Item 4I - MemoItem 4I
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M E M O R A N D U M
(December 6, 2022)
To: Shana Yelverton, City Manager
From: Rob Cohen, Director of Public Works
Subject: Approve an amended Commercial Developer Agreement (CDA)
with BSREP III Mustang Court L.P. for the Mustang Business
Park development in an amount not to exceed $200,000.
Action
Requested: Approve an amended Commercial Developer Agreement (CDA) with
BSREP III Mustang Court L.P. for the Mustang Business Park
development to construct a retaining wall in an amount not to exceed
$200,000.
Background
Information: The City’s Capital Improvement Program (CIP) originally presented
three alternatives to the north from the subarea assessment. City
Council gave the direction to pursue other options then these three
alternatives. The revised alternative options are to either extend
Southwestern Street through to Brumlow Avenue or stopping short
of Brumlow to allow for emergency access only from the Service
Center. The CIP is currently underway with the preliminary design
phase for the conceptual extension of the Southwestern Street
improvement project. The City requested the proposed Mustang
Business Park development to include the design and construction
of the retaining wall, located on the north side of Southwestern
Street, along with the construction of their proposed development.
The request was made as the need of a retaining wall will be
imminent regardless of the design options for the extension of the
Southwestern street. This will also prevent the need for the future
CIP project to acquire temporary access easements, Right-Of-Way,
and having to potentially demolish and reconstruct the future thick
concrete parking stalls with the construction of the future street
extension. The Developer has agreed to design and construct the
retaining wall improvements.
The City has agreed to reimburse the Developer for the cost to
design and construct the retaining wall improvements in an amount
not to exceed $200,000.
Item 4I
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The original CDA was approved on November 15, 2022. The
inclusion of the reimbursement for design and construction of the
retaining wall will require an amendment to the originally approved
CDA.
Financial
Considerations: Funding for the CDA for the Mustang Business Park development is
part of the FY 2023 Capital Improvement Program budget.
Reimbursement is only for the construction of the intersection
improvements.
Strategic Link: This item links to the City’s Strategy Map strategic focus areas of
Quality Development and Partnerships & Volunteerism. It specifically
relates to the City’s Corporate Objectives, C4: Attract & Keep Top-
Tier Businesses to Drive a Dynamic & Sustainable Economic
Environment, and B2: Collaborate With Select Partners to Implement
Service Solutions. The Critical Business Outcomes are, CBO3:
Engage in Thoughtful Planning to Ensure Continued High Quality
Development That is Integrated Well Into The Current Built
Environment, and CBO5: Improve Quality Of Life Through
Progressive Implementation Of Southlake’s Comprehensive Plan
Recommendations.
Citizen Input/
Board Review: None.
Legal
Review: The proposed agreement is a standard agreement that the City
Attorney has reviewed and approved.
Alternatives: The City Council may approve or deny the agreement.
Supporting
Documents: Attachment A: Commercial Developer Agreement
Attachment B: Location Map
Staff
Recommendation: Approve an amended Commercial Developer Agreement (CDA) with
BSREP III Mustang Court L.P. for the Mustang Business Park
development in an amount not to exceed $200,000.
Staff
Contact: Rob Cohen, Director of Public Works
Sandy Endy, P.E., Development Engineer
Kevin Ferrer, P.E., City Engineer
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MUSTANG BUSINESS PARK
(WRIGHT MUSTANG BUSINESS PARK LLC)
COMMERCIAL DEVELOPER AGREEMENT
An agreement between the City of Southlake, Texas, hereinafter referred to as the “City”,
and the undersigned Developer, BSREP III Mustang Court L.P. hereinafter referred to
as the “Developer”, of Mustang Business Park, hereinafter referred to as “Addition” to
the City of Southlake, Tarrant County, Texas, for the installation of certain 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 Addition (a commercial
development) 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. 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 Certificates of Occupancy 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.
E. The Developer will present to the City, in form acceptable to the City, either (1) a
cash escrow, (2) Letter 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
ATTACHMENT A
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and Developer. All bonds shall be issued by a bonding company licensed to do
business in the State of Texas. The Letter of Credit must meet the Requirements
for Irrevocable Letter of Credit which have been incorporated herein.
The value of the performance bond, letter of credit or cash escrow will reduce at a
rate consistent with the amount of work that has been completed by the Developer
and accepted by the City. Performance and payment bonds, Letter 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, Letter 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 Agreement within 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, letter 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). The 2-year maintenance bond, letter 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, letter 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.
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,
letter 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 acceptance by
the City, title to all 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 in connection with any such facilities.
Acceptance of the facilities for this provision and for the entire Agreement shall
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occur at such time that the City, through its City Manager or his duly appointed
representative, provides Developer with a written acknowledgement that all
facilities are complete, have been inspected and approved, and are being
accepted by the City.
K. On all public facilities included in this Agreement for which the Developer awards
his own construction contract, Developer agrees to the following 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 three percent (3%) of the 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 constructions 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 re-testing as a result of failed tests;
c. Water usage after obtaining a fire hydrant meter from the City to be utilized
for construction purposes only;
d. 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);
b. Technicians time for preparing concrete cylinders;
c. Concrete cylinder tests and concrete coring samples;
d. All gradation tests required to insure proper cement and/or lime
stabilization;
e. Soil series for cement or lime.
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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 accepted by the City.
L. Both the Developer and any third party entity engaged in the construction of the
Development (“Builder”) will be responsible for mowing all grass and weeds and
otherwise reasonably maintaining the aesthetics of all land in said Addition. After
fifteen (15) days written notice, should the Developer fail in this responsibility, the
City may contract for this service and bill the Developer and Builder for reasonable
costs. Such amount shall become a lien 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;
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 install signage having
unique architectural features, however, should the signs be moved or
destroyed by any means, the City is only responsible for replacement of
standard signage and poles. Developer or property owner 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
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complying with the requirements contained elsewhere in this
Agreement. All streets, water, sewer, drainage, and any other public
infrastructure improvements which are anticipated 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 programmed.
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 sewage collection facilities to
service 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 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.
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 plans 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
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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.
The Developer agrees to provide a maintenance agreement to the City for any
underground detention facilities proposed with this development. The Developer
or property owner of record shall be responsible for the operation and maintenance
of all underground detention facilities in accordance with said maintenance
agreement.
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 soil build-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. TXR150000 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
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 geotextiles) 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
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provided below. Erosion control and stabilization measures must be initiated as
soon as practicable in semi-arid areas and areas experiencing droughts by the 14th
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 the property owner. 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 the property
owner.
H. START OF CONSTRUCTION
Before the construction of the streets, water, sewer, streets or drainage facilities
can begin, the Developer must do the following:
1. Execute a Developer Agreement;
2. Schedule and attend a pre-construction meeting between Developer and City
and including all Contractors, major Sub-Contractors, Utilities and appropriate
Government Agencies;
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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;
4. 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 two (2) - 22”x34” (full size) sets and five (5) - 11”x17” (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;
6. 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 co-
insured, prior to commencement of any work. All insurance must meet the
Requirements of Contractor’s Insurance attached hereto and incorporated
herein.
III. GENERAL PROVISIONS
A. INDEMNIFICATION
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,
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.
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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 shall 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 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 all judgments
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.
E. On all facilities included in this Agreement for which the Developer awards his or
her 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 projects
and to be qualified in all respects to bid on public projects 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.
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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 files of the
drawings in a format acceptable to the City. The project coordinate system must
tie to the State Plane Coordinate System.
IV. OTHER ISSUES
A. RETAINING WALL
With the approval from the City of Southlake, the Developer agrees to construct
the retaining wall improvements along the future extension of Southwestern
Street. The City shall reimburse the Developer for the agreed upon retaining
wall costs to design and construct in an amount not to exceed $200,000.00.
Reimbursement shall be provided once the copy of invoices associated to the
retaining wall (design and construction) are provided to the City, construction
is complete, and the Developer has received final acceptance.
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B. DETENTION
The development will utilize the proposed detention pond onsite to detain the
additional runoff caused by proposed conditions.
C. PARK FEES
Park fees are based upon the City of Southlake 2021 Municipal Fee Schedule
which specifies a fee in lieu of park land dedication equaling $8,700.00 per
gross acre for non-residential construction. Therefore, the park fee owed for
this 26.27-acre development is $228,549.00.
D. TREE PRESERVATION ORDINANCE
All construction activities shall comply with Ordinance No. 585-D, as amended,
and Ordinance No. 585-B, as amended, which pertain 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.
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SIGNED AND EFFECTIVE on the date last set forth below.
DEVELOPER: _BSREP III Mustang Court L.P._________________________
By: _BSREP III Mustang Court GP LLC, a Delaware limited liability company
Title: _General Partner____________________________________________
Address: ______________________________________________________
______________________________________________________
STATE OF TEXAS
COUNTY OF TARRANT
On _________________________, before me, ________________________, Notary
Public, personally appeared __________________________, 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 capacity, and that by his signature on the instrument, the person, or the
entity upon behalf of which the person acted, executed the instrument.
____________________________________________
WITNESS my hand and official seal.
____________________________________________ (SEAL)
Notary Public
My commission expires: ________________________
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CITY OF SOUTHLAKE, TEXAS
By: ________________________________________
City Manager
ATTEST:
________________________________________
City Secretary
Date: ________________________________________
________________________________________
City Attorney
Date: ________________________________________
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REQUIREMENTS FOR IRREVOCABLE LETTER OF CREDIT
1. The Letter of Credit must have 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 approve/disapprove 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 (6%) percent, 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.
8. The customer pays any and all fees associated with obtaining Letter of Credit.
9. Expiring Letter of Credit must be replaced by a substitute Letter of Credit at least
30 days prior to the expiration date on the Letter of Credit held by the City.
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REQUIREMENTS FOR CONTRACTOR’S INSURANCE
Contractor’s Insurance
1. Without limiting any of the 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' compensation as required by Texas law, with the policy endorsed to provide a waiver of
subrogation 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, the 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
Property Damage .................................... $1,000,000 Each Occurrence
Products-Components/Operations Aggregate ............................................ $1,000,000
Personal and Advertising Injury .................................................................. $1,000,000
(With Employment Exclusion deleted)
Each Occurrence ........................................................................................ $1,000,000
Contractual Liability:
Bodily Injury ............................................. $1,000,000 Each occurrence
Property Damage .................................... $1,000,000 Each occurrence
The policy shall 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 filed 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 $500,000 for bodily injury (per person), and $500,000 for property
damage. Such insurance shall include coverage for loading and unloading hazards.
d. Property Insurance (Builder's All Risk)
i. CONTRACTOR shall purchase and maintain, at all times during the term of its Contract with
the Developer property insurance written on a 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
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shall be maintained, unless otherwise in writing by all persons and entities who are
beneficiaries 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 property required by this paragraph to be
covered, whichever is later. This insurance shall include interests of the CITY, the
CONTRACTOR, Subcontractors and Sub-Subcontractors in the Project.
ii. Property insurance shall be on an "all-risk" or equivalent policy form and shall include, without
limitation, insurance against the perils of fire (with extended coverage) and physical loss or
damage including, without duplication of coverage, theft, vandalism, malicious mischief,
collapse, earthquake, flood, windstorm, falsework, 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.
iii. If the insurance required by this paragraph requires deductibles, the CONTRACTOR shall 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:
i. CONTRACTOR shall obtain, pay for and maintain 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 property damage and bodily injury,
which may arise in the prosecution of the work or CONTRACTOR’s operations under the
contract.
ii. 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 property damage minimum limit of $1,000,000 per occurrence.
f. "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 less than $5,000,000 per occurrence combined limit for bodily injury and property 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
1. 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, non-renewal or any material change in
coverage, a notice thereof shall be given to CITY by certified mail. 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.
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Special Conditions
1. Insurance furnished by the CONTRACTOR shall be in accordance with the following requirements:
i. any policy submitted shall not be 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’s decision thereon shall be final;
ii. all policies are to be written through companies duly licensed to transact that class of insurance in
the State of Texas; and
iii. all liability policies required herein shall be written with an "occurrence" basis coverage trigger.
2. CONTRACTOR agrees to the following:
i. CONTRACTOR hereby waives subrogation rights for loss or damage to the extent same 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;
ii. 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 risk of the CONTRACTOR;
iii. 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 full responsibility
or liability for damages and accidents as set forth in the Contract Documents or this Agreement.
Neither shall be bankruptcy, insolvency or denial of liability by the insurance company exonerate
the CONTRACTOR from liability;
iv. deductible limits on 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 specified limits may be lowered thereby;
vi. 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 amounts and by approved carriers as required by this Agreement;
vii. 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;
viii. 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.
ATTACHMENT B