07-019 - R TOWN OF PROSPER,TEXAS RESOLUTION NO. 07-019
A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF
PROSPER, TEXAS, HEREBY AUTHORIZING THE MAYOR OF THE
TOWN OF PROSPER, TEXAS, TO EXECUTE A DEVELOPER'S
AGREEMENT BETWEEN AXXIUM LAND DEVELOPMENT,LLC.AND
THE TOWN OF PROSPER.
NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN
OF PROSPER, TEXAS:
SECTION 1: The Mayor of the Town of Prosper, Texas, is hereby authorized to execute,
on behalf of the Town Council of the Town of Prosper, Texas, a developer's agreement between
Axxium Land Development, LLC. and the Town of Prosper, as hereto attached.
SECTION 2: This Resolution shall take effect immediately upon its passage.
RESOLVED THIS THE 27`h day of February, 2007.
ha is anger, May
ATTEST TO: a®®®®, ®F P R
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Matthew Denton, TRMC
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Town Secretary
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After�Recording Return to: 06/t4t2oo oz 4 1 �, PM ac
Town Administrator
Town of Prosper
P.O. Box 307
Prosper,Texas 75078
DEVELOPER'S AGREEMENT
(Ariana Temporary Sewer Improvements)
HIS AGREEMENT (the "Agreement") is made and entered into to be effective as of
the day of February, 2007, by and among, AXXIUM LAND DEVELOPMENT, LLC, a
Texas limited liability company ("Ariana"), and the TOWN OF PROSPER, TEXAS ("Town"),
on the terms and conditions hereinafter set forth.
WITNESSETH:
WHEREAS, Ariana owns approximately 80f acres of land (the "Ariana Tract") located
in the Town and County, which Ariana Tract is more particularly described and/or depicted on
Exhibit A. attached hereto and incorporated herein by reference;
WHEREAS, Ariana, Saddle Creek Investments, Ltd., a Texas limited partnership
"Saddle Creek"), and Shaddock Developers, Ltd., a Texas limited partnership ("Shaddock";
Ariana, Saddle Creek and Shaddock shall hereinafter be collectively referred to as the
"Developers") and Town entered into that certain Impact Fee Agreement, dated January 5, 2007,
and filed for record under Clerk's File No. , Collin County Land Records (the
"Impact Fee Agreement"), wherein Developers agreed to construct and pay for certain "Sewer
Improvements" (as defined in the Impact Fee Agreement);
WHEREAS, the Sewer Improvements will be constructed pursuant to the Water and
Wastewater Improvement Plan, Ordinance No. 06-91 (the "Master Sewer Plan"), and in
accordance with the Impact Fee Agreement, to serve the "Saddle Creek Tract" (as defined in the
Impact Fee Agreement), the Ariana Tract and the "Shaddock Tract" (as defined in the Impact Fee
Agreement), which Sewer Improvements will be located as generally described and/or depicted
within the Impact Fee Agreement; and
WHEREAS, pursuant to the terms and the provisions hereof, Ariana and Town desire to
evidence their agreement with respect to temporary, alternative sanitary sewer system
improvements and services if the Sewer Improvements are not completed in accordance with the
Impact Fee Agreement.
NOW, THEREFORE, for and in consideration of the covenants and conditions
contained in this Agreement and the Impact Fee Agreement, Town and Ariana agree as follows:
1. Incorporation of Imaact Fee Aereement/Defined Terms.. The Impact Fee Agreement
is attached hereto as Exhibit B and incorporated herein for all purposes. This Agreement does
not and is not intended to effect in any way the obligations of the parties hereto as set forth in the
Impact Fee Agreement. Any term not defined herein shall be deemed to have the meaning
ascribed to it under the Impact Fee Agreement.
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2. Property Subiect to Agreement. The Ariana Tract made the subject of this Agreement
consists of 80f acres of land situated in the Collin County School Land Survey, Abstract No.
147, Collin County, Texas, as more particularly described in Exhibit A, attached hereto and
incorporated herein for all purposes. Ariana represents that it is the sole owner of the Ariana
Tract.
3. Temporarv, Alternative Provision of Sewer Service to the Ariana Tract. (a) Ariana
represents and warrants that the completion of "Line A" (as defined in the Impact Fee
Agreement) of the Sewer Improvements is necessary to provide sanitary sewer service to the
Ariana Tract. Therefore, subject to the provisions of Paragraph 3(c) below, if Line A is not
completed in accordance with the Impact Fee Agreement within ninety (90) days of the filing of
the Final Plat for "Ariana Estates, Phase 1", Ariana and Town agree that Ariana shall be
permitted to install, use, maintain, operate and remove, all at its sole cost and expense, the
sanitary sewer system and improvements described in this Paragraph 3 to provide temporary,
alternative sanitary sewer service to the Ariana Tract in strict accordance with this Agreement
(hereinafter defined as the "Temporary Ariana Sewer Improvements"). The Temporary Ariana
Sewer Improvements as used herein shall consist of and mean a temporary lift station at the
northwest corner of the Ariana Tract and a force main from the temporary lift station to the
existing manhole at the southeast corner of the intersection of Prosper Trail and Coleman Street,
for the sole and exclusive purpose of serving the homes located within "Ariana Estates, Phase I"
(hereinafter defined) which meet all Town requirements and have passed all inspections for
receiving a certificate of occupancy or final green tag (whichever applies, the "Certificate of
Occupancv ). The plans and specifications for the Temporary Ariana Sewer Improvements must
be reviewed and approved by the Town's engineer prior to the commencement of the installation
of said Temporary Ariana Sewer Improvements, the location of which, are generally depicted on
Exhibit C attached hereto and incorporated herein for all purposes. "Ariana Estates, Phase l" as
used herein shall have the same meaning ascribed to it under the "Final Plat for Ariana Estates:
Phase 1", approved by Town on November 8, 2005.
(b) Subject to Paragraph 6 below, Town will accept applications and begin issuing
permits (the "Building Permits" or "Building Permit") for building and construction on the lots
located within Ariana Estates, Phase 1 upon: (i) Town's acceptance of all public improvements
within Ariana Estates, Phase 1 necessary to serve Ariana Estates, Phase 1 as generally depicted
on/in the Final Plat for Ariana Estates, Phase 1 and described in the associated engineering plans
for Ariana Estate, Phase 1; and (ii) the filing of the Final Plat for Ariana Estates, Phase 1, in the
Collin County Land Records.
(c) If Line A is not completed in accordance with the Impact Fee Agreement within
ninety (90) days of the filing of the Final Plat for Ariana Estates, Phase 1, Ariana shall, subject to
this Paragraph 3(c), commence construction of the Temporary Ariana Sewer Improvements in
accordance with this Agreement. Subject to Paragraph 6 below, Town will accept applications
and begin issuing Certificates of Occupancy for those lots which received a Building Permit: (i)
upon Ariana's completion of the Temporary Ariana Sewer Improvements and Town's acceptance
of same; and (ii) which satisfy all other applicable rules, regulations, ordinances and
requirements of Town. If Line A is not completed in accordance with the Impact Fee Agreement
within ninety (90) days of the filing of the Final Plat for Ariana Estates, Phase 1, Ariana may
request that Town extend, in writing, Ariana's requirement to commence construction of the
Temporary Ariana Sewer Improvements ("Extension") as provided in this Paragraph 3(c). The
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Town will grant the Extension if: (i) Ariana, the Town Engineer and Building Official determine
that Line A will be completed prior to the first home within Ariana Estates, Phase I being
eligible for the issuance of a Certificate of Occupancy; and (ii) Ariana and Town agree, in
writing, to, among other things, the new date by which Ariana must commence construction of
the Temporary Ariana Sewer Improvements in accordance with this Agreement. If Line A is
completed in accordance with the Impact Fee Agreement before the expiration of the Extension,
Ariana will not be required to construct the Temporary Ariana Sewer Improvements.
4. Removal of Temporary Ariana Sewer Improvements. When Line A is completed,
Ariana shall, at its sole cost and expense and within thirty (30) days of Town's acceptance of the
Sewer Improvements: (i) connect the Ariana Tract to Line A; and (ii) completely remove, as
solely determined by Town, the Temporary Ariana Sewer Improvements. In addition to any
other remedies available to Town, should Ariana fail to comply with this Paragraph 4, Town and
Ariana agree that Town will not release for construction any subsequent phases of development
of the Ariana Tract until the Temporary Ariana Sewer Improvements are removed in accordance
with this Paragraph 4.
5. Default. In the event Ariana fails to comply with the provisions of this Agreement, Town
shall have the following remedies, in addition to Town's other rights and remedies:
(a) to cease and/or refuse to issue any building permits whatsoever for the
Ariana Tract, or portions thereof, and/or
(b) to file this instrument in the Land Records of Collin County as lien and/or
encumbrance on the Ariana Tract; and/or
(c) to cease and/or refuse to issue Certificates of Occupancy whatsoever for
the Ariana Tract; and/or
(d) to refuse to accept any portion of any public improvements on the Ariana
Tract, or portions thereof; and/or
(e) to refuse to release for construction any portion of the Ariana Tract; and/or
(f) to seek specific enforcement of this Agreement.
In the event Town fails to comply with the terms and conditions of this Agreement,
Ariana may seek specific enforcement of this Agreement as its sole and exclusive remedy.
6. Acknowledgements/Release/Waiver. (a) Ariana agrees and acknowledges that Town is
entering into this Agreement based on Ariana's representations and warranties with regard to the
sanitary sewer needed to serve Ariana Estates, Phase 1. Ariana also agrees and acknowledges
that its installation, use, operation, maintenance and/or removal of the Temporary Ariana Sewer
Improvements do/does not satisfy any obligation of Ariana under the ordinances of Town.
Ariana further agrees and acknowledges that Town makes no representations whatsoever with
regard to the completion of the Sewer Improvements and that all necessary sanitary sewer
improvements have not been completed to serve the Ariana Tract as of the date hereof. Ariana
further acknowledges and agrees that Town is not required to release any building permits,
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including the Building Permits, and/or any Certificates of Occupancy whatsoever until, among
any other requirements, all improvements, off and/or onsite, are completed in accordance with
Town's ordinances, rules, requirements and regulations.
(b) In consideration for Town's release of the Building Permits and Certificates of
Occupancy described in Paragraph 3 above, Ariana agrees to provide the release and waiver set
forth in this Paramoh 6, as well as the indemnifications set forth in Para)Jraohs 1 I and 12 below.
(c) ARIANA,ALONG WITH ITS RESPECTIVE OFFICERS,DIRECTORS,SERVANTS,AGENTS,
REPRESENTATIVES, EMPLOYEES, SUBCONTRACTORS, LICENSEES, INVITEES AND/OR ANY OTHER
THIRD PARTIES FOR WHOM ARIANA IS LEGALLY RESPONSIBLE, DOES/DO HEREBY FULLY,
COMPLETELY AND UNCONDITIONALLY RELEASE, RELINQUISH AND DISCHARGE TOWN AND ITS
TOWN COUNCIL MEMBERS, OFFICERS, SERVANTS, AGENTS, REPRESENTATIVES AND
EMPLOYEES, FROM ANY AND ALL CLAIMS, DEMANDS, DEBTS, OBLIGATIONS, LIABILITIES, COSTS,
EXPENSES, CONTROVERSIES, LIENS, ENCUMBRANCES, ACTIONS AND CAUSES OF ACTION AND
DEFICIENCIES OF ANY KIND OR CHARACTER WHETHER KNOWN OR UNKNOWN, SUSPECTED OR
UNSUSPECTED,WHETHER IN TORT OR CONTRACT,WHETHER FIXED,CONTINGENT OF OTHERWISE
WHICH ARISE FROM OR RELATE IN ANY MANNER WHATSOEVER TO THE FACTS ALLEGED OR THAT
COULD HAVE BEEN ALLEGED AND CLAIMS ASSERTED OR THAT COULD HAVE BEEN ASSERTED BY
ARIANA RELATING TO THE RELEASE OF THE BUILDING PERMITS) AND/OR CERTIFICATE(S) OF
OCCUPANCY AS PROVIDED HEREIN.
(d) This paragraph shall survive the termination of this Agreement.
7. Limitation of Liabilitv. Notwithstanding anything to the contrary herein, the parties
agree and acknowledge that Town shall not, under any circumstance, be required to tender,
and/or be liable to Ariana for any reimbursement and/or payment of any monies with regard to,
among other things: (i) the installation, use, maintenance, operation and/or removal of the
Temporary Sewer Improvements; and/or(ii)the connection of the Ariana Tract to Line A.
8. Covenant Running with Land. This Agreement shall be a covenant running with the
land and the Ariana Tract.
9. Limitations of Agreement. The parties hereto agree and acknowledge that any
ordinance establishing impact fees, property taxes, utility rates, permit fees, tap fees, pro-rata
fees and the like are not affected by this Agreement, and Ariana is not relieved of its obligation
to comply with the same. Further, this Agreement does not waive or limit any of the obligations
of Ariana to Town under any other ordinance whether now existing or in the future arising.
10. Notices. Any notice provided or permitted to be given under this Agreement must be in
writing and may be served by depositing same in the United States mail, addressed to the party to
be notified, postage pre-paid and registered or certified with return receipt requested, or by
delivering the same in person to such party via facsimile or a hand-delivery service, Federal
Express or any courier service that provides a return receipt showing the date of actual delivery
of same to the addressee thereof. Notice given in accordance herewith shall be effective upon
receipt at the address of the addressee. For purposes of notice, the addresses of the parties shall
be as follows:
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If to Ariana, addressed to it at:
Axxium Land Development
16990 Dallas Parkway, Suite 101
Dallas, Texas 75248
Attention: Ali A. Mantgeghi
Telephone: (214) 682-8272
Facsimile: (972) 931-3450
Email: axxiumasbcOobal.net
With a copy to:
Bellinger& DeWolf, L.L.P.
10,000 N. Central Expressway, Suite 900
Dallas, Texas 75231
Attention: Glen A. Bellinger
Telephone: (214) 954-9540
Facsimile: (214) 954-9541
Email: 2bellin2erabd-law.com.
With a copy to:
Webb Consulting Group, Inc.
6324 Bandera Avenue, Suite D
Dallas, Texas 75225
Attention: Mark C. Webb, P.E.
Telephone: (214) 682-2045
Facsimile: (214) 696-3282
Email: mcw5nsbc0obal.net
If to the Town, addressed to it at:
Town Manager
P. O. Box 307
121 W. Broadway Street
Prosper, Texas 75078
Telephone: (972) 346-2640
Facsimile: (972) 347-2111
Email: dour; mouse 10),prosvertx.wv
11. INDEMNIFICATION. ARIANA, ON BEHALF OF ITSELF AND ITS OFFICERS, DIRECTORS,
PARTNERS,CONTRACTORS,EMPLOYEES,REPRESENTATIVES,AGENTS,SUCCESSORS,ASSIGNEES,
VENDORS, GRANTEES AND/OR TRUSTEES, DOES HEREBY AGREE TO RELEASE, DEFEND,
INDEMNIFY AND HOLD HARMLESS TOWN AND ITS TOWN COUNCIL MEMBERS, OFFICERS,
AGENTS, REPRESENTATIVES AND EMPLOYEES FROM AND AGAINST ALL DAMAGES, INJURIES
(INCLUDING DEATH), CLAIMS, PROPERTY DAMAGES (INCLUDING LOSS OF USE), LOSSES,
DEMANDS, SUITS, JUDGMENTS AND COSTS, INCLUDING REASONABLE ATTORNEY'S FEES AND
EXPENSES (INCLUDING ATTORNEYS' FEES AND EXPENSES INCURRED IN ENFORCING THIS
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INDEMNITY), CAUSED BY THE NEGLIGENT, GROSSLY NEGLIGENT, AND/OR INTENTIONAL ACT
AND/OR OMISSION OF ARIANA, ITS OFFICERS, DIRECTORS, PARTNERS CONTRACTORS,
EMPLOYEES, REPRESENTATIVES, AGENTS, SUCCESSORS, ASSIGNEES, VENDORS, GRANTEES,
TRUSTEES, SUBCONTRACTORS, LICENSEES, INVITEES OR ANY OTHER THIRD PARTIES FOR
WHOM ARIANA IS LEGALLY RESPONSIBLE, IN ITS/THEIR PERFORMANCE OF THIS AGREEMENT
AND/OR THE ISSUANCE AND/OR RELEASE OF ANY BUILDING PERMIT AND/OR CERTIFICATE OF
OCCUPANCY, IN WHOLE OR IN PART, REGARDLESS OF THE JOINT OR CONCURRENT
NEGLIGENCE OR STRICT LIABILITY OF TOWN (HEREINAFTER "CLAIMS"). THIS
INDEMNIFICATION PROVISION AND THE USE OF THE TERM "CLAIMS" IS ALSO SPECIFICALLY
INTENDED TO APPLY TO, BUT NOT LIMITED TO, ANY AND ALL CLAIMS, WHETHER CIVIL OR
CRIMINAL, BROUGHT AGAINST TOWN BY ANY GOVERNMENT AUTHORITY OR AGENCY RELATED
TO ANY PERSON PROVIDING SERVICES UNDER THIS AGREEMENT THAT ARE BASED ON ANY
FEDERAL IMMIGRATION LAW AND ANY AND ALL CLAIMS, DEMANDS, DAMAGES, ACTIONS AND
CAUSES OF ACTION OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, EXISTING OR
CLAIMED TO EXIST, RELATING TO OR ARISING OUT OF ANY EMPLOYMENT RELATIONSHIP
BETWEEN ARIANA, AND ITS EMPLOYEES OR SUBCONTRACTORS AS A RESULT OF THAT
SUBCONTRACTOR'S OR EMPLOYEE'S EMPLOYMENT AND/OR SEPARATION FROM EMPLOYMENT
WITH ARIANA, INCLUDING BUT NOT LIMITED TO, ANY DISCRIMINATION CLAIM BASED ON SEX,
SEXUAL ORIENTATION OR PREFERENCE, RACE, RELIGION, COLOR, NATIONAL ORIGIN, AGE OR
DISABILITY UNDER FEDERAL, STATE OR LOCAL LAW, RULE OR REGULATION, AND/OR ANY
CLAIM FOR WRONGFUL TERMINATION, BACK PAY, FUTURE WAGE LOSS, OVERTIME PAY,
EMPLOYEE BENEFITS, INJURY SUBJECT TO RELIEF UNDER THE WORKERS' COMPENSATION ACT
OR WOULD BE SUBJECT TO RELIEF UNDER ANY POLICY FOR WORKERS COMPENSATION
INSURANCE, AND ANY OTHER CLAIM,WHETHER IN TORT, CONTRACT OR OTHERWISE. IN THIS
CONNECTION, ARIANA, ON BEHALF OF ITSELF AND ITS OFFICERS, DIRECTORS, PARTNERS,
CONTRACTORS, EMPLOYEES, REPRESENTATIVES, AGENTS, SUCCESSORS, ASSIGNEES, VENDORS,
GRANTEES AND/OR TRUSTEES,AGREE TO RELEASE, DEFEND, INDEMNIFY AND HOLD HARMLESS
TOWN, ITS TOWN COUNCIL MEMBERS, OFFICERS, AGENTS, REPRESENTATIVES AND
EMPLOYEES, FOR THE TOWN'S, ITS TOWN COUNCIL MEMBERS, OFFICERS, AGENTS,
REPRESENTATIVES AND/OR EMPLOYEES,OWN NEGLIGENCE,IN WHATEVER FORM,ARISING OUT
OF ANY ACT OR OMISSION, TAKEN OR FAILED TO BE TAKEN BY THE TOWN, RELATING IN ANY
MANNER TO THIS AGREEMENT AND/OR THE ISSUANCE AND/OR RELEASE OF ANY BUILDING
PERMIT AND/OR CERTIFICATE OF OCCUPANCY, IN WHOLE OR IN PART, REGARDLESS OF CAUSE
OR ANY CONCURRENT OR CONTRUBUTING FAULT OR NEGLIGENCE OF TOWN. ARIANA IS
EXPRESSLY REQUIRED TO DEFEND TOWN AGAINST ALL SUCH CLAIMS; PROVIDED,HOWEVER,IF
A COURT OF COMPETENT JURISDICTION SIGNS A JUDGMENT THAT BECOMES FINAL AND NON-
APPEALABLE, DETERMINING THAT TOWN (WITHOUT WAIVING ANY GOVERNMENTAL
IMMUNITY)HAS JOINT,CONCURRENT OR SOLE NEGLIGENCE FOR THE CLAIMS,IN ACCORDANCE
WITH THE LAWS OF THE STATE OF TEXAS (THE "JUDGMENT"), THEN ARIANA IS NOT
REQUIRED TO INDEMNIFY OR DEFEND TOWN TO THE EXTENT OF THE NEGLIGENCE
APPORTIONED TO TOWN FOR EACH CAUSE(S) OF ACTION IDENTIFIED IN THE JUDGMENT. IN
THE EVENT THE JUDGMENT PROVIDES THAT TOWN IS JOINTLY, CONCURRENTLY, OR SOLELY
NEGLIGENT FOR THE CLAIMS REFERRED TO THEREIN, TOWN AGREES TO REIMBURSE ARIANA
FOR ALL REASONABLE AND NECESSARY COSTS INCURRED AND PAID BY ARIANA THAT ARE
ATTRIBUTABLE TO TOWN'S PERCENTAGE OF JOINT, CONCURRENT, OR SOLE NEGLIGENCE, AS
SET FORTH IN THE JUDGMENT, INCLUDING REASONABLE AND NECESSARY ATTORNEY'S FEES
AND EXPENSES, WHICH REIMBURSEMENT SHALL BE MADE TO ARIANA WITHIN ONE HUNDRED
TWENTY(120)DAYS OF THE DATE OF THE JUDGMENT.
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IN ITS SOLE DISCRETION, TOWN SHALL HAVE THE RIGHT TO APPROVE OR SELECT DEFENSE
COUNSEL TO BE RETAINED BY ARIANA IN FULFILLING ITS OBLIGATION HEREUNDER TO DEFEND
AND INDEMNIFY TOWN, UNLESS SUCH RIGHT IS EXPRESSLY WAIVED BY TOWN IN WRITING.
TOWN RESERVES THE RIGHT TO PROVIDE A PORTION OR ALL OF ITS OWN DEFENSE; HOWEVER,
TOWN IS UNDER NO OBLIGATION TO DO SO. ANY SUCH ACTION BY TOWN IS NOT TO BE
CONSTRUED AS A WAIVER OF ARIANA'S OBLIGATION TO DEFEND TOWN OR AS A WAIVER OF
ARIANA'S OBLIGATION TO INDEMNIFY TOWN PURSUANT TO THIS AGREEMENT. ARIANA SHALL
RETAIN TOWN-APPROVED DEFENSE COUNSEL WITHIN SEVEN (7) BUSINESS DAYS OF TOWN'S
WRITTEN NOTICE THAT TOWN IS INVOKING ITS RIGHT TO INDEMNIFICATION UNDER THIS
AGREEMENT. IF ARIANA FAILS TO RETAIN COUNSEL WITHIN SUCH TIME PERIOD,TOWN SHALL
HAVE THE RIGHT TO RETAIN DEFENSE COUNSEL ON ITS OWN BEHALF, AND ARIANA SHALL BE
LIABLE FOR ALL REASONABLE COSTS INCURRED BY TOWN.
THIS PARAGRAPH SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
12. ARIANA'S ACKNOWLEDGMENT OF TOWN'S COMPLIANCE WITH FEDERAL AND STATE,
CONSTITUTIONS. STATUTES AND CASE LAW AND FEDERAL,_ STATE AND LOCAL ORDINANCES.
RULES AND REGULATIONS/ARIANA'S WAIVER AND RELEASE OF CLAIMS FOR OBLIGATIONS.
IMPOSED BY THIS AGREEMENT.
A. ARIANA ACKNOWLEDGES AND AGREES THAT:
1. THE TEMPORARY ARIANA SEWER IMPROVEMENTS TO BE CONSTRUCTED
AND/OR PAID FOR BY ARIANA AND/OR THE FEES TO BE IMPOSED BY
TOWN REGARDING THE ARIANA TRACT,IN WHOLE OR IN PART, DOES/DO
NOT CONSTITUTE A:
(a) TAKING UNDER THE TEXAS OR UNITED STATES CONSTITUTION;
(b) VIOLATION OF THE TEXAS WATER CODE, AS IT EXISTS OR MAY
BE AMENDED;
(C) NUISANCE; AND/OR
(d) CLAIM FOR DAMAGES AND/OR REIMBURSEMENT AGAINST TOWN
FOR A VIOLATION OF ANY FEDERAL AND/OR STATE
CONSTITUTION, STATUTE AND/OR CASE LAW AND/OR FEDERAL,
STATE AND/OR LOCAL ORDINANCE,RULE AND/OR REGULATION.
2. THE AMOUNT OF ARIANA'S FINANCIAL OR INFRASTRUCTURE CONTRIBUTION
(AFTER RECEIVING ALL CONTRACTUAL OFFSETS, CREDITS AND
REIMBURSEMENTS, IF ANY) AGREED TO IN THIS AGREEMENT IS ROUGHLY
PROPORTIONAL TO THE DEMAND THAT ARIANA'S DEVELOPMENT PLACES ON
THE SANITARY SEWER SYSTEM OF TOWN.
3. ARIANA FURTHER AGREES TO WAIVE AND RELEASE ALL CLAIMS IT MAY
HAVE AGAINST TOWN RELATED TO ANY AND ALL ROUGH PROPORTIONALITY
AND INDIVIDUAL DETERMINATION REQUIREMENTS MANDATED BY THE
UNITED STATES SUPREME COURT IN DOLAN V. CITY OF TIGARD,512 U.S.374
(1994), AND ITS PROGENY, AS WELL AS ANY OTHER REQUIREMENTS OF A
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NEXUS BETWEEN DEVELOPMENT CONDITIONS AND THE PROJECTED IMPACT
OF THE PUBLIC INFRASTRUCTURE.
4. ARIANA SHALL INDEMNIFY AND HOLD HARMLESS TOWN FROM ANY CLAIMS
AND SUITS OF THIRD PARTIES, INCLUDING BUT NOT LIMITED TO ARIANA'S
PARTNERS,OFFICERS,DIRECTORS,EMPLOYEES,REPRESENTATIVES,AGENTS,
SUCCESSORS, ASSIGNEES, VENDORS, GRANTEES, AND/OR TRUSTEES,
BROUGHT PURSUANT TO THIS PARAGRAPH.
B. ARIANA RELEASES TOWN FROM ANY AND ALL CLAIMS OR CAUSES OF ACTION
BASED ON EXCESSIVE OR ILLEGAL EXACTIONS.
C. ARIANA WAIVES ANY CLAIM FOR DAMAGES AND/OR REIMBURSEMENT AGAINST
TOWN FOR A VIOLATION OF ANY FEDERAL AND/OR STATE CONSTITUTION,
STATUTE AND/OR CASE LAW AND/OR FEDERAL, STATE AND/OR LOCAL
ORDINANCE,RULE AND/OR REGULATION.
THIS PARAGRAPH SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
13. Vested Rights/Chanter 245 Waiver. The signatories hereto shall be subject to all
ordinances of Town, whether now existing or in the future arising. This Agreement shall confer
no vested rights on the Ariana Tract, or any portion thereof. In addition, nothing contained in this
Agreement shall constitute a "permit" as defined in Chapter 245, Texas Local Government Code,
and nothing in this Agreement provides Town with fair notice of Ariana's project. ARIANA
WAIVES ANY STATUTORY CLAIM UNDER CHAPTER 245 OF THE TEXAS LOCAL GOVERNMENT
CODE UNDER THIS AGREEMENT. THIS PARAGRAPH SHALL SURVIVE THE TERMINATION OF THIS
AGREEMENT.
14. Attornev's Fees. In any legal proceeding brought to enforce the terms of this
Agreement, including but not limited to, a proceeding brought pursuant to Paragraphs 5. 11 and
12 above, the prevailing party may recover its reasonable and necessary attorneys' fees from the
non-prevailing party as permitted by Section 271.159 of the Texas Local Government Code, as it
exists or may be amended.
15. Incorporation of Recitals. The representations, covenants and recitations set forth in the
foregoing recitals of this Agreement are true and correct and are hereby incorporated into the
body of this Agreement and adopted as findings of Town and the authorized representative of
Ariana.
16. Ariana's Warranties/Representations. All warranties, representations and covenants
made by Ariana in this Agreement or in any certificate or other instrument delivered by Ariana to
Town under this Agreement shall be considered to have been relied upon by Town and will
survive the satisfaction of any fees under this Agreement, regardless of any investigation made
by Town or on Town's behalf.
17. Entire Agreement. This Agreement contains the entire agreement of the parties with
respect to the matters contained herein and may not be modified or terminated except upon the
provisions hereof or by the mutual written agreement of the parties hereto.
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18. Venue. This Agreement shall be construed in accordance with the laws of the State of
Texas and shall be performable in Collin County, Texas.
19. Consideration. This Agreement is executed by the parties hereto without coercion or
duress and for substantial consideration, the sufficiency of which is forever confessed.
20. Counterparts. This Agreement may be executed in a number of identical counterparts,
each of which shall be deemed an original for all purposes. A facsimile signature will also be
deemed to constitute an original if properly executed.
21. Authoritv to Execute. The individuals executing this Agreement on behalf of the
respective parties below represent to each other and to others that all appropriate and necessary
action has been taken to authorize the individual who is executing this Agreement to do so for
and on behalf of the party for which his or her signature appears, that there are no other parties or
entities required to execute this Agreement in order for the same to be an authorized and binding
agreement on the party for whom the individual is signing this Agreement and that each
individual affixing his or her signature hereto is authorized to do so, and such authorization is
valid and effective on the date hereof.
22. Savines/Severability. In case 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 any other provision hereof, and this
Agreement shall be construed as if such invalid, illegal or unenforceable provision had never
been contained herein.
23. Representations. Each signatory represents this Agreement has been read by the party
for which this Agreement is executed and that such party has had an opportunity to confer with
its counsel.
24. SovereiLyn Immunitv. The parties agree that Town has not waived its sovereign
immunity by entering into and performing its obligations under this Agreement.
25. No Third Partv Beneficiaries. Nothing in this Agreement shall be construed to create
any right in any third party not a signatory to this Agreement, and the parties do not intend to
create any third party beneficiaries by entering into this Agreement.
26. Assi!nment/Bindin2 Effect. This Agreement is not assignable without the prior written
consent of Town. This Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective officers, directors, partners, employees, representatives, agents,
vendors, grantees and/or trustees, heirs, executors, administrators, legal representatives,
successors and assigns, as authorized herein.
27. Indemnification. The parties agree that the Indemnity provisions set forth in Paraa_raohs
1 l and 12 herein are conspicuous, and the parties have read and understood the same.
28. Construction. Ariana, its officers, partners, directors, employees, representatives,
agents, successors, assignees, vendors, grantees, and/or trustees, shall be subject to all ordinances
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of Town, including but not limited to, ordinances relating to construction of the Temporary
Ariana Sewer Improvements, whether now existing, hereafter amended or in the future arising.
29. Miscellaneous Drafting Provisions. This Agreement shall be deemed drafted equally
by all parties hereto. The language of all parts of this Agreement shall be construed as a whole
according to its fair meaning, and any presumption or principle that the language herein is to be
construed against any party shall not apply. Headings in this Agreement are for the convenience
of the parties and are not intended to be used in construing this document.
30. Waiver. Waiver by either party of any breach of this Agreement, or the failure of either
party to enforce any of the provisions of this Agreement, at any time, shall not in any way affect,
limit, or waive such party's right thereafter to enforce or compel strict compliance.
[THE BALANCE OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have executed this Agreement and caused this
Agreement to be effective on the latest date as reflected by the signatures below.
TOWN:
TOWN OF PROSPER, TEXAS
By:
Charles Niswa ayor
Date:
STATE OF TEXAS §
COUNTY OF COLLIN §
BEFORE ME, the undersigned authority, a Notary Public, on this day personally
appeared Charles Niswanger, Mayor for the Town of Prosper, Texas, known to me to be the
person and officer whose name is subscribed to the foregoing instrument, and who
acknowledged to me that he executed the same for the purposes and consideration therein
expressed and in the capacity therein stated on behalf of said partnership.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this /,!5'-day of AW-C-61,
2007.
I�Xtary Public in and for the State of Texas
My Commission Expires:
VA /-(Y �8 ►w��ww��ww�www���.��tiww�.www�i
v o P� MATTREEW D.DENT¢N s
0CWd*WM[XiM #
i
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it
ARIANA:
AXXIUM LAND DEVELOPMENT, LLC,
a Texas limited liability company
,Vli A. M tge%i, Principal (
Date: -7
STATE OF TEXAS §
COUNTY OF J�, Lo,-5 §
BEFORE ME, the undersigned authority, a Notary Public, on this day personally
appeared Ali A. Mantgeghi, the Principal of Axxium Land Development, LLC, a Texas limited
liability company, known to me to be the person and officer whose name is subscribed to the
foregoing instrument, and who acknowledged to me that he executed the same for the purposes
and consideration therein expressed and in the capacity therein stated on behalf of said limited
liability company.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this ;L-7 day of /42-axcb -,
2007.
NoAary Public in and for the State of'1 exas
My Commission Expires:
' poode A IMOOO
y
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I
EXHIBIT A
LEGAL DESCRIPTION AND/OR DEPICTION OF THE ARIANA TRACT
SITUATED in Collin County, Texas, in the Collin County School Land Survey, Abstract No.
147 being a resurvey of part of the 80.737 acres of land described in a deed from Sara K.
Johnson, et al to Donald E. Godwin and wife, Carmen Q. Godwin dated July 15, 1999, recorded
in Volume 4459, Page 2228, being described by metes and bounds as follows:
BEGINNING at an iron pin found beside a corner post at the northeast corner of said 80.737 acre
tract, in the west line of the James W. Shanahan 119.4658 acres, Ref. V. 5060, P. 2434 and at the
southeast corner of the James W. Shanahan 80 acres, Ref. V. 5060, P. 2434;
Thence south 1°01 1 I"East, 1284.18 feet with the east line of said 80.737 acre tract, the west line
of said 119.4658 acre tract and with a fence to an iron pin found beside a corner post at the
northeast corner of the Collin County 2.8697 acres R.O.W., Ref. V. 4967, P. 951, in the east line
of said 80.737 acre tract and in the west line of said 119.4658 acre tract;
Thence westerly with the north right-of-way line of County Road No. 48 and with the north line
of said 2.8697 acre tract as follows:
South 89°38'20"West, 1058.58 feet to an iron pin found;
South 89°06'23"West, 1586.27 feet to a PK nail found in the center of Stale Highway 289
Business, at the northwest corner of said 2.8697 acre tract, in the west line of said 80.737 acre
tract and in the east line of the Peggy Heist 0.8638 acre, Ref. V. 4847, P. 3389;
Thence north 1°0844"West, 1278.15 feet with the center of said Hwy 289 Business, with the
west line of said 80.737 acre tract and with the east line of said 0.8638 acre, the east line of the
W. H. Perry 1.49 acres, Ref. Doc. No. 94-00314272, the east line of the Peggy Heist 1.174 acres,
Ref. V. 5140, P. 3118, the Peggy Heist 1.174 acres, Ref. V. 1520, P. 789, the east line of the
Thomas Bull 2.8 acres, Ref. V. 4489, P. 1938, the east line of the John H. Hill 0.727 acre, Ref.
V. 4581, P. 1888, the east line of the Gary James 0.891 acre, Ref. Doc. No. 92-0042544 and the
0.172 acre, Ref. V. 3252, P. 651 and the east line of the Kent W. Elliott I acre, Ref. Doc. No. 97-
0094229 to an iron pin found at the northwest corner of said 80.737 acre tract, the northeast
corner of said Elliott 1 acre, the southeast corner of the Prosper West Partnership 101.953 acres,
Ref. V. 4977, P. 2284 and at the southwest corner of said James W. Shanahan 80 acres;
Thence easterly with the north line of said 80.737 acre tract, the south line of said Shanahan 80
acres and with an old fence and/or the evidence of an old fence as follows:
North 88°51'29"East, 463.74 feet;North 89°35'50"East, 608.01 feet;
North 88°52'26"East, 409.81 feet; North 88°55'27"East, 432.32 feet;
North 89°3405"East, 325.9 feet;North 89 004118"East, 215.6 feet;
North 89°26'50"East, 192.27 feet to the PLACE OF BEGINNING and containing 77.697 acres
of land.
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EXHIBIT B
IMPACT FEE AGREEMENT
[See attached]
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GENERAL LOCATION OF TE EXHIBIT C
MPORARYAR[ANA
SEWER I
[See attached] IMPROVEMENTS
)d 2--d
1 P—u, cls
t4 2 02 41 1 PM