Item 4O - Agreement MASTER DEVELOPMENT AGREEMENT
BETWEEN THE CITY OF SOUTHLAKE, TEXAS,
AND TRADEMARK RETAIL HOLDINGS,LLC
This Master Development Agreement (the "Agreement") is entered into between the City
of Southlake, a Texas home-rule municipal corporation (the "City"), and Trademark Retail
Holdings, LLC, a Texas limited liability company(the"Developer"). The City and the Developer
are sometimes referred to herein collectively as the "Parties" or singularly as a"Party".
RECITALS
WHEREAS, the Developer desires to construct a mixed-use development on
approximately 40.209 acres of undeveloped land along State Highway 114 in the City of
Southlake, Texas, as more particularly shown and identified on the attached Exhibit A (the
"Property"); and
WHEREAS, development of the Property will consist of a mix of uses to potentially
include commercial,retail,restaurants,hotel, offices, single family residential homes, open space,
sidewalks, enhanced streetscapes, green space, water features, and other public and private
amenities (collectively referred to as the "Development") in accordance with the Zoning (defined
below) and as further described in this Agreement and generally shown and described on the
Concept Plan, which is attached to this Agreement as Exhibit B, and the Site Plan, which is
attached to this Agreement as Exhibit C; and
WHEREAS,the Development is subject to City Zoning Case No. ZA25-0045, as finally
approved by the City Council of the City by Ordinance 480-837 (the"Zoning"),and the Developer
has applied for certain economic development incentives from the City to assist it in implementing
the Development; and
WHEREAS,the City has determined that the public benefit to be derived for the City,the
region, and the State of Texas from the Development in the City outweighs the cost to the City to
provide the economic development incentives; and
WHEREAS, the City further finds that providing economic development incentives
furthers City-identified goals, including, but not limited to: (a) supporting comprehensive plan
implementation; (b) adding to target industry inventory; (c) supporting identified workforce goals
related to daytime population; (d) incorporating preferred quality of life benefits such as project
enhancements; and (e) constructing infrastructure improvements in alignment with strategic
objectives, city goals, and comprehensive plan recommendations; and
WHEREAS,the City further finds that providing economic development incentives aligns
with the City's comprehensive plan, including: (a) 2035 Vision, Goals, and Objectives; (b) the
2035 SH 114 Corridor Plan; (c)the 2035 SH 114 Sector Plan;(d)the 2035 Economic Development
Master Plan; and(e) the 2035 Mobility Master Plan; and
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City of Southlake/Trademark Retail Holdings,LLC Master Development Agreement
WHEREAS,the Developer has requested the City to create a Tax Increment Reinvestment
Zone encompassing the commercial portion of the Property(the"TIRZ")consistent with the terms
of this Agreement and Chapter 311 of the Texas Tax Code (the "TIRZ Act"); and
WHEREAS,in order to incentivize,encourage,and support economic development within
the City, increase the tax base, create jobs, and promote employment, development of the Property
will be facilitated through the construction, financing, and maintenance of certain public
infrastructure (the "Public Improvements" as defined herein); and
WHEREAS,the Developer intends to petition the City to create one or more bond funded
public improvement districts encompassing the Property (the "PID") in accordance with Chapter
372 Texas Local Government Code, as amended (the "PID Act"); and
WHEREAS, the Developer desires the City's assistance to (i) fund the cost for certain
Public Improvements and otherwise incentivize the successful completion and operation of the
Project from TIRZ revenues and from economic development grants pursuant to this Agreement;
and(ii) adopt a PID Assessment Ordinance and Service and Assessment Plan("SAP")to provide
for the construction and financing of Public Improvements pursuant to the SAP, payable from
Assessments (defined herein) levied against the portion of the Property within the PID (through
the issuance of PID Bonds requested by the Developer); and
WHEREAS, the City is authorized by Article III, Section 52-a of the Texas Constitution
and Chapter 380 of the Texas Local Government Code, and the TIRZ Act, to provide economic
development grants and incentives to promote state and local economic development and to
stimulate business and commercial activity in the City, and this Agreement constitutes a program
of the City under Chapter 380 of the Texas Local Government Code; and
WHEREAS, pursuant to the Developer's request funding for the Public Improvements
will be made from the payments of(1) Assessments, (2) from TIRZ Revenues (defined below)
deposited into an account of the TIRZ Fund (defined below) as provided in this Agreement, (3)
the proceeds of PID Bonds (if any), and (4) from City economic development incentives; all of
which (1) through (4) above would be made subject to City Council approval and the availability
of funding and not from any other source of City funds not designated for such purposes; and
WHEREAS, the costs of Public Improvements qualify as project costs under the TIRZ
Act and/or the PID Act, and the Parties intend that a portion of TIRZ Revenues and/or Assessment
revenues from the Property and Development will be used to fund eligible Public Improvements
and other costs as authorized by the TIRZ Act and/or PID Act; and
WHEREAS, the development of the Property, including the design, construction, and
installation of Public Improvements that will serve the Development,will be of the general benefit
to the City and its current and future citizens, including the creation of substantial future tax base
for the City, and will enhance the value of all the taxable real property in the TIRZ; and
WHEREAS, the construction, installation, financing, and maintenance of the Public
Improvements in the TIRZ and the PID and full development of the Property(a)will significantly
enhance the value of all the taxable real property in the TIRZ, and will provide a special benefit to
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City of Southlake/Trademark Retail Holdings,LLC Master Development Agreement
the portion of the Property included in the PID, and (b) promote the interests of the City and will
serve its public purposes,including,but not limited to(i)developing and diversifying the economy
of the City and the state; (ii) eliminating unemployment and underemployment in the City and
state; (iii) developing and expanding commerce in the City and state; (iv) stimulating business and
commerce within the City and state; and (v) promoting development and redevelopment within
the City and state;
NOW, THEREFORE, for and in consideration of the Recitals above and the mutual
agreements, covenants, and conditions contained herein, and other good and valuable
consideration, the Parties hereto agree as follows:
ARTICLE I
DEFINITIONS
For all purposes of this Agreement, except as otherwise expressly provided or unless the
context otherwise requires, the terms defined in this Article have the meanings assigned to them
in the Recitals or this Article, and all such terms include the plural as well as the singular.
"Affiliate" means any other entity directly controlling, or directly controlled by or under
direct common control with the Developer. As used in this definition, the term "control,"
"controlling" or "controlled by" shall mean the possession, directly, of the power either to direct
or cause the direction of management or policies of the Developer, whether through the ownership
of voting securities or interests,by contract or otherwise, excluding in each case, any lender of the
Developer or any affiliate of such lender.
"Applicable Law"means any statute, law,treaty, rule, code, ordinance,regulation,permit,
certificate, or order of any Governmental Authority, or any judgment, decision, decree,injunction,
writ, order or like action of any court, or other Governmental Authority. Applicable Law includes,
but is not limited to, the City Regulations.
"Approved Plans"means collectively,the Concept Plan, Site Plan, any Development Plan,
the Plans and Specifications, the Zoning, and all approved elevations relating to the design and
construction of the Development, inclusive of any change orders thereto, which comply with all
City Regulations, and which are approved in writing by the City.
"Assessments" means those certain assessments levied pursuant to the PID Act on
benefitted parcels within the PID for the purpose of paying the eligible costs of the Public
Improvements and PID administration costs,PID creation costs, and other eligible costs under the
PID Act.
"Assessment Funding Agreement" means the agreement between the City and the
Developer in which Developer agrees to develop certain Public Improvements for which all or a
portion of the costs will be funded from the proceeds of Assessments or the proceeds of PID debt
to which Assessments are pledged pursuant to the SAP.
"Capital Investment" means the Developer's capitalized costs for the design and
construction of the Development, including but not limited to, soft and hard costs related to
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sitework, development, and building construction costs; land costs, including taxes during
construction; architectural and engineering costs; permitting costs; legal and organizational costs;
and costs related to tenant improvements. Capital Investment shall be measured at the time of full
buildout of the entire Property.
"Certificate of Occupancy" means the document issued by the City certifying that a
building complies with applicable building codes and other laws, and indicating it to be in a
condition suitable for occupation.
"Chapter 380 Incentive Grants" shall have the meaning provided in Section 6.01.
"City Regulations" means provisions of the Code of Southlake, ordinances not codified,
design standards,uniform and international building and construction codes,the Zoning, and other
policies duly adopted by the City, which shall be applied to the Development, as they currently
exist or as amended and approved in writing by the City.
"City Representative" means the City Manager, or the City Manager's designee, which
may include a third-party inspector or representative.
"City Tax Increment" means, for any given year beginning with the 2026 Tax Year, the
City ad valorem property taxes levied on the Property (and improvements thereon) and collected
by the City for that year on the captured appraised value of real property taxable by the City for
the term of the TIRZ, to be deposited into the TIRZ Fund, and the tax increment generated from
General Fund Sales Tax Revenues attributable to the TIRZ and more particularly described in
Article VI, to be deposited into the TIRZ Fund.
"Commencement of Construction" means that (i) the construction plans have been
prepared for the commercial portion of the Development and all approvals thereof required by the
City and other applicable Governmental Authorities have been obtained; (ii) all necessary permits
permitting construction of the Public Improvements for the commercial portion of the
Development have been issued by City and all applicable governmental authorities; and (iii) the
Developer's contractor has mobilized on-site to commence construction of the Public
Improvements, including mobilization for site grading.
"Completion of Construction" means that the City has inspected, approved, and accepted
the applicable portion of the Public Improvements and confirmed in writing that they have been
built in compliance with the Plans and Specifications and the Approved Plans and such work is
substantially completed, such that only minor punch list items remain that can be completed within
thirty (30) days, as determined by the City Manager, or her designee. Such determination shall
not be unreasonably withheld, denied, conditioned, or delayed so long as the applicable Public
Improvements have been constructed in accordance with City Regulations and this Agreement.
"Concept Plan"means the concept plan attached to this Agreement as Exhibit B, as such
concept plan was approved by the Zoning.
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"Contractor" means all contractors under prime contracts and subcontractors under sub-
contracts as defined by 34 Texas Administrative Code, Section 3.291, and hired by Developer to
construct the Development.
"Development"means the Public Improvements and private improvements constructed on
the entirety of the Property, or outside of the Property to benefit the full development of the
Property, consistent with this Agreement.
"Development Plan" means the final development plan for the Property approved by the
City Council in accordance with the Zoning.
"Effective Date"means the date this Agreement is fully executed by the Parties.
"Force Majeure" means any event that (i) materially and adversely affects the affected
Party's ability to perform the relevant obligations under this Agreement or directly delays such
affected Party's ability to do so; (ii)is beyond the reasonable control of the affected Party; and(iii)
is not due to the affected Party's fault or negligence; and (iv) could not be avoided, by the Party
who suffers it,by the exercise of commercially reasonable efforts;provided,however,that"Force
Majeure" shall not be construed in any way as abrogating or limiting the City's police power or
the City Council's legislative power or authority. "Force Majeure" shall include,but is not limited
to: (a) natural phenomena, such as storms, floods, lightning and earthquakes, and inclement
construction weather (except as provided below); (b) wars, civil disturbances, revolts,
insurrections,terrorism, sabotage and threats of sabotage or terrorism; (c)transportation disasters,
whether by ocean, rail, land or air; (d) strikes or other labor disputes that are not due to the breach
of any labor agreement by the affected Party, shortages in labor or materials; (e) rapid or
unsustainable population growth, or mass displacement or relocation of persons, as determined in
writing by the City in its sole discretion; (f) fires, epidemics, or pandemics; (g) changes in market
or financing conditions that would make it commercially infeasible to proceed with a particular
stage of project at a particular time as approved in writing by the City in its sole discretion; (h)
actions or omissions of a governmental authority including, but not limited to permitting delays
(but not including the actions of the City in its capacity as a governmental authority)that were not
voluntarily induced or promoted by the affected Party, or brought about by the breach of its
obligations under this Agreement or failure to comply with any Applicable Law; and (i)
circumstances similar to those listed above as mutually agreed in writing by both Parties;provided,
however, that under no circumstances shall Force Majeure include any inclement construction
weather days anticipated as part of normal seasonal weather patterns for the region, or any strike
or labor dispute involving the employees of the Developer or any Affiliate of the Developer, other
than industry or nationwide strikes or labor disputes, or any governmental action by the City
affecting the Developer.
"FTE"means any employee working at the Project on a thirty (30) hour or more per week
schedule, or a combination of two (2) or more employees on part time schedules that equal forty
(40)hours. For the avoidance of doubt, "FTE"includes all contract labor.
"General Fund Sales Tax Revenues" means the amount of the unrestricted 1% municipal
sales and use tax revenues attributable to the Property and collected by the Texas Comptroller of
Public Accounts from the sales of goods and services resulting in tax revenues remitted to and
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City of Southlake/Trademark Retail Holdings,LLC Master Development Agreement
actually received by the City. For purposes of this Agreement, General Fund Sales Tax Revenues
shall only apply to new business and sales and use tax revenue sourced to and generated from the
Development, but shall not apply to any existing businesses relocating to the Development from
another location in the City.
"Governmental Authority" means any federal, state, or local governmental entity
(including any taxing authority and the City) or agency, court, tribunal, or any City board,
commission, political subdivision, or other body, whether legislative,judicial, or executive (or a
combination or permutation thereof).
"Impact Fees" means all utility and roadway impact fees, if any, relating to capital
improvements that may be assessed and collected by the City on the Property in accordance with
Chapter 395, Texas Local Government Code, as amended, and all utility impact fees, if any,
relating to the Public Improvements in each case assessed, imposed and collected by the City on
the Property in accordance with City Regulations.
"Impositions" shall mean all taxes, Assessments, use and occupancy taxes, hotel
occupancy tax, sales taxes, charges, excises, license and permit fees, and other charges by any
Governmental Authority, which are or may be assessed, charged, levied, or imposed by any
Governmental Authority on Developer, or any property or any business owned by the Developer
within the City's municipal boundaries.
"Maximum Incentive Amount"means the maximum not-to-exceed amount of$18,850,000
to be reimbursed to the Developer by the City from City Tax Increment for full Development of
the Property(less the amount of any Chapter 380 Incentive Grants paid to the Developer and any
amount reimbursed to the Developer from Tarrant County Tax Increment). Notwithstanding the
Maximum Incentive Amount described above, the City shall not be obligated to make any further
reimbursement to the Developer after the Developer has received eighteen (18) annual
reimbursement payments from the TIRZ as more specifically set forth in Section 5.01 of this
Agreement. PID Assessments or the proceeds of PID Bonds shall not be included in the Maximum
Incentive Amount.
"PID" or "PIDs" means, unless the context clearly indicates otherwise, no more than two
(2) public improvement districts created pursuant to the PID Act after petition to the City by the
Developer. The boundaries of one PID may incorporate the commercial portion of the
Development, and the boundaries of the second PID may incorporate the residential portion of the
Development.
"PID Act"means Chapter 372 of the Texas Local Government Code.
"PID Assessment Ordinance" means one or more of the City's ordinances levying
Assessments on the benefitted properties within a PID.
"PID Bonds" means one or more series special assessment revenue bonds, that may be
considered by the City upon request by the Developer, in the City's sole and absolute discretion,
pursuant to the PID Act for the funding of the Public Improvement Project Costs,as defined below.
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"Plans and Specifications" means the plans and specifications for Public Improvements
approved by the City in writing, together with any changes thereto approved or required by the
City, as determined by the City Engineer.
"Public Improvement Project Costs" means the cost of the Public Improvements to be
constructed to benefit all or a portion of the TIRZ, the PID(s), and the Property within, adjacent
to,or serving the Development as set forth in Exhibit D,the SAP,or the TIRZ Project and Finance
Plan(inclusive of hard and soft costs and interest carried by Developer and financing costs), such
costs to be related to eligible projects as authorized in the PID Act or the TIRZ Act, as applicable.
Exhibit D is an estimate only and shall not serve to limit the nature or amount of Public
Improvement Project Costs that may be eligible for funding or reimbursement under this
Agreement.
"Public Improvements" means public improvements to be developed and constructed or
caused to be developed or constructed inside and adjacent to the Development by the Developer
to benefit the Property, which includes, but is not limited to, internal and external public streets,
alleys, courts, roundabout(s), sanitary sewer mains and appurtenances, storm drainage facilities,
sidewalks, water mains and appurtenances, trails, water features, parks, and recreation facilities,
and other public facilities and amenities associated with full development of the Property as
determined by the Plans and Specifications and the Approved Plans.
"Separated Contract"means a written contract between the Developer and its Contractor(s)
as defined by 34 Texas Administrative Code, Section 3.291, for construction of the Project.
"Service and Assessment Plan" or "SAP" means the service and assessment plans drafted
by the City or its consultants pursuant to the PID Act for the PIDs and any amendments or updates
thereto,that are finally adopted and approved by the City that: (i) defines the annual indebtedness,
if any, and projected costs for Public Improvements to be paid by the PID; (ii) includes a copy of
the notice form required by Section 5.014, Property Code; and (iii) identifies and allocates the
Assessments on benefitted parcels within the PID and sets forth the method of Assessment, the
parcels assessed,the amount of the Assessments,the eligible Public Improvements and the method
of collection of the Assessment.
"Site Plan"means the final site plan for the Development approved by the City Council in
accordance with the Zoning.
"Tarrant County Tax Increment" means, for any given year identified in an agreement
between the City and Tarrant County, if such an agreement should be executed by both the City
and Tarrant County, the portion identified in such agreement, of the Tarrant County ad valorem
property taxes levied and collected by Tarrant County for that year on the captured appraised value
of real property taxable by Tarrant County and located within the Property in the TIRZ to be
contributed to the TIRZ Fund.
"Tax Year" shall have the meaning assigned to such term in Section 1.04 of the Texas Tax
Code (i.e., the calendar year).
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City of Southlake/Trademark Retail Holdings,LLC Master Development Agreement
"TIRZ Fund"means the tax increment fund set up by the City in order to receive the TIRZ
Revenues from the Zone in accordance with the TIRZ Act,and the TIRZ Project and Finance Plan.
"TIRZ Project and Finance Plan" means the final project plan and finance plan for the
TIRZ approved by City ordinance as required by the TIRZ Act, as amended.
"TIRZ Reimbursement Agreement" means the agreement between the City and the
Developer in which the Developer agrees to fund certain costs of Public Improvements, and the
City agrees to reimburse the Developer for such costs from TIRZ Revenues attributable to the
Property and the Development and to further incentivize the Project in compliance with the TIRZ
Project and Finance Plan.
"TIRZ Revenues" means the City Tax Increment, the General Fund Sales Tax Revenues
to the extent they will be included in the Chapter 380 Incentive Grants, and the Tarrant County
Tax Increment, as applicable, deposited to the Trademark TIRZ Account (defined below).
ARTICLE II
TERM
2.01. Term. The term of this Agreement shall commence on the Effective Date and shall
continue until the Parties have fully satisfied all terms and conditions of this Agreement, unless
terminated upon the sooner of. (i)the expiration of the TIRZ,which is twenty-one(21)years after
the date when the TIRZ becomes effective; or (ii) when total incentives reimbursed to the
Developer by the City under this Agreement have reached the not-to-exceed Maximum Incentive
Amount of $18,850,000, excluding any PID Assessments or proceeds of PID Bonds actually
received by the Developer. Nothing in this Agreement shall be construed as requiring the City to
pay any remaining portion of the Maximum Incentive Amount if this Agreement terminates first
under(i) above. The termination of this Agreement shall not serve to dissolve the PID, terminate
any Assessment Funding Agreement, or relieve the City of any payments obligation insofar as
they pertain to the payment of PID Assessments to the Developer under an Assessment Funding
Agreement.
ARTICLE III
DEVELOPMENT
3.01. General Scope of Agreement. This Agreement establishes, among other things,
provisions for (i) the construction of the Public Improvements; (ii) the funding, acquisition,
ownership and maintenance of the Public Improvements; (iii) funding of the costs of the Public
Improvements from (a) the levy and collection of Assessments within the PIDs for the financing
of the Public Improvements benefitting the properties within the PIDs and (b) funding of Public
Improvement costs from the collection of TIRZ Revenues; (iii) Chapter 380 Incentive Grants;
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and(iv)Developer's duties and obligations to finance and construct the Public Improvements and
the private improvements for full development of the Property.
3.02. Development Overview and Performance Obligations.
(a) The Developer will undertake or cause the undertaking of the design, development,
construction, maintenance, and management of the Development, in accordance with this
Agreement, City Regulations, the Approved Plans, Zoning, and Applicable Law.
(b) Subject to the terms and conditions set forth in this Agreement,the Developer shall
plan,design, construct, and complete the Public Improvements in accordance with the City's Plans
and Specifications and subject to the City's approval as provided herein and in accordance with
City Regulations, Approved Plans, Zoning, and Applicable Law.
(c) Upon completion and written acceptance by the City, the City shall own or have a
perpetual public easement over and the obligation to maintain all of the Public Improvements,
except as otherwise provided in this Agreement.
(d) Minimum Taxable Value. Development of the Property must result in a"Minimum
Taxable Value" of at least $80,000,000 for the 2031 Tax Year, and for every Tax Year thereafter
during the Term of this Agreement, and for a period of at least twenty-one (21) years after the
Developer achieves Completion of Construction of the Public Improvements and private
improvements in the TIRZ boundaries, or as the Minimum Taxable Value is finally established in
the TIRZ Project and Finance Plan. In the event the taxable value falls below the minimum amount
stated in the preceding sentence for any Tax Year during the term of this Agreement, then the
Developer shall have an opportunity to present to the City an independent third-party appraisal
evidencing that the Property has reached the Minimum Taxable Value. However, in the event the
Developer fails to produce such an appraisal, the Developer shall be subject to the default, notice,
cure, and recapture provisions of this Agreement, and/or the City may amend the TIRZ Project
and Finance Plan and any TIRZ Reimbursement Agreement, so any TIRZ reimbursement to the
Developer shall be incrementally reduced or withheld in its entirety, as determined by the City in
its sole discretion.
(e) Capital Investment. The minimum Capital Investment for the Project shall be no
less than One Hundred Twenty-Seven Million Nine Hundred Thousand and No/100 Dollars
($127,900,000) as of the date the full Development has achieved final buildout of horizontal and
vertical private and Public Improvements. The Developer shall, on or after the time the City
determines the full Development has achieved final buildout of horizontal and vertical private and
Public Improvements, deliver to the City Manager, or her designee, copies of invoices, bills,
receipts and such other information as may be reasonably requested by the City to document
compliance with the required Capital Investment for the Development.
(f) Required FTEs. The Developer intends to create at least 265 FTEs but in no event
will create fewer than 200 FTEs by June 30, 2028, and retain said level of FTE's from and after
such date until the expiration of the Term of this Agreement, provided, however, that the
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Developer's failure to meet its obligations under this sentence shall not be subject to the default,
cure, or recapture provisions of this Agreement.
(g) Payment in lieu of FTEs. The Parties acknowledge that the City's adopted
Comprehensive Plan anticipates that developers will help retain and enhance the City's economic
base, and that the required FTE levels are necessary in achieving such goals. Company will
annually certify as of December 31st of each year commencing on June 30, 2028 (by providing
exact total FTE numbers) and with each Payment Certificate (defined below) that any applicable
FTE levels have been met. The Developer will meet its obligations in this Agreement as long as
the required FTE levels were reached at any time during the calendar year prior to the annual
certification date. If the FTE levels are not met in any given year or are insufficient as of the time
of a Payment Certificate, the next payment or reimbursement due to the Developer from the City
will be offset and reduced in an amount equal to $1,000 for each FTE not created or maintained in
accordance with this Agreement. Any intentionally fraudulent or material misrepresentation of
certified FTE numbers submitted to the City, or discovered upon audit or investigation by the City or
State Comptroller, shall be an event of default subject to termination and repayment pursuant to this
Agreement.
(h) Annual Certification. In addition to the foregoing Subparagraph(g),on or before June
30th of each year following the Commencement of Construction, the Developer shall provide to the
City written certification that the Developer is in compliance with each applicable term of this
Agreement. Such certification may be submitted concurrently with a Payment Certification, as
applicable,and shall be in a form reasonably satisfactory to the City,and shall include,at a minimum,
information supporting the Developer's conclusions that it met (or expects to meet) each condition
and requirement set forth in this Agreement. Any failure of the City to request or demand such
certification shall not constitute a waiver of such certification or any future certification; provided,
however, that if the City fails to request or demand such certification and the Developer fails to
provide such certification, the City shall give the Developer written notice of such failure and the
Developer shall provide such certification within thirty (30) days of the Developer's receipt of such
notice.
ARTICLE IV
PUBLIC IMPROVEMENT DISTRICT
4.01. PID Creation.
(a) The Developer intends to submit petition(s) to the City requesting the creation of
no more than two (2) PIDs to initially fund certain Public Improvements, and the City intends to
consider the creation of the PIDs in accordance with Applicable Law; however, the Parties agree
that the PIDs shall not be created, or modified in any way, for purposes related to the ongoing
maintenance and operations of the Public Improvements within the PID.
(b) The Developer's request to create the PID must be made in full compliance with
the PID Act and shall include a detailed list of all Public Improvements and the estimated or actual
costs of such Public Improvements, as consistent with this Agreement. Among other things, such
petition(s) shall also include the Developer's plan for the levying Assessments, the method of
financing for the Public Improvements, and the costs to the City for administration of the PID.
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After receipt of such petition(s),the City shall hold a public hearing to consider the creation of the
PIDs in accordance with the PID Act. The Developer shall enter into a professional services
agreement that obligates the Developer to pre-fund all costs of the City's external professionals
relating to the establishment of the PID.
4.02. Lew of Assessment for Public Improvement Project Costs. Assessments may be
levied on property located within the PIDs in accordance with this Agreement and the PID Act,
the SAP, and the PID Assessment Ordinance for the limited purposes of securing bonds for the
funding of Public Improvements and/or reimbursing the Developer annually from Assessments
for the construction costs of the Public Improvements pursuant to an Assessment Funding
Agreement (inclusive of hard and soft costs and interest carried by Developer).
4.03. Transfer of Property. Notwithstanding anything to the contrary contained herein,
no sale of property within the PID on which Assessments are to be levied pursuant to an
Assessment Funding Agreement, shall occur prior to the City's levy of Assessments unless the
Developer provides the City with an executed consent to the creation of the PID and the levy of
Assessments, in a form acceptable to the City. Prior to the creation of the PID, Developer shall
provide all necessary documentation to the City with respect to any land transfers.
4.04. The Developer may seek the issuance of PID bonds, in one or more series, to fund
or reimburse Public Improvement Project Costs in accordance with the PID Act and as necessary
to make progress payments to Developer, unless Developer requests reimbursement of Public
Improvement Project Costs from annual PID proceeds. If requested,the issuance of PID bonds is
a discretionary governmental action subject to the City Council's approval. The issuance of PID
bonds is also subject to market conditions at the time of issuance and shall be issued with the
terms deemed appropriate by the City at the time of issuance, if at all. The issuance of PID bonds
is an action that may be taken by a future City Council, in its sole discretion, and such future City
Council shall not be bound by the terms of this Agreement with respect to the issuance of PID
bonds. If PID bonds are issued for the residential portion of the Development, the assessments
shall average no more than$5,925 per single-family lot on an annual basis, averaged over the life
of the levy, on the anticipated improvement values on the single-family lots, determined at the
time of assessment levy, over a thirty (30) year period for the funding of PID area Public
Improvement costs listed as Exhibit D, as authorized by the PID Act and in conformance with
the petition for the creation of the PID.
ARTICLE V
TIRZ
5.01. Tax Increment Reinvestment Zone ("TIRZ").
(a) The City intends to consider an ordinance consistent with the terms of this
Agreement and in compliance with the TIRZ Act to create a TIRZ on the commercial portion of
the Property,to become effective after all legal requirements for creation of the TIRZ are satisfied
as required by the TIRZ Act. The City anticipates creation of the TIRZ no later than December
31, 2026, ensuring a 2026 base year (the "Base Year") and allowing for the TIRZ schedule set
forth in (c) below. In accordance with the TIRZ Project and Finance Plan to be adopted for the
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City of Southlake/Trademark Retail Holdings,LLC Master Development Agreement
Zone, the Parties will enter into a TIRZ Reimbursement Agreement pursuant to the TIRZ Act for
the purposes of reimbursing developer for the costs of the Public Infrastructure and providing
additional Chapter 380 Incentive Grants to draw businesses, boost development, grow property
values and long-term property tax collections, and lessen the cost of private development and
project costs in the TIRZ. The TIRZ shall terminate upon the expiration of twenty-one (21)years
after the date when the TIRZ becomes effective;however,the annual reimbursement payments for
the City Tax Increment shall not (1) exceed eighteen (18) consecutive years as set forth in
subsection (c) below; (2) shall not continue after the expiration of the term of the TIRZ; and (3)
shall not exceed the Maximum Incentive Amount of$18,850,000 (including all TIRZ Revenues
paid to the Developer, any Chapter 380 Incentive Grants paid to the Developer, and any amount
reimbursed to the Developer from Tarrant County Tax Increment). The TIRZ board of directors
shall be given all of the powers of the City under Texas Local Gov't Code Ch. 380, to authorize
economic development grant incentives subject to City Council approval.
(b) The Parties will endeavor to adopt a TIRZ Project and Finance Plan that allocates
95% of City Tax Increment for whichever comes first: i) a period of twenty one (21) years from
when the TIRZ is created, ii) until the TIRZ has reimbursed the Developer the not-to-exceed
Maximum Incentive Amount of$18,850,000(less the amount of any Chapter 380 Incentive Grants
paid to the Developer and any amount reimbursed to the Developer from Tarrant County Tax
Increment), or iii)until the Developer has received eighteen(18) annual reimbursement payments
from the TIRZ.
(c) In order to account for a maximum of eighteen (18) consecutive reimbursement
payments under the TIRZ, the TIRZ Project and Finance Plan shall provide for the following:
(i) A Base Year of 2026, with the calculation of City Tax Increment and
County Tax Increment and the collection of all TIRZ Revenues to begin in the succeeding
year;
(ii) The first distribution of TIRZ Revenues from the TIRZ Fund to the
Developer, to include all funds accrued since the Base Year, to be made during calendar
year 2030;
(iii) The final distribution of TIRZ Revenues from the TIRZ Fund to the
Developer to be made, at the latest and subject to the Maximum Incentive Amount, during
calendar year 2047, with the exception of TIRZ Revenues collected via sales tax generated
from construction items and materials under Section 6.01(1)of this Agreement,which shall
continue only as set forth in said section.
(d) Upon approval of the TIRZ,the City shall create an account(the"Trademark TIRZ
Account")within the TIRZ Fund in order to identify and allocate the TIRZ Revenue, including the
City Tax Increment and Tarrant County Tax Increment, if any, attributable to the Development
within the TIRZ as well as the General Fund Sales Tax Revenues. The TIRZ Revenue in the
Trademark TIRZ Account will be dedicated and used solely for the purpose of paying Public
Improvement Project Costs listed on Exhibit D associated with the Development and included in
the TIRZ Project and Finance Plan, as well as for the Chapter 380 Incentive Grants to draw
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City of Southlake/Trademark Retail Holdings,LLC Master Development Agreement
businesses, boost development, grow property values and long-term property tax collections, and
lessen the cost of private development and Project Costs in the TIRZ.
(e) Notwithstanding any other provision in this Agreement,the City shall not make any
annual TIRZ reimbursement payments to the Developer until the Developer meets the
Commencement of Construction and Completion of Construction deadlines in this Agreement.
5.02. Flow of Tax Increment.
(a) The Parties intend that the TIRZ Revenues collected within the TIRZ and deposited
in the Trademark TIRZ Account shall be expended in the following order:
(i) First, to pay the City's administrative costs relating to the TIRZ, including
any reasonable third-party administrative costs; and
(ii) Second, to fund the Project Costs listed in the Project and Finance Plan,
through a TIRZ Reimbursement Agreement, including the Public Improvement Costs,
including but not limited to the cost for upsizing the proposed 12" waterline along W.
Kirkwood Blvd., and SH114 Frontage Road; and to fund other costs including but not
limited to, funding any lawful purpose in the TIRZ, including payment of Chapter 380
Incentive Grants from the TIRZ Revenues.
5.03. In the event the City determines City Tax Increment should be used to fund the cost
of repair or replacement of the Public Improvements,the City may amend the Project and Finance
Plan and adjust the flow of tax increment outlined above at the City's sole discretion. The City
shall endeavor to use its reasonable efforts to secure the participation of Tarrant County, Texas,
in the TIRZ with participation levels and for a duration equal to the City. Failure to secure such
participation by Tarrant County shall not constitute a breach of this Agreement. Any amount
reimbursed to the Developer from Chapter 380 Grant Incentives and Tarrant County Tax
Increment, which are included as TIRZ Revenues, shall proportionately reduce the City's TIRZ
reimbursement obligations under this Agreement and will be applied to the not-to-exceed
Maximum Incentive Amount of$18,850,000.
ARTICLE VI
CHAPTER 380 PROGRAM INCENTIVES
6.01. Sales Tax Revenues — Sourcing. In exchange for Developer's Capital Investment,
the Development, and Developer's completion and compliance with the conditions and
requirements of this Agreement, the City shall make the following "Chapter 380 Incentive
Grants" to the Developer as part of the TIRZ Revenues to be deposited in the TIRZ Fund and
used as set forth in Section 5.02 of this Agreement:
(1) To the extent Developer purchases major construction items directly related to the
Development so that the General Fund Sales Tax Revenue will be sourced to the Property
and collected by the City as permitted by State law, then the City shall reimburse to the
Developer an amount equal to fifty percent(50%)of the General Fund Sales Tax Revenues
attributable to materials that are consumed on the Property or physically incorporated into
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the Property as part of the Development under Separated Contract(s) via deposit into the
TIRZ Fund and distribution to the Developer as set forth in the TIRZ Project and Finance
Plan. The Developer shall be eligible to receive the Chapter 380 Incentive Grant in this
Section 6.01(1) for a two (2) year period from the date a Certificate of Occupancy is first
issued by the City.
(2) After the first Certificate of Occupancy is issued for the commercial portion of the
Development and the first tenant occupies and operates space in the commercial portion of
the Development, the Developer shall be eligible for a grant reimbursement in an amount
equal to ninety-five (95%) of the General Fund Sales Tax Revenue generated from the
commercial development on the Property, collected by the City as permitted by State law,
and deposited into the TIRZ Fund and distributed to the Developer as set forth in the TIRZ
Project and Finance Plan.. The Developer shall be eligible to receive the Chapter 380
Incentive Grant in this Section 6.01(2) for an eighteen (18) year period as set forth in
Section 5.01(c) of this Agreement and payment shall be made concurrently with the
eighteen(18) annual reimbursement payments from the TIRZ.
(3) Any amount reimbursed to the Developer from Chapter 380 Grant Incentives and
Tarrant County Tax Increment,which are TIRZ Revenues, shall proportionately reduce the
City's TIRZ reimbursement obligations under this Agreement and will be applied to the
not-to-exceed Maximum Incentive Amount of$18,850,000.
6.02. To receive payments for the Chapter 380 Incentive Grants above, the Developer
must submit proof of sales and use taxes paid on construction materials and sourced to the
Property,or proof of sales and use tax remitted to the State of Texas and related to the commercial
portion of the Development, to the City within the time periods provided in this Article 6.
6.03. To receive payment, the Developer shall also submit a written request to the City
detailing the following information:
i. A copy of all sales and use tax returns and supporting work papers, including but not
limited to, amended reports filed by the Developer or its Contractors, showing sales
and use tax remitted to the State of Texas attributable to materials that are physically
incorporated into the Property as part of the Development under Separated Contract(s),
or sales and use tax remitted to the State of Texas related to the commercial portion of
the Development; and
ii. Any and all information concerning any sales and use tax revenue adjustments resulting
from refunds filed or received by the Developer, or its Contractors, or tenants of sales
or use tax remitted to the State of Texas, if any,which had previously been reported as
subject to this Agreement; and
iii. Any and all information concerning any sales and use tax revenue adjustments made
pursuant to sales and use tax audits by the Texas State Comptroller's Office of the
Developer, or its Contractors, or tenants involving amounts reported as subject to this
Agreement.
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6.04. Within thirty (30) days after receipt of(i) the written payment request required by
Section 6.03; and (ii) receipt of the General Fund Sales Tax Revenue related to the Chapter 380
Incentive Grant under Section 6.01(l), the City shall make a payment to the Developer from
currently available funds. As it relates to the Chapter 380 Incentive Grants under Section 6.01(2)
the Developer shall submit a written payment request no later than thirty (30) days prior to the
annual TIRZ reimbursement, and upon receipt of the General Fund Sales Tax Revenue related to
Section 6.01(2), the City shall make a payment to the Developer from currently available funds
concurrently with the annual reimbursement payments from the TIRZ. Notwithstanding any other
provision in this Agreement,if the City receives an audit adjustment from the State of Texas related
to a business within the Development, the City may either allocate and apply any overpayment of
Chapter 380 Incentive Grants to future reimbursement requests, or send written demand to the
Developer requiring payment of the same,which shall be made by the Developer within thirty(30)
days of written demand by the City.
6.05. This Agreement shall be interpreted in harmony with 34 Texas Administrative
Code, Section 3.291, and the Chapter 380 Incentive Grants offered in this Agreement are
contingent upon any change in Texas law, or any change in rules or regulations by governmental
authorities resulting in the Property, or the Development, no longer being defined as the location
of the job site, the location where the order for materials is placed, or the location where sales are
made.
ARTICLE VII
DEVELOPMENT STANDARDS
7.01. Full Compliance with City Regulations. The development and use of the Property
by the Developer and its Affiliates, including, without limitation, the construction, installation,
maintenance,repair, and replacement of all buildings and all other improvements and facilities of
any kind whatsoever on and within the Property, shall be in compliance with all City Regulations.
7.02. Regulations Regarding Building Products, Materials, or Methods. The Parties find
that the Property constitutes an area of architectural importance and significance solely for the
purpose of allowing the City to regulate certain building products, materials, and methods, and
the City Council hereby designates it as an area of architectural importance and significance for
purposes of Chapter 3000 of the Texas Gov't Code (the "Code"), solely for allowing the City to
regulate certain building materials, products, and methods as set forth in §3000.002(d) of the
Code. In consideration for the mutual covenants and conditions contained herein and pursuant to
§3000.002(d) of the Code, Developer voluntarily agrees to the application of City Regulations
concerning building products,materials, or methods existing as of the Effective Date that govern
the use or installation of a building product or material in the construction, renovation,
maintenance, or other alteration of a residential or commercial building on the Property,
regardless of whether a different building product or material is approved for use by a national
model code published within the last three code cycles that applies to the construction,renovation,
maintenance, or other alteration of a building. In addition, Developer voluntarily consents to the
application of the City Regulations that establish a standard for a building product, material, or
aesthetic method in construction, renovation, maintenance, or other alteration of a residential or
commercial building, regardless of whether the standard is more stringent than a standard for the
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City of Southlake/Trademark Retail Holdings,LLC Master Development Agreement
product,material, or aesthetic method under a national model code published within the last three
code cycles that applies to the construction, renovation, maintenance, or other alteration of a
building. The parties agree that: (a) the City will not issue any permits for the Development in
violation of this section; (b)the covenants contained within this section constitute a material term
of this Agreement; (c) Developer's voluntary consent to the application of the City Regulations
to the Property, as described in this section, constitutes a material inducement for the City to
authorize the payment of the Chapter 380 Incentive Grants to Developer described herein; (d)the
covenants contained herein shall run with the land and shall bind Developer and all successors
and assigns; and(e) this section shall survive termination or expiration of this Agreement.
7.03. The Development must be constructed using materials in compliance with the
Approved Plans, City Ordinance No. 480-837, and building code regulations found in Section 4.5
of the Southlake City Code, as set out within the plans for construction and Plans and
Specifications to be approved by the City, and adhering to development standards as approved in
City Ordinance No. 480-837, and the Development shall be designed to incorporate natural
features such as topography of the Property.
7.04. Use of City Property. The City agrees to allow the Developer the use of any City
easements, rights of way or City owned property as is reasonably necessary for the construction
and installation of the Public Improvements.
7.05. Zoningof Property. The Developer has applied for and obtained Zoning for the
Property in accordance with Zoning Case No.ZA25-0045,as finally approved by the City Council
of the City by Ordinance 480-837, and the Parties agree that such Zoning is consistent with this
Agreement and is included within the City Regulations, which are vesting documents in
accordance with Chapter 245 of the Texas Local Government Code.
ARTICLE VIII
DEVELOPMENT FEES AND CHARGES
8.01. Plat Review Fees. Development of the Property shall be subject to payment to the
City of the fees and charges, if any, applicable to the City's preliminary and final plat review and
approval process according to the fee schedule adopted by the City Council and in effect at the
time of platting.
8.02. Plan Review and Permit Fees. Development of the Property shall be subject to
payment to the City of the fees and charges, if any, applicable to the City's review of plans and
specifications and issuance of permits (including building permits) for construction of the Public
Improvements and any other improvements requiring City review, according to the fee schedule
adopted by the City Council at the time of plan review and permit issuance.
8.03. Inspection Fees. Development of the Property shall be subject to the payment to
the City of inspection fees, if any, according to the fee schedule adopted by the City Council at
the time of inspection.
8.04. Selection of Building Inspection Firm. In the event the City is unable to routinely
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complete building inspection within thirty (30) days of a request by a general contractor for a
building,the City and the Developer shall implement a program of third-party inspections. Such
building inspections for development within the Property may be conducted by a third-party(the
"Building Inspection Firm") at the sole cost of the Developer. The Developer shall present to the
City three(3)candidate firms for consideration. Such candidate firms shall be in compliance with
all Applicable Law and shall not have previously been involved in litigation against the City. In
addition,none of such firms shall have previously conducted work for the City for which the City
was unsatisfied. The City shall select the Building Inspection Firm from these candidates and
shall notify the Developer of its selection within thirty (30) days of receiving the candidate list if
the City does not interview any of the firms. If the City elects to interview any of the firms, the
City shall have sixty (60) days to select a Building Inspection Firm. No building inspection fees
shall be charged by the City for an inspection performed by a Building Inspection Firm.
8.05. Park Fees. Development of the Property shall be subject to the payment to the City
of all park fees, if any, according to the fee schedule adopted by the City Council. 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 and
$6,500 per lot for residential construction. The total area of the commercial and infrastructure
portion of the Development is 25.935-acre. Therefore, the park fee owed for the commercial and
infrastructure portion of the 40.209-acre Development is $225,631.26. There are a total of 37 lots
within the residential portion of this Development. Therefore, the park fee owed for the
residential portion of the 40.209 acre development is $240,500.00.
8.06. Impact Fees. Development of the Property shall be subject to the payment to the
City of Impact Fees, if any, according to the fee schedule adopted by the City Council at the time
of inspection.
8.07. Rough_ Proportionality. The Parties agree that subject to the creation of the TIRZ
and remittance of TIRZ revenues by the City, all conveyances, dedications, construction costs
and other payments, if any,made by the Developer related to the Project are roughly proportional
to the need for such improvements created by the development of the Property and Developer
hereby waives any claim therefore that it may have. The Developer further acknowledges and
agrees that subject to the creation of the TIRZ and remittance of TIRZ revenues by the City, all
prerequisites to such a determination of rough proportionality have been met, and that any costs
incurred relative to the conveyance,dedication,construction costs and other payments, if any, for
the Development and any Public Improvements are related both in nature and extent to the impact
of the Project. The Developer waives and releases all claims against the City related to any and
all rough proportionality and individual determination requirements mandated by Section
212.904, Texas Local Government Code, or the Texas or U.S. constitutions, as well as other
requirements of a nexus between development conditions and the projected impact of the
Development, or the Property.
ARTICLE IX
DEVELOPMENT SPECIFIC REQUIREMENTS
9.01. Utility Capacity. The Developer will construct the necessary and required utility
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infrastructure to serve the Property as set forth in Exhibits E, F, G, and H to this Agreement in
accordance with the Approved Plans for the Development. Thereafter,the City will provide water
and wastewater capacity sufficient to meet the ultimate demands of the Development. The City
agrees to provide written confirmation of the availability of such capacity reserved in the City
system from time to time as requested by the Developer. Water and wastewater services will be
provided to the Developer at the City's published billable rates.
9.02. Kirkwood Boulevard: The Developer will fully construct Kirkwood Boulevard on
the Property as shown in Exhibit E to its full capacity in accordance with the Plans and
Specifications, including sidewalks, hardscapes, landscaping, and the intersection signal at N.
White Chapel Boulevard as identified in City's Mobility Master Plan and as presented to the City
in the Approved Plans. The Kirkwood Boulevard improvements must be fully constructed by the
Developer and accepted in writing by the City prior to the issuance of a Certificate of Occupancy
for any building within the Development; however, should any portion of the improvements
related to Kirkwood Boulevard remain unfinished by the deadline for Completion of Construction
due to the timing of any easements or rights of way necessary for the completion of the Kirkwood
Boulevard improvements, the provisions regarding termination in Section 14.02 of this
Agreement and default in Section 15.01 of this Agreement shall not apply.
9.03. Propertcquisition. The Developer shall be responsible for the acquisition of any
rights-of-way, easements, property rights, or interests in land to allow construction of the Public
Improvements for the Development. If necessary for construction of any of the Public
Improvements, Developer shall provide any rights-of-way, property rights, or interests in land
within the parcels owned by the Developer necessary to develop the Public Improvements at no
cost to the City. It is not anticipated that any offsite easements or rights of way are required for
the development of the Property. However, in the event offsite easements or rights of way are
required for the Development, the Developer agrees to use commercially reasonable efforts to
obtain all third-party rights of way, consents, or easements required for the Public Improvements,
at its sole cost and expense. If,however, the Developer is unable to obtain such third-party rights
of way, consents, or easements within ninety (90) days of the Effective Date, the City agrees to
take reasonable steps to secure same (subject to City Council authorization after a finding of
public necessity)through the use of the City's power of eminent domain. The Developer shall be
responsible for funding all reasonable and necessary costs, expenses, legal proceeding/litigation
costs, attorney's fees and related expenses, and appraiser and expert witness fees (collectively,
"Eminent Domain Fees") paid or incurred by the City in the exercise of its eminent domain
powers and shall, if requested in writing by the City, escrow with a mutually agreed upon escrow
agent the City's reasonably estimated Eminent Domain Fees both in advance of the initiations of
each eminent domain proceeding and as funds are needed by the City. Provided that the escrow
fund remains appropriately funded in accordance with this Agreement, the City will use all
reasonable efforts to expedite such condemnation procedures so that the Public Improvements
can be constructed as soon as reasonably practicable. If the City's Eminent Domain Fees exceed
the amount of funds escrowed in accordance with this paragraph, the Developer shall deposit
additional funds as requested by the City into the escrow account within ten(10)days after written
Notice from the City. Any unused escrow funds will be refunded to the Developer within thirty
(30)days after any condemnation award or settlement becomes final and non-appealable.Nothing
in this subsection is intended to constitute a delegation of the police powers or governmental
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authority of the City, and the City reserves the right, at all times, to control its proceedings in
eminent domain.
9.04. Parks,Recreation, and Open Space. The public open space,trails, and other public
recreational spaces and amenities approved in the Zoning and required in the Approved Plans
shall be dedicated or conveyed to the City, and shall be improved, programmed and maintained
by the Developer, or its Affiliates, successors or assigns, at their sole cost and expense. A
perpetual public access,use, and recreation easement will be dedicated to the City and the general
public to use and enjoy the open spaces that are identified as Developer owned and shall be
publicly accessible. The maintenance of any landscaping within adjacent rights-of-way and the
round-a-bout shall be maintained by the Developer at no cost to the City. Kirkwood Boulevard
medians and the areas adjacent to SH 114 frontage shall be maintained by the Developer, or its
Affiliates, successors, or assigns to the same standard required by the City for surrounding
commercial properties.
9.05. Property Association Documents. The Developer intends to create a property
owners association or associations for the Development. The Parties intend that prior to the City's
issuance of a Certificate of Occupancy for the Property, the Developer will provide the City with
a copy of the property owners association's master declaration of covenants, conditions, and
restrictions.
9.06. Development Plan. The development of the Property by the Developer shall be
made in accordance with the Approved Plans, which includes, but is not limited to the final
Development Plan approved by the City Council in accordance with the Zoning.
9.07. Commencement of Construction Date. Commencement of Construction of the
Development shall occur prior to six (6) months after the latter of the Effective Date of this
Agreement, or January 1", 2027.
9.08. Completion of Construction Dates.
(a) Completion of Construction of all Public Improvements, and any private
infrastructure and improvements, for full construction of the commercial portion of the
Development that will be located within the TIRZ boundaries shall occur no later than December
31 st, 2028.
(b) Completion of Construction of all Public Improvements,and any horizontal private
infrastructure and improvements (e.g., franchise utilities), for full construction of the single-
family residential portion of the Development shall occur no later than June 30th, 2029.
9.09. Extension of Commencement of Construction Date. If the Developer determines
that any Commencement of Construction date or Completion of Construction date in this
Agreement shall not be timely met, the Developer must provide written notice to the City
Manager, or her designee, stating the reasons for the delay and request a new Commencement of
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Construction date or Completion of Construction date, which shall be subject to City Council
approval.
9.10. Streets. The Developer will be responsible for the following:
(a) Installation and two-year operational cost of streetlights, which is payable to the
City prior to final acceptance of the Development; or an executed agreement with a utility provider
stating that no charge will be made for streetlights for the two-year duration. The executed
agreement must be presented to the City prior to final acceptance of the streets;
(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 Development, 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; and
(d) All street construction will be subject to inspection and acceptance by the City. No
work will begin on any street in said Development prior to 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.
(e) 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.
9.11 On-Site Water Facilities. The Developer hereby agrees to install the water facilities
shown on Exhibit F to serve all lots shown on the final plat of the Development 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 Applicable Law. In
the event of any conflict between the alignment or size in approved Plans and Specifications or as-
built infrastructure accepted by the City and Exhibit F,the approved Plans and Specifications and
accepted infrastructure shall rule without the need to amend this Agreement. 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 in accordance with
the TIRZ Project and Finance Plan or the SAP, as applicable.
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9.12 On-Site Sanitary Sewer Facilities. The Developer hereby agrees to install sanitary
sewage collection facilities shown on Exhibit G to service lots as shown on the final plat of the
Development. 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 for
construction. Further, the Developer agrees to complete this installation in accordance with
Ordinance No. 440, as amended, and Applicable Law. In the event of any conflict between the
alignment or size in approved Plans and Specifications or as-built infrastructure accepted by the
City and Exhibit G, the approved Plans and Specifications and accepted infrastructure shall rule
without the need to amend this Agreement. 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 in accordance
with the TIRZ Project and Finance Plan or the SAP, as applicable.
9.13 Drainage. The Developer hereby agrees to install drainage facilities to service
all lots as shown on the final plat of the Development 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, and Applicable Law. 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 applicable provisions of the Texas Water Code, and Applicable Law.
9.14 Underground Detention Facilities. The Developer agrees to provide a maintenance
agreement to the City for any underground detention facilities proposed with the 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, and
Applicable Law. The Parties acknowledge that no underground detention facilities are currently
planned within the Development.
9.15 Erosion Control. The Developer agrees to comply with Ordinance No. 946, as
amended, regarding erosion and sediment control during construction of the Development. The
Developer also agrees to comply with the Texas Commission on Environmental Quality TPDES
General Permit No. TXR150000, and all other Applicable Law.
(a) 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 the Development. 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
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City of Southlake/Trademark Retail Holdings,LLC Master Development Agreement
and place the soil within the Development at the Developer's expense. All expenses must be paid
to the City prior to acceptance of the Development. In addition to the foregoing requirements, if
the Developer's construction activities damage, harm, or otherwise adversely impact any off-site
property, the Developer shall immediately remediate the same and return the property to the
condition that existed before the Developer's construction activities caused the damage. The City
may determine in its sole discretion that off-site damage caused by the Developer is a public
nuisance, and the Developer shall not be entitled to any payment or reimbursement under this
Agreement until such time as the nuisance is abated, which shall be accomplished in no less than
ten(10) days from the date the City declares the existence of a public nuisance. In addition to the
foregoing, City shall be released, saved, held harmless, defended, and indemnified by the
Developer in the same manner provided by Section 16.06 "INDEMNIFICATION" of this
Agreement.
(b) 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.
(c) 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 semi-arid
areas and areas experiencing droughts by the 14a'day after construction activity.
(d) After final stabilization has been established on all disturbed areas of the
Development 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.
9.16 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 Development. The
Developer agrees to maintain these amenities until such responsibility is turned over to the
Association,or the Developer's successors or assigns. THE DEVELOPER,ITS SUCCESSORS
AND ASSIGNS, UNDERSTANDS THAT THE CITY SHALL NOT BE RESPONSIBLE
FOR THE REPAIR, REPLACEMENT, OR MAINTENANCE OF THESE AMENITIES
UNDER ANY CIRCUMSTANCES AND FURTHER AGREES TO INDEMNIFY,
DEFEND, AND HOLD HARMLESS THE CITY FROM ANY AND ALL DAMAGES,
LOSS OR LIABILITY OF ANY HIND WHATSOEVER BY REASON OF INJURY TO
PROPERTY OR THIRD PERSONS OCCASIONED BY THE DEVELOPER'S USE OF
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City of Southlake/Trademark Retail Holdings,LLC Master Development Agreement
THE PUBLIC RIGHT OF WAY 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.
9.17 Amenities. It is agreed by and between the City and Developer that the
Development may incorporate a number of unique amenities and aesthetic improvements in
common areas of the Development 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 Association, or the Developer's successors or assigns.
9.18 Detention. This Development will route most of the drainage now toward the
proposed detention basin located along the SH114 frontage road, as shown on Exhibit H. The
rest of the drainage flow will be routed toward the east into the existing storm systems. The
proposed onsite detention pond and all associated structures shall be owned and maintained by the
Developer or Association, as applicable.
9.19 Downstream Critical Drainage Structure Fee. The Development is partially located
within the stormwater drainage basin for Critical Drainage Structure #5 and requires a fee of
$331.38 per developed acre. 37.46 acres of the 40.209 acre development will drain toward the
Critical Drainage Structure#5. Therefore,the Developer will pay a Downstream Critical Structure
Fee of$12,413.49 for the entire Development.
9.20 Off-Site Sanitary Sewer. The offsite sanitary sewer for this Development is being
provided through the future residential phase of the Development within Lot 1, Block B (the
southernmost residential portion of the Development)as shown on Exhibit G. Prior to acceptance
by the City, the public sanitary sewer infrastructure shall be constructed in accordance with City
Regulations, tested, and accepted in writing by the City and shall either be located within a
dedicated public right-of-way or a dedicated sanitary sewer easement prior to final acceptance of
the Development's commercial and public infrastructure permits.
9.21 Traffic Signal. The Developer is required to construct the traffic signal at the
intersection of Kirkwood Boulevard and N. White Chapel Boulevard per recommendations in the
traffic impact analysis. Subject to the terms set forth in Section 9.03 of this Agreement, the
Developer shall acquire all necessary rights-of-way for the installation of the traffic signal, and
installation of the traffic signal shall be completed prior to the issuance of any Certificates of
Occupancy within the Development.
9.22 Construction Phasing. The Development, in its entirety, shall comply with the
phasing plan that was approved with the Zoning, and in accordance with the Approved Plans. No
Certificates of Occupancy for any commercial building will be issued prior to all Public
Improvements necessary for said commercial building being completed by the Developer,
inspected, and accepted in writing by the City, including the traffic signal for the intersection of
N. White Chapel Blvd. and Kirkwood Blvd. This requirement does not include the Public
Infrastructure required for the residential only phase of the Development, except for the portion of
Kirkwood Blvd. that goes through the residential portion of the Development.
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City of Southlake/Trademark Retail Holdings,LLC Master Development Agreement
ARTICLE X
CONSTRUCTION OF PUBLIC IMPROVEMENTS
10.01. Designation of Construction Manager, Construction Engineers.
(a) Prior to construction of any Public Improvements, Developer shall make, or cause
to be made, application for any necessary permits and approvals required by City and any
applicable Governmental Authority to be issued for the construction of the Public Improvements
and shall obligate each general contractor, architect, and consultant who work on the Public
Improvements to obtain all applicable permits, licenses or approvals as required by Applicable
Law. The Developer shall require or cause the design, inspection and supervision of the
construction of the Public Improvements to be undertaken in accordance with City Regulations.
(b) The Developer shall design and construct or cause the design and construction of
the Public Improvements as identified in Exhibit D.
(c) Developer shall comply, or shall require its contractors to comply, with all local
and state laws and regulations, including the City Regulations regarding the design and
construction of the Public Improvements applicable to similar facilities constructed by City,
including,but not limited to,the requirement for payment,performance and two-year maintenance
bonds for the Public Improvements as set forth below.
(d) After Completion of Construction of a Public Improvement or a phase of the Public
Improvements, Developer shall provide City with a final cost summary of all Public Improvement
Project Costs incurred and paid associated with the construction of that portion of the Public
Improvements and provide proof that all amounts owing to general contractors have been paid in
full evidenced by "all bills paid" affidavits and final unconditional lien releases executed by
Developer or its general contractors with regard to that portion of the Public Improvements.
(e) Developer shall provide, or cause its Contractor to provide,payment,performance,
and two-year maintenance bonds in forms reasonably satisfactory to the City for the Public
Improvements. The same requirement shall apply to Developer if Developer performs the role of
general contractor.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 may reasonably reject
any surety company regardless of such company's authorization to do business in Texas. Evidence
of payment and performance bonds shall be delivered to the City prior to any work being
performed on any Public Improvements, subject to all of the following requirements:
i. 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 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 in accordance with this Agreement. All bonds
shall be issued by a bonding company licensed to do business in the State of Texas. The
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Letter of Credit must meet the Requirements for an Irrevocable Unconditional Letter of
Credit in a form acceptable to the City.
ii. Performance and payment bonds, Letter of Credit, or cash escrow from the
Developer, or Contractor, may be accepted in lieu of Developer's obligations specified
above, at the discretion of the City.
iii. 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 the Developer shall not commence any work on the Development until such City
Attorney has approved the instrument.
iv. In addition to the foregoing, 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 Improvements upon Completion of Construction of each phase
of the Development. The 2-year maintenance bond, letter of credit, or cash escrow will
take effect on the date of final written acceptance by the City and shall secure all costs of
maintenance of such Public Improvements 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, or
additional obligee, as applicable.
(f) Unless otherwise approved in writing by the City, all Public Improvements shall be
constructed in accordance with the Plans and Specifications and dedicated to the City in
accordance with the City Regulations and Applicable Law.
(g) Within forty-five (45) days of Completion of Construction, the Developer shall
dedicate or convey by final plat or separate instrument,without cost to the City and in accordance
with Applicable Law, all property rights (which may be an easement) necessary for the
construction, operation, and maintenance of the road, water, drainage, and sewer Public
Improvements.
10.02. Construction Agreements.
(a) The Developer shall enter into contracts with general contractors and/or
subcontractors for construction of the Public Improvements to be let in the name of the Developer
(the "Construction Agreements"). The Developer's engineers shall prepare and provide, or cause
the preparation and provision of all contract specifications and necessary related documents, and
Developer shall provide all construction documents for the Public Improvements and shall
acknowledge that the City may review the same but has no obligations and liabilities thereunder.
The Developer shall include a provision in the construction documents for the Public
Improvements that the general contractor(s) will indemnify, defend, and save harmless the City
against any costs or liabilities thereunder in the same manner provided by Section 16.06
"INDEMNIFICATION" of this Agreement. The Developer or its designee shall administer the
Construction Agreements and the Public Improvement Project Costs, which are estimated on
Exhibit D, which shall be paid by the Developer or caused to be paid by the Developer.
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(b) In addition to Section 10.02(a) above the following requirements apply to
Construction Agreements for Public Improvements:
(i) Plans and specifications shall comply with all Applicable Law, Approved
Plans, and City Regulations, and shall be in general conformity to the Concept Plan. All
Plans and Specifications shall be reviewed and approved by the City prior to the issuance
of permits. The City shall have fifteen (15) business days from its receipt of the first
submittal of the Plans and Specifications that are fully compliant with all City Regulations
in the City's sole discretion, to approve or deny the Plans and Specifications or to provide
comments to the submitter. If any approved Plans and Specifications are amended or
supplemented, the City shall have fifteen (15) business days from its receipt of such
amended or supplemented Plans and Specifications that are fully compliant with all City
Regulations, to approve or deny the Plans and Specification or provide comments back to
the submitter; and
(ii) Each Construction Agreement shall provide that the general contractor is an
independent contractor, independent of and not the agent of the City; and
(iii) Building permits for commercial construction shall not be issued until all
Public Improvement water infrastructure is deemed substantially complete by the City and
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.
(iv) Building permits for residential construction shall not be issued until all
Public Improvements are 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
residential portions of the Property have been accepted by the City. This will serve as an
incentive to the Developer to see that all remaining Public Improvement items are
completed.
(v) Developer or its Contractor shall pay all applicable fees and costs prior to
scheduling a pre-construction meeting with the City, including all of the following:
a. Administrative fees equal to a cost per linear foot of all public facilities (streets,
sidewalks, water, sewer, drainage, and any other public infrastructure
improvements) included in said agreement,based on the current City fee schedule.
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b. Inspection fees equal to a cost per linear foot of all public facilities (streets,
sidewalks, water, sewer, drainage, and any other public infrastructure
improvements) included in said Addition, based on the current City fee schedule.
c. Developer shall also be responsible for the following fees and costs:
i. Cost of trench backfill density testing (95% Standard);
ii. All nuclear density tests on the roadway subgrade (95% Standard);
iii. Technicians' time for preparing concrete cylinders;
iv. Concrete cylinder tests and concrete coring samples;
V. All gradation tests required to insure proper cement and/or lime
stabilization;
vi. Soil series for cement or lime;
vii. Any charges for re-testing as a result of failed tests;
viii. Water usage after obtaining a fire hydrant meter from the City to be utilized
for construction purposes only;
ix. 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 written acceptance by the City;
X. 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; and
xi. Both the Developer its Contractor 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 for
reasonable costs. Such amount shall become a lien upon the Property in accordance
with City Regulations.
(c) Ci . 's Role. City shall have no responsibility for the cost of planning, design,
engineering construction, or furnishing/equipping the Public Improvements necessary to achieve
Completion of Construction of the Public Improvements. Developer shall not hold the City
responsible for any costs of the Public Improvements. The City shall have no liability for any
claims that may arise out of the design or construction of the Public Improvements, and the
Developer shall cause all general contractors, architects, engineers, and consultants to agree in
writing that they will not look to the City for payment of costs and claims associated with
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City of Southlake/Trademark Retail Holdings,LLC Master Development Agreement
construction of the Public Improvements,and the Developer and its Contractor are prohibited from
passing through said costs or claims to the City by assignment or otherwise.
10.03. Project Scope Verification. The Developer will from time to time, as reasonably
requested by the City Representative, verify to the City Representative that the Public
Improvements are being constructed in accordance with the Plans and Specifications approved
by the City. To the extent the City has concerns about such verification that cannot be answered
by the Developer, to the City's reasonable satisfaction, the Developer will cause the appropriate
architect,engineer or general contractor to consult with the Developer and the City regarding such
concerns.
10.04. Joint Cooperation; Access for Planning and Development. During the planning,
design, development and construction of the Public Improvements,the Parties agree to cooperate
and coordinate with each other, and to assign appropriate, qualified personnel to this
Development. The City staff will make reasonable efforts to accommodate urgent or emergency
requests during construction. In order to facilitate a timely review process, the Developer shall
use diligent efforts to cause the architect, engineer and other design professionals to attend City
meetings if requested by the City.
10.05. City Not Responsible. By performing the functions described in this Article, the
City shall not, and shall not be deemed to, assume the obligations or responsibilities of the
Developer, whose obligations under this Agreement and under Applicable Law shall not be
affected by the City's exercise of the functions described in this Article. The City shall review
Plans and Specifications for compliance with Applicable Law, but the City does not make any
representation or warranty concerning the appropriateness of any such Plans and Specifications
for any purpose. The City's approval of (or failure to disapprove) any such Plans and
Specifications, including the Approved Plans, submitted with such Plans and Specifications and
any revisions thereto, shall not render the City liable for same.
10.06. Construction Standards and Inspection. The Public Improvements will be installed
within the public right-of-way or in easements granted to the City, or to be granted to the City as
set forth herein. Such easements shall be granted at the time of final platting in the final plat or
by separate instrument after Completion of Construction of the same. The Public Improvements
shall be constructed and inspected in accordance with Applicable Law, and City Regulations, and
all other applicable development requirements, including those imposed by any other
Governmental Authority.
10.07. Utility Capacity—Water and Wastewater. Upon completion of the applicable water
and sewer Public Improvements shown in Exhibit F, Exhibit G, and Exhibit H, the City shall
provide water and sewer service to the Property. The capacity and continuity of such service shall
be the same as, and provision shall be on the same terms and conditions as, it provides to other of
its in-city customers. The City intends to commit such capacity in phases as development
proceeds and the City agrees to provide written confirmation of the availability of such capacity
reserved in the City system for the Development from time to time as requested by the Developer.
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10.08. Public Improvement Constructed on City Land or the Property. If the Public
Improvement is on land owned by the City or in a City easement, the City hereby grants to the
Developer a temporary easement to enter upon such land for purposes related to testing, design
or construction (and maintenance pending acquisition and acceptance) of the Public
Improvement. If the Public Improvement is on land owned by the Developer,the Developer shall
dedicate easements by plat or shall execute and deliver to the City such access and maintenance
easements as the City may reasonably require in recordable form, and the Developer will grant to
the City a permanent access and maintenance easement by plat or separate instrument to enter
upon such land for purposes related to inspection and maintenance of the Public Improvement.
The grant of the permanent easement shall not relieve the Developer of any obligation to grant
the City title to property and/or easements for the Public Improvement as required by this
Agreement. The provisions for inspection and acceptance of such Public Improvement otherwise
provided herein shall apply.
10.09. Additional Requirements. In connection with the design and construction of the
Public Improvements, the Developer shall undertake the following responsibilities:
(a) The Developer shall provide to the City electronic copies of the Plans and
Specifications for the Public Improvements (including revisions) as such Plans and Specifications
are currently in existence and as completed after the date hereof and shall provide the City one
complete set of record drawings (in electronic format) for the Public Improvements, in accordance
with Applicable Law;
(b) In accordance with the requirements between the Developer and the City with
regard to the development and construction of the Public Improvements, the Developer or such
person selected by and contracting with the Developer shall provide the City with a copy of the
detailed construction schedule outlining the major items of work of each general contractor, and
any written revisions to such schedule;
(c) The Developer shall provide construction documents, including the Plans and
Specifications to the City, signed and sealed by one or more registered professional architects or
engineers licensed in the State of Texas at the time the construction documents are submitted to
the City for approval;
(d) The Developer, its general contractor, if any, and the City shall provide each party
with reasonable advance notice of any scheduled construction meetings as set forth in the
construction contracts for the Public Improvements,and shall permit the City to attend and observe
such meetings as the City so chooses in order to monitor the progress of the Development;
(e) The Developer or any general contractor shall comply with, and shall require that
its agents and subcontractors comply with,all Applicable Law regarding the use,removal, storage,
transportation, disposal and remediation of hazardous materials;
(f) The Developer or any general contractor shall notify and obtain the City's approval
for all field changes that directly result in material changes to a portion of the Plans and
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Specifications for the Public Improvements that describe the connection of such Public
Improvements with City streets, storm sewers and utilities;
(g) Upon reasonable notice from the City, the Developer shall or shall cause any
general contractor to promptly repair, restore or correct, on a commercially reasonable basis, all
damage caused by such general contractor or its subcontractors to property or facilities of the City
during construction of the Public Improvements and to reimburse the City for reasonable out-of-
pocket costs actually incurred by the City that are directly related to the City's necessary
emergency repairs of such damage;
(h) Upon reasonable notice from the City prior to acceptance by the City of the
applicable Public Improvements, the Developer shall promptly cause the correction of defective
work and shall cause such work to be corrected in accordance with the construction contracts for
the Public Improvements and with City Regulations;
(i) If Developer's general contractors, subcontractors, architect, engineers performs
any soils, construction and materials testing during construction of the Public Improvements and
provide the results of such testing to the Developer,the Developer shall make available to the City
copies of the results of all such tests;
0) If the Developer's general contractors, subcontractors, architects, or engineers
foregoing entities or persons shall fail in a material respect to perform any of the applicable
obligations described in this Section 10.09,the Developer shall use its good faith efforts to enforce
such obligations against such entities or persons, or the Developer may cure any material failure
of performance as provided herein;
(k) The Developer shall provide to the City any other information or documentation or
services required by City Regulations with regard to the design and construction of the Public
Improvements;
(1) The Developer shall allow the City Representative to conduct a reasonable pre-final
and final inspection of the Public Improvements. Upon inspection and written acceptance by the
City of the Public Improvements, the City shall become responsible for the maintenance of the
Public Improvements and making any bond or warranty claim, if applicable,with such acceptance
not to be unreasonably withheld, denied, conditioned, or delayed; and
(m) Streets, parking lanes, intersections, alleys, mews, sidewalks, driveways, and
parking lots, if any, shall be concrete per minimum City specifications as of the effective date of
this Agreement unless alternative materials are agreed to by the City.
10.10. Start of Construction. In addition to any other provision of this Agreement, before
beginning the construction of the Public Improvements the Developer must do the following:
(a) Schedule and attend a pre-construction meeting between Developer and City and
including all Contractors, major sub-contractors, utilities and appropriate Governmental
Authority;
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(b) Furnish to the City a list of all subcontractors and suppliers which will be providing
greater than$1,000 of work in the Development; and
(c) Submit at least two (2) - 22"04" (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.
10.11. Tax Exemption. The City is an exempt organization under Section 151.309, Tax
Code, and the Public Improvements constructed under this Agreement will be dedicated to public
use and finally accepted by the City. As it relates to the Public Improvements, 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 may be 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.
Also, the purchase of a taxable service for use in the performance of this Agreement as it relates
to the Public Improvements may be 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.
10.12. Other Construction Requirements.
(a) Prior to final acceptance of the Development, the Developer shall provide to the
City two (2) copies of Record Drawings of the Development, 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.
(b) During construction,the Developer shall maintain the dedicated public open spaces
in a groomed and maintained condition appropriate, at no cost to the City and at the highest level
and standard acceptable to the City.
(c) The Public Improvement Project Costs, as set forth in Exhibit D, may be modified
or amended from time to time upon the request of Developer and the approval of the City
Representative, provided that the total cost of the Public Improvements funded shall not exceed
such amounts as set forth in the TIRZ Project and Finance Plan and/or in the SAP, as applicable
without further changes to the TIRZ Project and Finance Plan and/or SAP, as applicable. Should
the Public Improvements be amended by the City Council at the request of Developer, the City
Representative shall be authorized to make, and shall make corresponding changes to the
applicable exhibits attached hereto and shall keep official record of such amendments.
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(d) Payments from the TIRZ are limited to the amounts set forth in the TIRZ Project
and Finance Plan and amounts in the TIRZ Fund. Payments from the PID are limited to the SAP
and funds in the special improvement district fund of the PID.
10.13. City Police Powers. The Developer recognizes the authority of the City pursuant
to the Texas Constitution together with the City's charter and ordinances to exercise its police
powers in accordance with Applicable Law to protect the public health, safety, and welfare. The
City retains its police powers over the Developer's or its general contractor's construction
activities on or at the Property, and the Developer recognizes the City's authority to take
appropriate enforcement action in accordance with Applicable Law to provide such protection.No
lawful action taken by the City pursuant to these police powers shall subject the City to any liability
under this Agreement, including without limitation liability for costs incurred by any general
contractor or the Developer, and as between the Developer and the City, any such costs shall be
the sole responsibility of the Developer and any of its general contractors.
10.14. Liens.Developer shall provide prompt written notice to the City if it receives notice
of any liens, encumbrances, or charges of any kind whatsoever against the Public Improvements
arising from any work performed by any contractor by or on behalf of the Developer. The
Developer shall not knowingly authorize any claim of lien made by any mechanic, materialman,
laborer, or other similar liens to attach against the Public Improvements for work or materials
furnished to the Developer in connection with any construction, improvements, renovation,
maintenance or repair thereof made by the Developer or any contractor, agent or representative of
the Developer. In order to comply with this Section, the Developer shall cause any such claim of
lien to be fully discharged prior to the date of dedication and acceptance of the applicable Public
Improvement by the City, and may provide proof thereof to the City through final unconditional
lien waivers,recorded release of liens, or other bond guarantees. The City shall have no obligation
to accept the dedication of any Public Improvements that are encumbered by a lien or any other
cloud on title.
10.15. City Consents. Any consent or approval by or on behalf of the City required in
connection with the design,construction,improvement or replacement of the Public Improvements
or otherwise under this Agreement shall be conducted in a timely and expeditious manner with
due regard to the cost to the Developer associated with delay.
10.16. Right of the City to Make Inspection.
(a) At any time during the construction of the Public Improvements,the City shall have
the right to enter the Property for the purpose of inspection of the progress of construction on the
Public Improvements; provided, however, the City Representative shall comply with reasonable
restrictions generally applicable to all visitors to the Development that are imposed by the
Developer or its general contractor or subcontractors. Inspection of the construction of all Public
Improvements shall be by the City Representative. The Developer shall pay all inspection fees in
accordance with the City Regulations.
(b) City may enter the Property in accordance with customary City procedures and
Applicable Law to make any repairs or perform any maintenance of Public Improvements which
the City has accepted for maintenance. If, during construction of the Public Improvements, if an
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Event of Default occurs under this Agreement and the Developer fails to comply with the cure
requirements under this Agreement beyond any applicable notice and cure period or in the event
of an emergency which is not being timely addressed,the City may enter the Property to make any
repairs to the Public Improvements that have not been accepted for maintenance by the City, of
every kind or nature,which the Developer is obligated under this Agreement to repair or maintain
but which the Developer has failed to perform after reasonable notice (other than in the case of an
emergency)and the Developer,or its surety, shall be obligated to reimburse the City the reasonable
costs incurred by the City for any such repairs. Nothing contained in this paragraph shall be
deemed to impose on the City any obligation to actually make repairs or alterations on behalf of
the Developer.
ARTICLE XI
PAYMENT OF PUBLIC IMPROVEMENTS
11.01. Overall Requirements.
(a) The City shall not be obligated to provide funding to Developer from the TIRZ or
the PID for any Public Improvement from the TIRZ Fund or special improvement district fund
except from Assessments pursuant to an Assessment Funding Agreement,proceeds of PID Bonds,
or funding from TIRZ Revenues pursuant to a TIRZ Reimbursement Agreement. The City makes
no warranty, either express or implied,that there will be sufficient revenues available in the TIRZ
Fund or the special improvement district fund for funding of the Public Improvement Project Costs
or that revenues will be sufficient for the construction or acquisition of all of the Public
Improvements. Any costs of the Public Improvements in excess of the available Assessments
pursuant to an Assessment Funding Agreement or TIRZ Revenues pursuant to a TIRZ
Reimbursement Agreement, shall not be paid or reimbursed by the City from the TIRZ Fund or
the special improvement district fund, or any other source of City funds. The Developer
acknowledges and agrees that any lack of availability of TIRZ Funds or public improvement
district funds to immediately reimburse the costs of Public Improvements shall in no way diminish
any obligation of the Developer with respect to the construction of the Public Improvements
described in this Agreement. Except as provided above, no payment or reimbursement shall be
made by City for the Public Improvements as set forth on Exhibit D except as otherwise set forth
herein.
(b) Upon written acceptance of a Public Improvement and subject to any applicable
maintenance-bond period, the City shall be responsible for all operation and maintenance of such
Public Improvement, including all costs thereof and relating thereto,unless otherwise provided in
this Agreement.
(c) The City's obligation with respect to the funding of the Public Improvement Project
Costs as finally set forth in the TIRZ Project and Finance Plan, or the SAP, if applicable, shall be
limited to the lower of actual costs or the available revenues, and shall be funded from available
Assessment revenues or TIRZ Revenues, as applicable.
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11.02. Remaining Funds after Completion of a Public Improvement.
The SAP shall be updated or amended, as applicable, such that the costs of the Public
Improvements in the SAP match the costs set forth in the applicable construction contracts;
provided that such adjustment of the SAP does not affect the benefit analysis. After the
Completion of Construction of a Public Improvement and payment or reimbursement for such
Public Improvement, any remaining budgeted amount(s) shall be available to pay or reimburse
costs that exceed the budget on any other Public Improvement. The elimination of an entire
category of Public Improvements in the PID will require an amendment to the SAP. Upon receipt
of all acceptance letters from the City for the Public Improvements within an improvement
category as set forth in the SAP, any remaining budgeted costs from that eliminated category may
be released to pay or reimburse for costs that exceeded the budget in another improvement
category, as approved by the City Representative and authorized by Applicable Law.
11.03. Payment Process for Public Improvements from Assessments.
The Developer shall submit a "Payment Certificate" the form of which will be included
with the Assessment Funding Agreement to the City for Public Improvement Project Costs to be
paid from Assessments or the proceeds of PID debt to which Assessments are pledged pursuant to
the SAP. The City shall promptly review the sufficiency of each Payment Certificate with respect
to compliance with this Agreement, conformity with the approved the Concept Plan and
Applicable Law, and compliance with the applicable SAP and Plans and Specifications within
sufficient time to allow payment of verified amounts thirty (30) business days of receipt of the
Payment Certificate from the Developer. After review,the City shall send notice to the Developer
of what is approved in each Payment Certificate and what is denied and will notify Developer of
additional documentation needed to resolve disputes related to the portions that are denied.
Approved costs in a Payment Certificate shall be forwarded for payment within thirty(30)business
days of receipt of the Payment Certificate, and the City will work with the Developer to resolve
amounts not approved in each Payment Certificate.
11.04. Public ImRrovements Payment from PID Special Improvement District Fund.
(a) In the absence of PID bond funds or a positive balance of funds in the PID special
improvement district fund, reimbursement for costs of the Public Improvements set forth in the
SAP shall be made on an annual basis from Assessments levied for the Public Improvements
pursuant the Assessment Funding Agreement and the PID Act, as amended. Such reimbursement
shall be made pursuant to the terms and provisions of one or more Assessment Funding
Agreements. Such Assessment Funding Agreements shall set forth the terms of the annual
payment for the costs of the Public Improvements paid for with Assessments.
(b) Reimbursement or payment of the costs of the Public Improvements from the
special improvement district fund shall only be made from the levy of Assessments within the PID
or the proceeds of PID bonds, if any, as set forth herein and in the SAP.
(c) The term, manner and place of payment or reimbursement to the Developer under
this Section shall be more fully set forth in the Assessment Funding Agreement.
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(d) Reimbursement or payment from the special improvement district fund shall be
made only for the costs of the Public Improvements as set forth in this Agreement, the SAP, or in
the Assessment Funding Agreement, as approved by the City. Any additional public
improvements other than the Public Improvements shall not be subject to payment or
reimbursement from the special improvement district fund under the terms of this Agreement.
11.05. Payment/Reimbursement of Public Improvement Project Costs from TIRZ
Revenues.
(a) The City shall authorize the payment or reimbursement of Public Improvement
Project Costs from TIRZ Revenues in the TIRZ Fund as set forth in the TIRZ Project and Finance
Plan, and the TIRZ Reimbursement Agreement. The City shall annually disburse funds to pay or
reimburse the costs of Public Improvements upon Completion of Construction of the Public
Improvements and after receipt of a "Reimbursement Request" from the Developer, the form of
which will be included with the TIRZ Reimbursement Agreement. Approval of a Reimbursement
Request is subject to the Developer providing sufficient documentation of incurred costs of Public
Improvements. The City shall review the sufficiency of each Reimbursement Request with respect
to compliance with this Agreement,the Approved Plans and Applicable Law,and compliance with
the TIRZ Project and Finance Plan. The City shall complete review of each Reimbursement
Request within thirty (30) business days and upon approval and after verification of each cost
detailed in the Reimbursement Request has occurred, including on-site confirmation by the City
Engineer. Upon written approval by the City Engineer, the Reimbursement Request shall be
submitted to the City's finance department for payment. The City shall pay or reimburse the
eligible Public Improvement Project Costs set forth in this Agreement, and in the TIRZ Project
and Finance Plan, provided that in no event will the City be obligated to pay or reimburse from
the PID or TIRZ, as applicable, more than the available funds in the special improvement district
fund and the TIRZ Fund.
(b) If the City timely disapproves or questions the correctness or authenticity of the
Reimbursement Request by delivering a detailed notice to the Developer within the thirty(30)day
review, then payment with respect to disputed portion(s) of the Reimbursement Request shall not
be made until the Developer and the City have jointly resolved such dispute. The City and the
Developer shall meet promptly and cooperate to resolve any such disputes as expeditiously as
possible.
11.06. Rights to Audit.
(a) The City shall have the right to request, upon reasonable notice and at the City's
own expense, records of the Developer with respect to the expenditure of funds to pay a Public
Improvement Project Costs for a Public Improvement for a period of up to two (2)years following
the completion of any Public Improvement, unless otherwise required by Applicable Law. Upon
written request by the City, the Developer shall give the City or its agent, access to those certain
records controlled by, or in the direct possession of and allowed to be shared by, the Developer
(other than records subject to legitimate claims of attorney-client privilege, trade secret, or other
legitimate business or legal concern) with respect to the expenditure of Public Improvement
Project Costs, and permit the City to review such records in connection with conducting a
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reasonable audit of such fund and account. The Developer shall make these records available to
the City electronically or at a location that is reasonably convenient for City staff. The Developer
shall not be required to generate records, lists, data, or other information not already in its control
and possession.
(b) The City and the Developer shall reasonably cooperate with the assigned
independent auditors (internal or external) in this regard, and shall retain and maintain all such
records for at least two (2) years from the date of Completion of Construction of the Public
Improvements. All audits must be diligently conducted and once begun, no records pertaining to
such audit shall be destroyed until such audit is completed.
ARTICLE XII
REPRESENTATIONS AND WARRANTIES
12.01. Representations and Warranties of City. The City makes the following
representations and warranties for the benefit of the Developer:
(a) Due Authority;No Conflict. The City represents and warrants that this Agreement
has been approved by official action by the City Council and the City has all requisite power and
authority to execute this Agreement and to carry out its obligations hereunder and the transactions
contemplated hereby. This Agreement has been, and the documents contemplated hereby will be,
duly executed and delivered by the City and constitute legal, valid and binding obligations
enforceable against the City in accordance with the terms subject to principles of governmental
immunity and the enforcement of equitable rights. To the knowledge of the City, the
consummation by the City of the transactions contemplated hereby is not in violation of or in
conflict with,nor does it constitute a default under,any of the terms of any agreement or instrument
to which the City is a party, or by which the City is bound, or of any provision of any Applicable
Law and there is no statute, rule, regulation, or executive order promulgated or enacted by a
Governmental Authority, known to the City, that is in effect which restrains, enjoins,prohibits, or
otherwise makes illegal the consummation of the transactions contemplated by this Agreement.
(b) Due Authority;No Liti_ag tion. No litigation is pending or, to the knowledge of the
City, threatened in any court to restrain or enjoin the construction of or the Public Improvements
or the City's payment and reimbursement obligations under this Agreement, or otherwise
contesting the powers of the City or the authorization of this Agreement or any agreements
contemplated herein.
(c) Legal Proceedings. There is no action,proceeding, inquiry or investigation, at law
or in equity, before any court, arbitrator, governmental or other board or official, pending or, to
the knowledge of the City against or affecting the City which the outcome of which would (a)
materially and adversely affect the validity or enforceability of, or the authority or ability of the
City under,this Agreement to perform its obligations under this Agreement, or(b)have a material
and adverse effect on the consolidated financial condition or results of operations of the City or on
the ability of the City to conduct its business as presently conducted or as proposed or contemplated
to be conducted.
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12.02. Representations and Warranties of Developer. The Developer makes the following
representations and warranties for the benefit of the City:
(a) Due Organization and Ownership. The Developer is validly existing under the laws
of the State of Texas and is duly qualified to do business in the State of Texas; and that the person
executing this Agreement on behalf of it is authorized to enter into this Agreement.
(b) Due Authority: No Conflict. The Developer has all requisite power and authority
to execute and deliver this Agreement and to carry out its obligations hereunder and the
transactions contemplated hereby. This Agreement has been, and the documents contemplated
hereby will be, duly executed and delivered by the Developer and constitute the Developer's legal,
valid and binding obligations enforceable against the Developer in accordance with their terms.
To the knowledge of the Developer, the consummation by the Developer of the transactions
contemplated hereby is not in violation of or in conflict with,nor does it constitute a default under,
any term or provision of the organizational documents of the Developer, or any of the terms of any
agreement or instrument to which the Developer is a parry, or by which the Developer is bound,
or of any provision of any Applicable Law, and there is no statute, rule, regulation, or executive
order promulgated or enacted by a Governmental Authority, known to the Developer, that is in
effect which restrains, enjoins, prohibits, or otherwise makes illegal the consummation of the
transactions contemplated by this Agreement.
(c) Litigation/Proceedings. To the best knowledge of the Developer, there are no
pending or threatened judicial, municipal or administrative proceedings, consent decree or,
judgments which might affect the Developer's ability to consummate the transaction contemplated
hereby, nor is there a preliminary or permanent injunction or other order, decree, or ruling issued
by a governmental entity, and there is no statute, rule, regulation, or executive order promulgated
or enacted by a Governmental Authority, that is in effect which restrains, enjoins, prohibits, or
otherwise makes illegal the consummation of the transactions contemplated by this Agreement.
(d) Legal Proceedings. There is no action,proceeding, inquiry or investigation, at law
or in equity, before any court, arbitrator, governmental or other board or official, pending or, to
the knowledge of the Developer, threatened against or affecting the Developer, any of the
principals of the Developer and any key person or their respective Affiliates and representatives
which the outcome of which would(a)materially and adversely affect the validity or enforceability
of, or the authority or ability of the Developer under this Agreement to perform its obligations
under this Agreement, or (b) have a material and adverse effect on the consolidated financial
condition or results of operations of the Developer or on the ability of the Developer to conduct its
business as presently conducted or as proposed or contemplated to be conducted.
ARTICLE XIII
PROPERTY MAINTENANCE AND OTHER AGREEMENTS
13.01. Property Owners Association.
(a) Developer agrees to create one or more property owners association(s), or other
appropriate entity ("Association"), to assume and be responsible for the continuous and perpetual
operation, maintenance, and supervision of structures, landscaping systems or landscape elements
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or features,water features, landscape irrigation systems, screening walls, living screens,buffering
systems, entryway features, including monuments or other signage, or other physical facilities or
grounds held in common and necessary or desirable for the welfare of the Property, or that are of
common use or benefit and whether or not dedicated to and accepted by the City. A copy of the
agreements,covenants and restrictions establishing and creating the Association must be filed with
the City Attorney of City prior to the approval of the record plat of the subdivision for the Property
and must be filed of record with such record plat in the map and plat records of Tarrant County.
(b) At a minimum,the agreements,covenants and restrictions establishing and creating
the Association must contain or provide for the following:
(1) Definitions of terms contained therein;
(2) Provisions for the establishment and organization of the Association and the
adoption of bylaws for such Association,including provisions requiring that
the owner of any lot within the applicable subdivision and any successive
buyer shall automatically and mandatorily become a member of the
Association.Developer shall have the right(but not the obligation)to be the
sole controlling member of the Association during such periods that
Developer owns any portion of the Property;
(3) The initial term of the agreements, covenants and restrictions establishing
and creating the Association shall be for a 30-year period and shall
automatically renew for successive ten-year periods, and the Association
may not be dissolved without the prior written consent of the City;
(4) Provisions to ensure the continuous and perpetual use, operation,
maintenance, and/or supervision of all common area facilities, structures,
improvements, systems, and open space owned by the Association that is
subject to a public access easement;
(5) The right and ability of the City or its lawful agents, after due notice and
60-day cure period to the Association, to perform the responsibilities of the
Association if the Association fails to do so in compliance with any
provisions of the agreements, covenants or restrictions of the Association
or of any applicable City Regulations; to assess the Association for all costs
incurred by the City in performing such responsibilities if the Association
fails to do so; and/or to avail itself of any other enforcement actions
available to the City pursuant to state law or City Regulations; and
(6) Provisions indemnifying, defending, and holding the City harmless from
any and all costs, expenses,suits,demands,liabilities or damages, including
attorney's fees and costs of suit, incurred or resulting from the City's
performance of the operation, maintenance or supervision responsibilities
of the Association due to the Association's failure to perform such
responsibilities unless such costs, expenses, suits, demands, liabilities or
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damages are caused by the actions of the City, its employees, contractors,
or agents.
(c) Prior to the City's approval of the plat for any phase of the Development, the
Developer will provide the City with a copy of the Association's master declaration of covenants,
conditions, and restrictions.
ARTICLE XIV
TERMINATION AND RECAPTURE
14.01. This Agreement may be terminated upon mutual written agreement of the Parties.
If the City Council of the City of Southlake determines in its sole discretion that it will not create
a TIRZ prior to December 31, 2026, or authorize the creation of a PID or the issuance of debt
after petition by the Developer, then the Developer may, at its option, terminate this Agreement
without any further liability to the City.
14.02. City Termination Events.
The City may terminate this Agreement as to Developer for any one or more of the
following:
(a) Upon an uncured Event of Default by Developer pursuant to Article XV herein.
(b) If the Developer does not achieve Commencement of Construction, or does not
achieve Completion of Construction for the entirety of the Development, in accordance with the
deadlines in this Agreement and no extension has been requested or authorized by the City Council.
(c) If the Developer applies for a Zoning change for:
(i) the commercial portion of the Property that conflicts with Zoning Case No.
ZA25-0045, as finally approved by the City Council of the City by Ordinance 480-837;
except, the Developer may seek (a) site plan approval for medical office building use for
building number 13 on the Concept Plan, and (b) a zoning change for luxury premiere
fitness club use ("premiere gym use") for building number 1 only on the Concept Plan
(specifically, the premiere gym use shall not be requested by the Developer for any other
buildings or lots shown on the Concept Plan, and shall not serve as, nor be a substitute for,
any anchor tenant at buildings 4 or 5 on the Concept Plan); or
(ii) initiates a zoning change on the residential portion of the Property that
requests an increase in the number or density of the single-family lots.
14.03. Developer Termination Events.
Developer may terminate this Agreement upon an uncured Event of Default by the City
pursuant to Article XV herein, or in accordance with 14.01 above without any further liability to
the City any one or more of the following:
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(a) City fails to adopt a final TIRZ Project and Financing Plan on or before December 3lst
2026.
(b) City fails to create the PID (following submission of a valid PID petition) and adopt
an SAP prior to December 31 st, 2026.
(c) In the absence of a Developer request for reimbursement from annual PID proceeds,
City fails to approve a PID bond issuance requested by the Developer in accordance with
this Agreement.
14.04. Termination Procedure.
If either Party determines that it wishes to terminate this Agreement pursuant to its
termination rights under this Article, such Party must deliver a written notice to the other Party
specifying in specific detail the basis for such termination and electing to terminate this
Agreement. Upon such a termination, the Parties hereto shall have no duty or obligation one to
the other under this Agreement, with the exception of (i) any pending Payment Certificates or
reimbursement requests relating to Public Improvement Project Costs that were previously
advanced or incurred as of the date of termination, provided that a Payment Certificate or
reimbursement request for such Public Improvement Project Costs is submitted within ninety(90)
days of the termination and is approved by the City pursuant to its normal and usual process for
approving such Payment Certificate or Reimbursement Request, or (ii) any obligation of the City
under any TIRZ Reimbursement Agreement or Assessment Funding Agreement.
14.05. City Actions Upon Termination.
Upon termination of this Agreement or Developer's rights under this Agreement, the
Developer shall have no claim or right to any further payments for Public Improvements Project
Costs pursuant to this except that, (i) any Public Improvements completed and accepted by the
City, (ii) any Public Improvement Project Costs submitted pursuant to a Payment Certificate or
Reimbursement Request and approved by the City, and/or (iii) any Public Improvement Costs
subject to a TIRZ Reimbursement Agreement or Assessment Funding Agreement shall still be
subject to payment subject to the availability of public funds in accordance with this Agreement.
Any Payment Certificates or Reimbursement Requests for Public Improvement Project Costs
submitted to the City, but still under review at the time of termination may be resolved if
subsequently approved by the City.
ARTICLE XV
DEFAULT AND REMEDIES
15.01. Developer Default.
One or more of the following events shall be an "Event of Default" as to the Developer
under this Agreement:
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(a) The Developer shall fail to pay to the City any monetary sum hereby required of it
as and when the same shall become due and payable and shall not cure such default within thirty
(30) calendar days after the later of the date on which written notice thereof given by the City to
the Developer is received by Developer, as provided in this Agreement. The Developer shall fail
in any material respect to maintain any of the insurance or surety bonds required by this
Agreement; provided, however, that if a contractor of Developer fails to maintain any of the
insurance or bonds required by this Agreement, the Developer shall have sixty (60) calendar days
to cure from date written notice from City is received by the Developer;
(b) The Developer shall fail to comply in any material respect with any material term,
provision or covenant of this Agreement, including any Zoning requirement, and shall not cure or
commence the cure of such failure within sixty (60) calendar days after written notice thereof by
the City is received by the Developer;
(c) The filing by Developer of a voluntary proceeding under present or future
bankruptcy, insolvency, or other laws respecting debtors, rights;
(d) The consent by Developer to an involuntary proceeding under present or future
bankruptcy, insolvency, or other laws respecting debtor's rights;
(e) The entering of an order for relief against Developer or the appointment of a
receiver, trustee, or custodian for all or a substantial part of the property or assets of Developer in
any involuntary proceeding, and the continuation of such order,judgment or degree unstayed for
any period of ninety (90) consecutive days;
(f) The failure by Developer to pay Impositions, and Assessments on property owned
by Developer within the Development except for Impositions deferred hereunder if such failure is
not cured within thirty(30) calendar days after receipt of written notice from the City;
(g) Any representation or warranty confirmed or made in this Agreement by the
Developer was fraudulent or untrue in any material respect as of the Effective Date, or any act of
bribery involving an employee of the City, its officers, or elected officials, or any offensive act
inconsistent with the values of the City and its goals, including,but not limited to the City's ethics
code, rules, or regulations;
(h) The Developer refuses to develop the Property pursuant to the City Regulations and
fails to cure or commence the cure of such failure within sixty (60) calendar days after receipt of
written notice is given by the City to the Developer; or
(i) Any Commencement of Construction Date or Completion Date, as such dates may
be extended, by Force Majeure or as otherwise as set forth herein, is not met by the Developer
pursuant to this Agreement, subject to the extensions permitted and provided hereunder.
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15.02. Notice and Cure Period.
(a) Before any Event of Default under this Agreement shall be deemed to be a breach
of this Agreement, the Party claiming such Event of Default shall notify, in writing, the Party
alleged to have failed to perform the alleged Event of Default and shall demand performance(with
the exception of 15.01(c-i) above). Except with respect to cure periods set forth in 15.01 above,
which shall be controlling, no breach of this Agreement may be found to have occurred if
performance has commenced to the reasonable satisfaction of the complaining Party within thirty
(30) calendar days of the receipt of such notice, with completion of performance, if reasonably
achievable,within ninety(90)calendar days(or thirty(30)calendar days in the case of a monetary
default) If completion of performance is not reasonably achievable within ninety (90) calendar
days, no breach will be found to have occurred so long as the Party accused of said breach has
commenced the cure in the timeframe set forth above and diligently pursues such cure to
completion.
(b) Notwithstanding any provision in this Agreement to the contrary, if the
performance of any covenant or obligation to be performed or cured hereunder by any Parry is
delayed by Force Majeure,the time for such performance shall be extended by the amount of time
of the delay directly caused by and relating to such uncontrolled circumstances. The Party claiming
delay of performance as a result of any Force Majeure events shall deliver written notice of the
commencement of any such delay resulting from such Force Majeure event and the length the
Force Majeure event is reasonably expected to last not later than thirty(30)days after the claiming
Parry becomes aware of the same, and if the claiming Party fails to so notify the other Parry of the
occurrence of a Force Majeure event causing such delay, the claiming Party shall not be entitled
to avail itself of the provisions for the extension of performance contained in this Article.
15.03. City's Remedies.
With respect to the occurrence of an Event of Default the City may pursue any of the
following remedies:
(a) The City may terminate this Agreement as to any phase for which an uncured
Event of Default has occurred. The City shall not terminate this Agreement unless it delivers to
the Developer a second notice expressly providing that the City will terminate as to such phase
within thirty (30) additional days if such default is not cured and allowing the Developer to cure
or commence curing the Event of Default within those thirty (30) days. Termination or non-
termination of this Agreement upon a Developer Event of Default shall not prevent the City from
suing the Developer for damages, actual damages, excluding punitive, special and consequential
damages, injunctive relief or other available remedies with respect to obligations that expressly
survive termination.
(b) No remedy herein conferred or reserved is intended to be exclusive of any other
available remedy or remedies,but each and every such remedy shall be cumulative and shall be in
addition to every other remedy given hereunder now or hereafter existing at law or in equity. The
exercise of any remedy herein conferred or reserved shall not be deemed a waiver of any other
available remedy.
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(c) RecMture/Repayment. In the event this Agreement is terminated by the City
pursuant to Section 15.01(c-i) above or any other provision in this Agreement referencing
recapture or repayment, the Developer shall be liable for and will pay to the City within sixty(60)
days following the termination of this Agreement: (1) Chapter 380 Incentive Grants previously
paid to the Developer pursuant to this Agreement, and (2) the amount of all City Tax Increment
reimbursed as part of this Agreement or any TIRZ Reimbursement Agreement.
15.04. Developer's Remedies.
(a) Upon the occurrence of any Event of Default by the City,the Developer may pursue
any remedy or remedies at law or in equity specifically including damages authorized under Texas
Local Gov't Code Ch. 271, mandamus and other equitable remedies authorized by law, and
termination of this Agreement; provided, however, that the Developer shall have no right to
terminate this Agreement unless the Developer delivers to the City a second notice, which
expressly provides that the Developer will terminate within thirty (30) days if the default is not
addressed as herein provided.
(b) No remedy herein conferred or reserved is intended to be inclusive of any other
available remedy or remedies,but each and every such remedy shall be cumulative and shall be in
addition to every other remedy given hereunder now or hereafter existing. The exercise of any
remedy herein conferred or reserved shall not be deemed a waiver of any other available remedy.
15.05. Governmental Functions and Immunity. The Parties hereby acknowledge and
agree that the City is entering into this Agreement pursuant to its governmental functions and that
nothing contained in this Agreement shall be construed as constituting a waiver of the City's
police power, legislative power, or governmental immunity from suit or liability, which are
expressly reserved to the extent allowed by law or to the extent set forth herein. The Parties agree
that this is an Agreement for goods or services to the City. To the extent a Court of competent
jurisdiction determines that the City's governmental immunity from suit or liability is waived in
any manner, or and that this Agreement is subject to the provisions of Subchapter I of Chapter
271 of the Texas Local Gov't Code, as amended, the City's immunity from suit may be waived
only as set forth in Subchapter I of Chapter 271, Texas Local Gov't Code. Further, the Parties
agree that this Agreement is made subject to all applicable provisions of the Texas Civil Practice
and Remedies Code, including but not limited to all defenses, limitations, and exceptions to the
limited waiver of immunity from liability provided in Chapter 101 and Chapter 75.
15.06. Limitation on Damages. IN NO EVENT SHALL ANY PARTY HAVE ANY
LIABILITY UNDER THIS AGREEMENT FOR ANY PUNITIVE SPECIAL, OR
CONSEQUENTIAL DAMAGES.
15.07. Waiver. Forbearance by the non-defaulting Party to enforce one or more of the
remedies herein provided upon the occurrence of an Event of Default by the other Party shall not
be deemed or construed to constitute a waiver of such default. One or more waivers of a breach
of any covenant,term or condition of this Agreement by either Party hereto shall not be construed
by the other Party as a waiver of a different or subsequent breach of the same covenant, term, or
condition. The consent or approval of either Parry to or of any act by the other Party of a nature
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requiring consent or approval shall not be deemed to waive or render unnecessary the consent to
or approval of any other subsequent similar act.
ARTICLE XVI
INSURANCE,INDEMNIFICATION,AND RELEASE
16.01. Insurance. With no intent to limit the Developer's or any general contractor's
liability or obligation for indemnification, the Developer and its Contractor shall maintain or
cause to be maintained, by the persons constructing the Public Improvements, certain insurance,
as provided below in full force and effect at all times during construction of the Public
Improvements and the Development:
(a) With regard to the obligations of this Agreement, the Developer shall obtain and
maintain in full force and effect at its expense, or shall cause each general contractor to obtain and
maintain at their expense, the following policies of insurance and coverage:
(i) Commercial general liability insurance insuring the City,general contractor
and the Developer against liability for injury to or death of a person or persons and for
damage to property occasioned by or arising out of the activities of Developer, the
contractor, the City and their respective officers, directors, agents, contractors, or
employees, in the amount of$2,000,000 Per Occurrence or a limit equal to the amount of
the contract amount, $6,000,000 General Aggregate Bodily Injury and Property Damage,
and $10,000,000 in builder's risk coverage. The general contractor may procure and
maintain a master or controlled insurance policy to satisfy the requirements of this Section,
which may cover other property or locations of the general contractor and its affiliates, so
long as the coverage required in this Section is separate;
(ii) Worker's Compensation insurance as required by law;
(iii) Business automobile insurance covering all operations of the general
contractor pursuant to the Construction Agreement involving the use of motor vehicles,
including all owned, non-owned and hired vehicles with minimum limits of not less than
One Million Dollars ($2,000,000) combined single limit for bodily injury, death and
property damage liability;
(iv) To the extent available, each policy of commercial general liability,
Worker's Compensation, and automobile liability insurance shall be endorsed to provide
that the insurer waives all rights of subrogation against the City;
(v) Each policy, with the exception of Worker's Compensation and
professional liability shall be endorsed to include the "City of Southlake, a Texas home
rule municipality (including its former, current, and future officers, directors, agents, and
employees)" as additional insureds;
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City of Southlake/Trademark Retail Holdings,LLC Master Development Agreement
(vi) The commercial general liability and automobile liability insurance, shall
be endorsed to provide the City sixty (60) days' written notice prior to any cancellation,
termination or material change of coverage; and
(vii) The Developer shall cause each general contractor to deliver to the City the
policies, copies of policy endorsements, and/or certificates of insurance evidencing the
required insurance coverage before the Commencement of Construction of the Public
Improvements and within twenty (20) days before expiration of coverage, or as soon as
practicable, deliver renewal policies or certificates of insurance evidencing renewal and
payment of premium. On every date of renewal of the required insurance policies, the
general contractor shall cause a certificate of insurance and policy endorsements to be
issued evidencing the required insurance herein and delivered to the City. The Contractor
shall within ten (10) business days after written request provide the City with the
Certificates of Insurance and policy endorsements for the insurance required herein(which
request may include copies of such policies).
16.02. Waiver of Subrogation Rights. The Commercial General Liability, Builder's Risk,
Worker's Compensation, Business Auto and Excess Liability Insurance required pursuant to this
Agreement shall provide for waivers of all rights of subrogation against the City.
16.03. Additional Insured Status. With the exception of Worker's Compensation
Insurance and any Professional Liability Insurance, all insurance required pursuant to this
Agreement shall include and name the "City of Southlake, a Texas home rule municipality
(including its former, current, and future officers, directors, agents, and employees)" as an
additional insured under such insurance policies. Additional Insured Endorsements shall provide
the most comprehensive coverage to the City under Texas law including products/completed
operations.
16.04. Certificates of Insurance. Certificates of Insurance and policy endorsements in a
form reasonably satisfactory to City shall be delivered to City prior to the commencement of any
work or services on the Public Improvements. All required policies shall be endorsed to provide
the City with sixty (60) days advance notice of cancellation or non-renewal of coverage. The
Developer shall provide sixty (60) days written notice of any cancellation, non-renewal or
material change in coverage for any of the required insurance in this Article.
On every date of renewal of the required insurance policies, the Developer shall provide
(and cause its contractors to provide) a certificate of insurance and policy endorsements to be
issued evidencing the required insurance herein and delivered to the City. In addition, the
Developer shall, within ten (10) business days after written request, provide the City with
certificates of insurance and policy endorsements for the insurance required herein(which request
may include copies of such policies). The delivery of the certificates of insurance and the policy
endorsements (including copies of such insurance policies) to the City is a condition precedent to
the payment of any amounts to the Developer by the City.
16.05. Carriers. All policies of insurance required to be obtained by the Developer and its
general contractors pursuant to this Agreement shall be maintained with insurance carriers that
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City of Southlake/Trademark Retail Holdings,LLC Master Development Agreement
are satisfactory to and as reasonably approved by City, and lawfully authorized to issue insurance
in the state of Texas for the types and amounts of insurance required herein. All insurance
companies providing the required insurance shall be authorized to transact business in Texas and
rated at least "A"by AM Best or other equivalent rating service. All policies must be written on
a primary basis, non-contributory with any other insurance coverage and/or self-insurance
maintained by the City. All insurance coverage required herein shall be evidenced by a certificate
of insurance and policy endorsements submitted by the Developer's and its general contractors'
insurer or broker. Certificates of insurance and policy endorsements received from any other
source will be rejected.
16.06. INDEMNIFICATION.
CITY SHALL NOT BE LIABLE FOR ANY LOSS,DAMAGE,OR INJURY OF ANY KIND
OR CHARACTER TO ANY PERSON OR PROPERTY ARISING FROM THE ACTS OR
OMISSIONS OF THE DEVELOPER OR ITS GENERAL CONTRACTORS PURSUANT
TO THIS AGREEMENT. THE DEVELOPER HEREBY WAIVES ALL CLAIMS
AGAINST CITY AND ITS COUNCIL, DIRECTORS, OFFICERS, AGENTS, AND
EMPLOYEES (COLLECTIVELY REFERRED TO AS THE "CITY
REPRESENTATIVES") FOR DAMAGE TO ANY PROPERTY OR INJURY TO, OR
DEATH OF,ANY PERSON ARISING AT ANY TIME AND FROM ANY CAUSE(OTHER
THAN THE NEGLIGENCE, COMPARATIVE NEGLIGENCE, CONTRIBUTORY
NEGLIGENCE, SOLE NEGLIGENCE, GROSS NEGLIGENCE OR WILLFUL ACT OF
THE CITY REPRESENTATIVES) ARISING FROM THE ACTS OR OMISSIONS OF
THE DEVELOPER OR ITS CONTRACTORS PURSUANT TO THIS AGREEMENT.
DEVELOPER DOES HEREBY INDEMNIFY, DEFEND, AND SAVE HARMLESS THE
CITY REPRESENTATIVES FROM AND AGAINST ANY AND ALL LIABILITIES,
DAMAGES, CLAIMS, SUITS, COSTS (INCLUDING COURT COSTS, ATTORNEYS'
FEES AND COSTS OF INVESTIGATION) AND ACTIONS OF ANY KIND BY REASON
OF INJURY TO OR DEATH OF ANY PERSON, OR DAMAGE TO OR LOSS OF
PROPERTY ARISING FROM TO THE EXTENT CAUSED BY DEVELOPER'S
BREACH OF ANY OF THE TERMS OR CONDITIONS OF THIS AGREEMENT,OR BY
REASON OF ANY NEGLIGENT ACT OR OMISSION ON THE PART OF DEVELOPER,
ITS OFFICERS, DIRECTORS, SERVANTS, AGENTS, EMPLOYEES,
REPRESENTATIVES, CONTRACTORS, SUB-CONTRACTOR(S), LICENSEES, IN
THE PERFORMANCE OF THIS AGREEMENT (EXCEPT WHEN SUCH LIABILITY,
CLAIMS, SUITS, COSTS, INJURIES, DEATHS OR DAMAGES ARISE DIRECTLY
FROM OR ARE ATTRIBUTED TO THE NEGLIGENCE, COMPARATIVE
NEGLIGENCE, CONTRIBUTORY NEGLIGENCE, SOLE NEGLIGENCE, GROSS
NEGLIGENCE, OR WILLFUL ACT OF THE CITY REPRESENTATIVES).
NOTWITHSTANDING THE FOREGOING, IN THE EVENT OF JOINT OR
CONCURRENT NEGLIGENCE OF BOTH THE CITY REPRESENTATIVES AND
DEVELOPER, THE RESPONSIBILITY, IF ANY, SHALL BE APPORTIONED
COMPARATIVELY AMONG THOSE PARTIES IN ACCORDANCE WITH THE LAWS
OF THE STATE OF TEXAS, WITHOUT, HOWEVER, WAIVING ANY
GOVERNMENTAL IMMUNITY AVAILABLE TO THE CITY REPRESENTATIVES
AND WITHOUT WAIVING ANY DEFENSES OF THE PARTIES UNDER TEXAS LAW.
THE PROVISIONS OF THIS SECTION ARE SOLELY FOR THE BENEFIT OF THE
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City of Southlake/Trademark Retail Holdings,LLC Master Development Agreement
PARTIES HERETO AND THEIR RESPECTIVE SUCCESSORS AND PERMITTED
ASSIGNS AND NOT INTENDED TO CREATE OR GRANT ANY RIGHTS,
CONTRACTUAL OR OTHERWISE, TO ANY OTHER PERSON OR ENTITY. THE
DEVELOPER'S OBLIGATIONS UNDER THIS SECTION SHALL NOT BE LIMITED
TO THE LIMITS OF COVERAGE OF INSURANCE MAINTAINED OR REQUIRED TO
BE MAINTAINED BY DEVELOPER UNDER THIS AGREEMENT. THIS PROVISION
SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
ARTICLE XVII
GENERAL PROVISIONS
17.01. Notices. Any notice,communication,or disbursement required to be given or made
hereunder shall be in writing and shall be given or made by hand delivery, overnight courier,
electronic mail, or by United States mail, certified or registered mail, return receipt requested,
postage prepaid. The Parties are permitted to send an additional confirming copy by e-mail or at
such other addresses as may be specified in writing by any Party hereto to the other Party hereto.
Each notice which shall be mailed or delivered in the manner described above shall be deemed
sufficiently given, served, sent and received for all purpose at such time as it is received by the
addressee (with return receipt, the delivery receipt or the affidavit of messenger being deemed
conclusive evidence of such receipt) at the following addresses:
To the City:
City of Southlake
1400 Main Street, Suite 460
Southlake, TX 75062
Attn: Alison D. Ortowski , City Manager
With a copy to:
Taylor, Olson, Adkins, Sralla& Elam, LLP
6000 Western Place, Suite 200
Fort Worth, Texas 76107
Attn: Dean Roggia
To Developer:
Trademark Retail Holdings, LLC
1701 River Run#500
Fort Worth, Texas 76107
Attn: Kevin Kessinger
With copy to:
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City of Southlake/Trademark Retail Holdings,LLC Master Development Agreement
Winstead PC
2728 N. Harwood St.
500 Winstead Bldg.
Dallas, Texas 75201
Attn: Sarah Landiak
17.02. Mutual Assistance. The Parties shall do all things reasonably necessary or
appropriate to carry out the terms and provisions of this Agreement and to aid and assist each
other in carrying out such terms and provisions.
17.03. Assignment.
(a) This Agreement shall be binding upon and inure to the benefit of the successors
and assigns of the Parties. The rights and obligations of this Agreement, or the rights and
obligations of this Agreement as to any phase of the Development or any portion of the Public
Improvements may be assigned to (i) any Affiliate of Developer or(ii) an institutional operator of
similarly-situated commercial or retail developments who acquires all or a portion of the Property
without the prior written consent of the City. The obligations, requirements or covenants to the
development of the Property, including construction of the Public Improvements shall not be
otherwise assigned without the prior written consent of the City Council, which consent shall not
be unreasonably withheld if the assignee demonstrates the financial ability to perform in the
reasonable judgment of the City Council. Each assignment shall be in writing executed by
Developer and the assignee and shall obligate the assignee to be bound by this Agreement to the
extent this Agreement applies or relates to the obligations, rights, title or interests being assigned.
No assignment by Developer shall release Developer from any liability that resulted from an act
or omission by Developer that occurred prior to the effective date of the assignment unless the
City approves the release in writing. The Developer shall maintain written records of all
assignments made by Developer to Assignee, including a copy of each executed assignment and
the Assignee's notice information as required by this Agreement, and, upon written request from
the City, any Party or Assignee, shall provide a copy of such records to the requesting person or
entity, and this obligation shall survive the assigning Party's sale, assignment, transfer or other
conveyance of any interest in this Agreement or the Property.
(b) The Developer and assignees have the right, from time to time, to collaterally
assign, pledge, grant a lien or security interest in, or otherwise encumber any of their respective
rights, title, or interest under this Agreement, the Assessment Funding Agreement, or the TIRZ
Reimbursement Agreement for the benefit of their respective lenders without the consent of, but
with prompt written notice to,the City. The collateral assignment,pledge,grant of lien or security
interest, or other encumbrance shall not, however, obligate any lender to perform any obligations
or incur any liability under this Agreement unless the lender agrees in writing to perform such
obligations or incur such liability. Provided the City has been given a copy of the documents
creating the lender's interest, including notice information for the lender, then that lender shall
have the right, but not the obligation, to cure any default under this Agreement within thirty (30)
days written notice to the lender. A lender is not a party to this Agreement unless this Agreement
is amended, with the consent of the lender, to add the lender as a Parry. Notwithstanding the
foregoing, however, this Agreement shall continue to bind the Property and shall survive any
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City of Southlake/Trademark Retail Holdings,LLC Master Development Agreement
transfer, conveyance, or assignment occasioned by the exercise of foreclosure or other rights by a
lender,whether judicial or non judicial. Any purchaser from or successor owner through a lender
of any portion of the Property shall be bound by this Agreement and shall not be entitled to the
rights and benefits of this Agreement with respect to the acquired portion of the Property until all
defaults under this Agreement with respect to the acquired portion of the Property have been cured.
The City shall not be required to make partial payments to more than two parties as a result of an
assignment and shall not execute any consent or make any representations with respect thereto.
17.04. Table of Contents; Titles and Headings. The titles of the articles, and the headings
of the sections of this Agreement are solely for convenience of reference, are not a part of this
Agreement, and shall not be deemed to affect the meaning, construction, or effect of any of its
provisions.
17.05. Entire Agreement; Amendment. This Agreement is the entire agreement between
the Parties with respect to the subject matter covered in this Agreement. There is no other
collateral oral or written agreement between the Parties that in any manner relates to the subject
matter of this Agreement. This Agreement may only be amended by a written agreement executed
by all Parties.
17.06. Time. In computing the number of days for purposes of this Agreement, all days
will be counted, including Saturdays, Sundays, and legal holidays; however, if the final day of
any time period falls on a Saturday, Sunday, or legal holiday, then the final day will be deemed
to be the next day that is not a Saturday, Sunday, or legal holiday.
17.07. Counterparts. This Agreement may be executed in any number of counterparts,
each of which will be deemed to be an original, and all of which will together constitute the same
instrument. A signature transmitted by facsimile or e-mail transmission shall be deemed to be an
original for all purposes.
17.08. Severability. If any provision of this Agreement is illegal, invalid, or
unenforceable,under present or future laws, it is the intention of the Parties that the remainder of
this Agreement not be affected and, in lieu of each illegal, invalid, or unenforceable provision, a
provision be added to this Agreement which is legal, valid, and enforceable and is as similar in
terms to the illegal, invalid, or enforceable provision as is possible.
17.09. No Waiver. Except as otherwise provided herein, any failure by a Party to insist
upon strict performance by the other Party of any material provision of this Agreement will not
be deemed a waiver or of any other provision, and such Parry may at any time thereafter insist
upon strict performance of any and all of the provisions of this Agreement.
17.10. No Third-Party Beneficiaries. The City and the Developer intend that this
Agreement shall not benefit or create any right or cause of action in or on behalf of any third-
party beneficiary, or any individual or entity other than the City, the Developer or assignees of
such Parties.
17.11. No Joint Venture. Nothing contained in this Agreement or any other agreement
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City of Southlake/Trademark Retail Holdings,LLC Master Development Agreement
between the Parties is intended by the Parties to create a partnership or joint venture between or
among the Developer and the City, and any implication to the contrary is hereby expressly
disavowed. It is understood and agreed that this Agreement does not create a joint enterprise, nor
does it appoint either Party as an agent of the other for any purpose whatsoever. Neither Party
shall in any way assume any of the liability of the other for acts of the other or obligations of the
other. Each Party shall be responsible for any and all suits,demands, costs,or actions proximately
resulting from its own individual acts or omissions.
17.12. Independence of Action. It is understood and agreed by and among the Parties that
in the design, construction and development of the Public Improvements and any of the related
improvements described herein, and in the Parties' satisfaction of the terms and conditions of this
Agreement, that each Parry is acting independently, and the City assumes no responsibility or
liability to any third-party in connection to the Developer's obligations hereunder.
17.13. Limited Recourse. No officer,director,employee, agent,attorney or representative
of the Developer shall be deemed to be a Party to this Agreement or shall be liable for any of the
contractual obligations created hereunder. No elected official of the City and no agent, attorney
or representative of the City shall be deemed to be a Party to this Agreement or shall be liable for
any of the contractual obligations created hereunder.
17.14. Exhibits. All exhibits to this Agreement are incorporated herein by reference for
all purposes wherever reference is made to the same.
17.15. No Consent to Third-Party Financing. Without in any way interfering with the
Developer's rights set forth in Section 17.03(b), the City does not and shall not consent to nor
participate in any way in any third-parry financing based upon the Developer's assignment of its
right to receive funds pursuant to this Agreement or any Payment/Reimbursement Agreement.
17.16. Survival of Covenants. Any of the representations, warranties, covenants, and
obligations of the Parties, as well as any rights and benefits of the Parties, pertaining to a period
of time following the termination of this Agreement shall survive termination.
17.17. No Acceleration. All amounts due pursuant to this Agreement and any remedies
under this Agreement are not subject to acceleration.
17.18. Undocumented Workers. The Developer covenants and certifies that it does not
and will not knowingly employ an undocumented worker as that term is defined by Section
2264.001(4) of the Texas Government Code. In accordance with Section 2264.052 of the Texas
Government Code, if Developer is convicted of a violation under 8 U.S.C. Section 1324a (f),
Developer shall repay to the City the full amount of all payments made under this Agreement,
plus five percent(5%) interest per annum from the date such payment was made until the date of
full repayment. Repayment shall be paid within one hundred twenty (120) days after the date
Developer receives a notice of violation from the City.
17.19. Recording Fees. Any fees associated with the recording of documents in the real
property records of Tarrant County in order to give notice of the property owners association
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City of Southlake/Trademark Retail Holdings,LLC Master Development Agreement
actions, covenants, or restrictions, or notice of Assessments, shall be paid by the Developer.
Ongoing recording in the real property records of Tarrant County of updates to the SAP and other
PID notices shall be paid as an administrative expense of the PID.
17.20. Public Information. Notwithstanding any other provision to the contrary in this
Agreement, all information, documents, and communications relating to this Agreement may be
subject to the Texas Public Information Act and any opinion of the Texas Attorney General or a
court of competent jurisdiction relating to the Texas Public Information Act. The requirements of
Subchapter J,Chapter 552,Government Code,may apply to this Agreement and each Party agrees
that this Agreement may be terminated if a Party knowingly or intentionally fails to comply with
a requirement of Subchapter J, if applicable.
17.21. Ethics Disclosure. The Developer represents that it has completed a TEC form
1295 ("Form 1295") generated by the TEC's electronic filing application in accordance with the
provisions of Texas Government Code 2252.908 and the rules promulgated by the TEC. The
Parties agree that, with the exception of the information identifying the City and the contract
identification number,the City is not responsible for the information contained in the Form 1295.
The information contained in the Form 1295 has been provided solely by Developer and the City
has not verified such information.
17.22. Anti-Boycott Verification. The Developer hereby verifies that it and its parent
company, wholly- or majority-owned subsidiaries, and other affiliates, if any, do not boycott
Israel and will not boycott Israel during the term of this Agreement. The foregoing verification
is made pursuant to Section 2271.002, Texas Government Code. As used in the foregoing
verification, `boycott Israel' means refusing to deal with, terminating business activities with, or
otherwise taking any action that is intended to penalize, inflict economic harm on, or limit
commercial relations specifically with Israel, or with a person or entity doing business in Israel
or in an Israeli-controlled territory, but does not include an action made for ordinary business
purposes. The Developer understands `affiliate' to mean an entity that controls, is controlled by,
or is under common control with the Developer and exists to make a profit.
17.23. Iran, Sudan and Foreign Terrorist Organizations. The Developer represents that
neither it nor any of its parent company, wholly- or majority-owned subsidiaries, and other
affiliates is a company identified on a list prepared and maintained by the Texas Comptroller of
Public Accounts under Section 2252.153 or Section 2270.0201, Texas Government Code, and
posted on any of the following pages of such officer's internet website:
https:Hcomptroller.texas.gov/purchasing/docs/sudan-list.pdf,
https:Hcomptroller.texas.gov/purchasing/docs/iran-list.pdf, or
https:Hcomptroller.texas.gov/purchasing/docs/fto-list.pdf. The foregoing representation is made
pursuant to Section 2252.152, Texas Government Code and excludes the Developer and each of
its parent company, wholly- or majority-owned subsidiaries, and other affiliates, if any, that the
United States government has affirmatively declared to be excluded from its federal sanctions
regime relating to Sudan or Iran or any federal sanctions regime relating to a foreign terrorist
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City of Southlake/Trademark Retail Holdings,LLC Master Development Agreement
organization. The Developer understands"affiliate"to mean any entity that controls,is controlled
by, or is under common control with the Developer and exists to make a profit.
17.24. Governing. The Agreement shall be governed by the laws of the State of
Texas without regard to any choice of law rules; and venue for any action concerning this
Agreement shall be in the State District Court of Tarrant County, Texas.
17.25. Petroleum. Pursuant to Section 2274.002 (as added by Senate Bill 13 in the 87th
Texas Legislature,Regular Session),Texas Government Code,as amended,the Developer hereby
verifies that it and its parent company, wholly- or majority-owned subsidiaries, and other
affiliates, if any, do not boycott energy companies and will not boycott energy companies during
the term of this Agreement. As used in the foregoing verification, "boycott energy companies"
shall mean, without an ordinary business purpose, refusing to deal with, terminating business
activities with, or otherwise taking any action that is intended to penalize, inflict economic harm
on, or limit commercial relations with a company because the company (A) engages in the
exploration, production, utilization, transportation, sale, or manufacturing of fossil fuel-based
energy and does not commit or pledge to meet environmental standards beyond applicable federal
and state law; or (B) does business with a company described by (A) above. The Developer
understands "affiliate" to mean an entity that controls, is controlled by, or is under common
control with the Developer within the meaning of SEC Rule 133(f), 17 C.F.R. §230.133(f), and
exists to make a profit.
17.26. Firearms. Pursuant to Section 2274.002 (as added by Senate Bill 19 in the 87th
Texas Legislature,Regular Session),Texas Government Code,as amended,the Developer hereby
verifies that it and its parent company, wholly- or majority-owned subsidiaries, and other
affiliates, if any, do not have a practice, policy, guidance, or directive that discriminates against
a firearm entity or firearm trade association and will not discriminate during the term of this
Agreement against a firearm entity or firearm trade association. As used in the foregoing
verification, `discriminate against a firearm entity or firearm trade association' (A) means, with
respect to the firearm entity or firearm trade association,to (i)refuse to engage in the trade of any
goods or services with the firearm entity or firearm trade association based solely on its status as
a firearm entity or firearm trade association, (ii) refrain from continuing an existing business
relationship with the firearm entity or firearm trade association based solely on its status as a
firearm entity or firearm trade association,or(iii)terminate an existing business relationship with
the firearm entity or firearm trade association based solely on its status as a firearm entity or
firearm trade association and(B) does not include(i)the established policies of a merchant,retail
seller,or platform that restrict or prohibit the listing or selling of ammunition,firearms, or firearm
accessories and(ii) a company's refusal to engage in the trade of any goods or services, decision
to refrain from continuing an existing business relationship, or decision to terminate an existing
business relationship (aa) to comply with federal, state, or local law, policy, or regulations or a
directive by a regulatory agency or (bb) for any traditional business reason that is specific to the
customer or potential customer and not based solely on an entity's or association's status as a
firearm entity or firearm trade association. As used in the foregoing verification, (b) `firearm
entity' means a manufacturer, distributor, wholesaler, supplier, or retailer of firearms (i.e.,
weapons that expel projectiles by the action of explosive or expanding gases),firearm accessories
(i.e., devices specifically designed or adapted to enable an individual to wear, carry, store, or
Page 52 of 64
City of Southlake/Trademark Retail Holdings,LLC Master Development Agreement
mount a firearm on the individual or on a conveyance and items used in conjunction with or
mounted on a firearm that are not essential to the basic function of the firearm, including
detachable firearm magazines), or ammunition (i.e., a loaded cartridge case, primer, bullet, or
propellant powder with or without a projectile) or a sport shooting range (as defined by Section
250.001, Texas Local Government Code), and (c) `firearm trade association' means a person,
corporation,unincorporated association,federation,business league,or business organization that
(i) is not organized or operated for profit (and none of the net earnings of which inures to the
benefit of any private shareholder or individual),(ii)has two or more firearm entities as members,
and(iii) is exempt from federal income taxation under Section 501(a), Internal Revenue Code of
1986, as an organization described by Section 501(c) of that code. The Developer understands
"affiliate" to mean an entity that controls, is controlled by, or is under common control with the
Developer within the meaning of SEC Rule 133(f), 17 C.F.R. §230.133(f), and exists to make a
profit.
17.27. Conflict. In the event of any conflict between this Agreement and any
payment/reimbursement agreement authorized under this Agreement, then this Agreement shall
control, except that in all cases, Applicable Law shall control.
17.28. Performance by Affiliate. For purposes of this agreement performance by an
Affiliate of Developer or a person or entity with whom Developer contracts shall be deemed to
be performance by Developer.
17.29. Estoppel Certificates. From time to time upon written request of the Developer or
any future owner, and upon the payment of a$100.00 fee to the City,the City Manager, or his/her
designee will, in his/her official capacity and to his reasonable knowledge and belief, and without
waiving any claim,providing any warranty,or promising to indemnify,execute a written estoppel
certificate identifying any Developer obligations under this Agreement that are in default.
17.30. Recordation. This Agreement, or a memorandum of this Agreement shall be
recorded in the official deed records of Tarrant County, Texas; provided, however, any
memorandum of this Agreement shall not modify any terms or conditions of this Agreement.
17.31. Time of the Essence. The Parties agree that with respect to the performance of the
obligations of each time is of the essence. The requirement for a Traffic Impact Analysis is
waived for all phases.
[SIGNATURES ON FOLLOWING PAGES]
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
Page 53 of 64
City of Southlake/Trademark Retail Holdings,LLC Master Development Agreement
CITY OF SOUTHLAKE
By:
Name:
Title: City Manager
ATTEST:
City Secretary
STATE OF TEXAS §
COUNTY OF §
This instrument was acknowledged before me on this day of
, 2026, by , of the City of Southlake,
a Texas home rule municipality, on behalf of said City.
Notary Public in and for the State of Texas
[SEAL]
[SIGNATURES CONTINUE ON NEXT PAGE]
Page 54 of 64
City of Southlake/Trademark Retail Holdings,LLC Master Development Agreement
TRADEMARK RETAIL HOLDINGS,
LLC,A TEXAS LIMITED LIABILITY
COMPANY
By:
Name:
Title:
STATE OF TEXAS §
COUNTY OF §
This instrument was acknowledged before me on this day of
, 2026, by , of Trademark Retail
Holdings, LLC, a Texas limited liability company, on behalf of said corporation.
Notary Public in and for the State of Texas
[SEAL]
Page 55 of 64
City of Southlake/Trademark Retail Holdings,LLC Master Development Agreement
EXHIBIT A
THE PROPERTY
DESCRIBED AS TRACTS 1A AND 1A03, JAMES J. WEST SURVEY ABSTRACT NO.
1620, BEING APPROXIMATELY 40.201 ACRES MORE OR LESS, AND LOCATED AT
1800 AND 1900 N.WHITE CHAPEL BLVD.,IN THE CITY OF SOUTHLAKE,TARRANT
COUNTY, TEXAS
7
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`, ildl 09111. 2' 26 21. SI 6824 IE' 9
181: IBI6 ,
F` IdO R Y 1 220 18131 1812
6 i. 1-12
41 � 4
City of Southlake/Trademark Retail Holdings,LLC Master Development Agreement
EXHIBIT B
CONCEPT PLAN
- .
FUTURE SINGLE FAMILY
�► �• DEVELOPMENT
• ti+ { •
,
All
or W
IR, r• \t C} u
f
S±i► ;p* z
' .
FUTURE SINGLE FAMILY
• `s * ;\ - DEVELOPMENT
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rop
WIN I
t ,. ,� • rapl ii ,�
� 'top �r4� � �:pi ii y •
rr r
w ,�� �ii• R s
R�
•• N.White Chapel Blvd.
Ownership:
•
Mixed Use Development:22•
Office:Specialty Grocer:35,1S7 sf
Limited-Service Restaurant:14,611 sf
Full-Service Restaurant:39,269 sf
• • rooms
Jobs Generated:265
Capital Investment:$127.9 M
Zoning Application:Parking Spaces:1,02S(approx.)
Expected Opening Date:03 2027
City of Southlake/Trademark Retail Holdings,LLC Master Development Agreement
EXHIBIT C
SITE PLAN
�, 1
102
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c-104
I� Was � r-/ cm SJ2e HD.SA�b�s
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City of Southlake/Trademark Retail Holdings,LLC Master Development Agreement
EXHIBIT D
PUBLIC IMPROVEMENT PROJECT COSTS
[projects and project costs to be added by the Parties and completed prior to execution]
1. TIRZ PUBLIC IMPROVEMENT PROJECT COSTS
This Exhibit D-1 identifies the Public Improvement Project Costs associated with the Development that are eligible
for payment or reimbursement from TIRZ Revenues in accordance with the Agreement,the TIRZ Project and Finance
Plan,and the TIRZ Reimbursement Agreement.Amounts listed below are estimates unless and until finally approved
by the City in accordance with the Agreement and Applicable Law.
A. Summary of TIRZ-Eligible Public Improvement Project Costs
Improvement/ Location/ Funding
No. project Limits Cost Category Estimated Cost Source/ Notes
Status
Water line W. Insert LF,
Kirkwood engineer
to 12 inn.)
1 .) (8 in. Blvd. Water utility $ estimate,and
to frontage permit reference
Water line SH 114 Insert LF,
2 oversizing(8 in. Frontage Water utility $ engineer
to 12 in.) Road estimate,and
permit reference
Include
Kirkwood Property sidewalks,
Boulevard frontage/ hardscape,
3 public internal Street/roadway $ landscaping,and
improvements alignment signal-related
items only if
eligible
Kirkwood Include
Blvd.and ROW/easement
4 Traffic signal N.White Traffic/signal $ acquisition if
Chapel eligible and
Blvd. approved
Sanitary sewer On-site/off- Identify
5 public site as Wastewater utility $ permit/easement
improvements applicable status
Exclude
Storm drainage On-site/off- privately
/detention lica maintained
6 public site isbl as Drainage $ detention unless
improvements appe expressly
approved
Parks,trails, As shown Identify public
open space,and on access easement
public Approved Public amenity $ and maintenance
amenities Plans responsibility
Professional/ Project- Only eligible
8 soft costs wide Engineering legaUadministration $
costs under
TIRZ Act and
City of Southlake/Trademark Retail Holdings,LLC Master Development Agreement
Project and
Finance Plan
Other approved
9 public [insert] [insert] $ [insert]
improvement
Subtotal Eligible Public Improvement Project Costs $ [insert] [insert]
Less:Costs Funded by PID Bonds/Assessments or Other Non-TIRZ
$ [insert] [insert]
Sources
Net Amount Requested for TIRZ Reimbursement $ [insert] [insert]
In addition to the foregoing summary, the Project and Finance Plan for the TIRZ shall include a
category for the Chapter 380 Incentive Grants provided in this Agreement.
B. Certification/Approval
Developer certifies that the costs submitted in this Exhibit D-1 are true and correct, were incurred for Public
Improvements associated with the Development, have not been previously reimbursed from another source unless
disclosed above,and are eligible for payment or reimbursement only to the extent approved by the City and available
under the Agreement,the TIRZ Project and Finance Plan,and Applicable Law.
Notes: This template is intended to conform to the final TIRZ Project and Finance Plan, TIRZ Reimbursement
Agreement,and final City-approved cost categories.The City's reimbursement obligation is limited by the Agreement,
available TIRZ Revenues,and all applicable approvals.
2. SERVICE AND ASSESSMENT PLAN - (PID) PUBLIC IMPROVEMENTS AND
COSTS
Exhibit D-2—information to be added as it relates to the PID public improvements.
[projects and project costs to be added by the Parties]
The projects listed above and their costs are estimates and final projects and costs of the Public
Improvements shall be as set forth in the applicable SAP and/or the TIRZ Project and Finance
Plan, or as finally determined by the City in compliance with Applicable Law.
City of Southlake/Trademark Retail Holdings,LLC Master Development Agreement
EXHIBIT E
KIRKWOOD BOULEVARD
� I
----------- —=f-77
......e..a.._. i- 111
I NORTH
ROW
� PF"� PROP— — �nav w..r—POP RO✓r''� ` E%ROW
ROW — GRAPHIC SCALE IN FEET
125 250 500
t000'R INSET A SEE THIS SHEET
PNaP Now PNOPROw
g — LEGEND
1 �
PROP ROW a PROP ROW J� 'sr
ROW
PR"
Pfsov Plm sicw�H=nn
PROP ROYI f
PF40P RkW , - —
yal TL"4 LANE �, I PROP Sow -
� � — Lam__ -J �
I. I E%ROW
I I-IIIIIUII I I- 14i E%ROW
�J�T77�'�1�V '�`rf] IUiniiiPTlffl 11iLliiT f hn IL
PROPNT
TLRN L0.UNE
F� EN ROW
1�-PReP Rcn
INSET
PUBLIC PAVING EXHIBIT
Kimiey�Hom
City of Southlake/Trademark Retail Holdings,LLC Master Development Agreement
EXHIBIT F
WATER PLAN
III I
C ECT TO
EX Ir WATER
---- ----_------
I I I I I I I
PUBLIC B•WATER I
\ Lx 14^WATER GRAPHIC SCALE IN FEET
0 125 250 50C
PUBLIC 1Y WATER c KIRKW04D BLVD
\` I co �,
\tjlj nnLCT ToI
PualIs a•WATER
Fx 13•wares
9
m
.. Ah•Y..�.pCg3� 1r1 �� PUBLICB•WATER I Iw
\� 1= �L LU l�
ti �ti, I
PUBLIC e^WATER
Pueuc 9"WATER '
� V
WATER
PLAN
Kimky*Hom
City of Southlake/Trademark Retail Holdings,LLC Master Development Agreement
EXHIBIT G
SEWER PLAN
' r----='-------------
T-. C8 - RIBLIG B"SEWEF � I I
GRAPHIC SCALE IN FEET
1 1 0 125 250 500
KIRKWOOD BLVD
— PUBLICT SEWER 1
\ � I
i m
WIC
PUBLIC r sE d
\ : G
1Pq��
x
a � :.�'�4{II'llll'llll�ll'llll'llll'I
i SANITARY
---_—_� SEWER
PLAN
IGmIey*Horn
[off-site sanitary sewer to be added by the parties]
The offsite sanitary sewer for this Development is being provided through the future residential
phase of the Development within Lot 1, Block B (the southernmost residential portion of the
Development).
City of Southlake/Trademark Retail Holdings,LLC Master Development Agreement
EXHIBIT H
DRAINAGE/STORM PLAN
1 STORM STORM STDRI;
PllwcL -
p56 _STORM _ I
PUBLID30 I GRAPHIC SCALE IN FEET
r STORM w o its 250 saa
Q PT STORMS —I
STORM �pOBLIG 2�'STORM
PUBLIC 59• \ yip KIRKWIDOD BLVD
PlIBL5IcM
R1 II
D PON"ON`
PONDD
------
\ pJ0✓ -3 �[' \\ PIIRLIG 38" PUBLIC 21"
' �'•.. ST➢RM STORM I J
PUBUGtT—� IW
l VVV
p6 SIORM a
W
�-
sa•sroRM
HH{H{HHh�tN h&I I I I.If .
SIORM^�'
----�1
_ STORM
PLAN
Kimley*Hom
City of Southlake/Trademark Retail Holdings,LLC Master Development Agreement