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13-08 - RTOWN OF PROSPER, TEXAS RESOLUTION NO. 13-08 A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF PROSPER, TEXAS, HEREBY AUTHORIZING THE TOWN MANAGER OF THE TOWN OF PROSPER, TEXAS, TO EXECUTE A WATER IMPROVEMENT DEVELOPMENT AGREEMENT RELATED TO THE EXTENSION OF APPROXIMATELY 6,000 FEET OF 16" WATER MAIN ALONG US 380, BETWEEN RACETRAC PETROLEUM, INC., AND THE TOWN OF PROSPER. NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF PROSPER, TEXAS: SECTION 1: 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 Water Improvement Development Agreement related to the extension of approximately 6,000 feet of 16" water main along US 380, between Racetrac Petroleum, Inc., and the Town of Prosper, as hereto attached. SECTION 2: This Resolution shall take effect immediately upon its passage. RESOLVED THIS THE 12t' of February, 2013. t 1 Ray Smith, Mayor ATTEST TO: Amy¢ 'uni Town,. ,ary ..t r a"� �IMIVNIII�1111�dN���N�NM Recorded On: January 15, 2015 Parties: TOWN OF PROSPER To Comment: Agreement 86.00 Total Recording: 86.00 Denton County Juli Luke County Clerk Denton, TX 76202 Instrument Number: 2015-4541 As Agreement ( Parties listed above are for Clerks reference only ) ** THIS IS NOT A BILL ** Billable Pages: 16 Number of Pages: 16 ************ 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: Document Number: 2015-4541 Receipt Number: 1243177 Recorded Date/Time: January 15, 2015 11:55:42A User / Station: C Robinson - Cash Station 1 Record and Return To: TOWN OF PROSPER PO BOX 307 PROSPER TX 75078 "•'•••� THE STATE OF TEXAS } .t�IT.1lf:'�: COUNTY OF DENTON } I hereby certify that this instrument was FILED in the File Number sequence on the date/time t printed heron, and was duly RECORDED in the Official Records of Denton County, Texas. �I Juli Luke 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 WATER IMPROVEMENT DEVELOPMENT AGREEMENT THIS WATER IMPROVEMENT DEVELOPMENT AGREEMENT (the "Agreement") is made and entered into to be effective as of this _'day of 2013, (the "Effective Date") by and among RACETRAC PETROLEUM, INC., a Geor6a corporation ("RaceTrac") and the TOWN OF PROSPER, TEXAS ("Town ")(collectively the "Parties" and individually a "Party"), on the terms and conditions herein. RECITALS: WHEREAS, RaceTrac owns approximately 2.273± acres of land situated in the M.E.P. Railroad Survey, Abstract No. 1476, Town of Prosper, Denton County, Texas, as more particularly described and depicted on Exhibit A, attached hereto and incorporated herein by reference (the "Propertv"); WHEREAS, the Town entered a Water and Sewer Improvement Development Agreement ("Forest Citv Agreement") dated September 15, 2011 with Forest City Prosper Limited Partnership ("Forest City") and Prosper Partners, L.P. ("Prosper Partners") for the construction of certain water infrastructure on property owned by Forest City and Prosper Partners ("Forest City Water Improvements"); WHEREAS, the Town and RaceTrac desire to extend the Forest City Water Improvements along Highway 380 going west approximately 6,000 feet from the property covered by the Forest City Agreement, which water line improvements will be located as generally depicted on Exhibit B, attached hereto and incorporated herein by reference (the Forest City Water Improvements and the extension thereof to the Property is hereinafter collectively referred to as the "Water Line") which will be installed to the Town of Prosper standards and regulations for construction of a Water Line; and WHEREAS, subject to the terms and provisions hereof, RaceTrac desires to contribute towards the cost to construct the Water Line so that the Property and improvements to be constructed thereon will receive water service for uses on the property including, but not limited to drinking, fire protection, and irrigation. 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. Land Subiect to Agreement. The land that is subject to this Agreement is the Property. RaceTrac represents that it is the sole owner of the Property. WATER LINE DEVELOPMENT AGREEMENT — Page I of 13 2. Easements for Water Line. A third party easement for the Water Line and construction thereof will be needed from TVG I TEXAS, LLC, a Texas limited liability company (the "Third Party Easement" and "Third Party Temporary Construction Easement" respectively). TVG I TEXAS, LLC, a Texas limited liability company ("Terra Verde") is the current successor -in - interest of Forest City to the Forest City Agreement and related property.) The Town shall acquire the Third Party Easement and Third Party Construction Easement in a form, size and location as reasonably determined to be necessary and appropriate by the Town based upon the final engineering, for completion and dedication of the Water Line. Any reasonable costs incurred by Town in acquiring the Third Party Easement and Third Party Construction Easement shall be included in the costs of the Water Line. 3. Water Improvements. (a) Town agrees to construct, or cause to be constructed, the Water Line; provided, however, the Parties agree that Town will not be able to construct the Water Line until, and Town's obligations set forth herein are contingent upon and/or subject to, the completion of the Forest City Water Improvements to be constructed pursuant to the Forest City Agreement, as the Water Line will be an extension of the water line to be completed by Terra Verde and Prosper Partners thereunder. The Parties agree that this Agreement is conditioned, contingent and reliant on the Forest City Agreement. The Water Line is estimated to cost at least $500,000.00. RaceTrac shall participate in the cost of the Water Line by tendering Two Hundred Thousand and no/100 Dollars ($200,000.00) (subject to Paragraph 3(c) below) to Town within ten (10) business days of Town notifying RaceTrac that Town has awarded a contract for construction of the Water Line. (b) Contemporaneously with the issuance of a certificate of occupancy for the Property, RaceTrac, at its sole cost and expense, shall tap into the Water Line and extend a line to provide water service to the Property. (c) Following the payment by RaceTrac of Two Hundred Thousand and no/100 Dollars ($200,000.00) to Town, the Property will receive a waiver of water impact fees at the rates then in effect pursuant to the Town's Impact Fee Ordinance as it presently exists or may be subsequently amended ("Water Impact Fees"), in the amount of Two Hundred Thousand and no/100 Dollars ($200,000.00) for Water Impact Fees assessed by Town following receipt of the Two Hundred Thousand and no/100 Dollars ($200,000.00) participation payment. If RaceTrac pays any water impact fees on the Property prior to making the Two Hundred Thousand and no/100 Dollars ($200,000.00) participation payment, the Town will reduce the amount owed by RaceTrac for said participation payment by the amount of water impact fees previously paid on the Property and include the total amount owed in the ten-day notice of award of contract required by Paragraph 3(a) above. 4. Default. (a) If RaceTrac fails to comply with any provision of this Agreement after receiving fifteen (15) days written notice to comply from Town or, if such failure cannot be cured with such fifteen (15) day period, Town shall have the following remedies, in addition to Town's other rights and remedies, until such default has been cured: (i) to refuse to issue building permits and/or certificates of occupancy for the Property; and/or WATER LINE DEVELOPMENT AGREEMENT — Page 2 of 13 (ii) if such failure is for the payment of money, to file an instrument in the Land Records of the applicable county evidencing a lien on the Property securing an amount equal to the amount of money owed; and/or (iii) to refuse to accept any portion of any public improvements on the Property; and/or (iv) to refuse, without notice and/or any other action, to apply the Water Impact Fee waiver set forth in Paragraph 3(c); and/or (v) to recover from RaceTrac the $200,000.00 required to be paid by RaceTrac under this Agreement (subject to any impact fee credits in Paragraph 3(c)), plus any and all attorneys' fees and costs associated therewith; and/or (vi) to seek specific enforcement of this Agreement; and/or (vii) refuse to allow RaceTrac to connect to the Water Line. (b) In the event Town fails to comply with the terms and conditions of this Agreement, RaceTrac may seek specific enforcement of this Agreement as its sole and exclusive remedy; provided, however, in the event Town fails to complete the Water Line on or before August 31, 2013 or otherwise fails to use good faith efforts to commence construction of the Water Line and diligently pursue same to completion, RaceTrac may obtain a refund of any portion of RaceTrac's $200,000 participation payment previously made to Town and commence and/or complete the Water Line and receive reimbursement for all reasonable and customary construction costs incurred by RaceTrac thereby (subject to RaceTrac's $200,000.00 participation payment) from the Town. Nothing contained herein shall prevent Racetrac from operating a well on the property, until such time the water line is completed. 5. Acknowledgements. RaceTrac agrees and acknowledges that: (i) Town is entering into this Agreement based on RaceTrac's representations and warranties with regard to the water service needed to serve the Property; (ii) Town makes no representations whatsoever with regard to whether or when the Water Line will be completed; and (iii) all necessary Third Party Easement(s) and Third Party Temporary Construction Easement(s) have not been completed and/or secured so as to construct the Water Line. 6. Limitation of Liability. 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 RaceTrac for, any reimbursement of and/or payment of any monies with regard to the matters set forth herein, save and except, to waive Water Impact Fees as specifically enumerated in Paragraph 3(c) of this Agreement. 7. Limitations of Agreement. The Parties hereto acknowledge that this Agreement is limited to the Water Impact Fees as described in the Impact Fee Ordinance. Town ordinances covering property taxes, utility rates, permit fees, inspection fees, development fees, park fees, tap fees, roadway impact fees, sewer impact fees, pro-rata fees and the like are not affected by this Agreement. This Agreement does not waive, alter or limit any of the obligations of RaceTrac to Town under any other ordinance or agreement, whether now existing or in the future WATER LINE DEVELOPMENT AGREEMENT — Page 3 of 13 arising. Further, this Agreement does not waive, alter or limit any of the obligations of RaceTrac in regards to construction, installation and dedication of water improvements required by Town ordinances, other than the Water Line specifically required by this Agreement. The Town's capital improvement plan, subdivision regulations and other ordinances, as the aforementioned exist or may be amended, require, or may require, other water improvements located within the Property ("Additional Improvements") to be constructed by RaceTrac, which may or may not qualify under law or by separate agreement to be negotiated for impact fee reimbursements or credits depending on other factors related to such Additional Improvements, including, but not limited to, the timing of the projects and whether any impact fee reimbursements remain pursuant to this Agreement. 8. 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. As a courtesy, the Parties may email information to each other, but emails shall not constitute a written notice required by this Paragraph. For purposes of notice, the addresses of the Parties shall be as follows: If to Town, addressed to it at: Town of Prosper ATTN: Town Manager P. O. Box 307 121 West Broadway Street Prosper, Texas 75078 Telephone: (972) 346-2640 Facsimile: (972) 347-2111 With a copy to: McKamie Krueger, LLP. ATTN: Julie Fort 2007 N. Collins Blvd., Suite 501 Richardson, Texas 75080 Telephone: (214) 253-2600 Facsimile: (214) 253-2626 If to RaceTrac, addressed to it at: RaceTrac Petroleum, Inc. 3225 Cumberland Boulevard, Suite 100 Atlanta, Georgia 30339 Attn: Vice President of Real Estate Telephone: (770) 431-7600 With a copy to: WATER LINE DEVELOPMENT AGREEMENT — Page 4 of 13 RaceTrac Petroleum, Inc. 3225 Cumberland Boulevard, Suite 100 Atlanta, Georgia 30339 Attn: General Counsel Telephone: (770) 431-7600 9. INDEMNIFICATION. (A) RACETRAC, INDIVIDUALLY AND ON BEHALF OF ITS OFFICERS, DIRECTORS, PARTNERS, 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, EMPLOYEES AND AGENTS 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 INDEMNITY), CAUSED BY THE NEGLIGENT, GROSSLY NEGLIGENT, AND/OR INTENTIONAL ACT AND/OR OMISSION OF RACETRAC, ITS OFFICERS, DIRECTORS, PARTNERS, EMPLOYEES, REPRESENTATIVES, AGENTS, OR ANY OTHER THIRD PARTIES FOR WHOM RACETRAC IS LEGALLY RESPONSIBLE, IN ITS/THEIR PERFORMANCE OF THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO, PARTICIPATING IN THE COSTS OF THE WATER LINE EXCEPT TO THE EXTENT OF THE NEGLIGENCE OF THE 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 THROUGH OR UNDER RACETRAC 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 RACETRAC, AND ITS EMPLOYEES AS A RESULT OF THAT EMPLOYEE'S EMPLOYMENT AND/OR SEPARATION FROM EMPLOYMENT WITH RACETRAC, 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. RACETRAC IS EXPRESSLY REQUIRED TO DEFEND TOWN AGAINST ALL SUCH CLAIMS, AND TOWN IS REQUIRED TO REASONABLY COOPERATE AND ASSIST RACETRAC IN PROVIDING SUCH DEFENSE. (B) IN ITS REASONABLE DISCRETION, TOWN SHALL HAVE THE RIGHT TO APPROVE OR SELECT DEFENSE COUNSEL TO BE RETAINED BY RACETRAC 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, AT ITS SOLE COST; HOWEVER, TOWN IS UNDER NO OBLIGATION TO DO SO. ANY SUCH ACTION BY TOWN IS NOT TO BE CONSTRUED AS A WAIVER OF RACETRAC'S OBLIGATION TO DEFEND TOWN OR AS A WAIVER OF RACETRAC'S OBLIGATION TO INDEMNIFY TOWN PURSUANT TO THIS AGREEMENT. RACETRAC SHALL RETAIN TOWN -APPROVED DEFENSE COUNSEL WATER LINE DEVELOPMENT AGREEMENT — Page 5 of 13 WITHIN SEVEN (7) BUSINESS DAYS OF TOWN'S WRITTEN NOTICE THAT TOWN IS INVOKING ITS RIGHT TO INDEMNIFICATION UNDER THIS AGREEMENT. IF RACETRAC FAILS TO RETAIN COUNSEL WITHIN SUCH TIME PERIOD, TOWN SHALL HAVE THE RIGHT TO RETAIN DEFENSE COUNSEL ON ITS OWN BEHALF, AND RACETRAC SHALL BE LIABLE FOR ALL REASONABLE COSTS INCURRED BY TOWN. (C) THIS PARAGRAPH 9 SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT. 10. PARTIES' ACKNOWLEDGEMENT OF TOWN'S COMPLIANCE WITH FEDERAL AND STATE, CONSTITUTIONS. STATUTES AND CASE LAW AND FEDERAL. STATE AND LOCAL ORDINANCES, RULES AND REGULATIONS/RACETRAC'S WAIVER AND RELEASE OF CLAIMS FOR, OBLIGATIONS IMPOSED BY THIS AGREEMENT. (A) RACETRAC ACKNOWLEDGES AND AGREES THAT: (I) THE WATER LINE AND THE FEES TO BE IMPOSED BY TOWN REGARDING THE PROPERTY, IN WHOLE OR IN PART, DO NOT CONSTITUTE A: (A) TAKING UNDER THE TEXAS OR UNITED STATES CONSTITUTION; (B) VIOLATION OF THE TEXAS LOCAL GOVERNMENT 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. (II) THE AMOUNT OF RACETRAC'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 RACETRAC'S DEVELOPMENT PLACES ON THE TOWN'S INFRASTRUCTURE. (III) RACETRAC HEREBY AGREES THAT ANY PROPERTY WHICH IT CONVEYS TO TOWN OR ACQUIRES FOR TOWN PURSUANT TO THIS AGREEMENT IS ROUGHLY PROPORTIONAL TO THE BENEFIT RECEIVED BY RACETRAC FOR SUCH LAND, AND RACETRAC HEREBY WAIVES ANY CLAIM THEREFOR THAT IT MAY HAVE. RACETRAC FURTHER ACKNOWLEDGES AND AGREES THAT ALL PREREQUISITES TO SUCH A DETERMINATION OF ROUGH PROPORTIONALITY HAVE BEEN MET, AND THAT ANY VALUE RECEIVED BY TOWN RELATIVE TO SAID CONVEYANCE ARE RELATED BOTH IN NATURE AND EXTENT TO THE IMPACT OF THE DEVELOPMENT OF THE PROPERTY ON TOWN'S INFRASTRUCTURE. RACETRAC AND TOWN FURTHER AGREE TO WAIVE AND RELEASE ALL CLAIMS ONE MAY HAVE AGAINST THE OTHER RELATED TO ANY AND ALL ROUGH PROPORTIONALITY AND INDIVIDUAL DETERMINATION REQUIREMENTS MANDATED BY THE UNITED STATES SUPREME COURT IN DOLAN V. CITY WATER LINE DEVELOPMENT AGREEMENT — Page 6 of 13 OF TIGARD, 512 U.S. 374 (1994), AND ITS PROGENY, AS WELL AS ANY OTHER REQUIREMENTS OF A NEXUS BETWEEN DEVELOPMENT CONDITIONS AND THE PROJECTED IMPACT OF THE PUBLIC INFRASTRUCTURE. (IV) RACETRAC SHALL INDEMNIFY AND HOLD HARMLESS TOWN FROM ANY CLAIMS AND SUITS OF THIRD PARTIES, INCLUDING BUT NOT LIMITED TO RACETRAC'S RESPECTIVE PARTNERS, OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES, AGENTS, SUCCESSORS, ASSIGNEES, VENDORS, GRANTEES, AND/OR TRUSTEES, BROUGHT PURSUANT TO THIS PARAGRAPH 10. (B) RACETRAC RELEASES TOWN FROM ANY AND ALL CLAIMS OR CAUSES OF ACTION BASED ON EXCESSIVE OR ILLEGAL EXACTIONS RELATING TO RACETRAC'S OBLIGATIONS CREATED IN THIS AGREEMENT. (C) RACETRAC 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 RELATING TO RACETRAC'S OBLIGATIONS CREATED IN THIS AGREEMENT. (D) THIS PARAGRAPH 10 SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT. 11. Vested RiEhts/Chapter 245 Waiver. The Parties 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 Property, or any portion thereof, unless specifically enumerated herein. 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 any RaceTrac's actual, anticipated or planned project(s). RaceTrac acknowledges and agrees on its own behalf that this Agreement is not required by Town for RaceTrac to develop its Property or any portion thereof. RaceTrac WAIVES ANY STATUTORY CLAIM UNDER CHAPTER 245 OF THE TEXAS LOCAL GOVERNMENT CODE UNDER THIS AGREEMENT. THIS PARAGRAPH 11 SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT. 12. 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 3, 9, 10 and 11 above, 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. 13. Incorporation of Recitals. The representations 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 RaceTrac, which were relied upon by the Parties in entering into this Agreement. WATER LINE DEVELOPMENT AGREEMENT — Page 7 of 13 14. RaceTrac's Warranties/Representations. All warranties, representations and covenants made by a party in this Agreement or in any certificate or other instrument delivered under this Agreement shall be considered to have been relied upon by the other party and will survive the satisfaction of any obligations under this Agreement, regardless of any investigation made by a party or on such party's behalf. 15. 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. Nothing contained in this Agreement shall be deemed to supersede, modify, or amend the rights and responsibilities of the parties pursuant to any other executed, written agreements between the Parties, unless such other agreement specifically references that it is amending this Agreement. 16. Venue. This Agreement shall be construed in accordance with the laws of the State of Texas and shall be performable in Collin County, Texas. 17. Consideration. This Agreement is executed by the Parties hereto without coercion or duress and for substantial consideration, the sufficiency of which is forever confessed. 18. 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. 19. Authority 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. 20. Savings/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. 21. 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. 22. Sovereign Immunitv. The Parties agree that Town has not waived its sovereign immunity by entering into and performing ANY obligations under this Agreement. 23. 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. WATER LINE DEVELOPMENT AGREEMENT — Page 8 of 13 24. Assignment/Binding Effect. This Agreement is not assignable unless a written consent is obtained from the non -assigning party, which may be granted or withheld in the non -assigning Party's sole discretion. 25. Indemnification. The Parties agree that the indemnity provisions set forth in Paragraphs 9 and 10 herein are conspicuous, and the Parties have read and understood the same. 26. Construction of Water Line. All construction of improvements required herein shall be subject to and in compliance with all ordinances of Town, whether now existing, hereafter amended or in the future arising. 27. Waiver. Waiver by any Party of any breach of this Agreement, or the failure of any 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 and compel strict compliance. 28. Reference to RaceTrac. When referring to "RaceTrac" herein, this Agreement shall refer to and be binding upon RaceTrac, and its successors and assignees. 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. Exhibits. The following Exhibits are attached to this Agreement and incorporated herein for all purposes: Exhibit A Depiction/Diagram of Property I Exhibit B Depiction of Anticipated location of Water Line 31. Town's Attornevs' Fees. RaceTrac shall contribute to the Town $2,500 towards the attorneys' fees incurred by the Town in drafting and negotiating this Agreement. RaceTrac shall make payment to the Town at the time of execution of this Agreement. 32. Termination. Upon payment in full by RaceTrac to Town of the Two Hundred Thousand and no/100 Dollars ($200,000.00) in participation of the Water Line costs (subject to any impact fee credits in Paragraph 3(c) above, the Town completing the water line, and RaceTrac completing its connection to the Water Line to serve the Property) this Agreement shall automatically terminate and the parties shall have no further obligations hereunder, except those that expressly survive the termination hereof. 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 WATER LINE DEVELOPMENT AGREEMENT — Page 9 of 13 M. Date: STATE OF TEXAS § COUNTY OF COLLIN § BEFORE ME, the undersigned authority, on this day personally appeared Harlan Jefferson 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 ` S day of 2013. [ S E A L ] Notary Public in a2faf t e State of Texas 5 AMY PIUKANA My Commission Expires January 8, 2017 WATER LINE DEVELOPMENT AGREEMENT —Page 10 of 13 RACETRAC: RACETRAC PETROLEUM, INC., a Georgia Corporation By: vv/ resident Print name: Ma)c vh v-P ✓ Date: STATE OF L'ltp,/�i� § COUNTY OF �TA C tkt- § BEFORE ME, the undersigned authority, a Notary Public, on this day personally appeared ' "w , urlk l , President of RaceTrac Petroleum, Inc., a Georgia corporation, 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. 1. GIVEN UNDER MY HAND AND SEAL OF OFFICE, this d day of 2013 . TAYLOR BELSHAUSB NOTARY PUBLIC FAYETTE COUNTY, GEORGIA No a;y. ublic in and for the State of Georgia MY COMMISSION EXPIRES 11/24/2013 My Commission Expires: k I I I aj,,,9-6 13 WATER LINE DEVELOPMENT AGREEMENT — Page 11 of 13 EXHIBIT A DESCRIPTION AND DIAGRAM OF PROPERTY THIS STAMP IS FOR SCANNING PURPOSES ONLY 'I:-11S STAMP IS FOR SCANNING PURPOSES ONLY. EXHIBIT B, DEPICTION/DIAGRAM OF LOCATION OF WATER LINE — Cover Page 9 } WESTFORK CROSS"NG ADDITION 1011 A, LOT 3 n 22] >00 so Fr /o] 056 Gc i 5' Na 2M2-43 PRDCT i I � I WESTFORK CROSS NG ADDITION I BLDCK A LOT 3 l 221,100 s, r /97 056 M r aaz-c. Al "OCT I � I i WESTFORK CROSSING ADDITION BLOCK A. LOT 2 i t o So �2 + nc � No 11 I st 2 9S 01 � I YaocT I O wl WESTFORK CROSSING ADDITICN w BLocK A. LOT I rn 106,1z) So F+ 2 �t3 4c V va 2, 2-as P DCi 1 U.S. 3&0 (VO, Width Puh4c ROW) V I III. V�cinl) Mdp E I T 'A _ PROPERTY DIAGRAM EXHIBIT B DEPICTION OF ANTICIPATED LOCATION FOR WATER LINE THIS STAMP IS FOR SCANNING PURPOSES ONLY. THIS STAMP IS FOR SCANNING PURPOSES ONLY. EXHIBIT B, DEPICTION/DIAGRAM OF LOCATION OF WATER LINE — Cover Page 9 V 7 v / I w v WESTFORK GROSSING ADDITION looO BLOCK A. LOT 3 000 F15HTRAP ROAD IG TEXA51, ¢LC — -- TVG TEXAS 1, LLC LU WE5TFORK CRO551NG ADDITION BLOCK A. LOT 2 RI�HARD J. & NATHAN P. BONTKE WESTFORK CROSCANG ADDITION I BLOCK A. LOT 1 10' Water; 7■■■■■■■ ■._ U.5. HWY 350 1 a0D 20D IW BDO 0-_ EXHIB IT 'B' ANTICIPATED LOCATION OF WATERLINE' new t E o a„ E-11,