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Item 4D MemoCITY ��1OFi �j� I� j �/ SOV 1 '1 1LAKE MEMORANDUM (May 3, 2016) To: Shana Yelverton, City Manager From: Robert Cohen, P.E., Director of Public Works Item 4D Subject: Amend Residential Developer Agreement to reassign developer rights to Toll Brothers for the Southlake Meadows Addition Action Requested: Amend Residential Developer Agreement (RDA) to reassign developer rights to Toll Brothers for the Southlake Meadows Addition. Background Information: The City of Southlake (City) entered into a Residential Developer Agreement (Southlake RDA) with Maguire Partners -Solana Land, L.P. (Developer) for the Southlake Meadows Addition Phase 1 on or about September 16, 2014. Maguire Partners entered into an Amended and Restated Residential Development Agreement with Toll Dallas TX, LLC according to which Maguire Partners is obligated to complete the development of the Southlake Meadows subdivision in accordance with its obligations to the City. The total amount of reimbursements Maguire Partners will be entitled to receive from the City upon reaching final acceptance milestones is $1,044,097. This sum includes $174,000 for Park Fees upon final acceptance of the public improvements of Gateway Lakes; $710,502 for the Roundabout Construction upon final acceptance of the public infrastructure for the development; and $159,695 for the Right of Way Acquisition upon final acceptance of the public improvements of Southlake Meadows. These reimbursements will be reassigned to Toll Dallas TX, LLC from Maguire Partners as part of the Assignment of Reimbursement Rights Agreement. Financial Considerations: Funding for the design, construction and right of way acquisition for the Dove Road, Sam School Road and N. Peytonville Avenue roundabout has been allocated in the General Fund and Storm Water Utility System (SWUS) Fund in the amount of $815,000. The funding included the engineering design fee and construction costs Page 1 of 2 Item 4D for the Roundabout. Additional funding for the remainder is available in the SWUS Fund. Strategic Link: This Residential Developer Agreement links to the city's strategy map relative to the focus areas Performance Management and Service Delivery by investing to provide and maintain high quality public assets and improve performance of delivery and operational processes. Citizen Input/ Board Review: N/A Legal Review: Yes. City Attorney has reviewed the Assignment of Reimbursement Rights Agreement. Alternatives: The City Council may approve, amend or deny the Assignment of Reimbursement Rights Agreement. Supporting Documents: Location Map Residential Developer Agreement Staff Recommendation: Approve Assignment of Reimbursement Rights Agreement Staff Contact: Robert Cohen, P.E., Public Works Director Alejandra Ayala, P.E., Civil Engineer Page 2 of 2 ASSIGNMENT OF REIMBURSEMENT RIGHTS AGREEMENT This Assignment of Reimbursement Rights Agreement (the "Agreement') is made as of this 24`h day of March, 2016. WHEREAS, the City of Southlake, Texas (the "City") entered into a Residential Developer Agreement with Maguire Partners -Solana Land, L.P. ("Maguire Partners") for the Southlake Meadows Addition Phase 1 (the "Southlake RDA") on or about September 16, 2014, a true and correct copy of which is attached hereto as Exhibit A; WHEREAS, pursuant to the Residential Developer Agreement, the City agreed to reimburse Maguire Partners upon completion of certain infrastructure, including $174,000 for Park Fees upon final acceptance of the public improvements of Gateway Lakes; $710,502 for the Roundabout Construction upon final acceptance of the public infrastructure for the development; and $159,695 for the Right of Way Acquisition upon final acceptance of the public improvements of Southlake Meadows; WHEREAS, the total amount of reimbursements Maguire Partners will be entitled to receive from the City upon reaching the aforementioned final acceptance milestones is $1,044,097 (the "Reimbursements"); WHEREAS, the Southlake RDA states, "This Agreement or any part herein, shall not be assigned by the Developer without the express written consent of the City Manager, which shall not be unreasonably withheld or delayed;" WHEREAS, Maquire Partners entered into an Amended and Restated Residential Development Agreement with Toll Dallas TX, LLC ("Toll'), according to which Maquire Partners is obligated to complete the development of the Southlake Meadows subdivision in accordance with its obligations to the City, and then sell Toll fully developed, entitled and approved lots at an agreed-upon price in the accepted Southlake Meadows subdivision (the "Maquire-Toll RDA"); WHEREAS, in exchange for consideration outlined in a separate agreement concerning the parties continued performance and obligations under the Maguire -Toll RDA, Maguire Partners has agreed to assign to Toll its right to receive the Reimbursements set for in the Southlake RDA; WHEREAS, Maguire Partners, Centurion American Construction Enterprises, LLC, Centurion American Development Group, Guarantor (and any and all related or affiliated entities represented by the signatories to this Agreement) hereby represent to Toll that they have not assigned, pledged or otherwise encumbered the Reimbursements as defined herein to any third party; WHEREAS, the City, via the City Manager, hereby represents to Toll that no event has occurred in the past that would give rise to a forfeiture of the Reimbursements defined herein and governed by the Southlake RDA, that Maguire Partners is not currently in default under the Southlake RDA; that no event has occurred which, but for the giving of notice or the passage of time, would become an event of default under the Southlake RDA, and that City expressly Page I consents to Maguire Partner's assignment of its rights to receive the Reimbursements under the Southlake RDA to Toll, and agrees to make payment of such Reimbursements to Toll provided that the terms of the Southlake RDA are satisfied in connection with Toll's request for such Reimbursements; Accordingly, the Parties hereto, in mutual consideration of the statements and representations contained herein, hereby agree and represent to each other as follows: Maguire Partners hereby assigns all of its right, title and interest under the Southlake RDA with regard to the application for, and recovery of, the Reimbursments (as defined herein) to Toll, in exchange for good and valuable consideration provided by Toll, as set forth in a separate agreement between Maguire Partners and Toll executed contemporaneously herewith, the receipt and sufficiency of which is hereby acknowledged by Maguire Partners. 2. Toll hereby accepts this unconditional assignment of Maguire Partner's right, title and interest under the Southlake RDA with regard to the application for, and recovery of, the Reimbursments (as defined herein), in exchange for good and valuable consideration provided by Toll, as set forth in a separate agreement between Maguire Partners and Toll executed contemporaneously herewith, the receipt and sufficiency of which is hereby acknowledged by Toll. 3. The City of Southlake, Texas, without waiving any rights under the Southlake RDA, hereby consents to this assignment of rights by Maguire Partners to Toll under the Southlake RDA, and further agrees to make payment of such Reimbursements to Toll provided that the terms of the Southlake RDA are satisfied in connection with Toll's request for such Reimbursements; 4. The Parties agree that this covenants set forth in this Assignment of Reimbursement Rights Agreement are independent covenants, and the rights and obligations set forth herein shall run with the land referenced herein, and the remedy of specific performance shall be available in order to enforce any provision hereof. Acknowledged, Agreed and Executed as of the date reflected below: Page 2 Maguire Partners -Solana Land, L.P. (Assignor) a Texas limited partnership By: MMM Ventures, LLC, a Texas limited liability company Its General Partner By: 2M Ventures, LLC, a Delaware limited liability company Its Sole Manager By: 1 > . Name: Mehrdad Moayedr Its: Manager STATE OF TEXAS COUNTY OF DALLAS § This instrument was acknowledged before me on theC - aay of b-11 mc 20W, by Mehrdad Moayedi, manager of 2M Ventures, LLC,- as -"sole manager of MMM Ventures, LLC as general partner of Maguire Partners -Solana Land, L.P., on behalf of said Hmi1PAnnr1n&r i , wv GYt6IACCL1Eli & d ! a, QUI4/ NOtecy ID O 11586134 MY Commission Expires Notary Public, State of Texas F411)Mry20.2017 Tall Dallas TX, LLC (Assignee) By: Robert °G. Paul (date) Its: Division President BEFORE ME on this day personally appeared Robert G. Paul, known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he executed same for the purposes and consideration therein expressed. GIVEN UNDER MY HAND AND SEAL, OF OFFICE this the A�day of March, 2016. [SEAL] s^:`•••Yo tke MEGHAN LEE METCAtr f�" No1pry Pubic, State of Texas✓ '.....'gig c. Ex Nota P is in and for . .•E} ommAires 06.06-2017 The State of Texas I...1,11 Notary ID 125322337 Page 3 V" City of Southlake, Texas (Providing Consent Only) By: Shanna K. Yelverton (date) Its: City Manager BEFORE ME on this day personally appeared Shanna K. Yelverton, known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he executed same for the purposes and consideration therein expressed. GIVEN UNDER MY HAND AND SEAL OF OFFICE this the day of March, 2016 [SEAL] Notary Public in and for The State of Texas Page 4 Southlake Meadows Addition Phase 1 RESIDENTIAL DEVELOPER AGREEMENT An Agreement between the City of Southlake, Texas, hereinafter referred to as the "City", and the undersigned Developer, Maguire Partners -Solana Land, L.P., hereinafter referred to as the 'Developer", of Southlake Meadows Addition, hereinafter referred to as the "Addition" to the City of Southlake, Tarrant County, Texas, for the installation of ceriain community facilities located therein, and to provide city services thereto, It is understood by and between the parties that this Agreement Is applicable to the 60 lots contained within the Addition and to the off-site Improvements necessary to support the Addition. I. GENERAL REQUIREMENTS A. It is agreed and understood by the parties hereto that the Developer shall employ a civil engineer licensed to practice In the State of Texas for the design and preparation of the plans and specifications for the construction of all facilities covered by this Agreement, B. The Developer hereby agrees to comply with all federal, state, and local laws that are applicable to development of this Addition. C. The Developer agrees that the completed project will be constructed in conformance with the Development Site Plan,. Construction Plans and other permits or regulatory authorizations granted by the City during the development process. D. Since the Developer is prepared to develop the Addition as rapidly as possible and is desirous of selling lots to builders and having residential building activity begin as quickly as possible and the City is desirous of having the Addition completed as rapidly as possible, the City agrees to release 16% of the lots (9) after installation of public facilities (streets, sidewalks, water, sewer, drainage, and any other public Infrastructure Improvements), Building permits shall not be Issued until all Public Works Infrastructure Is deemed substantially complete by the City, all appropriate Fire Code requirements are satisfied and street signs with street names are In place. Temporary, all-weather signs as specified In the Manual of Uniform Traffic Control Devices (MUTCD) securely fastened In the ground are acceptable until permanent street signs are Installed. The Developer recognizes that the remaining building permits or Certificates of Occupancy for residential dwellings will not be Issued until the supporting public works infrastructure Including permanent street signs with block numbers and regulatory signs within the Addition have been accepted by the City. This will serve as an incentive to the Developer to see that all remaining items are completed. >r� SoulMoke Maedows RDA E. The Developer will present to. the City, in form acceptable to the City, either (1) a cash escrow, (2) Letters of Credit, or (3) performance bond and payment bond, guaranteeing and agreeing to pay an amount equal to 100% of the value of the construction cost of all public facilities (streets, sidewalks, water, sewer, drainage, and any other public Infrastructure Improvements) to be constructed by the Developer, and providing for payment to the City of the total remaining amounts required for the completion of the public facilities if the Developer fails to complete the work within two (2) years of the signing of this Agreement between the City and Developer. All bonds shall be Issued by a bonding company licensed to do business In the State of Texas , All Letters of Credit must meet the Requirements for Irrevocable Letters of Credit which have been Incorporated herein. The value of the performance bond, letters of credit or cash escrow will reduce at a rate consistent wlth the amount of work that has been completed by the Developer and accepted by the City. Performance and payment bonds, Letters of Credit or cash escrow from the prime contractor(s), hereinafter referred to as Contractor, or other entity acceptable to the City, may be accepted In lieu of Developer's obligations specified above, at the discretion of the City, F. Any guarantee of payment Instrument (Performance Bond, Letters of Credit, etc.) submitted by the Developer or Contractor on a form other than the one which has been previously approved by the City as "acceptable" shall be submitted to the City Attorney and this Agreement shall not be considered in effect until such City Attorney has approved the instrument. Approval by the City .shall not be unreasonably withheld or delayed. G. Any surety company through which a bond Is written shall be a surety company duly authorized to do business In the State of Texas, provided that the City, through the City Manager, shall retain the right to reject any surety company as a surety for any work under this or any other Developer's Agreementwithin the City regardless of such company's authorization to do business In Texas. Approval by the City shall not be unreasonably withheld or delayed. H. The Developer agrees to furnish to the City a 2 -year maintenance bond, letters of credit or cash escrow in an amount equal to 100% of the cost of construction of all public facilities (streets, sidewalks, water, sewer, drainage, and any other public Infrastructure Improvements), This 2 -year maintenance bond, letters of credit or cash escrow will take effect on the date of final acceptance of all of the public facilities in the Addition, and shall secure all costs of maintenance of such public facilities, for a period of two (2) years. The 2 -year maintenance bond, letters of credit or cash escrow will be supplied to the City by the contractors performing the work, and the City will be named as the beneficiary. Page 2 of 10 2013 Revision 8adlhleho Moadows RDA I. No work shall be initiated on or in said Addition by Developer, save and except as provided above; until the payment, performance and 2 -year maintenance bond, letters of credit or cash escrow required in Paragraphs E and H have been provided to the City. J, it is further agreed and understood by the parties hereto that upon final acceptance by the City, title to all public facilities and Improvements mentioned herein above which are intended to be public facilities shall be vested in the City, and Developer hereby relinquishes any right, title, or Interest in and to said facilities or'any part thereof, It Is further understood and agreed that until the City accepts such improvements, the City shall have no liability or responsibility for any such facilities. Acceptance of the facilities must be in writing, signed by the City, through its City Manager or his/her duly appointed representative, acknowledging that all facilities are complete, have been Inspected and approved, and are being accepted by the City. K. On all public faellItles included In this Agreement for which Developer awards his own construction contract, Developer agrees to thefollowing procedures: 1, Developer shall pay all applicable fees and costs prior to scheduling a pre - construction meeting, Including the following: a. Administrative fees equal to two percent (2%) of (tie cost of all public facilities (streets, sidewalks, water, sewer, drainage, and any other public Infrastructure Improvements) Included in said agreement, based on actual bid or contract construction costs; b. Inspection fees equal to three percent (3%) of the cost of all public facilities (streets, sidewalks, water, sewer, drainage, and any other public Infrastructure Improvements) Included in said Addition, based on actual bid or contract construction costs, 2, Developer shall also be responsible for the following fees and costs; a. Cost of trench backfill density testing (95% Standard); b. Any charges for retesting as a result of failed tests; c. Actual charges for inspections during Saturday, Sunday, holidays, and after normal working hours will be assessed to the project and payment by the Developer will be required prior to final acceptance.. 3. City agrees to bear the expense of: a. All nuclear density tests on the roadway subgrade (95% Standard); Pogo 3 of 18 2013 Revision SoulhleNe Meadows ROA b. Technicians time for preparing concrete cylinders; c. Concrete cylinder tests and concrete coring samples; d. All gradation tests required to Insure proper cement andlor lime stabilization; e. Soil series for cement or lime. 4. The City can delay connection of private services to public utility mains constructed under this Agreement until water mains, sanitary sewer mains and storm drain lines have been tested and deemed substantially complete by the City. L. Both the Developer and any third party, Independent .entity engaged In the construction of houses, hereinafter referred to as "Builder", will be responsible for mowing all grassed areas and weeds and otherwise reasonably maintaining the aesthetics of all land and lots In said Addition which have. not been sold to third parties. After fifteen((15) days written notice, should the Developer or Builder fall In this responsibility, the City may contract for this service and bill the Developer and Builder for reasonable costs. Such amount shall become a Ilen upon all real property of the Addition so maintained by the City, and not previously conveyed to other third parties, 120 days after Developer has notice of costs. II. FACILITIES A. STREETS Street construction in the Addition shall be Installed in conformance with the requirements and in accordance with plans and specifications to be prepared by the Developer's engineer and released by the Director of Public Works. 1. The Developer will be responsible for the following: a. Installation and two-year operational cost of street lights, which Is payable to the City prior to final acceptance of the Addition; or an executed agreement with utility provider stating that no charge will be made for street lights for the two-year duration. The executed agreement must be presented to the City prior to final acceptance; b. Installation of all street signs based on the Manual on Uniform Traffic Control Devices (MUTCD) as prepared by the Developer's engineer designating the names of the streets inside the Addition, said signs to be of a type, size, color and design standard generally employed by the Developer and approved by the City In accordance with City ordinances; Page 4 of 1B i I 2013 Reelefon - 1 V Soulhlake Meadows RDA c. Installation of all regulatory signs based on the MUTCD as prepared by the Developer's engineer by an engineering study or direction by the Director of Public Works, It is understood that Developer may put in signage having unique architectural features, however, should the signs be moved or destroyed by any means, the City is only responsible for replacement of the standard signage and poles. Developer or Home Owners Association will be responsible for any additional cost for replacement of custom or unique signs. 2. All street construction will be subject to inspection and acceptance by the City. No work will begin on any street in said Addition prior to complying with all the requirements contained elsewhere In this Agreement. All streets, water, sewer; drainage, and any other public infrastructure Improvements which are anticlpated to be Installed within the street or within the street right- of-way will be completed prior to the commencement of street construction on the specific section of street In which the utility improvements have been placed or for which they are proposed. The Developer hereby agrees to advise the Director of Public Works as soon as possible when any physical modifications to the alignment of public Infrastructure Is required after construction has been completed. The Developer agrees to cooperatively work. with and assist in the coordination of such modifications In a manner that will be least disruptive to street construction and/or the Integrity of surrounding public Infrastructure, B. ON-SITE WATER The Developer hereby agrees to install water facilities to serve all lots shown on the final plat of the Addition in accordance with plans and specifications to be prepared,by the Developer's engineer and released by the City for construction and In accordance with Ordinance No. 170, as amended, and any other local, state and federal regulations. The Developer shall be responsible for all construction costs, .materials and engineering. In the event that certain public water lines are to be oversized to comply with the City's Water Master Plan, the City will reimburse the Developer for the oversize cost greater than the cost of an 8" line, C. ON-SITE SANITARY SEWER FACILITIES The Developer hereby agrees to Install sanitary sewer collection facilities to service all lots as shown on the final plat of the Addition. Sanitary sewer facilities will be Installed in accordance with the plans and specifications to be prepared by the Developer's engineer and released by the City. Further, the Developer agrees to complete this installation in accordance with Ordinance No, 440, as amended, and any other local, state and federal regulations. The Developer shall be responsible for all construction costs, materials, engineering, permits Page 6 of 18 2013 Revlslon $odidake Meadows ROA and Impact fees. In the event that certain public sanitary sewer lines are to be oversized to comply with the City's Wastewater Master Plan, the City will reimburse the Developer for the oversize cost greater than the cost of an 8 -Inch line. Additionally, the contractor may utilize, for construction purposes only, water from City after obtaining a fire hydrant meter. D. DRAINAGE The Developer hereby agrees to install drainage facilities to service all lots as shown on the final plat of the Addition In accordance with the pians and specifications to be prepared by Developer's engineer and released by the City for construction. The Developer also agrees to adhere to Ordinance No. 605, as amended, The Developer hereby agrees to fully comply with all EPA, TCEQ and FEMA requirements relating to the planning, permitting and management of storm water which may be In force at the time that development proposals are being presented for approval to the City. The Developer hereby agrees to comply with all provisions of the Texas Water Code. E. EROSION CONTROL The Developer agrees to comply with Ordinance No. 946, as amended, regarding erosion and sediment control during construction of the Addition. The Developer also agrees to comply with the Texas Commission on Environmental Quality TPDES General Permit No. TXR150000, and all other applicable local, state and federal ordinances, regulations and laws. The Developer agrees to keep the streets and storm drain systems (MS4) free from sell bulid-up by using soil control measures, such as those Included In the NCTCOG STANDARD SPECIFICATIONS FOR PUBLIC WORKS CONSTRUCTION, Division 1000 EROSION AND SEDIMENT CONTROL to prevent soil erosion, it will be the Developer's responsibility to present to the Director of Public Works a Storm Water Pollution Prevention Plan (SWPPP) and/or erosion control plan that will be Implemented for this Addition. When in the opinion of the Director of Public Works there Is sufficient soil build-up on the streets or other drainage areas and notification has been given to the Developer, the Developer will have seventy-two (72) hours to clear the soil from the affected areas. If the Developer does not remove the soil from the affected areas within 72 hours, the City may remove the soil build-up either by contract or by City forces and place the soil within the Addition at the Developer's expense, All expenses must be paid to the City prior to acceptance of the Addition, Developer or Its contractors must commence final stabilization of any disturbed areas Immediately after completion of all soil disturbing activities. The TDPDES General Permit No. TXR160000 defines final stabilization as when all soil - disturbing activities at the site have been completed and a uniform (I,e,, evenly distributed, without large bare areas) perennial vegetative cover with a density of Pape 8 of 18 2013 Revision ScAlahe Moodows RDA at least 70% of the native background vegetative cover for the area has been ESTABLISHED on ALL unpaved areas and areas not covered by permanent structures, or equivalent permanent stabilization measures (such as the use of riprap, gabions, or geotextlles) have been employed, Where construction activity on a portion of the site has temporarily ceased, and earth disturbing activities will be resumed within 21 days, temporary erosion control and stabilization measures are not required on that portion of the site, except as provided below. Erosion control and stabilization measures must be initiated as soon as practicable In. seml-arid areas and areas experiencing droughts by the 10 day after construction activity. After final stabilization has been established on all disturbed areas of the Addition and all permanent erosion control measures have been Installed and working effectively, the Developer shall request final acceptance of the project to the Director of Public Works. Inspection of the site will be required to ensure that the erosion control plan has been properly Installed and the permanent erosion control measures will prevent soil erosion from the newly created lots from washing Into the street right of -way, drainage -way or other private property. F. USE OF PUBLIC RIGHT OF WAY It is agreed by and between the City and Developer that the Developer may provide unique amenities within public right-of-way, such as landscaping, Irrigation, lighting, patterned concrete, etc., for the enhancement of the Addition. The Developer agrees to maintain these amenities until such responsibility Is turned over to a homeowners association, The Developer and his successors and assigns understand that the City shall not be responsible for the replacement of these amenities under any circumstances and further agrees to Indemnify and hold harmless the City from any and all damages, loss or liability of any kind whatsoever by reason of injury to property or third person occasioned by Its use of the public with regard to these Improvements and the Developer shall, at his own cost and expense, defend and protect the City against all such claims and demands. G, AMENITIES It is agreed by and between the City and Developer that the Addition may Incorporate a number of unique amenities and aesthetic Improvements in common areas of the Addition such as ponds, aesthetic lakes, unique landscaping, walls, patterned concrete, specialty signage and accessory facilities, The Developer shall be responsible for the construction and maintenance of all such aesthetic or specialty Items such as walls, vegetation, signage, landscaping, street furniture, pond and lake Improvements until such responsibility Is turned over to a homeowners association. Page 7 of 18 2013 Revision Seufiteke Meadows RDA H. START OF CONSTRUCTION Before the construction of the streets; water, sewer, or drainage facilities can begin, the Developer must do the following: 1, Execute a Developer Agreement by all parties; 3. Schedule and attend a pre -construction meeting between Developer and City and Including all Contractors, major Sub -Contractors, Utilities and appropriate Government Agencies; 3. Furnish to the City a list of all subcontractors and suppliers which will be providing greater than $1,000 of work In the Addition; a, Submit for approval by the City the payment and performance bonds and 2 - year maintenance bond or acceptable alternate security naming the City as beneficiary; 5, Submit at least 2- 22"x34" (full size) sets and 5.11"07" (half size) scalable sets of construction plans to be stamped "Released for Construction" by the Director of Public Works plus any additional sets needed for the developer and contractor; s, Pay all fees required to be paid to the City; 7. Furnish to the City a policy of general liability insurance, naming the City as oo-Insured, prior to commencement of any work. All Insurance must meet the Requirements of Contractor's Insurance attached hereto and Incorporated herein. Ill. GENERAL PROVISIONS F_VI01;kROt1yf 0411[ 1111 DEVELOPER COVENANTS AND AGREES TO INDEMNIFY AND DOES HEREBY INDEMNIFY, HOLD HARMLESS AND DEFEND .CITY, ITS OFFICERS, AGENTS, SERVANTS AND EMPLOYEES, FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR PROPERTY DAMAGE OR LOSS AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL, PERSONS OF WHATSOEVER KIND OR CHARACTER, WHETHER REAL OR ASSERTED, (INCLUDING, WITHOUT LIMITATION, REASONABLE FEES AND EXPENSES OF ATTORNEYS, EXPERT WITNESSES AND OTHER CONSULTANTS), ARISING OUT OF OR IN CONNECTION WITH, DIRECTLY OR INDIRECTLY, THE CONSTRUCTION, MAINTENANCE, OCCUPANCY, USE, EXISTENCE OR LOCATION OF SAID IMPROVEMENT OR IMPROVEMENTS BY DEVELOPER, Page 8 of 18 2813 Revision V--,- 8outldaka Meadows RDA DEVELOPER'S AGENTS, CONTRACTORS AND SUBCONTRACTORS, AND SHALL FURTHER BE LIABLE FOR INJURY OR DAMAGE TO CITY PROPERTY, ARISING OUT OF OR IN CONNECTION WITH ANY AND ALL ACTS OR OMISSIONS OF DEVELOPER, ITS OFFICERS, AGENTS, EMPLOYEES, CONTRACTORS, AND SUBCONTRACTORS, THIS OBLIGATION TO INDEMNIFY SHALL APPLY TO ALL CLAIMS THAT ARISE FROM EVENTS THAT OCCUR PRIOR TO THE TIME THE CITY ACCEPTS THE ADDITION, REGARDLESS OF WHETHER ANY SUCH DAMAGES, CLAIMS OR LIABILITIES ARE CAUSED, IN WHOLE OR IN PART, BY THE NEGLIGENT ACT OR OMISSION, OR OF THE CONCURRENT NEGLIGENT ACT OR OMISSION, OF THE CITY, ITS OFFICERS AND EMPLOYEES, AND SHALL CONTINUE FOR TWO YEARS AFTER THE CITY ACCEPTS THE ADDITION. B. Venue of any action brought hereunder shall be in Fort Worth, Tarrant County, Texas. C, Approval by the Director of Public Works or other City employee of any plans, designs or specifications submitted by the Developer pursuant to this Agreement shall not constitute or be deemed to be a release of the responsibility and liability of the Developer, his engineer, employees, officers or agents for the accuracy and competency of their design and specifications. Such approval shalt not be deemed to be an assumption of such responsibility and liability" by the City for any defect in the design and specifications prepared by the consulting engineer, his officers, agents, servants or employees, It being the Intent of the parties that approval by the Director of Public Works signifies the City's approval on only the general design concept of the improvements to be constructed. In this connection, the Developer shall for a period of two (2) years after the acceptance by the City of the completed construction project, Indemnify and hold harmless the City, Its officers, agents, servants and employees, from any loss, damage, liability or expense on account of damage to property and injuries; Including death, to any and all persons which may arise out of any defect, deficiency or negligence of the Developer's engineer's designs and specifications Incorporated Into any improvements constructed in accordance therewith, and the Developer shall defend at his own expense any suits or other proceedings brought against the City, Its officers, agents, servants or employees, or any of them, on account thereof, to pay all expenses and satisfy any judgment which may be incurred by or rendered against them or any of them In connection herewith. D. This Agreement or any part herein, or any Interest herein, shall not be assigned by the Developer without the express written consent of the City Manager, which shall not be unreasonably withheld or delayed. Page g of 18 2093 Revs/on Soulhlake Meadows RUA E. On all facilities included In this Agreement for which the Developer awards his own construction contract, the Developer agrees to employ a construction contractor who Is approved by the City, and whose approval shall not be unreasonably withheld or delayed, said contractor to meet City and statutory requirements for being insured, licensed and bonded to do work in public streets and to be qualified in all respects to bid on public streets and to be qualified In all respects to bid on public projects of a similar nature. F. Work performed under the Agreement shall be completed within two (2) years from the date thereof. In the event the work Is not completed within the two (2) year period, the City may, at Its election, draw on the performance bond, Letters of Credit, or other security provided by Developer and complete such work at Developer's expense, provided however, that if the construction under this Agreement shall have started within the two (2) year period, the City may agree to renew the Agreement with such renewed Agreement to be In compliance with the City policies In effect at that time. G. The City is an exempt organization under Section 151.309, Tax Code, and the facilities constructed under this Agreement will be dedicated to public use and accepted by the City upon acknowledgement by the City of completion under Paragraph 1.F, 1. The purchase of tangible personal property, other than machinery or equipment and its accessories, repair, and replacement parts, for use in the performance of this Agreement Is, therefore, exempt from taxation under Chapter 151, Tax Code, If the tangible property Is: a. necessary and essential for the performance of the Agreement; and b. completely consumed at the job site, 2. The purchase of a taxable service for use In the performance of this Agreement Is exempt if the service Is performed at the job site and if: a. this Agreement expressly requires the specific service to be provided or purchased by the person performing the Agreement; or b, the service is integral to the performance of the Agreement. H, Prior to final acceptance of the Addition, the Developer shall provide to the City two (2) copies of Record Drawings of the Addition, showing the facilities as actually constructed, Such drawings shall be stamped and signed by the registered professional engineer of record, in addition, the Developer shall provide electronic flies of Page 10 of 1s 2019 Revision V ✓ SoutAlako MondoWs HDA the drawingsin a format acceptable to the City. The project coordinate system must tie to the State Plane Coordinate System: IV, OTHER ISSUES A. DOWN STREAM CRITICAL STRUCTURE FEE 55.56 Acres of this development drains Into Critical Drainage Structure 93 and requires a fee of $10,342.48 ($186.151Acre) to be paid prior to releasing plans for construction. Developer shall pay park fees In the amount $174,000 which will be applied -to the park fees for Gateway Lakes as determined by the Pari( Board Meeting Minutes dated October 14, 2013, and approved by City Council on September 2, 2014. The Developer shall install' 4,t%bD'of amenities In Gateway Lakes park Tfiei:boup(4per plleif,upinit to ttje-GltY a formai tetter-regitesting tkie These park" fees apply to both Phase 1 and Phase 2 of the Sotithlake Meadows addition. C. TREE.PRESERVATION All construction activities shall comply with Ordinance No, 585-D, as amended, and Ordinance No. 585-6, as amended, which partaln to Tree Preservation requirements and as may be amended by the City Council. Such conditions Include, but are not limited to., proper posting .of tree protection warning signs. and tree. protection measures to be maintained throughout the duration of .the project. D, ROUNDABOUT CONSTRUCTION Developer shall construct a dual lane 'roundabout ("Roundabout'). at the Intersections of Dove Road, Sam School Road and N. Peytonville Avenue. The Developer shall be reimbursed by the City, for the Construction costa associated with the public Infrastructure including water, sower, storm sewer and pavement associated with the construction of the Roundabout. The costs also include pavement striping, erosion control, retaining walls and: excavation. For the completion of such worst ,ttie? Deve14,601I.;.0411-be Page 11 of 9s 2013 Revision a Stdaho Mosdows RDA i6questir1q, the reimbur8emont. for � the, 6phstr ' uction �oo ' sts of thp�'Rouqclabout;' This pw6j4't' City Council on Marc:h 1 6, 2013 1, under Savannah Estates Land Use Plan Amendment OP12-004 and Zoning Change; and Development ZA12.088, ROUNDABOUT CONSTRUCTION COST PARTICIPATION pconstruction tiblic Utilities Coat Total cost 131 o0ve'01ror Water - SubdivIslon $204061 $0095 r JIL�.464 oun a 29 qt2' 13 1, 62 29 ter t 1: 437,107oll Sewer- 65 -fL-7 T a -48 ge�wdt - RoufidaboGt 'SawerTctal; 405 6r918= ' $6d0422 Storm.8awer - subdivision $640,422 Storm Tn�= $2'q'vL- $21 0.27C 85069 Payment, Performance, Maintenance $6,275 96 2",$4,326 Total. $1,886,968'$1 �-393 624= public Pavement 1; 69.59 — —fr—usloricontr 1,M)WInhigWalls, $1,870.052 Excavation- tilubdIvialon $1,879,982 1870 062Xcavation E PAYment, Performance, MaThlononce $m'was B( ,)ndB $30,033 Total; 0?1 11 $3.607 093; ff, !, E781 Ell En Ing coYiri nasi Roundabout 131712 602A' $�4901j310� E RIGHT OF WAY ACQUISITION Developer shall be reimbursed by the City for the costs associatedwith the r1oInt of way aaciulsitlon fo r the Roundabout, RIGHT OF WAY ACQUISITION COSTS Right of Way Acquisition Total Cost 131 o0ve'01ror QloseerPro porl -11y,,,_ 74 Coivth Properly - 280 N. peytGolygleve9_,070_0! $204061 $0095 r $107.050 $144,579 =�$48-286 AVatVPr00@T1 -1075VV.00YORd. 29 qt2' 13 1, 62 29 Endineeft D slob & BMW $46,288 /AY1MP90,VFMENT&T.0TA"�- 65 -fL-7 T a -48 Page 12 of 18 2013 Revision 3oWhlake Meadows RDA SiGN15D AND EFFECTIVE on the date last set forth below. DEVELOPER. Maguire Partners -Solana Land, L.P. By: r� /t'� "= Title: — / All A 'VQA4— Address: I D�� ` !v T 3S 5�2 CaXybt C +-Dk'), STATE OF TEXAS COUNTY OF TARRANT On _ (r J before me, Notary Public, personally appeared �x /,� L 1, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized oapacity, and that by his signature on the Instrument, the person, or the entity upon behalf of which the person acted, executed the instrument. W*ftalk( WITNESS ffiy hand and official set) LAURA L WAYLANU Notary Public 1 .+1 July My commission expires: Page 13 of 16 2013 RaNaton i=� SouIDlaka Mondam RDA CITY SOF SOUTHLAKETEXAS By: (.7_� Mayor ATTE: I'll By: l By: L!� ---- CI y Attorney Page 14 of 18 3418 Revision 6- . SoviWaks Msadows RDA REQUIREMENTS FOR IRREVOCABLE LETTER OF CREDIT 1. The Letter of Credit must have a duration of at least one year. 2, The Letter of Credit may be substituted for utility security deposits exceeding $10,000.00. The City reserves the right to specify the face amount of the Letter of Credit. 3. The Letter of Credit must be issued by a FDIC insured bank in a form acceptable to the City of Southlake. The City reserves the. right to approveldlsapprove the bank Issuing the Letter of Credit, 4. The Letter of Credit must be Issued by a bank that has a minimum capital ratio of six percent (6%), and has been profitable for each of the last two consecutive years. 5. The customer must provide the City with supporting financial Information on the bank to allow the City to ascertain requirements are met. Suitable financial Information would be the previous two (2) years December 31 Call Reports submitted to the FDIC and audited financial statements. 6. Partial drawings against Letter of Credit must be permitted. 7, The City must be able to draft on sight with proof of amount owed, 6. The customer pays any and all fees associated with obtaining Letter of Credit. 9. Expiring Letter of Credit must be replaced by substitute Letters of Credit at least 30 days prior to the expiration date on the Letter of Credit held by the City. Page 16 of Is 2013 Revlslon Soulhreke Meadows ROA REQUIREMENTS FOR CONTRACTOR'S INSURANCE Contractor's Insurance 1, Without limiting any of (he other obligations or liabilities of the CONTRACTOR, during the term of the Contract, the CONTRACTOR shall purchase and maintain the following minimum Insurance coverages with companies duly approved to do business In the State of Texas and satisfactory to the CITY. In this section "Project" shall mean the public facilities to be constructed by Developer or under Developer's contract with a CONTRACTOR. Coverages shall be of the following types and not less than the specified amounts: a. Workers' compensallon as required by Texas law, with the policy endorsed to provide a waiver of subrogallon as to the CITY, employer's liability Insurance of not less than the minimum statutory amounts. b, Commercial general liability Insurance. Including premises- operations; Independent CONTRACTOR's liability, completed operations and contractual liability covering, but not limited to, (he liability assumed under the Indemnification provisions of this Contract,fully Insuring CONTRACTOR's (or Subcontractor's) liability for Injury to or death of CITY's employees and third parties, extended to Include personal Injury liability coverage with damage to property of third parties, broad form property damage, with minimum limits as set forth below: General Aggregate....................................................... $2,000,000 Bodily Injury ................................ $1,000,000 Each Occurrence Properly Damage.......................$1,000,000 Each Occurrence Products-ComponentslOperatlons Aggregate ........................................... $1,000,000 Personal and Advertising Injury .................................................................. $1,000,000 (With Employment Exclusion deleted) EachOccurrence........................................................................................ $1,000,000 Contractual Liability; Bodily Injury................................$1,000,000 Each Occurrence Property Damage.......................$1,000,000 Each Occurrence The policy shell Include coverage extended to apply to completed operations, asbestos hazards (if this project Involves work with asbestos) and ECU (explosion, collapse and underground) hazards. The completed operations coverage must be maintained for a minimum of one year after final completion and acceptance of the work, with evidence of same flied with CITY. c. Comprehensive automobile and truck liability Insurance, covering owned, hired and non -owned vehicles, with a combined bodily Injury and property damage minimum limit of $1,000,000 per occurrence; or separate limits of $600,000 for bodily Injury (per person), and $600,000 for properly damage. Such Insurance shall Include coverage for loading and unloading hazards, d. Property Insurance (Builder's All Risk) (1) CONTRACTOR shall purchase and maintain, at all times during the term of iia Contract with the Developer properly Insurance written on's builder's risk"all-risk" or equivalent policy form In the amount of the Initial contract price, plus value of subsequent contract modifications and cost of materials supplied or Installed by others, comprising total value for the entire Project at the site on a replacement cost basis without optional deductibles. Such property Insurance Page 16 of 16 2013 Revision V aoulhisko Moadows RDA shall be maintained, unless otherwise In writing by all persons and entitles who are beneflclarles of such Insurance, until final payment has been made, or until no person or entity other than the CITY has an Insurable Interest In the properly required by thls.paragrapph to be covered, whichever Is later. This Insurance shall Include Interests of the CITY, the CONTRACTOR, Subcontractors and Sub-Suboontmotore In the Project, (II) Properly Insurance shall be on an "all-risk" or equivalent policy form and shall include, without Ilmitallon. Insurance against the perils of Ore (with extended coverage) end physical loss or damage Including, without duplication of coverage, theft, vandalism, malicious mischief, collapse, earthquake, flood, windstorm, falseworki testing and startup, temporary buildings and debris removal Including demolition occasioned by enforcement of any applicable legal requirements, and shall cover reasonable compensation for CONTRACTOR's services and expenses required as a result of such Insured loss. (ill) if the Insurance required by this paragraph requires deductibles, the CONTRACTOR shell pay costs not covered because of such deductibles, (Iv) This property Insurance shall cover portions of the Work stored off the site, and also portions of the Work In transit, e. OWNER'S Protective Liability Insurance: (1) CONTRACTOR shall obleln, pay for and malntaln at all times during the prosecution of the work under the contract between the CONTRACTOR and the Developer, a CITY's protective liability Insurance policy naming the CITY as Insured for properly damage and bodily Injury, which may arise in the prosecution of the work or CONTRACTOR's operations under the contract. (11) Coverage shall be on an "occurrence" basis, and the policy shall be Issued by the same Insurance company that carries the CONTRACTOR's liability Insurance with a combined bodily Injury and properly damage minimum limit of $1,000,000 per occurrence. I. "Umbrella" Liability Insurance: The CONTRACTOR shall obtain, pay for and maintain umbrella liability Insurance during the term of the Contract between the CONTRACTOR and the Developer, Insuring CONTRACTOR for an amount of not leas than $8,000,000 per occurrence combined limit for bodily Injury and properly damage that follows form and applies In excess of the primary liability coverages required herein above. The policy shall provide "drop down" coverage where underlying primary Insurance coverage limits are Insufficient or exhausted. Policy Endorsements t. Each Insurance policy to be furnished by CONTRACTOR shall Include the following conditions by endorsement to the policy: a. name the CITY as an additional insured as to all applicable policies; b, each policy shall require that 30 days prior to cancellation, nonrenewal or any material change in coverage, a notice thereof shall be given to CITY by certified mall. If the policy Is canceled for nonpayment of premium, only 10 days written notice to CITY Is required; c. the term "CITY" shall Include all authorities, boards, bureaus, commissions, divisions, departments and offices of the CITY and Individual members, employees and agents thereof In their official capacities, and/or while acting on behalf of the CITY; d, the policy phrase "other Insurance" shall not apply to the CITY where the CITY Is an additional Insured on the policy. Page 17 of 18 2013 Revision SovltMe Meadows RDA 2, Special Conditions a. Insurance furnished by the CONTRACTOR shall be in accordance with the following requirements; (t) any policy submitted shall not be subject to limitations, conditions or restrictions deemed Inconsistent with the Intent of the Insurance requirements to be fulfilled by CONTRACTOR. The CITY'sdecision thereon shall be final (11) all policies are to be written through companies duly licensed to transact that class of Insurance In the State of Texas; and (111) all liability policies required herein shall be written with an 'bacurrende' basis coverage trigger. b, CONTRACTOR agrees to the following: (1) CONTRACTOR hereby waives subrogatlon rights for lose or damage to the extant some .are covered by Insurance. Insurers shall have no right of recovery or subrogation against the CITY, It being the Intention that the Insurance policies shall protect all parties to the contract and be primary coverage for all losses- covered by the policies; (11) companies Issuing the. Insurance policies and CONTRACTOR shall have no recourse against the CITY for payment of any premiums or assessments for any deductibles, as all such premiums and deductibles are the sole responsibility and dolt of the CONTRACTOR; (ill) approval disapproval or failure to act by the CITY regarding any Insurance supplied by the CONTRACTOR (or any Subcontractors) shall not relieve the CONTRACTOR of rull responsibility or liability for damages and accidents as set forth In the Contract Documents or this Agreement, Neither shall he bankruptcy, Insolvency or denial of liability by the Insurance company exonerate the CONTRACTOR from liability; (iv) deductible limits an insurance policies exceeding $10,000 require approval of the CITY; (v) any of such Insurance policies required under this paragraph may be written In combination with any of the others, where legally permitted, but none of the spedified limits may be lowered thereby; (vl) prior to commencement of operations pursuant to this Contract, the Developer or the Developer's CONTRACTOR shall furnish the CITY with satisfactory proof that he has provided adequate Insurance coverage in amountsand by approved carriers as required by this Agreement; (vil) CONTRACTOR shall provide notice of any actual or potential claim or litigation that would affect required Insurance coverages to the CITY In a timely manner; (vlil) CONTRACTOR agrees to either require Its Subcontractors to maintain the same Insurance coverage and limits as specified for the CONTRACTOR or coverage of Subcontractors shall be provided by the Contract; and (Ix) Prior to the effective date of cancellation, CONTRACTOR shall deliver to the CITY a replacement certificate of insurance or proof of reinstatement , Page 16 of 18 2019 Revision