12-29 - R TOWN OF PROSPER, TEXAS RESOLUTION NO. 12-29
A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF PROSPER, TEXAS,
HEREBY AUTHORIZING THE TOWN MANAGER TO ENTER INTO A SECOND
AMENDMENT TO WATER AND SEWER IMPROVEMENT DEVELOPMENT
AGREEMENT.
NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE
TOWN OF PROSPER, TEXAS:
SECTION 1: The Town of Prosper, Texas, hereby enters into an amendment to
the Water and Sewer Improvement Development Agreement.
SECTION 2: The Town Manager of the Town of Prosper, Texas, is hereby
authorized to execute, on behalf of the Town Council of the Town of Prosper, Texas, a
second amendment to the Water and Sewer Improvement Development Agreement
between Town of Prosper and Forest City Prosper Limited Partnership and Prosper
Partners, L.P.
SECTION 3: This Resolution shall take effect on May 22, 2012.
APP42OV
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Ray Smifh, Mayor
ATTEST TO:
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Denton County
Cynthia Mitchell
County Clerk
Denton, TX 762027('
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Instrument Number: 2013-128134
As
Recorded On: October 21, 2013 Amendment
Parties: TOWN OF PROSPER TEXAS Billable Pages: 7
To Number of Pages: 7
Comment:
(Parties listed above are for Clerks reference only)
** Examined and Charged as Follows: **
Amendment 50.00
Total Recording: 50.00
************ DO NOT REMOVE. THIS PAGE IS PART OF THE INSTRUMENT ************
Any provision herein which restricts the Sale, Rental or use of the described REAL PROPERTY
because of color or race is invalid and unenforceable under federal law.
File Information: Record and Return To:
Document Number: 2013-128134
Receipt Number: 1101109 TOWN OF PROSPER
Recorded Date/Time: October 21, 2013 12:06:55P TOWN MANAGER
P O BOX 307
User/Station: P Sallee- Cash Station 2 PROSPER TX 75078
r,•'���TT'N, THE STATE OF TEXAS }
COUNTY OF DENTON }
I hereby certify that this instrument was FILED in the File Number sequence on the date/time
printed heron,and was duly RECORDED in the Official Records of Denton County,Texas.
County Clerk
Denton County, Texas
STATE OF TEXAS § After Recording Return to:
§ Town Manager
COUNTIES OF COLLIN § Town of Prosper
AND DENTON § P.O.Box 307
Prosper,Texas 75078
SECOND AMENDMENT TO
WATER AND SEWER IMPROVEMENT DEVELOPMENT AGREEMENT
THIS SECOND AMENDMENT TO 'WATER AND SEWER IMPROVEMENT
DEVELOPMENT AGREEMENT(the "Agreement") is made and entered into to be effective
as of this day of May, 2012, (the "Effective Date") by and among FOREST CITY
PROSPER LIMITED PARTNERSHIP ("Forest City") and PROSPER PARTNERS L.P.
("Prosper Partners", collectively, with Forest City and Prosper Partners sometimes hereinafter
individually referred to as a "Develover" and jointly as the "Developers"), and the TOWN OF
PROSPER, TEXAS ("Town")(collectively the "Parties" and individually a "Party"), on the
terms and conditions hereinafter set forth.
WITNESSETH:
WHEREAS, the Parties entered into that certain Water and Sewer Improvement
Development Agreement dated September 15, 2011 (the "Original Agreement") regarding the
construction of water and sewer infrastructure related to approximately 934.412 acres of
property, being more particularly depicted in the Original Agreement(tlie "Property"); and
WHEREAS, the Parties entered into that certain First Amendment to Water and Sewer
Improvement Development Agreement dated October 25, 2011 (the "First Amendment");.and
WHEREAS,the Parties desire to modify certain time periods in the Original Agreement
and to add provisions concerning water and sewer capacity.
NOW, THEREFORE, for and in consideration of the mutual covenants of the Parties
set forth in this Agreement, and for other good and valuable consideration the receipt and
adequacy of which are acknowledged and agreed by the Parties, the Parties agree as follows:
1. Easements for Water and Sewer Improvements. Section 2(a) of the Original
Agreement is hereby modified to provide that the easements on Exhibit E-1, Exhibit E-2,
Exhibit E-3 and Exhibit E-4 to the Original Agreement shall be conveyed on or before
July 1,2012.
2. Construction and Escrow. Section 5(a) of the Original Agreement is hereby
modified to provide that commencement of construction shall occur on or before August
15,2012.
a. Water Improvements. Section 3 of the Original Agreement is hereby modified
to add a new Section 3(f),to read as follows:
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(f) The Town will reserve capacity in the Water Improvements in the amount of
4.1825 million gallons per day ("MGD") to serve the Forest City Tract and in the amount
of 4.6265 MGD to serve the Prosper Partners Tract, based on peak hour demand.
4. Sewer Improvements. Section 4 of the Original Agreement is hereby modified
to add a new Section 4(f), to read as follows:
(f) The Town will reserve capacity in the Sewer Improvements in the amount of
1.67 MGD to serve the Forest City Tract and in the amount of 2.26 MGD to serve the
Prosper Partners Tract.
5. Entire Aureement/First Amendment. This Agreement together with the
Original Agreement and the First Amendment embodies the entire agreement of the
Parties with respect to the subject matters contained herein and therein. This Agreement
shall be considered part of the Original Agreement and the provisions of the Original
Agreement shall apply hereto, except as amended above.
6. Venue. This Agreement shall be construed in accordance with the laws of the
State of Texas and shall be performable in Collin County, Texas.
7. Consideration. This Agreement is executed by the Parties hereto without
coercion or duress and for substantial consideration, the sufficiency of which is forever
confessed.
8. Counterparts. This Agreement may be executed in a number of identical
counterparts. Each of such counterparts shall be deemed an original for all purposes and
collectively constitute one Agreement. A facsimile signature will also be deemed to
constitute an original if properly executed.
9. 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.
10. SavinLys/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.
11. 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.
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12. SovereiLyn Immunitv. The Parties agree that Town has not waived its sovereign
immunity by entering into and performing ANY obligations under this Agreement.
13. No Third Party 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.
14. 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.
15. Attornevs' Fees. In any legal proceeding brought to enforce the terms of this
Agreement, the prevailing party may recover its reasonable and necessary attorney's 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.
[Remainder of Page 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 date first set forth above.
TOWN:
TOWN OF PROSPE XA
Mlke Land, Town Manager
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Date: 5 a
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STATE OF TEXAS' 4:+p q B w A�®w §
COUNTY OF COLLIN §
BEFORE ME, the undersigned authority, on this day personally appeared Mike Land
known to me to be one of the persons whose names are subscribed to the foregoing instrument;
he acknowledged to me he is the duly authorized representative for the TOWN OF PROSPER,
TEXAS, and he executed said instrument for the purposes and consideration therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this J�l y of May 12.
[ S E A L ] Notary Publi in and for tTie State of exas
AMY MEUNDA PIUKANA
e " MY COMMISSION EXPIRES i•a
January 8,2013 I'
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DEVELOPER:
FOREST CITY PROSPER LIMITED PAWfNI :RSHIP,
a Texas limited partnership
By: FC Prosper Partner,Inc.,
a Texas corporation
General Partncx
Name:Hobert F. Monchein
Title: President
Date: '.x i x,
STATE OF OHIO §
COUNTY OF CUYAHOGA §
r�, RE M., e ,undersigned authority, a Notary Public, on this day personally
appeare1 U/T ��K�MkAow�n to me to be the person and officer whose name is
subscribed to the foregoing instrument, and who acknowledged to me that he/she executed the
same for the purposes and consideration therein expressed and in the capacity therein stated on
behalf of said partnership.
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GIVEN UNDER MY HAND AND SEAL.OF OFFICE,this"�_� day of May,2012.
S I;A I alvt�3t_.t+, Notary Public in an for the State of Ohio
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Improvement Agreement-- Page 5 of 6
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DEVELOPER:
PROSPER PARTNERS, L.P.,
a Texas limited partnership
By: Prosper Partners GP, LLC,
a Texas limited liability company,
General Partner
raig Cqrry, M nager
Date:
STATE OF TEXAS §
COUNTY OF COLLIN §
BEFORE ME, the undersigned authority, a Notary Public, on this day personally
appeared Craig Curry, known to me to be the person and officer whose name is subscribed to the
foregoing instrument, and who acknowledged to me that he/she 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 SEA OF day day of May, 2012.
i
[ S E A L ] No0y Pudic in and for the State of Texas
GAY L RODER
MY COMMISSION EXPIRES
Au ust
g 9,2014
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