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12-35 - RTOWN OF PROSPER, TEXAS RESOLUTION NO. 12-35 A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF PROSPER, TEXAS, HEREBY APPROVING THE THIRD AMENDMENT TO THE DEVELOPMENT AND FINANCE AGREEMENT BETWEEN THE TOWN OF PROSPER, TEXAS AND BLUE STAR LAND, LP, 183 LAND CORPORATION AND BLUE STAR ALLEN LAND CORPORATION. NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF PROSPER, TEXAS: SECTION 1: The Town Council of the Town of Prosper, Texas, hereby approved the Third Amendment to the Development and Financing Agreement between the Town of Prosper and Blue Star Land, LP, 183 Land Corporation and Blue Star Allen Land LP. CTION 2: Resolved by the affirmative vote of the Town Council on the 12th , y# 6L%2012. to r �00 •.• •.• •►. Ray Sm i i, Mayor 1;1181fe$0: .2=) Amy PitflkanC Town Secretel. U" RIG I NAL Contract No. ._..'LA._ STATE OF TEXAS § § THIRD AMENDMENT TO § DEVELOPMENT AND FINANCING AGREEMENT COUNTY OF COLLIN § This Third Amendment to Development and Financing Agreement ("Agreement") is made by and among the Town of Prosper, Texas, a duly incorporated municipality of the State of Texas (the "Town"), Blue Star Land, LP, a Texas limited partnership (the "Developer"), 183 Land Corp., a Texas corporation, and Blue Star Allen Land LP, a Texas limited partnership (together the "Additional Landowners," and collectively with the Developer, the "Landowners"), acting by and through their respective authorized officers or representatives. RECITALS: WHEREAS, the Parties previously entered into that certain Development and Financing Agreement dated March 25, 2008 (the "Development and Financing Agreement"); and WHEREAS, the Parties previously entered into that certain First Amendment to Development and Financing Agreement dated May 17, 2011; and WHEREAS, the Parties previously entered into that certain Second Amendment to Development and Financing Agreement dated October 20, 2011; and WHEREAS, the Parties intended but were unable to renegotiate the Development and Financing Agreement and execute a mutually agreeable amendment thereto within six (6) months after the effective date of the Second Amendment to the Development and Financing Agreement; and WHEREAS, the Parties desire to enter into this Third Amendment to the Development and Financing Agreement as set forth herein to allow the Parties to renegotiate the Development and Financing Agreement on or before July 9, 2013, and failing which, the Parties mutually agree to terminate the Development and Financing Agreement; NOW THEREFORE, in consideration of the foregoing, and other valuable consideration the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: Article I Termination of the Development and Financing Agreement Notwithstanding anything to the contrary in the Development and Financing Agreement the Parties hereby mutually terminate the Development and Financing Agreement effective July 9, 2013, unless the Parties have entered into a mutually agreed amendment of the Development and Financing Agreement on or before July 9, 2013. Page 1 Third Amendment to Development and Financing Agreement Town of Prosper, Blue Star Land, LP, 183 Land Corp. and Blue Star Allen Land LP (TM 55697) Article II Miscellaneous 2.1 Binding Agreement. The terms and conditions of this Agreement are binding upon the successors and permitted assigns of all Parties hereto. This Agreement may not be assigned without the prior written consent of all of the Parties. 2.2 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. 2.3 Notice. Any notice required or permitted to be delivered hereunder shall be deemed received three (3) days thereafter sent by United States Mail, postage prepaid, certified mail, return receipt requested, addressed to the party at the address set forth below or on the day actually received as set by courier or otherwise hand delivered. If to the Developer or the Additional Landowners: With a copy to: Stephen Jones Blue Star Land L.P. One Cowboys Parkway Irving, Texas 75063 If to the Town: General Counsel Blue Star Land L.P. One Cowboys Parkway Irving, Texas 75063 S Olin George Mitchell Chief Financial Officer Blue Star Land L.P. One Cowboys Parkway Irving, Texas 75063 And to: Joe Hickman 8000 Warren Parkway Building I, Suite 100 Frisco, Texas 75034 With a copy to: Attn: Town Manager Peter G. Smith Town of Prosper Nichols, Jackson, Dillard, Hager & Smith P.O. Box 307 500 North Akard Prosper, Texas 75078 1800 Lincoln Plaza Dallas, Texas 75201 Page 2 Third Amendment to Development and Financing Agreement Town of Prosper, Blue Star Land, LP, 183 Land Corp. and Blue Star Allen Land LP (TM 55697) 2.4 Entire Agreement. This Agreement is the entire Agreement between the Parties with respect to the subject matter covered in this Agreement. There is no other collateral oral or written Agreement between the Parties that in any manner relates to the subject matter of this Agreement, except as provided in any Exhibits attached hereto. 2.5 Governing Law. The Agreement shall be governed by the laws of the State of Texas; and venue for any action concerning this Agreement shall be in the State District Court of Collin County, Texas. The Parties agree to submit to the personal and subject matter jurisdiction of said court. 2.6 Amendment. This Agreement may be amended by the mutual written agreement of the Parties. 2.7 Legal Construction. In the event any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect other provisions, and it is the intention of the Parties to this Agreement that in lieu of each provision that is found to be illegal, invalid, or unenforceable, a provision be added to this Agreement which is legal, valid and enforceable and is as similar in terms as possible to the provision found to be illegal, invalid or unenforceable. 2.8 Recitals. The recitals to this Agreement are incorporated herein. 2.9 Counterparts. This Agreement may be executed in counterparts. Each of the counterparts shall be deemed an original instrument, but all of the counterparts shall constitute one and the same instri ment. 2.10 Survival of Covenants. Any of the representations, warranties, covenants, and obligations of the Parties, as well as any rights and benefits of the Parties, pertaining to a period of time following the termination of this Agreement shall survive termination. (Signature page to follow) Page 3 Third Amendment to Development and Financing Agreement Town of Prosper, Blue Star Land, LP, 183 Land Corp. and Blue Star Allen Land LP (TM 55697) EXECUTED on this day of '2012. ��o�alrrrw,r •°�`e� ® E aaaaaoaa� � �� lf r R ^e a S try ° m PR AAO;"v'EDSS TO FORM: ® o q° freeI ammc°` Qrn�iy #1111# jo TOWN: TOWN OF PROSPER, T By: Lew �kvll Ray Smi h, Mayor c CV— EXECUTED on this day of �� , 2012. DEVELOPER AND LANDOWNER: partnershipBLUE STAR LAND, LP, a Texas limited EXECUTED on this ,�� day of 2012. LANDOWNER: 183 LAND CORP. Page 4 Third Amendment to Development and Financing Agreement Town of Prosper, Blue Star Land, LP, 183 Land Corp. and Blue Star Allen Land LP (TM 55697) 4�l EXECUTED on this day of _ � , 2012. LANDOWNER: BLUE STAR ALLEN LAND LP a Texas limited partnership 1--fL4W�aV� tA N araf- Title: Page 5 Third Amendment to Development and Financing Agreement Town of Prosper, Blue Star Land, LP, 183 Land Corp. and Blue Star Allen Land LP (TM 55697)