Shared
Segments for the benefit of the Tsai Tract. Such Shared Segment additions are required to be
commenced on the ground within ninety (90) days after the date the determination of
' Unauthorized Taps does not include the Tsai Tract as defined since its capacity has been assigned and is not
computed into the capacity reserve by the Developer.
DEVELOPMENT AGREEMENT PAGE 13 i11f
TM 21467.76.000 1~
encroachment on the Tsai Tract allocated capacity, pursued with reasonable commercial
diligence to conclusion, and completed in any event on or before the eighteenth (18th) month
after the date of such determination. New projects in Austin Ranch will not be permitted for
construction by the City if such projects exceed the 2.16 MGD collection capacity in the Shared
Segments.
D. It is the parties' expectation that Unauthorized Taps will not occur in the
future, in light of the probability that the Master Plan Amendment will be approved and
development in the Austin Ranch watershed will be carried out in accordance therewith.
However, because Developer would not enter into this Agreement without the absolute assurance
of the Capacity Reservation, and City cannot assure Developer that Unauthorized Taps will not
occur in the future (due to failure of the City Council to adopt the Master Plan Amendment,
revocation or modification of the Master Plan Amendment once adopted, or other unforeseeable
circumstances), City hereby assumes the absolute and unconditional obligation to provide
substitute collection capacity in the Shared Segments if Unauthorized Taps shall unexpectedly
occur, all at no expense (however assessed, directly or indirectly) to properties within Austin
Ranch as defined in Sect. 2.3 of this agreement.
ARTICLE V.
GENERAL TERMS OF THE CONSTRUCTION
5.1 Compliance with Applicable Law. The projects provided herein shall be
designed in compliance with Applicable Laws in effect at the time of design, construction and
acceptance.
5.2 Construction Within Cif Rights-of-Way. All construction within rights-of-way
and easements shall be subject to inspection and approval of the City to the same extent as a
permitted construction project in accordance with Applicable Laws. The City shall be named
as a third party beneficiary or party to any construction and engineering contracts to
construct the Project System, provided that all rights of the City in such capacity will apply
only after default by Developer under this Agreement and City's exercise of the right to
assume construction of the Project System under Section 8.4. The City must be given forty-
eight (48) hours notice by the contractor before commencing any such work, including
construction, excavation, maintenance, or other work, under this Agreement within City rights-
of-way and easements. Any work conducted without coordination of City inspection is subject
to being removed, reduced, or reconstructed at the cost of the Developer. Nothing contained
herein shall act as an estoppel from enforcement of any applicable ordinances.
5.3 INDEMNITY. THE DEVELOPER WILL HOLD THE CITY HARMLESS AND
INDEMNIFY THE CITY FOR ANY CLAIMS, DEMANDS OR DAMAGES TO THE ELECTRIC, GAS,
WASTEWATER, WATER OR TELEPHONE UTILITIES IN EACH LOCATION SUSTAINED IN THE
PROCESS OF CONSTRUCTION AND SHALL FURTHER SAVE AND HOLD THE CITY HARMLESS AND
INDEMNIFY THE CITY FOR ANY CLAIMS, DEMANDS OR DAMAGES TO ANY PERSON OR PROPERTY.
IT SHALL NOT BE A DEFENSE TO THIS INDEMNITY AND HOLD HARMLESS AGREEMENT TO
CONTEND THAT THE CITY OR ANY OF ITS AGENTS OR EMPLOYEES WAS THE CAUSE OF THE
DAMAGES OR LIABILITY, WHICH MAY BE ASSERTED AS A RESULT OF THE DEVELOPER'S OR
ASSOCIATION'S OPERATIONS.
DEVELOPMENT AGREEMENT PAGE 14 \ n
TM 21467.76.000 kTV
5.4 Insurance. Developer shall insure that the Contractor obtain and carry general
liability insurance covering all of its operation hereunder in the amount of $1,000,000 a person,
$2,000,000 per occurrence. That insurance shall name the City as an additional named insured
and shall be of the occurrence type. Before commencing any activity on the Project System
hereunder, the Developer shall supply the City a certificate of that insurance which clearly
indicates the requirements herein and is by a company reasonably satisfactory to the City.
5.5 Notification of Utilities. Developer shall notify any and all utility companies
required by Applicable Law prior to initiation of any work on the Project System.
5.6 Performance and Maintenance Bond. Developer shall secure such performance
and maintenance bonds as are required for public works contracts performed on any public
property, to the extent required by State law and ordinances of the City.
ARTICLE VI.
DEVELOPMENT TIMELINES
6.1 Austin Ranch Signage. Developer shall, upon execution of a License Agreement
in substantial compliance to a form as provided in Exhibit F to this Agreement, be permitted to
seek the appropriate approvals under the Code of Ordinances of the City to allow a permanent
monument signage, including an amendment to the land use ordinances of the City, to be located
in the median of Windhaven Parkway within Austin Ranch as depicted in the elevation exhibit
attached hereto as Exhibit F-1. City staff intends to convey its recommendation to the City
Council for the granting of such approvals, to the extent Council approval is required for
modification of existing zoning.
6.2 Austin Ranch Public Safety Site. Section 4.1 of the 1998 Development
Agreement establishes a deadline for City's construction of a fire station located in Austin Ranch
within eighteen (18) months after Austin Ranch residential population reaches 7,500. Developer
and City hereby agree to extend such construction deadline to eighteen (18) months after Austin
Ranch residential population reaches 10,000 as determined by the City Planner. That the City
and Developer agree and acknowledge that the proposed fire station have agreed to approve
setbacks for the fire station to be constructed on said site (without effect on set back restrictions
governing any other development which may occur on said site), relocating the set back lines
from one hundred (100') feet to seventy (70') feet and seventy-five (75') feet to fifty (50') feet as
set forth in an approval from the Developer dated February 28, 2006, reflected on Exhibit H to
this Agreement. Section 4.1 of the 1998 Development Agreement is amended accordingly.
6.3 Boundary Adjustment. Developer has presented to City staff an application
requesting the City's approval of an adjustment of the southern boundary of the City, within
Austin Ranch to conform the respective City boundaries with good engineering practices with
respect to subdivision planning in Austin Ranch. The adjustment is proposed to be effected by
the City's execution of a boundary adjustment agreement with the City of Carrollton. The
proposed boundary adjustment is reflected on Exhibit I to this Agreement. Such application is
presently under engineering review by the staffs of both Carrollton and the City. City intends to
process such application promptly and in good faith, and to cooperate in coordinating the
necessary actions with Carrollton staff, and intends to approve the adjustment, based on the
DEVELOPMENT AGREEMENT PAGE 15
TM 21467.76.000 ~J
determination of the City staff that such adjustment is in the public interest. City staff intends to
convey its recommendation to the City Council for the granting of such application, to the extent
Council approval is required, and further agrees to take actions on such application diligently and
without unreasonable delay. City acknowledges that practically speaking the Councils of the two
municipalities cannot take simultaneous action, City agrees to proceed with Developer's
application prior to future corresponding action by the Carrollton City Council (though the
ultimate consummation of the boundary adjustment will be subject to approval by the Councils
of both City and Carrollton and the City shall have no responsibility to incur any expense in
order to induce Carrollton with respect to the boundary adjustment).
ARTICLE VII.
DISPUTE RESOLUTION
Any controversy or claim arising out of or relating to this Agreement or a breach hereof (a
"Dispute"), including any Dispute concerning any disbursement of the Project Funds, may be
settled by mediation in accordance with mediation and dispute resolution under state law.
ARTICLE VIII.
DEFAULT AND REMEDIES
8.1 Notice of Default. If either party shall claim the other party to this Agreement is
in default of any obligation hereunder, before pursuing any remedy for such default, such party
shall notify the other party, specifying the alleged default, and allow such party fifteen (15) days
(in the case of monetary default) and sixty (60) days (in the case of any other default) within
which to cure such default.
8.2 Termination. Either party may terminate this Agreement if the other party
breaches any of the terms and conditions of this Agreement, and such breach is not cured by such
party within the applicable cure period.
8.3 Assumption of Project System. The following acts or omissions by Developer in
constructing the Project System shall be considered to be a default under this Agreement,
entitling City, after applicable notice and opportunity to cure, to assume exclusive control of the
construction of the Project System as hereafter provided:
A. Failure to comply with any of the design and construction deadlines
specified in Section 4.5;
B. Failure to commence construction and/or to substantially complete the
Project System as provided in Section 4.5; or
C. Failure to deposit and maintain escrow funds in accordance with this
Agreement; or
D. Failure to pay or otherwise be in default with general contractor for
installation of the Project System.
DEVELOPMENT AGREEMENT PAGE 16
TM 21467.76.000
8.4 Assumption of Project System Construction After Default. For the benefit of
City, Developer shall not default under any contract for design or installation of any portion of
the Project System (provided that Developer reserves the right to assert any bona fide contention,
allegation, or defense in connection with a dispute with any contractor over the contractor's
work. Developer shall not permit any Project System contract to terminate by reason of any
failure of Developer to perform thereunder. In the event work shall have ceased on the Project
System for a period in excess of the period allowed under this Agreement, in addition to any
other rights or remedies available to City for such default, City shall have the right to access any
remaining escrow funds, easements for the property and sufficient access for temporary
construction on Developer's or Developer Affiliate's property and to assume Developer's
construction of the Project System under this Agreement and apply the remaining balance of the
Project Funds, easements and access to the construction thereof; and, effective as of the date of
City's notice to the Escrow Agent that City has elected to do so on account of such default by
Developer, a copy of such notice shall be delivered to Developer at the same time as the Escrow
Agent, Developer's right to withdraw Project Funds shall cease until final and binding resolution
of any dispute between City and Developer pursuant to Article VII or any other applicable legal
process. Further, City shall have the right to obtain the easements set forth in Schedule 3A
through 3G pursuant to applicable terms of the parties' escrow agreement with the Escrow Agent
and cause the same to be recorded in the Deed Records of Denton County, Texas. Thereafter, if
City's right to pursue construction of the Project System is enforced by a final judgment of a
court of competent jurisdiction, Developer shall cooperate with City in facilitating City's
construction of the Project System and causing Developer's Affiliates to permit entry onto the
Project System areas to perform such construction. Notwithstanding any term or provision
hereof to the contrary, neither Developer nor City shall at any time apply any portion of the
Project Funds to any purpose other than the design and construction of the Project System.
8.5 Attorneys' Fees. In the event that any party hereto brings an action or proceeding
for a declaration of the rights of the parties under this Agreement, for injunctive relief, for an
alleged breach or default of, or any other action arising out of, this Agreement or the transactions
contemplated hereby, the prevailing party shall be entitled to reasonable attorneys' fees in
addition to any court costs incurred and in addition to any other damages or relief awarded. This
provision will survive the termination of this Agreement.
ARTICLE IX.
MISCELLANEOUS
9.1 INDEMNIFICATION/HOLD HARMLESS. DEVELOPER DOES HEREBY RELEASE,
INDEMNIFY AND HOLD HARMLESS THE CITY, ITS OFFICERS, AGENTS, EMPLOYEES, AND THIRD
PARTY REPRESENTATIVES (COLLECTIVELY REFERRED TO IN THIS SECTION AS "CITY") FROM
ANY AND ALL CLAIMS, DAMAGES, CAUSES OF ACTION OF ANY KIND WHATSOEVER, STATUTORY
OR OTHERWISE, PERSONAL INJURY (INCLUDING DEATH), PROPERTY DAMAGE AND LAWSUITS
AND JUDGMENTS, INCLUDING COURT COST, EXPENSES AND ATTORNEY'S FEES, AND ALL OTHER
EXPENSES ARISING DIRECTLY OR INDIRECTLY FROM THE DEVELOPER'S PERFORMANCE OF
THIS AGREEMENT. THE FOREGOING RELEASE AND INDEMNITY SHALL SURVIVE TERMINATION
OF THIS AGREEMENT.
DEVELOPMENT AGREEMENT PAGE 17 tLA
TM 21467.76.000
TXV
°-C
9.2 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.
9.3 Successors and Assigns. All obligations and covenants of the Developer under
this Agreement shall be binding on the Developer, and its successors and assigns. Developer
may not assign this Agreement or its rights and interests therein prior to final completion and
dedication of the Project System without the prior written consent of the City. Thereafter, after
notice to City, assignment shall be permissible. If Developer or Developer's Affiliates shall
assign any portion of the Property to a third party in connection with a sale of Austin Ranch real
property, the assigning party shall notify City and City shall cooperate in executing and
delivering an estoppel certificate for the benefit of Developer, Developer's Affiliate, the
transferee, and the transferee's lender, reflecting the status of this Agreement and Developer's
default-free standing hereunder (or specifying such default or act or omission which might
constitute a default with the expiration of applicable cure periods, if City shall claim that a
default exists), as well as the used and unused transmission capacity in the Project System per
City records, using the perimeters in this Agreement.
9.4 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.
9.5 Governing 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.
9.6 Entire Agreement. This Agreement embodies the complete agreement of the
parties herein, superseding all oral or written, previous and contemporary agreements between
the parties and relating to the matters in this Agreement, and except as otherwise provided herein
cannot be modified without written agreement of the parties to be attached to and made a part of
this Agreement. In the event there is a conflict in the interpretation of any written portion of this
Agreement and any exhibit attached hereto, the provisions of the exhibit shall control.
9.7 Force Majeure Delays. If the performance of any obligation hereunder other than
monetary obligations is delayed by reason of riots, material or labor restrictions, natural
disasters, war, civil commotion, acts of God, inclement weather and resulting conditions
preventing on-site activity, governmental restrictions, regulations, or interferences, unreasonable
delays by City staff in issuing any permits or conducting any inspections, unforeseen subsurface
or site issues, court injunction or other legal proceedings, the action or inaction of third parties,
or other circumstances which are reasonably beyond the control of the party obligated or
permitted under the terms of this Agreement to do or perform the same ("Force Majeure"), the
party so obligated or permitted shall be excused from doing or performing the same during such
period of delay, so that the time period applicable to such design or construction requirement
shall be extended for a period of time equal to the period such party was delayed, provided that
the party is diligently and continuously pursuing a resolution of such delay.
DEVELOPMENT AGREEMENT PAGE 18 \
TM 21467.76.000
9.8 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 Gordon Scruggs, City Engineer
City of The Colony City of The Colony
6800 Main Street 6800 Main Street
The Colony, Texas 75056 The Colony, Texas 75056
Facsimile: 972-624-2312 Facsimile: 972-624-2317
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 Charles C. Jordan
Att'n: Carrington, Coleman, Sloman & Blumenthal,
4100 International Parkway L.L.P.
Suite 1100 901 Main Street, Suite 5500
Carrollton, TX 75007 Dallas, Texas 75202
Facsimile: Facsimile: (214) 758-3721
9.9 Incorporation of Recitals. The determinations recited and declared in the
preambles to this Agreement are hereby incorporated herein as part of this Agreement.
9.10 Exhibits. All exhibits to this Agreement are incorporated herein by reference for
all purposes wherever reference is made to the same.
DEVELOPMENT AGREEMENT PAGE 19 n
TM 21467.76.000
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9.11 Counterparts. 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.
9.12 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.
9.13 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.
EXECUTED in duplicate originals this the day of G v , 2007.
CITY: CITY OF THE COLONY, TEXAS
' C'LL".
By: PL
Dale Cheatham, City Manager
ATTEST:
By:
_ ā
5Tie 63 tl , City Secretary
t.:
APPROVED FORM: r
By:
Aer - 6E2 , City Attorney
DEVELOPMENT AGREEMENT PAGE 20 , r
TM 21467.76.000
I- 2Z_Lms
EXECUTED in duplicate originals this the Zday of V 2007.
DEVELOPER: BILLINGSLEY DEVELOPMENT
CORPORATION
By: z3k&~A-,,
Title: Pori- eā
DEVELOPMENT AGREEMENT PAGE 21 'r A
TM 21467.76.000
CITY'S ACKNOWLEDGEMENT
STATE OF TEXAS §
COUNTY OF DENTON §
This instrument was acknowledged before me on the I=f day of
-rte 200-_, by -Dale Cheatham, City Manager of the City of The
Colony, a Texas municipality, on behalf of said municipality.
Notary Public, State of Texas
,,µ1~111111~ Sp~~~
S
§ aY Pu `41STIE NFU WILSON
S =j~1*,,uu,,,B,: ,
Notary Public. State of Texas
My Commission Expires 11-22-09
DEVELOPMENT AGREEMENT PAGE 22
TM 21467.76.000 1'~
Dint 0,
DEVELOPER'S ACKNOWLEDGEMENT
STATE OF TEXAS §
COUNTY OF 1 P.n-Y1 §
/This instrument was knowled d b fore e on the o ~ day of
200 ~ by n s & of
'?B'lDe lopment Corporation on behalf of said co ora ion.
a~rsY aowe
=k MY COMMISSION EXPIRES
June 27, 2010 Notary Pu i State of Texas
(Seal)
DEVELOPMENT AGREEMENT PAGE 23
LU4
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Pce c
LIST OF SCHEDULES AND EXHIBITS
Schedule 1 Grantors--Waterline Easement
Schedule 2 Grantors--Gravity Line Easement
Schedule 3 Water and Wastewater Easements
Exhibit A Ma of Austin Ranch
Exhibit B Minimum Project Specifications (CP Engineering)
Exhibit C Project Ma (CP Engineering)
Exhibit D Tsai Tract Map, Survey, or Metes and Bounds Description
Exhibit E Gravity Line Corridor Drawing
Exhibit F Proposed License Agreement
Exhibit F-1 Elevation Drawing for Monument Sign
Exhibit G Project System Line Segment Drawing
Exhibit H Fire Station Setback Drawing
Exhibit I Boundary Adjustment Materials
DEVELOPMENT AGREEMENT EXHIBIT F