RE 2009-1027.1
RESOLUTION NO. 2009-1027.1
A RESOLUTION OF THE CITY OF COPPELL,
TEXAS, APPROVING THE TERMS AND CONDITIONS OF
THE OMNIBUS AMENDMENT TO CONTRACT OF
PURCHASE AND SALE IN LIEU OF EMINENT DOMAIN,
SETTLEMENT AGREEMENT AND NORTHLAKE "WATER
SUPPLY PLANNING AGREEMENT BY AND BET"WEEN
CYPRESS "WATERS LAND A, LTD. AND THE CITY OF
COPPELL, "WHICH IS ATTACHED HERETO AND
INCORPORATED HEREIN AS EXHIBIT A, AND
AUTHORIZING THE CITY MANAGER TO EXECUTE THE
SAME; AND PROVIDING AN EFFECTIVE DATE.
"WHEREAS, Cypress Waters Land A ("CWLA") and the City of Coppell
("City") are parties to the Contract of Purchase and Sale in Lieu of Eminent Domain,
Settlement Agreement and Northlake Water Supply Planning Agreement, as
referenced in the attached Exhibit A; and
"WHEREAS, CWLA has provided the City vvith an Omnibus Amendment to
Contract of Purchase and Sale in Lieu of Eminent Domain, Settlement Agreement
and Northlake Water Supply Planning Agreement ("Amendment"), a copy ofvvhich
is attached hereto and incorporated herein as Exhibit A; and
"WHEREAS, after revievv and consideration, the City Council hereby
approves the terms and conditions of the Amendment and authorizes the City
Manager to execute the same.
NO"W, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL
OF THE CITY OF COPPELL, TEXAS, THAT:
SECTION 1. The terms and conditions of the Omnibus Amendment to
Contract of Purchase and Sale in Lieu of Eminent Domain, Settlement Agreement
and Northlake Water Supply Planning Agreement, vvhich is attached hereto and
incorporated herein as Exhibit A, are hereby approved and the City Manager is
hereby authorized to execute the same.
SECTION 2. This Resolution shall become effective immediately from
and after its passage.
Page 1
'I'M 40013.2.102209
DULY RESOLVED AND ADOPTED by the City Council of the City of
Coppell, Texas, on this the 27th day of October, 2009.
CITY OF COPPELL, TEXAS
/~~
J~ E PETERS, MAYOR
ATTEST:
~1g:~/9uV
B BAL, ITY SECRETARY
APPROVED AS TO FORM:
r) tl_./. <C. If
,r-,PD-t>CA z- l (',#}("-
ROBERT E. HAGER, C.. Y ATTORNEY
(REH/cdb)
Page 2
'I'M 40013.2.102209
OMNIBUS AMENDMENT
TO
CONTRACT OF PURCHASE AND SALE IN LIEU OF EMINENT DOMAIN;
SETTLEMENT AGREEMENT;
AND
NORTHLAKE "WATER SUPPLY PLANNING AGREEMENT
THIS OMNIBUS AMENDMENT TO CONTRACT OF PURCHASE AND SALE IN
LIEU OF EMINENT DOMAIN; SETTLEMENT AGREEMENT; AND NORTHLAKE
WATER SUPPLY PLANNING AGREEMENT (this "Amendment") is made and entered into as
of the _ day of October, 2009, by and bet"Ween CYPRESS WATERS LAND A, LTD., a Texas
limited partnership ("CWLA"), and CITY OF COPPELL, a Texas home rule municipality
("Coooell"), upon the terms set forth herein.
RECITALS
"WHEREAS, CWLA and Coppell are parties to that certain Contract of Purchase and
Sale in Lieu of Eminent Domain dated "With the Effective Date October 2, 2008, as amended by
(i) that certain Amendment to Contract of Purchase and Sale in lieu of Eminent Domain dated as
of November 14, 2008, (ii) that certain Second Amendment to Contract of Purchase and Sale in
lieu of Eminent Domain dated as of January 27, 2009, (iii) that certain Third Amendment to
Contract of Purchase and Sale in lieu of Eminent Domain dated as of March 25, 2009, (iv) that
certain Fourth Amendment to Contract of Purchase and Sale in lieu of Eminent Domain dated as
of July 31, 2009, and (v) that certain Fifth Amendment to Contract of Purchase and Sale in lieu
of Eminent Domain dated as of August 31, 2009 (as amended, the "Contract"), conceming that
certain real property described therein as the "Land";
"WHEREAS, Coppell, CWLA and the Coppell Independent School District C-'CISD") are
parties to that certain Settlement Agreement dated "With the Effective Date of October 2, 2008, as
amended by (i) that certain Amendment to Settlement Agreement dated as of January 27, 2009,
(ii) that certain Second Amendment to Settlement Agreement dated as of March 25, 2009, (iii)
that certain Third Amendment to Settlement Agreement dated as of July 31, 2009, and (iv) that
certain Fourth Amendment to Settlement Agreement dated as of August 31, 2009 (as amended,
the "Settlement Agreement");
"WHEREAS, Coppell, CWLA, and Cypress Waters Land C, Ltd. are .parties to that
certain Northlake Water Supply Planning Agreement dated "With the Effective Date of November
~/ . 2008 (the "Lake Planning Agreement");
"WHEREAS, the parties hereto desire to amend the Contract, the Settlement Agreement
and the Lake Planning Agreement, as hereinafter set forth belo"W;
Omnibus Amendment to Contract;
Settlement Agreement; and Lake
Planning Agreement
Page 1
"WHEREAS, the parties have determined that CISD's signature is not required for the
purposes of this Amendment since none of CISD's rights, duties or obligations under the
Settlement Agreement are being affected hereby.
AGREEMENT:
NO"W, THEREFORE, for good and valuable consideration, the receipt and sufficiency
of "Which are hereby ackno"Wledged by each of the parties, Seller and Buyer hereby agree as
follo"Ws:
1. Capitalized Terms. Initially capitalized terms used, but not specifically defined
herein, shall have the meanings ascribed to such terms in the Contract, Settlement Agreement
and/or Lake Planning Agreement, as applicable.
2. Amendments to the Contract and Settlement Agreement. The Contract and the
Settlement Agreement are hereby amended, as follo"Ws:
(a) The parties ackno"Wledge that Coppell has not satisfied the Utility
Commitment described in the Settlement Agreement and the Contract.
(b) Notvvithstanding the foregoing,
(i) On or before October 30,2009, Coppell "Will close the purchase of
the North Sliver Tract for the purchase price of $4.6 million as described in the
Settlement Agreement and the Contract.
(ii) At the North Sliver Tract Closing, CWLA and certain of its
affiliates that o"Wn the Unit Cap Property (collectively, "Billingslev") "Will impose
the Unit Cap against the Unit Cap Property by recording the Unit Cap Covenant
in accordance "With, and in the form attached to the Settlement Agreement.
(iii) As additional consideration for Billingsley's agreement to impose
the Unit Cap Covenant not"Withstanding the failure of Coppell to satisfY the Utility
Commitment, Coppell hereby covenants and agrees as follo"Ws:
A. Interim Water Service: Coppell has an existing 16" "Water
line located along Dividend Drive connecting to an existing 12" "Water line
in Belt Line Road, "Which has a current Peak Hour capacity of 3.6 MGD
"With minimum pressure of 40 psi at a maximum service elevation of 520' ,
2.0 MGD "With minimum pressure of 40 psi at a maximum service
elevation of 530', and 0.75 MGD "With minimum pressure of 40 psi at a
maximum service elevation of 550'. Through an interlocal agreement
bet"Ween the City of Dallas and Coppell, initial "Water service to Billingsley
and its affiliates involved in the Cypress Waters project (collectively, the
"Billingslev Group") "Will be made available by Coppell from this line for
first phase construction purposes only, "With the point of connection to be
Omnibus Amendment to Contract;
Settlement Agreement; and Lake
Planning Agreement
Page 2
at a mutually agreeable location. The Billingsley Group shall be allo"Wed
to utilize this "Water service (at the standard rates charged to residents of
Coppell) until first phase development is complete and the City of Dallas
"Water service system is in service. Upon completion of the first phase
development, the "Water main connection from the Cypress Waters project
to this line shall remain as an inter-local connection bet"Ween Coppell and
the City of Dallas for emergency use. In the event Coppell subsequently
reasonably determines that the available capacity in such line is required
for one or more ne"W major commercial developments "Within the Coppell
city limits, then Coppell shall have the right, upon not less than 6 months
prior "Written notice to the Billingsley Group, to require the Billingsley
Group to cease using such line for interim construction "Water and to obtain
such construction "Water from other sources. Not"Withstanding the
foregoing, Coppell agrees to keep the Billingsley Group reasonably
apprised of any such potential ne"W major commercial developments "Which
may require such capacity and to provide the Billingsley Group "With as
much advance notice thereof as is reasonably possible (but in no event less
than 6 months prior "Written notice as aforesaid).
B. Future Interlocal Connections: Coppell "Will cooperate
reasonably "With the City of Dallas and the Billingsley Group regarding
any future inter-local emergency connections that may be needed north of
the lake follo"Wing completion of additional project infrastructure design
and planning.
C. Interim Sanitary Se"Wer Service: Coppell has 1.8 MGD
capacity available "Within an existing 15" sanitary se"Wer line along Belt
Line Road. Through an interlocal agreement bet"Ween the City of Dallas
and Coppell, this line "Will be used to accommodate the initial phases of the
Cypress Waters project, "With the construction of an on-site lift-station
(perhaps temporary) and force main, connecting at a point on Belt Line
Road at Lakeshore or at another mutually agreeable location.
Construction of the City of Dallas sanitary se"Wer infrastructure "Will be
based on the follo"Wing:
1. When Coppell notifies the Billingsley Group in
"Writing that the measured sanitary se"Wer flo"W from the Billingsley
Group's Cypress Waters project equals or exceeds 1.35 MGD ~ the
Billingsley Group "Will begin planning (Preliminary Engineering)
and design (Permit Dra"Wings) for a City of Dallas system of
permanent on-site lift-station and force main to serve the
Billingsley Group's Cypress Waters project "Which "Will be
connected to a Coppell 30" se"Wer main located north of Belt Line
Road.
Omnibus Amendment to Contract;
Settlement Agreement; and Lake
Planning Agreement
Page 3
2. When Coppell notifies the Billingsley Group in
"Writing that the measured sanitary se"Wer flo"W from the Billingsley
Group's Cypress Waters project equals or exceeds 1.68 MGD ~ the
Billingsley Group "Will begin construction of a City of Dallas
system of permanent on-site lift station and force main to serve the
Billingsley Group's Cypress Waters project "Which "Will be
connected to a Coppell 30" se"Wer main located north of Belt Line
Road.
3. When Coppell notifies the Billingsley Group in
"Writing that the measured sanitary se"Wer flo"W in the above
referenced 30" se"Wer main reaches 80% of its capacity - the
Billingsley Group "Will initiate planning and design of an extension
of the City of Dallas force main to serve the Billingsley Group's
Cypress Waters project "Which "Will be connected to a TRA point of
delivery near Bush Tumpike and Belt Line Road, including the
rehab of an existing 33" line for a portion of the route.
Construction of this line and/or improvement "Will be initiated so as
to complete construction prior to the flo"W in the Coppell 30" line
reaching capacity.
4. When Coppell notifies the Billingsley Group in
"Writing that the measured sanitary se"Wer flo"W in the above
referenced 30" se"Wer main has reached 100% of its capacity - (a)
the Billingsley Group "Will not commence any ne"W development
"Which requires sanitary se"Wer service through such se"Wer main
(unless such development has an alternate se"Wer service which "Will
be fully available for such development "When such se"Wer service is
required), and (b) if requested by Coppell in such "Written notice,
the Billingsley Group "Will, "Within six (6) months after receipt of
such notice, obtain alternate se"Wer service for any portion of the
Billingsley Group's then existing Cypress Waters project "Which is
utilizing such Coppell se"Wer main for se"Wer service, as may be
specified by Coppell in such notice.
3. Amendments to the Lake Planning Agreement. Contract and Settlement
Agreement. As additional consideration for Billingsley's agreement to impose the Unit Cap
Covenant not"Withstanding the failure of Coppell to satisfY the Utility Commitment, the parties
hereby agree to amend the Lake Planning Agreement as follo"Ws:
(a) No later than seventy-five (75) calendar days after Coppell is given access
to Luminant's plans for the Spill"Way, Coppell "Will have entered into a contract "With an
engineering and consulting firm and "Will have formally commenced the necessary
planning, design and permitting/approval process (including City of Dallas, Corps of
Engineer's 404 and FEMA, TCEQ and any other governmental or agency permits or
Omnibus Amendment to Contract;
Settlement Agreement; and Lake
Planning Agreement
Page 4
approvals as may be required) for the modifications to the Spill "Way or such other
measures as may be agreed by the parties as being sufficient to accomplish the 10"Wering
of the lake level (and maintenance of the lake at such level) contemplated by the
Settlement Agreement, the Contract and the Lake Planning Agreement.
(b) Coppell "Will diligently and continuously pursue the design process for
such modifications to the Spill"Way (or such other agreed measures) and completion of
plans and all such required permits and approvals "With the goal being to obtain all
permits and approvals and have complete and final plans and a signed construction
contract for the modifications (or such other agreed measures) and lake 10"Wering as soon
reasonably practical, and Coppell shall use its best efforts to have such complete and final
plans and signed contract on or before January 1, 2012.
(c) Coppell "Will commence construction of the Spillvvay Modifications (or
such other agreed measures) "Within ninety (90) days after the later of: (i) completion of
the planning, permitting and approval process described in paragraph 3(b) above, (ii)
receipt of "Written authorization from Luminant to proceed, or (iii) expiration or earlier
termination of the Luminant Lease.
(d) Coppell "Will complete the Spill"Way Modifications (or such other agreed
measures) and 10"Wering of the lake "Within the time periods specified in the Lake Planning
Agreement.
4. Ratification. Except as specifically set forth herein, all other terms and conditions
set forth in the Contract, the Settlement Agreement and the Lake Planning Agreement shall
remain the same, in full force and effect. In the event of any conflict bet"Ween the terms of this
Amendment on the one hand, and the terms of the Contract, the Settlement Agreement and/or the
Lake Planning Agreement on the other hand, the terms of this Amendment shall control.
5. Counterparts: Facsimile Execution. This Amendment may be executed in any
number of counterparts, each of "Which so executed shall be deemed an original and all such
counterparts shall constitute but one agreement. This Amendment may be executed and
delivered by facsimile transmission. The party delivering by facsimile shall forvvard an original
executed counterpart of this Amendment to the other party "Within five (5) business days after
facsimile delivery; provided, ho"Wever, the failure to deliver an original counterpart "Will in no
"Way make a fully executed facsimile transmitted counterpart copy of this Amendment void or
voidable.
IN WITNESS WHEREOF, the parties have executed this Amendment effective as of the
Effective Date.
[Signature Pages Folio",,"]
Omnibus Amendment to Contract;
Settlement Agreement; and Lake
Planning Agreement
Page 5
C"WLA:
CYPRESS "WATERS LAND A, LTD.,
a Texas limited partnership
By: BILLINGSLEY 380 NORTH GP, LLC,
a Texas limited liability company,
Its General Partner
By:
COPPELL:
CITY OF COPPELL,
a Texas home rule municipality
By: Cl~i:~er
ATTEST:
~4~_~/1
City Secre
APPROVED AS TO FORM AND CONTENT:
/0;},1 .
fo~' Z .~(c..~
City Attomey -.
Omnibus Amendment to Contract;
Settlement Agreement; and Lake
Planning Agreement
Page 6
JOINDER BY CERTAIN MEMBERS OF THE BILLINGSLEY GROUP
The undersigned members of the Billingsley Group hereby join in the execution of this
Amendment for the purpose of evidencing their consent to, and agreement to be bound by, the
terms "and conditions hereof.
CYPRESS "WATERS LAND B, LTD.,
a Texas limited partnership
By: BILLINGSLEY 380 NORTH GP, LLC,
a Texas limited liability company,
Its General Partner
By Jo~~~rE-.
CYPRESS "WATERS LAND C, LTD.,
a Texas limited partnership
By: BILLINGSLEY 380 NORTH GP, LLC,
a Texas limited liability company,
Its General Partner
By:
~~"
CBIC COPPELL LAND, LLC,
a Texas limited liability company
By:
Omnibus Amendment to Contract;
Settlement Agreement; and Lake
Planning Agreement
Page 7