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R2017-002 2017-01-09 RESOLUTION NO. R2017-2 A Resolution of the City Council of the City of Pearland, Texas, authorizing the City Manager or his designee to enter into a Second Amended Development Agreement with Sowell Interests-Parkside, L.P., KB Home Lone Star Inc. and the Canterbury Park Home Owners Association, Inc. regarding the construction of Park Improvements in the Canterbury Park Subdivision. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS: Section 1. That certain Second Amended Development Agreement, a copy of which is attached hereto as Exhibit "A" and made a part hereof for all purposes, is hereby authorized and approved. Section 2. That the City Manager or his designee is hereby authorized to execute and the City Secretary to attest said Second Amended Development Agreement. PASSED, APPROVED and ADOPTED this the 9th day of January, A.D., 2017. ---_____IJ' 0,rt i, c,C-(----Q- TOM REID MAYOR ATTEST: .��```% I I i,,,��� Y NG Lei ING, 1-,-/C a c?SE• TARY APPROVED AS TO FORM: 0 4t."-----‘ 6k--___ DARRIN M. COKER CITY ATTORNEY SECOND AMENDMENT TO DEVELOPMENT AGREEMENT This Second Amendment to Development Agreement (the "Second Amendment") is entered into this day of , 2016, by and between the CITY OF PEARLAND, TEXAS (hereinafter "City"), KB HOME LONE STAR INC., a Texas Corporation (hereinafter "KB"), Sowell Interests-Parkside, L.P., a Texas Limited Partnership (hereinafter "Sowell") and, for the limited purpose expressed in Paragraph 6 hereof, CANTERBURY PARK HOMEOWNER ASSOCIATION, INC (hereafter "Association"). WHEREAS, pursuant to the City's Resolution R2008-60, the City and Sowell entered into a Development Agreement dated on or about April 28, 2008 (the "Original Agreement"); and WHEREAS, pursuant to the City's Resolution No. R2012-180, the Original Agreement was amended by the City and Sowell as set forth in the First Amendment to Development Agreement dated on or about December 11 , 2012 (the "First Amendment"; the Original Agreement as amended by the First Amendment is referred to collectively as the "Park Development Agreement"); WHEREAS, on or about March 26, 2013, KB acquired from Sowell a portion of the remaining residential property within the Development (as that term is defined in the Original Agreement); pursuant to the Partial Assignment and Agreement Re Parks dated of even date therewith, between Sowell and KB, Sowell assigned to KB, and KB accepted and agreed to perform, certain benefits and obligations arising under the Park Development Agreement; WHEREAS, KB has developed a portion of the Development (portions of Section A and Section B as depicted on Exhibit "B" of the Original Agreement), which portion is replatted as (a) Canterbury Park, Section 2, recorded under Clerk's File No. 2014015708 Plat Records of Brazoria County, Texas ("Section 2"), and as (b) Canterbury Park, Section 3, and recorded under Clerk's File No. 2015017273, Plat Records of Brazoria County, Texas ("Section 3"); 1 WHEREAS, Section 2 includes Restricted Reserve "A," an 8,301 .5-square foot tract that is restricted to landscape or open space purposes only; and WHEREAS, Section 3 includes (a) Restricted Reserve "A," a 0.21-acre tract that is restricted to sanitary sewer/open space purposes only, and (b) Restricted Reserve "B," a 3.7-acre tract that is restricted to park purposes only; and WHEREAS, KB has recently developed a portion of the Development (remainder of Section A and Section B as depicted on Exhibit "B" of the Original Agreement), which portion is platted as Canterbury Park, Section 4, and recorded under Clerk's File No. 2016010755, Plat Records of Brazoria County, Texas ("Section 4"); and WHEREAS, Section 4 includes (a) Restricted Reserve "A," a .35-acre tract that is restricted to landscape or open space purposes only), (b) Restricted Reserve "B," an 848-square foot tract that is restricted to landscape or open space purposes, and (c) Restricted Reserve "C," an 861-square foot tract that is restricted to landscape or open space purposes only; and WHEREAS, Sowell still owns the portion of the Development containing approximately 41 .3 acres generally depicted as "Future Development Area" on Exhibit "A" attached hereto; WHEREAS, KB, Sowell and City acknowledge that the park dedication fee for the Development is estimated to be substantially less than the value of any restricted reserves and improvements contemplated by KB and Sowell; however, KB and Sowell believe that such reserves and improvements may be an intangible benefit to the overall appeal and marketability of the Development and are therefore willing to enter into this Second Amendment; and WHEREAS, the City, Sowell and KB desire to further amend and modify the Park Development Agreement, as amended hereby, and to confirm the obligations that are to be performed by each of Sowell and KB under the Park Development Agreement. WITNESSETH NOW, THEREFORE, in consideration of the foregoing premises and other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, it is hereby agreed as follows: 2 1. Park Property. The City hereby acknowledges and agrees that the Restricted Reserve "B" in Section 3, a 3.7-acre tract restricted to park purposes only, satisfies the requirements of the Park Development Agreement as to the Park Property (as defined in the Original Agreement, and referred to in the First Amendment thereto as the "Future Park Property"), including, without limitation, the landscaping and irrigations systems thereon described in Paragraph 3 of the Original Agreement. 2. Screening Wall. a. The portion of the Screening Wall (as defined in the Park Development Agreement) along the east boundary of the Detention Reserve, from its northernmost point to the point that is due east from the southern boundary of Section 3 (approximately 1 ,500 linear feet), required for Section B (as defined in the Park Development Agreement) (said portion being referred to as the "North Screening Wall") is being constructed by KB pursuant to the terms of a separate agreement between KB and the City. Therefore, the North Screening Wall requirement is eliminated from the Park Development Agreement. b. The extension of the Screening Wall, described in Paragraph 4 of the Original Agreement, along with the related irrigation system (the "Future Screening Wall Extension"), continues to be a condition precedent to the approval of a Final Plat and City's acceptance for the issuance of building permits in Section C of the Development (also referred to as "Future Development Area" on Exhibit "A" attached hereto) and in lieu of any park dedication fee for said Future Development Area. The Future Screening Wall Extension will match the construction type and materials of the Screening Wall completed by KB such that the outward appearance will be one of a single continuous wall. 3. Walk Path. The configuration of the entire Walk Path described below and depicted on Exhibit "B" effectively amends the configuration of the entire 3 Walk Path described in the Park Development Agreement in that in the • amended configuration (a) the Walk Path shall not be required on the north, east, and south portions of the Detention Reserve; (b) the Walk Path shall extend along the west boundary of the Detention Reserve further south (i) along the west boundary of the portion of the Detention Reserve conveyed to Brazoria County Municipal Utility District No. 28 ("MUD 28"), (ii) along the west boundary of the City's water plant site, and (iii) connecting to an existing sidewalk on the north side of Bailey Avenue. a. A portion of the Walk Path, as amended hereby, will be constructed by KB pursuant to the terms of a separate agreement between KB and the City, as part of its development of Section 4 (the "KB Walk Path"). Therefore, the KB Walk Path requirement is eliminated from the Park Development Agreement. b. As a condition precedent to the City's approval of a Final Plat, and acceptance for the issuance of building permits in any portion of the "Future Development Area" shown on Exhibit "A" attached hereto, and in lieu of any park dedication fee for said Future Development Area, Developer agrees to extend the KB Walk Path from its terminus on the south boundary of Section 3, southward as depicted on Exhibit "B" (the "Future Walk Path Extension"). 4. Wrought Iron Fence Covenant. As a condition precedent to the City's acceptance for the issuance of a building permit for any lot in the Future Development Area, Sowell will impose upon the owners of certain single- family lots (the "Restricted Lots") (hereinafter identified) a covenant running with the land to construct, along any rear yard that abuts Restricted Reserve "A," a fence six feet (6') in height, made of wrought iron or tubular steel, painted black, with 3%-inch square pickets on 4" centers, 2" square vertical posts, a closed top and bottom rail design, and a 3' wide gate (the "RR-A Covenant"). The "Restricted Lots" are all of the single-family lots in the Future Development Area that have rear yards (or portions of rear yards) that abut the Detention Reserve (as defined in the Original Agreement). 4 5. The City hereby grants (a) to Sowell permission to enter upon its "Southeast Water Plant" site (depicted as such on Exhibit "B") for the purpose of (i) relocating the existing fence from its current location eastward approximately 15 feet, and (ii) constructing a portion of the Future Walk Path Extension, and (b) to the Association permission to enter upon the western boundary of its water plant site west of the fenced area for the purpose of mowing any grass adjacent to the Walk Path (up to 3 feet on each side of the Walk Path). 6. By its signature hereon, the Canterbury Park Homeowner Association, Inc., a Texas non-profit corporation (the "Association") agrees that it will accept a conveyance of title to (a) Restricted Reserve "A" of Section 2, (b) Restricted Reserves "A" and "B" of Section 3, and (c) Restricted Reserves "A," "B," and "C" of Section 4, from the applicable owner thereof, and if conveyed to the Association, such Reserves will be "Common Area" under its governing documents, and shall be maintained as such, along with the improvements thereon and along with the Screening Wall, Walk Path, Future Walk Path Extension, and Future Screening Wall Extension, by the Association in accordance with its governing documents and in accordance with and subject to any separate agreements with Brazoria County Municipal Utility District No. 28. The Association shall fulfill its maintenance obligations by mowing as needed and maintaining the improvements described in this Second Amendment; provided, however, as to the portion of the Future Walk Path Extension constructed on the City's Southeast Water Plant site, the City (not the Association) will be responsible for maintenance of the Walk Path, and the Association will be responsible for mowing any grass adjacent to the Walk Path (up to 3 feet on each side of the Walk Path). 7. The term of the Park Development Agreement, as amended by this Second Amendment, shall be extended to April 28, 2021, at which time the Park Development Agreement, as amended hereby, upon written approval of each Party, which approval shall not be unreasonably withheld or delayed, shall be renewed automatically in one (1) year increments. In the event the 5 Park Development Agreement, as amended hereby, terminates prior to satisfaction of any of the conditions precedent described herein Paragraphs, the City shall have the right to reinstate its then current park dedication fee for the particular Sections of the Development for which the conditions precedent have not been satisfied. 8. Notwithstanding anything to the contrary set forth herein, Sowell may assign its rights and obligations under the Park Development Agreement, as amended by this Second Amendment, to a successor or assignee who (a) acquires all or substantially all of Sowell's remaining land in the Future Development Area and (b) accepts said assignment and agrees to be bound by the terms of the Park Development Agreement, as amended hereby. In that event, Sowell shall be released from any obligations hereunder. 9. It is understood and agreed that the obligations and liabilities of KB and Sowell under the Park Development Agreement, as amended hereby, are several, not joint, obligations, and that neither of them will have any liability for a breach or default by the other party. In the event any provision of this Second Amendment is inconsistent or conflicting with the provisions of the Park Development Agreement, the provisions of this Second Amendment shall control. 10. This Second Amendment may be amended, modified, or supplemented only by written agreement signed by all of the parties hereto. 11. Whenever possible, each provision of this Second Amendment shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Second Amendment is prohibited or invalid under applicable law, such provision shall be ineffective to the extent of such provision or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Second Amendment. 12. This Second Amendment shall be construed and enforced in accordance with and governed by the laws of the State of Texas, and any actions 6 concerning this Second Amendment shall be brought in the Texas State District Courts of Brazoria County. KB: KB HOME Lone Star Inc., a Texas corporation By: Name: Title: THE STATE OF TEXAS § COUNTY OF § This instrument was acknowledged before me on the day of 2016, by of KB HOME Lone Star Inc., a Texas corporation, on behalf of said corporation. Notary Public, State of Texas SOWELL: SOWELL INTERESTS-PARKSIDE, L.P., a Texas limited partnership By: Sowell Parkside, Inc., a Texas corporation, its general partner By: Name: Title: THE STATE OF TEXAS § COUNTY OF § This instrument was acknowledged before me on the day of 2016, by of Sowell Parkside, Inc., a Texas corporation, the general partner of Sowell Interests-Parkside, L.P., a Texas limited partnership, on behalf of said limited partnership. Notary Public, State of Texas 7 CITY: CITY OF PEARLAND, TEXAS By: Name: Title: THE STATE OF TEXAS § COUNTY OF § This instrument was acknowledged before me on the day of 2016, by of the City of Pearland, Texas. Notary Public, State of Texas ASSOCIATION: Canterbury Park Homeowner Association, Inc. joins this Second Amendment for the limited purposes set forth in Paragraph 6 hereof: CANTERBURY PARK HOMEOWNER ASSOCIATION, INC., a Texas non-profit corporation By: Name: Title: THE STATE OF TEXAS § COUNTY OF § This instrument was acknowledged before me on the day of 2016, by of Canterbury Park Homeowner Association, Inc., a Texas non-profit corporation, on behalf of said corporation. Notary Public, State of Texas 8 Resolution No. R2017-02 Exhibit "A" SECOND AMENDMENT TO DEVELOPMENT AGREEMENT This Second Amendment to Development Agreement (the "Second Amendment") is entered into this 14' day of �c ,,ucLr , 2017, by and between the CITY OF PEARLAND, TEXAS (hereinafter "City"), KB HOME LONE STAR INC., a Texas Corporation (hereinafter "KB"), and, for the limited purpose expressed in Paragraph 6 hereof, CANTERBURY PARK HOMEOWNER ASSOCIATION, INC (hereafter "Association"). WHEREAS, pursuant to the City's Resolution R2008-60, the City and Sowell Interests-Parkside, L.P., a Texas Limited Partnership (hereinafter "Sowell") entered into a Development Agreement dated on or about April 28, 2008 (the "Original Agreement"); and WHEREAS, pursuant to the City's Resolution No. R2012-180, the Original Agreement was amended by the City and Sowell as set forth in the First Amendment to Development Agreement dated on or about December 11, 2012 (the "First Amendment"; the Original Agreement as amended by the First Amendment is referred to collectively as the "Park Development Agreement"); WHEREAS, on or about March 26, 2013, KB acquired from Sowell a portion of the remaining residential property within the Development (as that term is defined in the Original Agreement); pursuant to the Partial Assignment and Agreement Re Parks dated of even date therewith, between Sowell and KB, Sowell assigned to KB, and KB accepted and agreed to perform, certain benefits and obligations arising under the Park Development Agreement; WHEREAS, KB has developed a portion of the Development (portions of Section A and Section B as depicted on Exhibit "B" of the Original Agreement), which portion is replatted as (a) Canterbury Park, Section 2, recorded under Clerk's File No. 2014015708 Plat Records of Brazoria County, Texas ("Section 2"), and as (b) Canterbury Park, Section 3, and recorded under Clerk's File No. 2015017273, Plat Records of Brazoria County, Texas ("Section 3"); 1 WHEREAS, Section 2 includes Restricted Reserve "A," an 8,301.5-square foot tract that is restricted to landscape or open space purposes only; and WHEREAS, Section 3 includes (a) Restricted Reserve "A," a 0.21-acre tract that is restricted to sanitary sewer/open space purposes only, and (b) Restricted Reserve "B," a 3.7-acre tract that is restricted to park purposes only; and WHEREAS, KB has recently developed a portion of the Development (remainder of Section A and Section B as depicted on Exhibit "B" of the Original Agreement), which portion is platted as Canterbury Park, Section 4, and recorded under Clerk's File No. 2016010755, Plat Records of Brazoria County, Texas ("Section 4"); and WHEREAS, Section 4 includes (a) Restricted Reserve "A," a .35-acre tract that is restricted to landscape or open space purposes only), (b) Restricted Reserve "B," an 848-square foot tract that is restricted to landscape or open space purposes, and (c) Restricted Reserve "C," an 861-square foot tract that is restricted to landscape or open space purposes only; and WHEREAS, on or about December 15, 2016, KB acquired from Sowell the portion of the Development containing approximately 41.3 acres generally depicted as "Future Development Area" on Exhibit "A" attached hereto pursuant to the Assignment and Agreement re Parks dated of even date therewith, between Sowell and KB, Sowell assigned to KB, and KB accepted and agreed to perform, certain benefits and obligations arising under the Park Development Agreement; WHEREAS, KB and City acknowledge that the park dedication fee for the Development is estimated to be substantially less than the value of any restricted reserves and improvements contemplated by KB; however, KB believes that such reserves and improvements may be an intangible benefit to the overall appeal and marketability of the Development and are therefore willing to enter into this Second Amendment; and WHEREAS, the City and KB desire to further amend and modify the Park Development Agreement, as amended hereby, and to confirm the obligations that are to be performed by KB under the Park Development Agreement. 2 WITNESSETH NOW, THEREFORE, in consideration of the foregoing premises and other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, it is hereby agreed as follows: 1. Park Property. The City hereby acknowledges and agrees that the Restricted Reserve "B" in Section 3, a 3.7-acre tract restricted to park purposes only, satisfies the requirements of the Park Development Agreement as to the Park Property (as defined in the Original Agreement, and referred to in the First Amendment thereto as the "Future Park Property"), including, without limitation, the landscaping and irrigations systems thereon described in Paragraph 3 of the Original Agreement. 2. Screening Wall. a. The portion of the Screening Wall (as defined in the Park Development Agreement) along the east boundary of the Detention Reserve, from its northernmost point to the point that is due east from the southern boundary of Section 3 (approximately 1,500 linear feet), required for Section B (as defined in the Park Development Agreement) (said portion being referred to as the "North Screening Wall") is being constructed by KB pursuant to the terms of a separate agreement between KB and the City. Therefore, the North Screening Wall requirement is eliminated from the Park Development Agreement. b. The extension of the Screening Wall, described in Paragraph 4 of the Original Agreement, along with the related irrigation system (the "Future Screening Wall Extension"), continues to be a condition precedent to the approval of a Final Plat and City's acceptance for the issuance of building permits in Section C of the Development (also referred to as "Future Development Area" on Exhibit "A" attached hereto) and in lieu of any park dedication fee for said Future Development Area. The Future Screening Wall Extension will match the construction type and materials of the Screening Wall completed 3 by KB such that the outward appearance will be one of a single continuous wall. 3. Walk Path. The configuration of the entire Walk Path described below and depicted on Exhibit "B" effectively amends the configuration of the entire Walk Path described in the Park Development Agreement in that in the amended configuration (a) the Walk Path shall not be required on the north, east, and south portions of the Detention Reserve; (b) the Walk Path shall extend along the west boundary of the Detention Reserve further south (i) along the west boundary of the portion of the Detention Reserve conveyed to Brazoria County Municipal Utility District No. 28 ("MUD 28"), (ii) along the west boundary of the City's water plant site, and (iii) connecting to an existing sidewalk on the north side of Bailey Avenue. a. A portion of the Walk Path, as amended hereby, will be constructed by KB pursuant to the terms of a separate agreement between KB and the City, as part of its development of Section 4 (the "KB Walk Path"). Therefore, the KB Walk Path requirement is eliminated from the Park Development Agreement. b. As a condition precedent to the City's approval of a Final Plat, and acceptance for the issuance of building permits in any portion of the "Future Development Area" shown on Exhibit "A" attached hereto, and in lieu of any park dedication fee for said Future Development Area, Developer agrees to extend the KB Walk Path from its terminus on the south boundary of Section 3, southward as depicted on Exhibit "B" (the "Future Walk Path Extension"). 4. Wrought Iron Fence Covenant. As a condition precedent to the City's acceptance for the issuance of a building permit for any lot in the Future Development Area, KB will impose upon the owners of certain single-family lots (the "Restricted Lots") (hereinafter identified) a covenant running with the land to construct, along any rear yard that abuts Restricted Reserve "A," a fence six feet (6') in height, made of wrought iron or tubular steel, painted black, with 3/4-inch square pickets on 4" centers, 2" square vertical posts, a 4 1 closed top and bottom rail design, and a 3' wide gate (the "RR-A Covenant"). The "Restricted Lots" are all of the single-family lots in the Future Development Area that have rear yards (or portions of rear yards) that abut the Detention Reserve (as defined in the Original Agreement). 5. The City hereby grants (a) to KB permission to enter upon its "Southeast Water Plant" site (depicted as such on Exhibit "B") for the purpose of (i) relocating the existing fence from its current location eastward approximately 15 feet, and (ii) constructing a portion of the Future Walk Path Extension, and (b) to the Association permission to enter upon the western boundary of its water plant site west of the fenced area for the purpose of mowing any grass adjacent to the Walk Path (up to 3 feet on each side of the Walk Path). 6. By its signature hereon, the Canterbury Park Homeowner Association, Inc., a Texas non-profit corporation (the "Association") agrees that it will accept a conveyance of title to (a) Restricted Reserve "A" of Section 2, (b) Restricted Reserves "A" and "B" of Section 3, and (c) Restricted Reserves "A," "B," and "C" of Section 4, from the applicable owner thereof, and if conveyed to the Association, such Reserves will be "Common Area" under its governing documents, and shall be maintained as such, along with the improvements thereon and along with the Screening Wall, Walk Path, Future Walk Path Extension, and Future Screening Wall Extension, by the Association in accordance with its governing documents and in accordance with and subject to any separate agreements with Brazoria County Municipal Utility District No. 28. The Association shall fulfill its maintenance obligations by mowing as needed and maintaining the improvements described in this Second Amendment; provided, however, as to the portion of the Future Walk Path Extension constructed on the City's Southeast Water Plant site, the City (not the Association) will be responsible for maintenance of the Walk Path, and the Association will be responsible for mowing any grass adjacent to the Walk Path (up to 3 feet on each side of the Walk Path). 5 7. The term of the Park Development Agreement, as amended by this Second Amendment, shall be extended to April 28, 2021, at which time the Park Development Agreement, as amended hereby, upon written approval of each Party, which approval shall not be unreasonably withheld or delayed, shall be renewed automatically in one (1) year increments. In the event the Park Development Agreement, as amended hereby, terminates prior to satisfaction of any of the conditions precedent described herein Paragraphs, the City shall have the right to reinstate its then current park dedication fee for the particular Sections of the Development for which the conditions precedent have not been satisfied. 8. In the event any provision of this Second Amendment is inconsistent or conflicting with the provisions of the Park Development Agreement, the provisions of this Second Amendment shall control. 9. This Second Amendment may be amended, modified, or supplemented only by written agreement signed by all of the parties hereto. 10. Whenever possible, each provision of this Second Amendment shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Second Amendment is prohibited or invalid under applicable law, such provision shall be ineffective to the extent of such provision or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Second Amendment. 11. This Second Amendment shall be construed and enforced in accordance with and governed by the laws of the State of Texas, and any actions concerning this Second Amendment shall be brought in the Texas State District Courts of Brazoria County. KB: KB HOME Lone -c., a Texas corporatio 40r By: 41110 Name: ;ti !!! ' .f. Title: 6 PAPE-DAWSON Pu1 ENGINEERS ■ ■ ■ TRANSMITTAL T O: City of Pearland Legal Department DATE: 8/17/17 3519 Liberty Drive Pearland, TX 77581 FROM: Celeste Berger P.E. PROJECT NO.: 40043-50 Pape-Dawson Engineers R E: Canterbury Parks Amendment Quantity Description 1 Canterbury Parks Amendment If enclosures are not as noted,kindly notify us at once. ® For Approval ❑ For Your Use ❑ As Required ❑ For Review and Comment COMMENTS: Pape-Dawson is submitting the above parks amendment for approval. The subdivision improvement agreement was previously submitted and under review with Pearland engineering. Please contact CBerger@Pape-Dawson.com if you have any questions or need anything else. Thank you. TBPE Firm Registration#470 I TBPLS Firm Registration#10193974 Houston I San Antonio I Austin I Fort Worth I Dallas Transportation I Water Resources I Land Development I Surveying I Environmental 10333 Richmond Ave.,Suite 900,Houston,TX 77042 T:713.428.2400 www.Pape-Dawson.com THE STATE OXAS § COUNTY OF td § This instrument was acknowledged bej.o . me on the 1 ( day of /..�� , 2017, by ,MO , ,,i��� , ,tel,, � of KB HOME Lone Star Inc., a .s corpo on, on behalf • .•• • •• - '• • / .,P"pY P""',•,i� BIANCA TRAVIS v � i Notary Public.State of Texas / °' "7 Comm.Expires 03-24-2021 % ,O;;,`�`:T'� Notary ID 131068843 ~ _ , State • Texas CITY: CITY OF P A RLANI, TEXAS By: Alt./ - Name: C.-/:f. Title: 71,A, A I THE STATE OF TEXAS § COUNTY OF _ § This instrument was acknowledged before e on e 10. day of 2017, by -,Z of the City of Pearland, Texas. ,,. REBECCANOTARY A.PUBLIC BOWERY ,��1� [1 E0 • STATE TEXASOF °` # NotaryPublic, State of Texas Notary ID# 1133751-9 Expires: 01-31-2021 ASSOCIATION: Canterbury Park Homeowner Association, Inc. joins this Second Amendment for the limited purposes set forth in Paragraph 6 hereof: CANTERBURY PARK HOMEOWNER ASSOCIATION, INC., a Texas non-profit corporation By: Name: Title: THE STATE OF TEXAS § 7 V COUNTY OF § This instrument was acknowledged before me on the day of 2017, by , of Canterbury Park Homeowner Association, Inc., a Texas non-profit corporation, on behalf of said corporation. Notary Public, State of Texas 8 Resolution No. R2017-02 Exhibit "A" SECOND AMENDMENT TO DEVELOPMENT AGREEMENT This Second Amendment to Development Agreement (the "Second _. Amendment") is entered into this CPI " day of -Scowl , 2017, by and between the CITY OF PEARLAND, TEXAS (hereinafter "City"), KB HOME LONE STAR INC., a Texas Corporation (hereinafter "KB"), and, for the limited purpose expressed in Paragraph 6 hereof, CANTERBURY PARK HOMEOWNER ASSOCIATION, INC (hereafter "Association"). WHEREAS, pursuant to the City's Resolution R2008-60, the City and Sowell Interests-Parkside, L.P., a Texas Limited Partnership (hereinafter "Sowell") entered into a Development Agreement dated on or about April 28, 2008 (the "Original Agreement"); and WHEREAS, pursuant to the City's, Resolution No. R2012-180, the Original Agreement was amended by the City and Sowell as set forth in the First Amendment to Development Agreement dated on or about December 11, 2012 (the "First Amendment"; the Original Agreement as amended by the First Amendment is referred to collectively as the "Park Development Agreement"); WHEREAS, on or about March 26, 2013, KB acquired from Sowell a portion of the remaining residential property within the Development (as that term is defined in the Original Agreement); pursuant to the Partial Assignment and Agreement Re Parks dated of even date therewith, between Sowell and KB, Sowell assigned to KB, and KB accepted and agreed to perform, certain benefits and obligations arising under the Park Development Agreement; WHEREAS, KB has developed a portion of the Development (portions of Section A and Section B as depicted on Exhibit "B" of the Original Agreement), which portion is replatted as (a) Canterbury Park, Section 2, recorded under Clerk's File No. 2014015708 Plat Records of Brazoria County, Texas ("Section 2"), and as (b) Canterbury Park, Section 3, and recorded under Clerk's File No. 2015017273, Plat Records of Brazoria County, Texas ("Section 3"); WHEREAS, Section 2 includes Restricted Reserve "A," an 8,301.5-square foot tract that is restricted to landscape or open space purposes only; and WHEREAS, Section 3 includes (a) Restricted Reserve "A," a 0.21-acre tract that is restricted to sanitary sewer/open space purposes only, and (b) Restricted Reserve "B," a 3.7-acre tract that is restricted to park purposes only; and WHEREAS, KB has recently developed a portion of the Development (remainder of Section A and Section B as depicted on Exhibit "B" of the Original Agreement), which portion is platted as Canterbury Park, Section 4, and recorded under Clerk's File No. 2016010755, Plat Records of Brazoria County, Texas ("Section 4"); and WHEREAS, Section 4 includes (a) Restricted Reserve "A," a .35-acre tract that is restricted to landscape or open space purposes only), (b) Restricted Reserve "B," an 848-square foot tract that is restricted to landscape or open space purposes, and (c) Restricted Reserve "C," an 861-square foot tract that is restricted to landscape or open space purposes only; and WHEREAS, on or about December 15, 2016, KB acquired from Sowell the portion of the Development containing approximately 41.3 acres generally depicted as "Future Development Area" on Exhibit "A" attached hereto pursuant to the Assignment and Agreement re Parks dated of even date therewith, between Sowell and KB, Sowell assigned to KB, and KB accepted and agreed to perform, certain benefits and obligations arising under the Park Development Agreement; WHEREAS, KB and City acknowledge that the park dedication fee for the Development is estimated to be substantially less than the value of any restricted reserves and improvements contemplated by KB; however, KB believes that such reserves and improvements may be an intangible benefit to the overall appeal and marketability of the Development and are therefore willing to enter into this Second Amendment; and WHEREAS, the City and KB desire to further amend and modify the Park Development Agreement, as amended hereby, and to confirm the obligations that are to be performed by KB under the Park Development Agreement. 2 WITNESSETH NOW, THEREFORE, in consideration of the foregoing premises and other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, it is hereby agreed as follows: 1. Park Property. The City hereby acknowledges and agrees that the Restricted Reserve "B" in Section 3, a 3.7-acre tract restricted to park purposes only, satisfies the requirements of the Park Development Agreement as to the Park Property (as defined in the Original Agreement, and referred to in the First Amendment thereto as the "Future Park Property"), including, without limitation, the landscaping and irrigations systems thereon described in Paragraph 3 of the Original Agreement. 2. Screening Wall. a. The portion of the Screening Wall (as defined in the Park Development Agreement) along the east boundary of the Detention Reserve, from its northernmost point to the point that is due east from the southern boundary of Section 3 (approximately 1,500 linear feet), required for Section B (as defined in the Park Development Agreement). (said portion being referred to as the "North Screening Wall") is being constructed by KB pursuant to the terms of a separate agreement between KB and the City. Therefore, the North Screening Wall requirement is eliminated from the Park Development Agreement. b. The extension of the Screening Wall, described in Paragraph 4 of the Original Agreement, along with the related irrigation system (the "Future Screening Wall Extension"), continues to be a condition precedent to the approval of a Final Plat and City's acceptance for the issuance of building permits in Section C of the Development (also referred to as "Future Development Area" on Exhibit "A" attached hereto) and in lieu of any park dedication fee for said Future Development Area. The Future Screening Wall Extension will match the construction type and materials of the Screening Wall completed 3 by KB such that the outward appearance will be one of a single continuous wall. 3. Walk Path. The configuration of the entire Walk Path described below and depicted on Exhibit "B" effectively amends the configuration of the entire Walk Path described in the Park Development Agreement in that in the amended configuration (a) the Walk Path shall not be required on the north, east, and south portions of the Detention Reserve; (b) the Walk Path shall extend along the west boundary of the Detention Reserve further south (i) along the west boundary of the portion of the Detention Reserve conveyed to Brazoria County Municipal Utility District No. 28 ("MUD 28"), (ii) along the west boundary of the City's water plant site, and (iii) connecting to an existing sidewalk on the north side of Bailey Avenue. a. A portion of the Walk Path, as amended hereby, will be constructed by KB pursuant to the terms of a separate agreement between KB and the City, as part of its development of Section 4 (the "KB Walk Path"). Therefore, the KB Walk Path requirement is eliminated from the Park Development Agreement. b. As a condition precedent to the City's approval of a Final Plat, and 'acceptance for the issuance of building permits in any portion of the "Future Development Area" shown on Exhibit "A" attached hereto, and in lieu of any park dedication fee for said Future Development Area, Developer agrees to extend the KB Walk Path from its terminus on the south boundary of Section 3, southward as depicted on Exhibit. "B" (the "Future Walk Path Extension"). 4. Wrought Iron Fence Covenant. As a condition precedent to the City's acceptance for the issuance of a building permit for any lot in the. Future Development Area, KB will impose upon the owners of certain single-family lots (the "Restricted Lots") (hereinafter identified) a covenant running with the land to construct, along any rear yard that abuts Restricted Reserve "A," a fence six feet (6') in height, made of wrought iron or tubular steel, painted black, with 3/4-inch square pickets. on 4" centers, 2" square vertical posts, a I 4 closed top and bottom rail design, and a 3' wide gate (the "RR-A Covenant"). The "Restricted Lots" are all of the single-family lots in the Future Development Area that have rear yards (or portions of rear yards) that abut the Detention Reserve (as defined in the Original Agreement). 5. The City hereby grants (a) to KB permission to enter upon its "Southeast Water Plant" site (depicted as such on Exhibit "B") for the purpose of (i) relocating the existing fence from its current location eastward approximately 15 feet, and (ii) constructing a portion of the Future Walk Path Extension, and (b) to the Association permission to enter upon the western boundary of its water plant site west of the fenced area for the purpose of mowing any grass adjacent to the Walk Path (up to 3 feet on each side of the Walk Path). 6. By its signature hereon, the Canterbury Park Homeowner Association, Inc., a Texas non-profit corporation (the "Association") agrees that it will accept a conveyance of title to (a) Restricted Reserve "A" of Section 2, (b) Restricted Reserves "A" and "B" of Section 3, and (c) Restricted Reserves "A," "B," and "C" of Section 4, from the applicable owner thereof, and if conveyed to the Association, such Reserves will be "Common Area" under its governing documents, and shall be maintained as such, along with the improvements thereon and along with the Screening Wall, Walk Path, Future Walk Path Extension, and Future Screening Wall Extension, by the Association in accordance with its governing documents and in accordance with and subject to any separate agreements with Brazoria County Municipal Utility District No. 28. The Association shall fulfill its maintenance obligations by mowing as needed and maintaining the improvements described in this Second Amendment; provided, however, as to the portion of the Future Walk Path Extension constructed on the City's Southeast Water Plant site, the City (not the Association) will be responsible for maintenance of the Walk Path, and the Association will be responsible for mowing any grass adjacent to the Walk Path (up to 3 feet on each side of the Walk Path). 5 7. The term of the Park Development Agreement, as amended by this Second Amendment, shall be extended to April 28, 2021, at which time the Park Development Agreement, as amended hereby, upon written approval of each Party, which approval shall not be unreasonably withheld or delayed, shall be renewed automatically in one (1) year increments. In the event the Park Development Agreement, as amended hereby, terminates prior to satisfaction of any of the conditions precedent described herein Paragraphs, the City shall have the right to reinstate its then current park dedication fee for the. particular Sections of the Development for which the conditions precedent have not been satisfied. 8. In the event any provision of this Second Amendment is inconsistent or conflicting with the provisions of the Park Development Agreement, the provisions of this Second Amendment shall control. 9. This Second Amendment may be amended, modified, or supplemented only by written agreement signed by all of the parties hereto. 10.. Whenever possible, each provision of this Second Amendment shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Second Amendment is prohibited or invalid under applicable law, such provision shall be ineffective to the extent of such provision or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Second Amendment. 11. This Second Amendment shall be construed and enforced in accordance with and governed by the laws of the State of Texas, and any actions concerning this Second Amendment shall be brought in the Texas State District Courts of Brazoria County. KB: KB HOME Lone -c., a Texas corporatio By: AM/ -d , Name: Title: I 6 THE STATE OF XAS § COUNTY OF § This instrument was acknowledged bef me on the I C day of 2017, by 1 d lieWbaZitid of KB HOME Lone Star Inc.,a :s corpo ..'on on behalf "',• BIANCA TRAVIS °:P � pY -,i Notary Public,State of j 7ii . / ` Notary ID 131058843 % SState • Texas CITY: CITY OF P• A EXAS By: / Name: ' Title: THE STATE OF TEXAS, § COUNTY OF lf § This instrument was acknowledged before rpe� on /4. day of gar 2017, by { of the City of Pearland, Texas. ,,�..,, REBECCA A. BOWERY QQ),...„, 6 NOTARY PUBLIC Lj� • -;; • STATE OF TEXAS Notary Public, State of Texaslifi Notary ID# 1133751-9 OF Expires: 01-31-2021 ASSOCIATION: Canterbury Park Homeowner Association, Inc. joins this Second Amendment for the limited purposes set forth in Paragraph 6 hereof: CANTERBURY PARK HOMEOWNER ASSOCIATION, INC., a Texas non-profit corporation By: Name: 77/0441-S c S//cai�1- Title: ijv,J bado0 /I4Ari964�-% THE STATE OF TEXAS § 7 COUNTY OF jCc4-2-45r�=I § instrument was acknowle •:d before me on the 2 6 day of r -2-e177261t y —1-Tr\ Jv na s SI:koteNot , of Canterbury Park Homeowner Association, Inc., a Texas non-profit corporation, on behalf of said corporation. Notary Public, ,t,./.- o. T- as. `�}, DAISY MATH NOTARY PUBLIC.STATE Of TEXAS C7 MY COMMISSION EXPIRES Expires:July 9.2019 -`r_..- Notary IDN 126594254 8