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05-44 - R TOWN OF PROSPER, TEXAS RESOLUTION NO. 05.44 A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF PROSPER, TEXAS, HEREBY AUTHORIZING THE MAYOR OF THE TOWN OF PROSPER, TEXAS, TO EXECUTE AN AMENDMENT TO AND AN ASSIGNMENT OF A DEVELOPERS AGREEMENT BETWEEN THE TOWN OF PROSPER, TEXAS; PDC 380 PROSPER, LTD; AND MUSTANG-MIDWAY PLANO, LTD. 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, an Amendment to and an Assignment of the Developer's Agreement between the Town of Prosper; PDC 380 Prosper, Ltd; and Mustang-Midway Plano, Ltd. SECTION 2: This Resolution shall take effect immediately upon its passage. RESOLVED THIS THE 14th day of June, 2005. ar es iswanger, or ATTEST TO: Shanae Jennings wn Secreta vNrorrrrr�,�-c �e 2005— @084518 # 101 z FF$ l • 'S MEMO r COUNTY CLERK After Recording Return To: pORTIONS OF THIS DOCUMENT NOT Town Administrator REPRODUCIBLE til Town of Prosper WHEN RE CORDED 113 West Broadway Prosper, Texas 75076 CD FIRST AMENDMENT TO DEVELOPER'S AGREEMENT ry CI1 THIS FIRST AMENDMENT TO DEVELOPER'S AGREEMENT (this "Amendment") is made to be effective as of the =1 ,^4iay of <)i, � , 2005, by and among PDC 380 PROPERTIES, LTD., a Texas limited partnership (the "Developer"), MUSTANG-MIDWAY PLANO, LTD., a Texas limited partnership ("Mustang"); and the TOWN OF PROSPER, TEXAS, a Texas general-law municipality (the "Town"). WITNESSETH: WHEREAS, Developer, Mustang and the Town entered into that certain Developer's Agreement (herein so called) dated October 26, 2004, and recorded in Volume 5814, Page 4279 of the Deed Records of Collin County, Texas, whereby Developer and Mustang were granted certain rights and undertook certain obligations relating to that certain property owned by Developer and Mustang as described therein (the "Property"); WHEREAS, Developer, Mustang and the Town desire to amend the Developer's Agreement to amend the description of certain rights and obligations and to provide specific provisions for the development of water and sanitary sewer, all as to that part of the Property defined as the Mustang Commercial Property in the Developer's Agreement; NOW, THEREFORE, for and in consideration of the sum of Ten and No/100 Dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree, and the Developer's Agreement is hereby amended, as follows: ARTICLE I AMENDMENT OF SIXTH RECITAL The Sixth Recital on Page 1 of the Developer's Agreement is hereby amended and restated to read in its entirety as follows: "WHEREAS, this Agreement is intended to set forth the obligations and duties of the parties with respect to, among other things, (i) the payment of reimbursements to the Developer from Thoroughfare Impact Fees collected by the Town pursuant to the Impact Fee Ordinance for Developer's construction of improvements, (ii) the waiver of Thoroughfare Impact Fees pursuant to the Impact Fee Ordinance with respect to the Mustang Commercial Property (as hereinafter defined), and credits allowed against Water Impact Fees and Waste First Amendment to Developer's Agreement(Mustang-Midway) Page 1 of 7 05947 0 2 5 5 I Water Impact Fees for water and sanitary sewer improvements if Mustang should make such improvements in accordance with the Town's master water and waste water plans, as they currently exist, may be amended or in the future arising (hereinafter referred to as the "Town's Master Water and Waste Water Plans"), (iii) the payment of fees and/or the dedication of land by the Developer or Mustang, as applicable, to fulfill the Park Dedication/Fee Requirements and the Park Improvement Fee Requirements pursuant to the Park Fee Ordinance, and (iv) the waiver of Construction Fees pursuant to the Construction Fee Ordinance with respect to portions of the Lakes of La Cima Property and portions of the Mustang Property." ARTICLE II AMENDMENT OF SECTION 14 Section 14 of the Developer's Agreement is hereby amended and restated to read in its entirety as follows: "14. Impact Fees Related to the Mustang Commercial Property. Subject to the fulfillment of all of the obligations in this Agreement applicable to the Mustang Commercial Property, or the portion thereof then being developed in accordance with an assignment authorized pursuant to ¶21(1) below, the Mustang Commercial Property, or the subject portion thereof then being developed in accordance with an assignment authorized pursuant to ¶21(1) below, only, is eligible for waiver for thoroughfare impact fees and credit for water and waste water impact fees, due on said property, or portion thereof, as applicable, under the Impact Fee Ordinance as follows: a. Thoroughfare Impact Fees. The Town agrees to accept the dedication of the Mustang Road Right-of-Way and completion of the construction of the Mustang Road Improvements (save and except the Water Line described below) in lieu of any and all Thoroughfare Impact Fees imposed solely on the Mustang Commercial Property pursuant to the Impact Fee Ordinance and hereby waives such Thoroughfare Impact Fees imposed solely on the Mustang Commercial Property pursuant to the Impact Fee Ordinance upon the later to occur of the Town's acceptance of the dedication of the Mustang Road Right-of- Way and the Town's acceptance of the Mustang Road Improvements. b. Water Impact Fees. Developer, Mustang and/or a successor owner of a portion of the Mustang Commercial Property, if authorized by ¶21(1) below (the party or parties doing such construction hereinafter referred to as the "Constructing Owner" whether one or more) may, at its sole cost and expense, in accordance with any and all rules, regulations First Amendment to Developer's Agreement(Mustang-Midway) Page 2 of 7 05947 02552 and/or requirements of the Town, as they currently exist, may be amended or in the future arising, including but not limited to, the Town's Master Water and Waste Water Plans, and as part of the Mustang Road Improvements, construct and install a minimum twelve inch (12") water line generally located: (i) along and adjacent to the Mustang Road Right-of-Way from Coit Road west to approximately one thousand, one hundred fifty feet (1,150') west of La Cima Boulevard or (ii) along and adjacent to U. S. Highway 380 from Coit Road west to approximately one thousand, one hundred fifty feet (1,150') west of La Cima Boulevard, the exact size and alignment to be solely determined by the Town (the "Water Line"). The Town agrees to credit Constructing Owner's actual costs for the construction of the Water Line, provided such costs have been approved, in writing, by the Town, against the Water Impact Fees owed solely on the Mustang Commercial Property pursuant to the Impact Fee Ordinance, said credit to be calculated, determined and applied using the Impact Fee Ordinance in effect on the date the Town accepts the Water Line. c. Waste Water Impact Fees. Constructing Owner may, at its sole cost and expense and in accordance with any and all rules, regulations and/or requirements of the Town, as they currently exist, may be amended or in the future arising, including but not limited to, the Town's Master Water and Waste Water Plans, construct and install a minimum ten inch (10") sanitary sewer line from a location generally parallel to U. S. Highway 380, between the Lakes of La Cima Property and U.S. Highway 380, from a point west of Coit Road to the existing lift station located approximately six hundred, fifty feet (650') west of La Cima Boulevard, the exact size and alignment to be solely determined by the Town (the "Sanitary Sewer Line"). The Town agrees to credit Constructing Owner's actual costs for the construction of the Sanitary Sewer Line, provided such costs have been approved, in writing, by the Town, against the Waste Water Impact Fees owed solely on the Mustang Commercial Property pursuant to the Impact Fee Ordinance, said credit to be calculated, determined and applied using the Impact Fee Ordinance in effect on the date the Town accepts the Sanitary Sewer Line. d. Notwithstanding anything to the contrary herein, the Town will only provide the credit(s)/waiver described in in 14(a)-(c) above to the portion(s) of the Mustang Commercial Property, First Amendment to Developer's Agreement(Mustang-Midway) Page 3 of 7 05947 02553 as applicable, that are in compliance with this Agreement and any applicable assignment authorized by this Agreement. Otherwise, Impact Fees, Park Dedication/Fee Requirements, Park Improvement Fees, Construction Fees and any other fees due on the Mustang Property shall be paid in accordance with any and all applicable ordinances of the Town, whether now existing or in the future arising. The Mustang Commercial Property is contained within the Mustang Property and is more particularly described and/or depicted on Exhibit F, attached hereto and incorporated herein by reference. With respect to subparagraphs (a) and (b) of this Paragraph 14, upon Mustang's transfer and conveyance of a portion of the Mustang Commercial Property to a party (a "transferee") and the assumption of this Agreement by transferee as it relates to the transferred property with the consent of the Town as required by Paragraph 21(1) below, (i) the obligations of Mustang arising under this Agreement with respect to the Mustang Right-of-Way and the Mustang Road Improvements shall be limited to such obligations relating to the remaining portion of the Mustang Commercial Property not conveyed to the transferee only, as of the effective date of the authorized written assignment and (ii) the obligations of the transferee with respect to the Mustang Right-of-Way and the Mustang Road Improvements shall be limited to the portion of the Mustang Commercial Property conveyed to the transferee as of the effective date of the authorized written assignment." ARTICLE III AMENDMENT OF SECTION 18 Section 18 of the Developer's Agreement is hereby amended and restated to read in its entirety as follows: "18. Limitations of Agreement. The parties hereto acknowledge that, except as otherwise specifically provided in Paragraph 14 above, this Agreement is limited to Thoroughfare Impact Fees created by the Impact Fee Ordinance, Park Dedication/Fee Requirements and Park Improvement Fees created by the Park Fee Ordinance and Construction Fees created by the Construction Fee Ordinance, as set forth above. Except as otherwise provided in Paragraph 14 above, Town ordinances relating to Waste Water Impact Fees, Water Impact Fees, property taxes, utility rates and any other fees are not affected by this Agreement. Further, this Agreement does not waive or limit, except as provided herein, any of the obligations of Developer and/or Mustang to the Town under any other ordinance of the Town, whether now existing or in the future arising." ARTICLE IV RATIFICATION First Amendment to Developer's Agreement(Mustang-Midway) Page 4 of 7 • 05947 02554 Ratification. Except as specifically set forth herein, all terms and conditions of the Developer's Agreement are hereby ratified and confirmed and shall remain in full force and effect. ARTICLE V CONTROLLING AGREEMENT Controlling Agreement. To the extent any provision contained herein conflicts with the Agreement, the provisions contained herein shall supercede such conflicting provisions contained in the Agreement. ARTICLE VI COUNTERPARTS Counterparts. This Amendment may be executed in a number of identical counterparts. If so executed, each of such counterparts is to be deemed an original for all purposes, and all such counterparts shall, collectively, constitute one Amendment. ARTICLE VII AUTHORITY TO EXECUTE Authority to Execute. The individuals executing this Amendment hereby represent and warrant that they are empowered and duly authorized to so execute this Amendment on behalf of the parties for which they have executed this Agreement. ARTICLE VIII ENTIRE AGREEMENT/AMENDMENT Entire Agreement/Amendment. This Amendment and the Agreement embody the entire agreement between the parties regarding the subject matter hereof. There are no oral understandings or agreements between the parties regarding the subject matter hereof. This Amendment may only be amended by written agreement executed by all parties hereto. ARTICLE IX VENUE Venue. This Amendment shall be governed by and construed in accordance with the laws of the State of Texas and shall be performable in Collin County, Texas. ARTICLE X ASSIGNMENT Assignment. This Amendment may only be assigned in accordance with ¶21(1) of the Agreement. First Amendment to Developer's Agreement(Mustang-Midway) Page 5 of 7 05947 02555 IN WITNESS WHEREOF, PDC, Mustang and the Town have executed this Amendment as of the day and year first above written. PDC: PDC 380 PROSPER, LTD., a Texas limited partnership By: 380 Prosper, Inc., a Texas oration, its GeneralPartner By: • Its: r MUSTANG: MUSTANG-MIDWAY PLANO, LTD., a Texas limited partnership By: Mustang-Midway Plano GP, LLC, a Texas limited liability company, its General Partner By: R. Stephen olsom Manager TOWN: TOWN OF PROSPER, TEXAS By. Name: C clar` LSVJCIv► ' Its: l" IOv,yCr First Amendment to Developer's Agreement(Mustang-Midway) Page 6 of 7 0. 59 ':7 02556 THE STATE OF TEXAS § cou.t N - § COUNTY OF § This instrwent was acicnovsledged before me on the- zs day of Tu,ty6 , 2005, by_ So k\A E. VARPtesUIs, ' Q_E S I D EMT of 380 Prosper, Inc., a Texas corporation, General Partner of PDC 380 Prosper, Ltd., a Texas limited partnership on behalf of said limited liability com an and li it}}yy ppIppCCpp ship. =-', j4 c c iv PUBLIC 47K )7(1./ILA.) 1*4� ' ` State of Texas :V; ?rvE 1';:f1.:.. . COMM Exp. 09-09-2005 Notary : ��lic, State of Texas THE STATE OF TEXAS § c dU-►{.t_ § COUNTY OF 4ALLA § This instrument was acknowledged before me on the Z2.today of 3ut4E , 2005, by R. Stephen Folsom, Manager of Mustang-Midway Plano GP, LLC, a Texas limited liability company, General Partner of Mustang-Midway Plano, Ltd., a Texas limited partnership on behalf of said limited liability company a d limited partnership. .. MAC�Y K BARBER �‘ G 41,tO; NOTARY PUBLIC LU��dirc A/ t*t 1%N.g*' State of Texas Notary blic, State of Texas �';?F 2',:.i4;}'Comm.Exp. 09-09-2005 THE STATE OF TEXAS § § COUNTY OF COLLIN § ,,TThis ipstr�um t was acknowledged before me on theU' d day of '3t.►,h - , 2005, by_ Ci IDYA 4SW0.vvptiefr' , the Ae.yqv" of the Town of Prosper, Texas on behalf of said Town @iid,h. otary Putexas i .` Raquel Romero -- '? - ,,MY seion Novi 13,ZOOS First Amendment to Developer's Agreement(Mustang-Midway) Page 7 of 7