SECOND AMENDMENT TO DEVELOPER PARTICIPATION AGREEMENT This SECOND AMENDMENT TO DEVELOPER PARTICIPATION AGREEMENT (this Second Amendment ) is entered as of the day of, 2012, by and between the CITY OF ARLINGTON, TEXAS, a municipal corporation located in Tarrant County, Texas (hereinafter referred to as the City ), acting by and through its City Manager or his designee, and WILBOW-RAGLAND 202 DEVELOPMENT CORPORATION, a Texas corporation (hereinafter referred to as Developer ) (together the City and Developer are referred to as the Parties and individually as a Party ). WITNESSETH: WHEREAS, the Parties have heretofore entered into a Developer Participation Agreement dated February 13, 2001, as amended by the Amendment to Developer Participation Agreement dated February 8, 2005 (the First Amendment) (together, the Agreement ), regarding the construction of Improvements (as defined in the Agreement) by Developer and the participation by the City in a portion of the costs to construct such Improvements; and WHEREAS, the Agreement contemplates an orderly schedule for construction of the Improvements based upon anticipated development of the Property (as defined in the Agreement); and WHEREAS, the Property is within a zoning district as contemplated under the Planned Development District for Harris Crossing which was adopted by the City under Ordinance No. 00-136 on November 28, 2000 (the PD ); and WHEREAS, Developer has completed all on-site and perimeter roadway Improvements described in the Agreement except for the constructions of lanes 3 and 4 of S. Collins Street running through the Property and the following Consummate Improvements (hereinafter so called): the Debbie Lane/Collins Street intersection, including the temporary connections to Phase II existing streets, the missing half of the 880 foot section of Ragland Road east of S. Collins Street and the 12 inch waterline extension in Debbie Lane; and WHEREAS, the City has paid its fixed cost of participation for the work completed and partially completed by Developer under the Agreement; and WHEREAS, the City has found that the existing two lanes of S. Collins Street running through the Property presently suffice, and will likely continue to suffice in the foreseeable future, for the functionality of S. Collins Street, as a whole; and WHEREAS, in view of the foregoing, Developer and the City have mutually agreed that each could benefit from an elimination of any financial responsibility to participate in the construction of lanes 3 and 4 of S. Collins Street in the foreseeable future; and WHEREAS, Developer and the City have also mutually agreed that it would be beneficial to the City that Developer complete construction of the Consummate Improvements; and Second Amendment to Developer Participation Agreement, Page 1
WHEREAS, Developer is willing to complete construction of all of the Consummate Improvements even though such Consummate Improvements are not presently required to be constructed under the schedule contemplated in the Agreement; and WHEREAS, Developer and the City mutually agree that it would be in their mutual best interests that the Agreement terminate after construction of the Consummate Improvements is completed in accordance with this Second Amendment; and WHEREAS, Developer and the City have mutually agreed that after termination of the Agreement, Developer and owners of tracts within the Property will have no financial responsibility to participate in the construction of lanes 3 and 4 of S. Collins Street subject to the provisions of Paragraph 9 below; and WHEREAS, the Parties now desire to amend the Agreement as set forth below. NOW, THEREFORE, FOR AND IN CONSIDERATION of the acknowledgement of the truth of the foregoing premises and the covenants, duties, and obligations herein contained and for other good and valuable consideration, the Parties hereto agree as follows: 1. Developer will construct the Debbie Lane/S. Collins Street intersection, including the temporary connections to Phase II existing streets, in accordance with revised intersection plans prepared by Developer to reflect existing conditions and compliance with the City Design Criteria Manual; the missing half of the 880 foot section of Ragland Road east of S. Collins Street; and install the 12 inch water line extension in Debbie Lane in accordance with engineering plans prepared by Mycoski + McInnis +Associates dated July 13, 2005, as amended. 2. The City is released from all remaining participation and the City s fixed cost of participation is reduced to $0 for any worked performed by Developer under this Second Amendment and future work done by Developer. Specifically, City is released from participation of $134,400 for S. Collins Street, $34,700 for Ragland Road, and $66,500 for the S. Collins Street/Debbie Lane intersection, including the temporary connections to Phase II existing streets. 3. Developer will complete all of its construction obligations under this Second Amendment within 270 calendar days of City Council s approval of this Second Amendment. 4. Developer will pay the City a total amount of $70,000 for needed infrastructure at the Property within 270 calendar days of City Council s approval of this Second Amendment. 5. Developer and the owners of tracts within the Property (subject to Paragraph 9 below) are hereby released of financing and the responsibility of constructing the 3 rd and 4 th lanes of S. Collins Street within the Property. 6. Upon completion of Developer s obligations as set forth herein, as evidenced by written acceptance of the Consummate Improvements by the City, the Agreement and Second Amendment shall terminate and the Parties and any other owners of the Property (subject to Paragraph 9 below) will have no further obligations under the Agreement and Second Second Amendment to Developer Participation Agreement, Page 2
Amendment. If the Developer fails to complete its obligations under this Second Amendment, this Second Amendment shall be null and void, the Agreement shall remain legally effective and Developer will be obligated to perform in accordance with the Agreement, including construction and dedication of lanes 3 and 4 on S. Collins Street between Debbie Lane and Ragland Road. 7. City agrees to waive any administration and inspection fees that may be related to the work required by this Second Amendment. City does not waive Impact Fees as required by the City Impact Fee Chapter of the City Code of Ordinances. 8. The Parties agree that any required improvements and dedications required by the Agreement and this Second Amendment are roughly proportional to the existing need for such improvements and dedications and the Parties waive any claim thereof that they may have. Developer further acknowledges and agrees that all prerequisites to a determination of rough proportionality have been met, and that any costs incurred relative to this Second Amendment are related both in nature and extent to the impact of the development upon City and its needs related thereto. The Parties further agree to waive and release all claims they 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. Town 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 foregoing, including all dedications and any infrastructure referenced herein. Developer specifically reserves its right to appeal the apportionment of municipal infrastructure costs in accordance with Section 212.904 of the Texas Local Government Code, as amended; however notwithstanding the foregoing, Developer hereby releases City from any and all liability under Section 212.904 of the Texas Local Government Code, as amended, regarding or related to the cost of those municipal infrastructure improvements required for the development of the improvements required by this Second Amendment. 9. Future development of the Property may require site specific infrastructure such as deceleration lanes to be installed as part of the site plan review and approval in accordance with the City and state regulations. If any tract within the Property is rezoned to allow for a future use or development that is more intense than existing development and uses currently allowed by the PD and existing zoning and land use regulations, the City may require that the owner of said tract dedicate and install adequate public infrastructure and facilities in accordance with City and state rules and regulations at the time of the future development. The provision of infrastructure as outlined above is independent of and not a requirement of this Second Amendment or the Agreement. An owner of a tract within the Property shall not be required to construct lanes 3 or 4 of S. Collins Street within the Property so long as the intensity of usage on the owner s tract of the Property does not exceed the intensity of usage contemplated within the PD and the zoning ordinances which are in effect within the City as of the date of this Second Amendment. IN WITNESS WHEREOF, the parties enter into this Second Amendment on the date first written above. Second Amendment to Developer Participation Agreement, Page 3
WITNESS: WILBOW-RAGLAND 202 DEVELOPMENT CORPORATION, a Texas corporation Chas Fitzgerald, President ATTEST: Mary Supino, City Secretary CITY OF ARLINGTON, TEXAS Deputy City Manager APPROVED AS TO FORM: Jay Doegey, City Attorney Second Amendment to Developer Participation Agreement, Page 4
STATE OF TEXAS WILBOW-RAGLAND 202 DEVELOPMENT CORPORATION COUNTY OF DALLAS Acknowledgment BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this day personally appeared CHAS FITZGERALD, who is known to me or who was proved to me on the oath of (name of person identifying the acknowledging person) or who was proved to me through (description of identity card or other document issued by the federal or state government containing the picture and signature of the acknowledging person) to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he/she executed same for and as the act and deed of WILBOW-RAGLAND 202 DEVELOPMENT CORPORATION, a duly authorized corporation of the state of Texas, and as PRESIDENT thereof, and for the purposes and consideration therein expressed and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE on this the day of, 2012. Notary Public In and For the State of Texas My Commission Expires Notary s Printed Name STATE OF TEXAS COUNTY OF TARRANT CITY OF ARLINGTON, TEXAS Acknowledgment BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this day personally appeared, who is known to me or who was proved to me on the oath of (name of person identifying the acknowledging person) or who was proved to me through (description of identity card or other document issued by the federal or state government containing the picture and signature of the acknowledging person) to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he/she executed same for and as the act and deed of CITY OF ARLINGTON, TEXAS, a Texas municipal corporation, and as DEPUTY CITY MANAGER thereof, and for the purposes and consideration therein expressed and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE on this the day of, 2012. Notary Public In and For the State of Texas My Commission Expires Notary s Printed Name Second Amendment to Developer Participation Agreement, Page 5