Developer agree to equally share the Phase 2 Total Cost ($

Transcription

1 rte. w.... v... n. b, Town of Flower Mound Town Secretary' s Office 2121 Cross Timbers Road Flower Mound, TX FIRST AMENDMENT TO DEVELOPMENT AGREEMENT FOR LAKESIDE DFW THIS FIRST AMENDMENT TO DEVELOPMENT AGREEMENT FOR LAKESIDE DFW ( " Agreement ") is made and entered into this 2V day of L, 2014, Texas ( the by and between the Town of Flower Mound, Town "), and Lakeside DFW Land, Ltd., Elizabeth May Stewart Credit Shelter Trust and Peter P. Stewart Management Trust ( " Developer"). WITNESS ET H: WHEREAS, the Lakeside DFW Project ( "Lakeside" or " Project ") encompasses approximately 149 acres of land being developed by Developer along the shores of Lake Grapevine; and WHEREAS, on November 19, 2012, the Town and Lakeside DFW Land, Ltd. that addresses entered into a Development Agreement (the " Development Agreement ") various development issues related to the Project and provides for the payment of certain fees and the dedication of certain property, among other matters; and WHEREAS, Developer has agreed to provide within the boundaries of the Project an approximately five ( 5) acre tract of land for the development of an upscale dine -in movie theater on a part of the mixed use development of the Project which will promote economic development within the Town; and WHEREAS, in consideration of the above the Town and Developer desire to amend the Development Agreement to reduce the amount of escrow payment required by Developer for Phase 2 wastewater improvements in the Project; and WHEREAS, the Town and Developer further desire to amend the Development Agreement to provide for existing overhead utilities to be placed underground and to provide for consideration of alternate amenities to be installed by Developer within the Project. NOW, THEREFORE, in consideration of the foregoing premises and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Town and Developer covenant and agree as follows-. 1. Wastewater System Costs. Exhibit " B" to the Development Agreement is replaced with Exhibit " B" attached hereto and incorporated herein. The Town and 1, 500,000 00) for Developer agree to equally share the Phase 2 Total Cost ($ Wastewater System Improvements as set forth in Exhibit "B. 2. Escrow Amounts. The Development Agreement is hereby amended by revising Section 3 E. to read as follows ir1.s1 i v #-. c ny / J vnj 8 '- R i IKRanT C v ry - 9 Y

2 E. Developer agrees to escrow with the Town an amount equal to 125% of the following costs. ( i) $ 750,000 representing one half of the Phase 2 Wastewater System Improvements costs ( as shown on page 2 of Exhibit B) at such time as the water meter equivalent for water or wastewater usage in the Project equals the Phase 2 demand thresholds identified in Subparagraph D, herein - above, ( ii) $ 208, 450 representing Developer's share of the transportation improvements costs for Phase 1 excepting the estimated $ 350,000 cost for Lakeside Traffic Circles and the estimated $ 750,000 cost for Lakeside ( UMAwOSP), both of which amounts will be paid by Developer outside of escrow) as shown on page 2 of Exhibit B prior to issuance of a building permit for the first single family residential building in the Project, ( iii) $ 8, 025 for the line item on page 2 of Exhibit B titled " Phase 2 Sub - Total" at the Town' s request prior to construction of such Infrastructure, and ( iv) $ 120, 050 for the line item on page 2 of Exhibit B titled " Build -out Sub - Total" when external trips generated by the Project exceed the Kimley -Horn TIA's Phase 2 projections. No other escrows will be required of Developer for its portion of Infrastructure costs identified on Exhibit B. 3. Escrow Funds for Project Amenities. A. Under the terms of the Development Agreement, Developer is obligated to construct an Amphitheater, Boardwalk and Observation Deck as a part of the Project. Developer has previously escrowed with the Town more than $ 300, 000 to guarantee the construction of these major amenities, and which amount should to continue to increase per the Development Agreement ( the " Prior Escrow Funds "). Developer has completed the design of the Observation Deck and has obtained estimated construction costs which totals $ 164,260 for this amenity. $ 205, 325 ( 125% of this cost estimate) of the Prior Escrow Funds shall be allocated for the construction of the Observation Deck. Developer has completed the design of the Amphitheater and has obtained estimated construction costs which totals $ 248, 004 for this amenity. Within three hundred and sixty -five ( 365) days of execution of this Agreement, or the issuance by the Town of the one hundred fiftieth ( 150th) building permit for a single - family residence or the issuance of a building permit for the five hundredth ( 500th) multifamily unit, whichever occurs first, Developer shall escrow $ 310, 005 ( 125% of this cost estimate) with the Town to guarantee the construction of the Amphitheater. Developer may apply the current balance of the Prior Escrow Funds to offset this amount to be escrowed for the Amphitheater. B. Within fifteen ( 15) months of execution of this Agreement, Developer will either commence construction of the Observation Deck and the Amphitheater or submit to the Town a revised amenity plan for the Project C. If a revised amenity plan is submitted, the Town will evaluate the revised amenity plan, and in its sole discretion, will determine whether to require Developer to construct the Amphitheater and /or Observation Deck, or in lieu thereof those amenities

3 set forth in the revised amenity plan. Developer shall construct the Amphitheater, Observation Deck or other approved amenities no later than 180 days after the earlier of 150th) i) the issuance by the Town of the one hundred fiftieth ( building permit for a single - family residence or ( ii) the issuance of the building permit for the five hundredth 500th) multifamily unit. No building permit shall be issued for any residential dwelling unit in the Project ( including but not limited to any single - family or multifamily residential unit) after such 180 -day period until the Amphitheater, Observation Deck or other approved amenities have been constructed by Developer. Upon completion of construction, Developer shall be entitled to reimbursement from the escrow funds for the cost of approved amenities constructed within the Project. 4. Underground Utilities. All existing overhead utilities within the boundaries of the Project and not located within existing public right -of -way shall be placed underground by Developer at the time of development of the portion of the Project that contains overhead utilities. Notwithstanding the above, Developer shall commence underground placement of utilities on the regional detention pond located on Lot 5X, Block A, Lakeside DFW prior to the issuance of a permit by the Town for the construction of the 426th multifamily unit and shall complete such work prior to the issuance of a certificate of occupancy for the 426th multifamily unit. Developer shall be responsible for all costs associated with the underground placement of utilities and shall coordinate with the necessary utility companies to accomplish this. No additional development plans or record plats shall be approved for the Project until this work is completed. 5. Development Agreement. The Town and Developer agree that, except to the extent amended herein, the provisions and terms contained in the Development Agreement remain in full force and effect and shall continue to be applicable to the development of Lakeside and shall be binding on all signatories hereto. If there is a conflict between the terms of the Development Agreement and this Agreement, the terms of this Agreement shall control. 6. Attorneys Fees. In the event any person initiates or defends any legal action or proceeding to enforce or interpret any of the terms of this Agreement, the prevailing party in any such action or proceeding shall be entitled to recover its reasonable costs and attorneys fees ( including its reasonable costs and attorneys fees on any appeal). Nothing herein shall constitute a waiver of any claim or defense that could be asserted in any litigation related to this Agreement, and the parties agree that this Agreement is not subject to Subchapter I of Chapter 271 of the Texas Local Government Code. 7. Severability. In the event any provision of this Agreement shall be determined by any court of competent jurisdiction to be invalid or unenforceable, this Agreement shall, to the extent reasonably possible, remain in force as to the balance of its provisions as if such invalid provision were not a part hereof. 8. Filing in Denton County Deed Records; Covenant Running with the Land. This Agreement or a memorandum thereof shall be filed in the deed records of Denton

4 County and Tarrant County, Texas Upon any sale or other transfer of any ownership rights in Lakeside, Developer shall notify the Town in writing of such sale or transfer within thirty ( 30) days of such sale or transfer. This Agreement shall be deemed a covenant that runs with the land and is binding on all heirs, successors, assigns, grantees, vendors, trustees, representatives of Developer and all others holding any interest now or in the future, and it is the intent of this Agreement, and the parties so acknowledge, that all phases of the development of Lakeside shall be subject to this Section of this Agreement. 9. Binding Obligation. Upon execution of this Agreement by all signatories hereto, the Development Agreement, as amended hereby, shall become a binding obligation on the signatories. The Town warrants and represents that the individual executing this Agreement on behalf of the Town has full authority to execute this Agreement and bind the Town to the same. Developer warrants and represents that the individuals executing this Agreement on its behalf have full authority to execute this Agreement and bind Developer to same. Further, this Agreement is and shall be binding upon Developer, its successors, heirs, assigns, grantees, vendors, trustees, representatives, and all others holding any interest now or in the future. 10. Mediation. In the event of any disagreement or conflict concerning the interpretation of this Agreement, and such disagreement cannot be resolved by the signatories hereto, the signatories agree to submit such disagreement to mediation. 11. Roughly Proportionate Determination under Texas Law. Developer has been represented by legal counsel in the negotiation of this Agreement and been advised, or has had the opportunity to have legal counsel review this Agreement and advise Developer, regarding Developer's rights under Texas and federal law Developer hereby waives any requirement that the Town retain a professional engineer, licensed pursuant to Chapter 1001 of the Texas Occupations Code, to review and determine that the exactions required by the Town in this Agreement, if any, are roughly proportionate to the Project's anticipated impact. Developer specifically reserves its right to appeal the apportionment of municipal infrastructure costs under this Agreement in accordance with of the Texas Local Government Code and acknowledges that the time line for commencing such appeal commences upon execution of this Agreement. Notwithstanding the foregoing, Developer hereby waives and releases the Town from any and all liability under of the Texas Local Government Code, as amended, regarding or related to the cost of those municipal infrastructure improvements required by this Agreement. 12. Rough Proportionality Determination under Federal Law. Developer hereby waives any federal constitutional claims and any statutory or state constitutional takings claims under the Texas Constitution and Chapter 395 of the Texas Local Government Code in regard to this Agreement. Both Developer and the 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 in this Agreement, if any, mandated by the United States Supreme Court in Dolan v. City of Tigard, 512 U S. 374

5 1994), and its progeny, as well as any other requirements of a nexus between development conditions and the projected impact of the terms of this Agreement. Developer further acknowledges that the benefits of zoning and platting have been accepted with full knowledge of potential claims and causes of action which may be raised now and in the future, and Developer acknowledges the receipt of good and valuable consideration for the release and waiver of such claims. IN WITNESS WHEREOF, the parties hereto have caused this document to be executed as of the date first above written THE TOWN OF FLOWER MOUND, TEXAS. '' ~ '' Y Name: Thomas E. Hayden %' Mayor, Town of Flower Mound '' r S 1 STATE OF TEXAS COUNTY OF DENTON This instrument was acknowledged before me on this the U day of k'b y- I %.-, 2014 by Thomas E Hayden, Mayor of the Town of Flower Mound, Texas, on behalf of the Town of Flower Mound, Texas. o r iii THERESA SCOTT 1 Notary Public, state of Texas AL My Commission Expires December 29, 2014 Notary ry Public, State of Texas

6 DEVELOPER; LAKESIDE DFW LAND, LTD. a Texas Limited Partnership By: Na. eter Stewart President, Lakeside DFW, Inc., General Partner ELIZABETH MAY STEWART CREDIT SHELTER TRUST By: Name: Kath 61 K.; Stewart, rustee PETER P. STEWART MANAGEMENT TRUST By: Name: y I. Stewart, Trustee STATE OF TEXAS TAPPW COUNTY OF-IDA This instrument was acknowledged before me on this the day of MM, 2014 by Peter B. Stewart, President, Lakeside DFW Land, Ltd., a Texas limited partnership, on behalf of said partnership. LESLIE A BARDO My Commission Expires December 13, 2017 Notary Public, State of Texas o _

7 STATE OF TEXAS COUNTY OF DALLAS This instrument was acknowledged before me on this the day of ft, 2014 by Kathy K. Stewart, Trustee of the Elizabeth May Stewart Credit Shelter Trust, on behalf of said trust. BLAKE TATE My Commission Expires July 15, 2015 Notary Public, State of Texas STATE OF TEXAS COUNTY OF DALLAS tk This instrument was acknowledged before me on this the " day of rn, 2014 by Kathy K. Stewart, Trustee of the Peter P. Stewart Management T ust, on behalf of said trust. BLAKE TATE My Commission Expires July 15, 2015 Notary Public, State of Texas

8 Fvhihit R Lakeside DFW Lakeside DFW Improvement Total Cost Town Share Share Town Cost Cost Phase IfaterS sleet Im ovements 2, 700 LF of 12 -inch water Ine 540, % 0% 540, Phase 1 Four (4 ) Pressure Reducing Valves 960, % 0% 960, Phase 1 Wastewater S seem Improvements 800 LF of 42 -inch WW gravity main' 600, % 0 600,000 Phase 2 4, 500 LF of 18 -inch WW forcemain 1, 100, % 1,100,000 0 Phase 1 Southside LS 6r rovements PH % 900,000 0 Phase 1 Southside LS Improvements PH II 900, % % 750, , 000 Phase 2 Phase 1 Total 3, 500, 0 3,500, Phase 2 Total 1, 500, , ,000

9 Denton County Cynthia Mitchell County Clerk Denton, TX Recorded On: June 13, 2014 Instrument Number: As Amendment Parties: THE TOWN OF FLOWER MOUND TEXAS Billable Pages: 9 To Number of Pages: 9 Comment: CS r Z yffs } Qs1J IAn ( Parties listed above are for Clerks reference only ) Examined and Charged as Follows: ** Amendment Total Recording 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 Receipt Number Recorded Date/ Time* June 13, A User / Station. D Kitzmiller - Cash Station 2 Record and Return To: TOWN OF FLOWER MOUND TOWN SECRETARYS OFFICE 2121 CROSS TIMBERS ROAD FLOWER MOUND TX THE STATE OF TEXAS) COUNTY OF DENTON } I hereby certify that this Instrument was FILED In the File Number seq: ence on the dateftime printed heron. and was duly RECORDED in the Official Records of Denton County, Texas. 12* 4 ull County Clerk Denton County, Texas

10 MARY LOUISE GARCIA».. cov. COUNTY CLERK x 100 West Weatherford Fort Worth, TX PHONE (817) TOWN OF FLOWER MOUND TOWN SECRETARY OFFICE 2121 CROSS TIMBERS RD FLOWER MOUND, TX Submitter: TOWN OF FLOWER MOUND DO NOT DESTROY WARNING - THIS IS PART OF THE OFFICIAL RECORD. Filed For Registration: Instrument #: 6/ 9/ : 56 PM D A 9 PGS $ Sy: E- Q ff3'zsro -t ` GC u D ANY PROVISION WHICH RESTRICTS THE SALE, RENTAL OR USE OF THE DESCRIBED REAL PROPERTY BECAUSE OF COLOR OR RACE IS INVALID AND UNENFORCEABLE UNDER FEDERAL LAW. dpi t.5 ; d E. b f Rs ; I Am 1:40 & t7,