Item 9BCity of Southlake, Texas
MEMORANDUM
March 4, 2008
To: Shana Yelverton, City Manager
From: Robert H. Price, P.E., Public Works Director
Subject: Approve a revised Commercial Developer Agreement with
Carroll /1709 Ltd. for Shops of Southlake, a 29.3 Acre
Development at the Southeast Corner of FM 1709 and Carroll
Avenue
Action
Requested: Approve a revised Commercial Developer Agreement with
Carroll /1709 Ltd. for Shops of Southlake, a 29.3 Acre Development
at the Southeast Corner of FM 1709 and Carroll Ave.
Background
Information: The site plan for the Shops of Southlake was approved on October
4, 2005. The final plat was approved on September 22, 2005. This
development contains the construction of an HEB Central Market
grocery store.
On December 6, 2005, the Council approved a Partial Developer's
Agreement to allow the grading of the site and the construction of
drainage, water and sanitary sewer improvements to begin prior to
the approval of the 380 Agreement. This Revised Developer's
Agreement, approved on January 17, 2006 covers, all the
construction of the grading, drainage, public water lines, public
sanitary sewer lines, off -site paving and park improvement as
appeared in the 380 Agreement.
The Developer constructed approximately 5,500 LF of storm sewer
lines, approximately 1,200 LF of reinforced concrete box culvert,
approximately 4,300 LF of public water lines, and approximately
2,300 LF of public sanitary sewer lines as well as detention facilities
on the site.
The Developer constructed two deceleration lanes on FM 1709, two
deceleration lanes on North Carroll Avenue, dual left turn lanes
(northbound) on South Carroll Avenue at FM1709 and an additional
lane to the south to provide a left turn lane at Westmont Drive into
Oaktree Estates. The City Council agreed to reimburse the
Developer for this construction in an amount not to exceed
$370,000.00. The roadway impact fee for Shops of Southlake is
approximately $225,000.00.
In addition, the City has reimbursed the Developer an amount not
to exceed $13,000 for the construction of the sidewalk along S.
Carroll Avenue.
Exhibit A is a brief description of the additional participation
requested by the developer for this project that Public Works feels
that it can justify for recommendation to the Council. The
recommended additional participation for this project is $25,231.46.
Financial
Considerations: In addition to $370,000.00 for construction of off -site paving, the
City will reimburse the Developer in an amount of $25,231.46 for
additional items requested.
Citizen Input/
Board Review: None
Legal
Review: This is the City's standard commercial Developer's agreement,
originally, drafted by the City Attorney.
Alternatives: The City Council may approve the revised Commercial Developer's
Agreement, modify it or deny it.
Supporting
Documents: Commercial Developer Agreement (Revised)
Location Map
Exhibit A
Staff
Recommendation: Authorize the Mayor to execute a revised Commercial Developer's
Agreement for Shops of Southlake, a 29.3 acre development at the
southeast corner of FM 1709 and Carroll Ave.
Staff
Contact: Robert H. Price, P.E., Public Works Director
Gordon J. Mayer, Jr., P.E., City Engineer
Cheryl Taylor, P.E., Civil Engineer
SHOPS OF SOUTHLAKE
REVISED COMMERCIAL DEVELOPER AGREEMENT
An agreement between the City of Southlake, Texas, hereinafter referred to as the
"City ", and the undersigned Developer, hereinafter referred to as the "Developer", of the
Shops of Southlake, hereinafter referred to as "Addition" to the City of Southlake,
Tarrant County, Texas, for the installation of certain community facilities located therein,
and to provide City services thereto. It is understood by and between the parties that
this Agreement is applicable to the Addition (a commercial development) and to the off -
site improvements necessary to support the Addition.
GENERAL REQUIREMENTS
A. It is agreed and understood by the parties hereto that the Developer shall
employ a civil engineer licensed to practice in the State of Texas for the
design and preparation of the plans and specifications for the construction
of all facilities covered by this Agreement.
B. The Developer will present to the City either a cash escrow, Letter of
Credit, performance bond and payment bond acceptable to the City
guaranteeing and agreeing to pay an amount equal to 100% of the value of
the construction cost of all the public facilities to be constructed by the
Developer, and providing for payment to the City of such amounts, up to
the total remaining amounts required for the completion of the public
facilities if the Developer fails to complete the work within two (2) years of
the signing of this Agreement between the City and Developer. All bonds
shall be issued by a Best -rated bonding company. All letters of credit must
meet the Requirements for Irrevocable Letter of Credit attached hereto and
incorporated herein.
The value of the performance bond, letter of credit or cash escrow will
reduce at a rate consistent with the amount of work that has been
completed by the Developer and accepted by the City. Performance and
payment bond, letter of credit or cash escrow from the prime contractor(s)
or other entity reasonably acceptable to the City, hereinafter referred to as
Contractor, will be acceptable in lieu of Developer's obligations specified
above.
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C. The Developer agrees to furnish to the City either maintenance bonds,
letter of credit or cash escrow amounting to 100% of the cost of
construction of underground public utilities and 100% for the paving.
These maintenance bonds, letter of credit or cash escrow will be for a
period of two (2) years and will be issued prior to the final City acceptance
of the Addition. The maintenance bonds, 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 if the contractors fail to perform any
required maintenance.
D. It is further agreed and understood by the parties hereto that upon
acceptance by the City, title to all facilities and improvements mentioned
herein above which are intended to be public facilities shall be vested in
the City, and Developer hereby relinquishes any right, title, or interest in
and to said facilities or any part thereof. It is further understood and
agreed that until the City accepts such improvements, the City shall have
no liability or responsibility in connection with any such facilities.
Acceptance of the facilities for this provision and for the entire Agreement
shall occur at such time that the City, through its City Manager or his duly
appointed representative, provides Developer with a written
acknowledgement that all facilities are complete, have been inspected and
approved, and are being accepted by the City.
E. On all public facilities included in this Agreement for which the Developer
awards his own construction contract, Developer agrees to the following
procedure:
1. Developer agrees to pay the following:
a. Inspection fees equal to three percent (3 %) of the cost of the
water, street, drainage and sanitary sewer facilities, on all
facilities included in this agreement for which Developer
awards his or her own construction contract, to be paid prior
to construction of each phase and based on actual bid
construction cost;
b. Administrative Processing Fee equal to two percent (2 %) of
the cost of water, street, drainage and sanitary sewer
facilities, on all facilities included in this Agreement for which
Developer awards his or her own construction contract, to be
paid prior to construction of each phase and based on actual
bid construction cost;
C. Trench testing (95% Standard);
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d. The additional charge for inspections during Saturday,
Sunday, holidays, and after normal working hours;
e. Any charges for retesting as a result of failed tests;
f. All gradation tests required to insure proper cement and /or
lime stabilization.
2. The City agrees to bear the expense of:
a. All nuclear density tests on the roadway subgrade (95%
Standard);
b. Technicians time for preparing concrete cylinders; and
C. Concrete cylinder tests and concrete coring samples.
The City can delay connection of buildings to service lines or water
mains constructed under this Agreement until said water mains and
service lines have been completed to the satisfaction of and
acceptance by the City.
F. The Developer will be responsible for mowing all grass and weeds and
otherwise reasonably maintaining the aesthetics of all land and lots in said
Addition which have not been sold to third parties. After fifteen (15) days
written notice, should the Developer fail in this responsibility, the City may
contract for this service and bill the Developer for reasonable costs.
G. Any guarantee of payment instrument (Performance Bond, Letter of Credit,
etc.) submitted by the Developer or Contractor on a form other than the
one which has been previously approved by the City as "acceptable" shall
be submitted to the City Attorney and this Agreement shall not be
considered in effect until such City Attorney has approved the instrument.
Approval by the City shall not be unreasonably withheld or delayed.
H. Any surety company through which a bond is written shall be a surety
company duly authorized to do business in the State of Texas, provided
that the City, through the City Manager, shall retain the right to reject any
surety company as a surety for any work under this or any other
Developer's Agreement within the City regardless of such company's
authorization to do business in Texas. Approval by the City shall not be
unreasonably withheld or delayed.
The Developer agrees to fully comply with the terms and conditions of all
other applicable development regulations and ordinances of the City.
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J. The Developer agrees that the completed project will be constructed in
conformance with the Development Site Plan, Construction Plans and
other permits or regulatory authorizations granted by the City during the
development review process.
II. FACILITIES
A. ON -SITE WATER
The Developer hereby agrees to install water facilities to service lots as shown on
the final plat of the Addition. Water facilities will be installed in accordance with
plans and specifications to be prepared by the Developer's engineer and released
by the City. Further, the Developer agrees to complete this installation in
accordance with Ordinance No. 170 and shall be responsible for all construction
costs, materials and engineering. In the event that certain water lines are to be
oversized because of City requirements, the City will reimburse the Developer for
the oversize cost greater than the cost of an 8" line. Additionally, the City agrees
to provide temporary water service at Developer's request and expense, for
construction, testing and irrigation purposes only, to individual lots during the
construction of buildings, even though sanitary sewer service may not be
available to the buildings.
B. DRAINAGE
Developer hereby agrees to construct the necessary drainage facilities
within the Addition. These facilities shall be in accordance with the plans
and specifications to be prepared by Developer's engineers, released by
the City, and made part of the final plat as approved by the Planning and
Zoning Commission. The Developer hereby agrees to fully comply with all
EPA and old TNRCC 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 by the City.
C. STREETS
The street construction in the Addition or adjacent to the Addition will be
installed in accordance with plans and specifications to be prepared by the
Developer's engineer and released by the Director of Public Works.
1. The Developer will be responsible for:
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2. All street improvements will be subject to inspection and approval
by the City. No work will begin on any street included herein prior
to complying with the requirements contained elsewhere in this
Agreement. All water, sanitary sewer, and storm drainage utilities
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. It is understood by and between the Developer and
the City that this requirement is aimed at substantial compliance
with the majority of the pre - planned facilities.
It is understood that in every construction project a decision later
may be made to realign a line or service which may occur after
construction has commenced. The Developer has agreed to advise
the Director of Public Works as quickly as possible when such a
need has been identified and to work cooperatively with the City to
make such utility change in a manner that will be least disruptive to
street construction or stability.
D. ON -SITE SANITARY SEWER FACILITIES
The Developer hereby agrees to install sanitary sewage collection facilities
to service lots as shown on the final plat of the Addition. Sanitary sewer
facilities will be installed in accordance with the plans and specifications to
be prepared by the Developer's engineer and released by the City.
Further, the Developer agrees to complete this installation in compliance
with all applicable city ordinances, regulations and codes and shall be
responsible for all construction costs, materials, engineering, permits and
Impact Fees. In the event that certain sewer lines are to be oversized
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because of City requirements, the City will reimburse the Developer for the
oversize cost greater than the cost of an 8" line.
E. EROSION CONTROL
During construction of the Addition and after the streets have been
installed, the Developer agrees to keep the streets free from soil build -up.
The Developer agrees to use soil control measures, such as those
included in 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 soil control development plan
that will be implemented for this Addition. When in the opinion of the
Director of Public Works there is sufficient soil build -up on the streets or
other drainage areas and notification has been given to the Developer, the
Developer will have seventy -two (72) hours to clear the soil from the
affected areas. If the Developer does not remove the soil within 72 hours,
the City may cause the soil to be removed either by contract or City forces
and place the soil within the Addition at the contractor's expense. All fees
owed to the City will be collected prior to acceptance of the Addition.
After construction of the Addition and prior to acceptance by the City, the
Developer agrees to have a permanent erosion control plan prepared and
approved by the Director of Public Works and have the plan installed and
working, effectively, in the opinion of the Director of Public Works. This
erosion control will prevent soil erosion from the newly created lot /lots
from washing into street rights of way, drainage ways or other private
property.
F. AMENITIES
It is understood by and between the City and Developer that the Addition
may incorporate a number of unique amenities and aesthetic
improvements such as ponds, aesthetic lakes, unique landscaping, walls,
and may incorporate specialty signage and accessory facilities. The
Developer agrees to accept responsibility for the construction and
maintenance of all such aesthetic or specialty items such as walls,
vegetation, signage, landscaping, street furniture, pond and lake
improvements until such responsibility is turned over to a homeowners
association.
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G. USE OF PUBLIC RIGHT -OF -WAY
It is understood by and between the City and Developer that the
Developer may provide unique amenities within public right -of -way, such
as landscaping, irrigation, lighting, etc., for the enhancement of the
Addition. The Developer agrees to maintain these amenities. The
Developer understands that the City shall not be responsible for the
replacement of these amenities under any circumstances and further
agrees to indemnify and hold harmless the City from any and all damages,
loss or liability of any kind whatsoever by reason of injury to property or
third person occasioned by its use of the public 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.
H. START OF CONSTRUCTION
Before the construction of the water, sewer, streets or drainage facilities
can begin, the following must take place:
1. Approved payment and performance bonds must be submitted to
the City in the name of the City prior to commencement of any
work.
2. At least six (6) sets of construction plans to be stamped "Released
for Construction" by the Director of Public Works must be
submitted.
3. All fees required to be paid to the City.
4. Developer Agreement must be executed by all parties.
5. The Developer, or Contractor, shall furnish to the City a policy of
general liability insurance, naming the City as co- insured, prior to
commencement of any work. All insurance must meet the
Requirements of Contractor's Insurance attached hereto and
incorporated herein.
6. A Pre - Construction Meeting to be held with all Contractors, major
Sub - Contractors, Utilities and appropriate Government Agencies.
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III. GENERAL PROVISIONS
A. INDEMNIFICATION
DEVELOPER COVENANTS AND AGREES TO INDEMNIFY AND DOES
HEREBY INDEMNIFY, HOLD HARMLESS AND DEFEND CITY, ITS
OFFICERS, AGENTS, SERVANTS AND EMPLOYEES, FROM AND
AGAINST ANY AND ALL CLAIMS OR SUITS FOR PROPERTY
DAMAGE OR LOSS AND /OR PERSONAL INJURY, INCLUDING
DEATH, TO ANY AND ALL PERSONS, OF WHATSOEVER KIND OR
CHARACTER, WHETHER REAL OR ASSERTED, (INCLUDING,
WITHOUT LIMITATION, REASONABLE FEES AND EXPENSES OF
ATTORNEYS, EXPERT WITNESSES AND OTHER CONSULTANTS),
ARISING OUT OF OR IN CONNECTION WITH, DIRECTLY OR
INDIRECTLY, THE CONSTRUCTION, MAINTENANCE, OCCUPANCY,
USE, EXISTENCE OR LOCATION OF SAID IMPROVEMENT OR
IMPROVEMENTS, AND SHALL FURTHER BE LIABLE FOR INJURY
OR DAMAGE TO CITY PROPERTY, ARISING OUT OF OR IN
CONNECTION WITH ANY AND ALL ACTS OR OMISSIONS OF
DEVELOPER, ITS OFFICERS, AGENTS, SERVANTS, EMPLOYEES,
CONTRACTORS, SUBCONTRACTORS, LICENSEES, INVITEES OR
TRESPASSERS.
DEVELOPER AGREES TO INDEMNIFY THE CITY, ITS OFFICERS
AND EMPLOYEES FOR ANY DAMAGES, CLAIMS OR LIABILITIES
ARISING FROM THE NEGLIGENT ACT OR OMISSION, OR OF THE
CONCURRENT NEGLIGENT ACT OR OMISSION, OF THE CITY, ITS
OFFICERS AND EMPLOYEES.
B. Venue of any action brought hereunder shall be in Fort Worth, Tarrant
County, Texas.
C. Approval by the Director of Public Works or other City employee of any
plans, designs or specifications submitted by the Developer pursuant to
this Agreement shall not constitute or be deemed to be a release of the
responsibility and liability of the Developer, his engineer, employees,
officers or agents for the accuracy and competency of their design and
specifications. Such approval shall not be deemed to be an assumption of
such responsibility and liability by the City for any defect in the design and
specifications prepared by the consulting engineer, his officers, agents,
servants or employees, it being the intent of the parties that approval by
the Director of Public Works signifies the City's approval on only the
general design concept of the improvements to be constructed. In this
connection, the Developer shall for a period of two (2) years after the
acceptance by the City of the completed construction project, indemnify
and hold harmless the City, its officers, agents, servants and employees,
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from any loss, damage, liability or expense on account of damage to
property and injuries, including death, to any and all persons which may
arise out of any defect, deficiency or negligence of the engineer's designs
and specifications incorporated into any improvements constructed in
accordance therewith, and the Developer shall defend at his own expense
any suits or other proceedings brought against the City, its officers,
agents, servants or employees, or any of them, on account thereof, to pay
all expenses and satisfy all judgments which may be incurred by or
rendered against them or any of them in connection herewith.
D. This Agreement or any part herein, or any interest herein, shall not be
assigned by the Developer without the express written consent of the City
Manager, which shall not be unreasonably withheld or delayed.
E. On all facilities included in this Agreement for which the Developer awards
his or her own construction contract, the Developer agrees to employ a
construction contractor who is approved by the City, and whose approval
shall not be unreasonably withheld or delayed, said contractor to meet
City and statutory requirements for being insured, licensed and bonded to
do work in public projects and to be qualified in all respects to bid on
public projects and to be qualified in all respects to bid on public projects
of a similar nature.
In addition, the Developer, or Contractor shall furnish the payment and
performance bonds in the name of the City prior to the commencement of
any work hereunder and shall also furnish to the City a policy of general
liability insurance.
F. Work performed under the Agreement shall be completed within two (2)
years from the date thereof. In the event the work is not completed within
the two (2) year period, the City may, at its election, draw down on the
performance bond, letter of credit or other security provided by Developer
and complete such work at Developer's expense; provided, however, that
if the construction under this Agreement shall have started within the two
(2) year period, the City may agree to renew the Agreement with such
renewed Agreement to be in compliance with the City policies in effect at
that time.
G. Prior to final acceptance of the Addition, the Developer shall provide to the
City three (3) copies of Record Drawings of the Addition, showing the
facilities as actually constructed.
H. Such drawings will be stamped and signed by a registered professional
civil engineer. In addition, the Developer shall provide electronic files
showing the grading plan and drainage area map; the plan and profile of
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the sanitary sewer, storm drain, roadway and waterline; all lot lines, and
tie in to the state Plane Coordinate System.
IV. OTHER ISSUES
A. ON -SITE DRAINAGE
In accordance with the approved site plan, the Developer will construct
approximately 5,500 LF of storm sewer lines and approximately 1,200 LF
of reinforced concrete box culvert.
B. ON -SITE UTILITIES
In accordance with the approved site plan, the Developer will construct
approximately 4,300 LF of public water lines and approximately 2,300 LF
of public sanitary sewer lines.
C. SCREENING WALL
The Developer will construct a 14' (feet) high or greater, screening wall as
required by approved site plan.
D. OFF -SITE PAVING
In accordance with the approved site plan, the Developer will construct
two deceleration lanes on South Carroll Ave. and two deceleration lanes
on FM 1709. The Developer will, also, construct an additional lane on
South Carroll Ave. to the south to provide a left turn lane to Westmont
Drive and construct northbound dual left turn lanes on South Carroll Ave.
at FM 1709. The City will reimburse the Developer for the off -site paving
in an amount not to exceed $370,000.00
D.1 ADDITIONAL CITY PARTICIPATION
Based upon a request by the developer for actual construction costs
incurred in the development of this project and a review by the Public
works staff, the city agrees to grant an additional amount of $25,231.46
per attached Exhibit A for the off -site improvements related to S. Carroll
Avenue and the FM 1709 deceleration lanes.
E. OFF -SITE SIDEWALK
The Developer will construct a sidewalk from the southwest corner of the
project, southerly along the east right of way of South Carroll Ave. to
Westmont Drive. The City will reimburse the Developer in accordance
with the Economic Development Program Agreement approved February
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6, 2006, by and between the City and the Developer, attached hereto as
Attachment "A" (the "380 Agreement ").
F. PARK FEES
The Developer will dedicate 32,402 SF of land as a public park and
construct improvements in the park in accordance with the 380 Agreement
and the City will reimburse the Developer for these improvements in
accordance with the 380 Agreement, attached hereto as Attachment "A ".
G. SOUTHERNMOST BUFFERYARD
The Developer will plant trees in the southernmost bufferyard in
accordance with the approved site plan and provide irrigation for these
trees. The City will pay for the water usage and reimburse the Developer
an amount for the trees in accordance with the 380 Agreement, attached
as Attachment "A ".
H. OVERHEAD UTILITIES
The Developer will cooperate with the City in the City's effort to place the
overhead utilities along FM 1709 and along the most northerly 280' (feet)
of South Carroll Ave. underground at the City's expense. The estimated
cost for placing these overhead utilities underground is approximately
$220,000.00.
TREE PRESERVATION ORDINANCE
All construction activities shall comply with the current Tree Preservation
Ordinance requirements and as may be amended by the City Council.
Such conditions include, but are not limited to, proper posting of tree
protection warning signs and tree protective fencing to be maintained
throughout the duration of the project.
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SIGNED AND EFFECTIVE on the date last set forth below.
DEVELOPER: Carroll 709 LTD., a Texas Limited Partnership
By: Carroll 709 One, L. C., a Texas Limited Liability Company, Its General Partner
Title:
Address: 3102 Maple Ave., Suite 500
Dallas, Texas 75201
Phone. 2141954 -0300
STATE OF TEXAS
COUNTY OF
On , before me,
, Notary
Public, personally appeared , personally known to me
(or proved to me on the basis of satisfactory evidence) to be the person whose name is
subscribed to the within instrument and acknowledged to me that he executed the same
in his authorized capacity, and that by his signature on the instrument, the person, or
the entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public
My commission expires:
(SEAL)
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CITY OF SOUTHLAKE, TEXAS
la
Andy Wambsganss, Mayor
ATTEST:
Lori Payne, City Secretary
Date:
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REQUIREMENTS FOR IRREVOCABLE LETTER OF CREDIT
1. The Letter of Credit must have duration of at least one year.
2. The Letter of Credit may be substituted for utility security deposits exceeding
$10,000.00. The City reserves the right to specify the face amount of the letter of
credit.
3. The Letter of Credit must be issued by a FDIC insured bank in a form acceptable
to the City of Southlake. The City reserves the right to approve /disapprove the
bank issuing the Letter of Credit.
4. The Letter of Credit must be issued by a bank that has a minimum capital ratio of
six (6 %) percent, and has been profitable for each of the last two consecutive
years.
5. The customer must provide the City with supporting financial information on the
bank to allow the City to ascertain requirements are met. Suitable financial
information would be the previous two (2) years December 31 Call Reports
submitted to the FDIC and audited financial statements.
6. Partial drawings against Letters of Credit must be permitted.
7. The City must be able to draft on sight with proof of amount owed.
8. The customer pays any and all fees associated with obtaining Letter of Credit.
9. Expiring Letter of Credit must be replaced by substitute Letters of Credit at least
30 days prior to the expiration date on the Letter of Credit held by the City.
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REQUIREMENTS FOR CONTRACTOR'S INSURANCE
Contractor's Insurance
1. Without limiting any of the other obligations or liabilities of the CONTRACTOR, during the term of
the Contract, the CONTRACTOR shall purchase and maintain the following minimum insurance
coverages with companies duly approved to do business in the State of Texas and satisfactory to the
CITY. In this section "Project" shall mean the public facilities to be constructed by Developer or under
Developer's contract with a CONTRACTOR. Coverages shall be of the following types and not less than
the specified amounts:
Workers' compensation as required by Texas law, with the policy endorsed to
provide a waiver of subrogation as to the CITY; employer's liability insurance of
not less than the minimum statutory amounts.
b. Commercial general liability insurance, including premises- operations;
independent CONTRACTOR's liability, completed operations and
contractual liability covering, but not limited to, the liability assumed
under the indemnification provisions of this Contract, fully insuring
CONTRACTOR's (or Subcontractor's) liability for injury to or death of
CITY's employees and third parties, extended to include personal injury
liability coverage with damage to property of third parties, broad form
property damage, with minimum limits as set forth below:
General Aggregate . .....................$2,000,000
Bodily Injury $1,000,000 Each Occurrence
Property Damage $1,000,000 Each Occurrence
Products — Components /Operations Aggregate . $1,000,000
Personal and Advertising Injury ............ $ 1,000,000
(With Employment Exclusion deleted)
Each Occurrence ...................... $ 1,000,000
Contractual Liability:
Bodily Injury $1,000,000 Each occurrence
Property Damage $1,000,000 Each occurrence
The policy shall include coverage extended to apply to completed operations, asbestos
hazards (if this project involves work with asbestos) and ECU (explosion, collapse and
underground) hazards. The completed operations coverage must be maintained for a
minimum of one year after final completion and acceptance of the work, with evidence of
same filed with CITY.
C. Comprehensive automobile and truck liability insurance, covering owned, hired and non -
owned vehicles, with a combined bodily injury and property damage minimum limit of
$1,000,000 per occurrence; or separate limits of $500,000 for bodily injury (per person),
and $500,000 for property damage. Such insurance shall include coverage for loading
and unloading hazards.
d. Property Insurance (Builder's All Risk)
0) CONTRACTOR shall purchase and maintain, at all times during the term of its
Contract with the Developer property insurance written on a builder's risk "all-
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risk" or equivalent policy form in the amount of the initial contract price, plus
value of subsequent contract modifications and cost of materials supplied or
installed by others, comprising total value for the entire Project at the site on a
replacement cost basis without optional deductibles. Such property insurance
shall be maintained, unless otherwise in writing by all persons and entities who
are beneficiaries of such insurance, until final payment has been made or until no
person or entity other than the CITY has an insurable interest in the property
required by this paragraph to be covered, whichever is later. This insurance
shall include interests of the CITY, the CONTRACTOR, Subcontractors and Sub -
Subcontractors in the Project.
(ii) Property insurance shall be on an "all- risk" or equivalent policy form and shall
include, without limitation, insurance against the perils of fire (with extended
coverage) and physical loss or damage including, without duplication of
coverage, theft, vandalism, malicious mischief, collapse, earthquake, flood,
windstorm, falsework, testing and startup, temporary buildings and debris
removal including demolition occasioned by enforcement of any applicable legal
requirements, and shall cover reasonable compensation for CONTRACTOR's
services and expenses required as a result of such insured loss.
(iii) If the insurance required by this paragraph requires deductibles, the
CONTRACTOR shall pay costs not covered because of such deductibles.
(iv) This property insurance shall cover portions of the Work stored off the site, and
also portions of the Work in transit.
d. OWNER's Protective Liability Insurance:
(i) CONTRACTOR shall obtain, pay for and maintain at all times
during the prosecution of the work under the contract between the
CONTRACTOR and the Developer, a CITY's protective liability
insurance policy naming the CITY as insured for property damage
and bodily injury, which may arise in the prosecution of the work or
CONTRACTOR's operations under the contract.
(ii) Coverage shall be on an "occurrence" basis, and the policy shall be
issued by the same insurance company that carries the
CONTRACTOR's liability insurance with a combined bodily injury
and property damage minimum limit of $1,000,000 per occurrence.
e. "Umbrella" Liability Insurance:
The CONTRACTOR shall obtain, pay for and maintain umbrella liability insurance during
the term of the Contract between the CONTRACTOR and the Developer, insuring
CONTRACTOR for an amount of not less than $5,000,000 per occurrence combined
limit for bodily injury and property damage that follows form and applies in excess of the
primary liability coverages required herein above. The policy shall provide "drop down"
coverage where underlying primary insurance coverage limits are insufficient or
exhausted.
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Policy Endorsements
Each insurance policy to be furnished by CONTRACTOR shall include the following
conditions by endorsement to the policy:
a. name the CITY as an additional insured as to all applicable policies;
b. each policy shall require that 30 days prior to cancellation, non - renewal or any
material change in coverage, a notice thereof shall be given to CITY by certified
mail. If the policy is canceled for nonpayment of premium, only 10 days written
notice to CITY is required;
C. the term "CITY" shall include all authorities, boards, bureaus, commissions,
divisions, departments and offices of the CITY and individual members,
employees and agents thereof in their official capacities, and /or while acting on
behalf of the CITY;
d. the policy please "other insurance" shall not apply to the CITY where the CITY is an
additional insured on the police.
2. Special Conditions
a. Insurance furnished by the CONTRACTOR shall be in accordance with the following
requirements:
any policy submitted shall not be subject to limitations, conditions or restrictions
deemed inconsistent with the intent of the insurance requirements to be fulfilled
by CONTRACTOR. The CITY's decision thereon shall be final;
ii. all policies are to be written through companies duly licensed to transact that
class of insurance in the State of Texas; and
iii. all liability policies required herein shall be written with an "occurrence" basis
coverage trigger.
b. CONTRACTOR agrees to the following:
CONTRACTOR hereby waives subrogation rights for loss or damage to the extent same
are covered by insurance. Insurers shall have no right of recoveiv or subrogation against
the CITY, it being the intention that the insurance policies shall protect all parties to the
contract and be primaiv coverage for all losses covered by the policies:
ii. companies issuing the insurance policies and CONTRACTOR shall have no
recourse against the CITY for payment of any premiums or assessments for any
deductibles, as all such premiums and deductibles are the sole responsibility and
risk of the CONTRACTOR;
iii. approval, disapproval or failure to act by the CITY regarding any insurance
supplied by the CONTRACTOR (or any Subcontractors) shall not relieve the
CONTRACTOR of full responsibility or liability for damages and accidents as set
forth in the Contract Documents or this Agreement. Neither shall be bankruptcy,
insolvency or denial of liability by the insurance company exonerate the
CONTRACTOR from liability;
Page 17 of 18
v
vi
deductible limits on insurance policies exceeding $10,000 require approval of the
CITY;
any of such insurance policies required under this paragraph may be written in
combination with any of the others, where legally permitted, but none of the
specified limits may be lowered thereby;
vii. prior to commencement of operations pursuant to this Contract, the Developer or
the Developer's CONTRACTOR shall furnish the CITY with satisfactory proof
that he has provided adequate insurance coverage in amounts and by approved
carriers as required by this Agreement;
viii. CONTRACTOR shall provide notice of any actual or potential claim or litigation
that would affect required insurance coverages to the CITY in a timely manner;
ix. CONTRACTOR agrees to either require its Subcontractors to maintain the same
insurance coverage and limits as specified for the CONTRACTOR or coverage of
Subcontractors shall be provided by the Contract; and
X. Prior to the effective date of cancellation, CONTRACTOR shall deliver to the
CITY a replacement certificate of insurance or proof of reinstatement.
Page 18 of 18
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OFFICIAL RECORL
ECONOMIC DEVELOPMENT PROGRAM AGREEMENT
(Chapter 380 Agreement)
This Economic Development Program Agreement (this "Agreement ") is made and
entered into by and between the City of Southlake, Texas (the "City "), and Carroll /1709,
Ltd., a Texas limited partnership, organized under the laws of Texas (the "Developer ").
WITNESSETH:
WHEREAS, on January 17, 2006, the City adopted Resolution No. 06 -003
establishing an Economic Development Program pursuant to Section 380.001 of the Texas
Local Government Code ( "Section 380.001 ") and authorizing this Agreement as part of the
Economic Development Program established by City Council Resolution (the "Program ");
and
WHEREAS, the Developer desires to participate in the Program by entering into this
Agreement; and
WHEREAS, the City Council of the City of Southlake (the City Council) finds and
determines that this Agreement will effectuate the purposes set forth in the Program, and
that the Developer's performance of its obligations herein will promote local economic
development and stimulate business and commercial activity in the City;
NOW, THEREFORE, in consideration of the mutual benefits and Premises
contained herein and for other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties agree as follows:
1. Authorization
The City has concluded that this Agreement is authorized by Section 380.001 and
is authorized by Resolution of the City Council.
2. Definitions The following definitions shall apply to the terms used in this
Agreement:
" Valorem Tax Revenues means, with respect to any particular year, the
revenues the City receives from the ad valorem property taxes for such year.
"City" means the City of Southlake, Texas.
" Commercial Space means space utilized for commercial, retail and office uses
under the City's Zoning Ordinance.
The Shops of Southfake 380 Agreement - Approved February 7, 2006 - Page 1 of 18
" Developer Affiliate means any Person directly or indirectly controlling or controlled
by, the Developer, or any Person controlling or controlled by the same Person who is
controlling or is controlled by the Developer. As used in this definition," the term "control"
means, directly or indirectly, ownership or the power to direct or cause the direction of the
management and policies of a Person, whether through ownership of voting securities, by
contract or otherwise.
" Effective Date means the date that all parties have executed this Agreement.
" Eligible Costs means the cost of constructing the Park Improvements, inspection
fees, and consulting design fees not to exceed one hundred thousand and no /100 dollars
($100,000); provided however, that no fees or expenses incurred by or paid to the
Developer or Developer Affiliate shall be eligible for payments as provided in this
paragraph.
" Force Maieure means any acts of God or the public enemy, war, riot, civil
commotion, insurrection, governmental or defacto governmental action, except actions
taken by the City pursuant to or permitted by the terms of this Agreement, and except
actions taken as a result of acts or omissions of Developer), fire, explosion or flood, and
strikes.
" Park " means approximately 32,402 square feet of land labeled as Central Park and
conceptually shown on Exhibit B attached hereto.
" Park Improvements means paving, irrigation system and independent water meter,
turf, fountain, benches, shrubs, trees, fountains, sculpture, lighting, trash receptacles,
signage, and similar improvements within the public park as described in Section 4 hereof.
" Park Improvement Grant means an amount equal to $3 for every $1 of Eligible
Costs, not to exceed six hundred thousand and no /100 dollars ($600,000), to be paid by
City to Developer as Program Payments, in accordance with Section 5 hereof.
" Person " means an individual or a corporation, partnership, trust, estate,
unincorporated organization, association, or other entity.
" Premises " means that certain tract of real property located in Tarrant County,
Texas, as more particularly described on Exhibit A herein.
" Program " has the meaning set forth in the recitals to this Agreement.
" Program Payment means a payment of the Park Improvement Grant made by the
City to Developer pursuant to Section 5 of this Agreement.
" Project " means the construction of approximately 215,000 square feet of
commercial space in general accordance with the concept plan representation shown on
Exhibit B herein, as approved by City Council.
The Shops of South lake 380 Agreement - Approved February 7, 2006 - Page 2 of 18
" Related Park Improvements means the Sidewalk, the Southern Buffer tree
plantings and irrigation zone design and temporary water meter connection, as described
in Section 4 hereof.
" Retail Shell Space shall mean space with the exterior envelope constructed but not
finished on the inside and not ready for occupancy.
" Section 380.001 has the meaning set forth in the recitals to this Agreement.
" Sidewalk " means a four (4') foot wide concrete sidewalk from the Southernmost
property line of the Premises, at a point connecting to a sidewalk on the Premises, to
continue south to connect with Westmont Drive entering Oak Tree Estates.
" Southern Buffer means that general area labeled and delineated as the Southern
Buffer in Exhibit B attached hereto.
" Term " has the meaning set forth in Section 3 of this Agreement.
3. Term
This Agreement shall be effective as of the date of execution by all parties and shall
terminate upon completion of the Program Payments, save and except the City's obligation
noted in Section 5.c regarding provisions for watering the Southern Buffer, unless earlier
terminated pursuant to Section 8 .
4. Developer Covenants
In consideration of the City's incentives under this Agreement, the Developer agrees
[0
a. Plat Execute a final plat approved by the City providing for the dedication of
an independently platted lot (i.e. Lot 4) encompassing approximately 32,402
square feet as shown and labeled as Central Park on Exhibit B as a public
park and dedicate the lot to the City by Special Warranty deed (the "Deed "),
in the form attached as Exhibit C hereof, conveying fee simple title to the
City.
b. Desiqn Subject to Section 4.c.ii below, the Park Improvements shall be
constructed in accordance with the plans and specifications approved by the
City Council on February 7, 2006.
C. Construction Construct and install, at its cost, all Park Improvements and
Related Park Improvements in accordance with the design approved by the
City and in compliance with all applicable laws and ordinances, and the
following requirements:
Developer expressly represents that the bids for the Park
The Shops of South lake 380 Agreement - Approved February 7, 2006 - Page 3 of 18
Improvements which have previously been presented to the City were
obtained through an arms - length bidding process, that the low bidder
was determined by the Developer to be qualified applying reasonable
commercial standards generally accepted in the development
industry, that the low bidder was selected to perform the work, that
the low bidder has no affiliation or common ownership with the
Developer or any Developer Affiliate or upstream owners, and that the
Developer did not seek or accept any concessions from the low
bidder or any other bidder on any other contract, project, or work,
including but not limited to the Project generally, in its negotiation
and /or bid process with the bidders for the Park Improvements.
Any change orders requested during construction must be first
approved in writing by the City, such approval not to be unreasonably
withheld, conditioned and /or delayed. The City Manager or her
designee shall have authority to approve change orders that
cumulatively do not exceed twenty five thousand and no /100 dollars
($25,000). All increases in costs due to change orders shall be
subject to the City / Developer cost participation ratio of 3:1 and
associated obligation for reimbursement.
d. Tree Planting Acquire trees of a type and size reasonably agreed by and
between the City and the Developer and cause the trees to be planted in
accordance with recognized horticultural standards in the Southern Buffer
and properly maintain the trees in perpetuity in accordance with such
standards;
e. Irrigation System Install an automatic irrigation system and temporary water
meter isolating the entire Southern Buffer in accordance with City Codes and
operate the system in accordance with the recommendations of the City's
Landscape Administrator for the Term of this Agreement;
f. Sidewalk Construct the Sidewalk concurrently with sidewalks within the
Project;
g. Easement Prior to beginning construction, execute and record a declaration
of easement and restrictive covenants accepted by all parties subject to such
declaration for the Premises, granting the City an access and parking
easement on the Premises; The form and content shall be in conformance
with Exhibit D attached hereto and made a part hereof for all purposes;
h. Construct the Project in compliance with all applicable laws and ordinances;
Central Market Lease Developer represents that it has an existing
Memorandum Lease Agreement with HEB Grocery Company, LP ( "HEB)
permitting HEB to open and operate a Central Market specialized grocery
store on approximately 65,000 square feet of the Premises, that such lease
is for a term in excess of three years, and that Developer has not and will not
The Shops of Southlake 380 Agreement - Approved February 7, 2006 - Page 4 of 18
release HEB from such Lease during the first three years of such term after
the City pays the Park Improvement Grant provided for in section 5.a.iii
herein.
Submit to City, as a condition of payment of any incentive, reasonably
detailed evidence of payment of the Eligible Costs for such incentive; this
shall include invoices, lien releases from the contractor for each element of
construction and other information reasonably requested by the City; and
k. Comply with any and all remaining terms and provisions herein.
5. City's Development Program Incentives
Subject to Developer's performance of its obligations as required by this Agreement,
and subject to the provisions of this Section, to promote local economic development
pursuant to the Economic Development Program established by Resolution No. 06 -003,
the City shall grant Developer the following incentives:
a. The Park Improvement Grant.
The City agrees to accept the dedication of an independently platted
lot encompassing approximately 32,402 square feet shown as Central
Park on the attached Exhibit B as a public park. Upon acceptance by
the City, said dedication and Park Improvements shall be deemed to
satisfy the full obligation of the park dedication requirements of the
City's subdivision ordinance and shall constitute satisfaction of that
requirement (including without limitation, satisfaction of any and all
park fees and /or other similar fees). Upon acceptance of the Deed,
City shall assume all costs for maintenance of the Park;
If the plat is filed in the County Plat Records prior to construction, the
City hereby agrees to grant the Developer and its contractors full
access to the Park for purposes of constructing Park Improvements;
and
iii. The City, upon completion and acceptance of the Park Improvements,
upon Developer's compliance with Section 4 herein, and confirmation
by the City that the Developer has constructed a minimum of 80,000
square feet of Retail Shell Space exclusive of Central Market's
approximate 65,000 square feet, shall make a lump sum Program
Payment of the Park Improvement Grant to the Developer.
b. Tree Grant City shall pay Developer a Tree Grant reimbursing it for trees of
a size and species reasonably agreed to by the City and the Developer upon
their installation in the Southern Buffer and inspection and approval by the
City. City shall make a one -time payment to the Developer in an amount
The Shops of Southlake 380 Agreement - Approved February 7, 2006 - Page 5 of 18
equal to Developer's cost, not to exceed six thousand and no /100 ($6,000)
dollars;
C. Southern Buffer Watering City agrees to provide water for the Southern
Buffer for a period to begin upon the installation of plant materials, hydro
mulch and /or sod, and to end one year from the issuance of the first
Certificate of Occupancy issued within the Project. City agrees to provide
Developer a temporary water meter (the "Buffer Sub - meter") at no cost, for
its installation isolating the Southern Buffer from the rest of the irrigation
system for the Project. The Developer's master water bill shall be reduced
monthly by the amount identified by the Buffer Sub - meter. The City shall
have no responsibility to provide such water until the Developer installs a
permanent underground irrigation system, and the City shall have no other
responsibilities, including irrigation system materials or installation, or any
vehicular watering systems. City agrees to remove, at is sole cost and
expense, the temporary meter and provide reconnection of the irrigation lines
upon completion of this incentive period;
d. Sidewalk The City shall, upon acceptance of the Sidewalk, reimburse
Developer for the cost of construction of the Sidewalk, not to exceed Thirteen
Thousand and no /100 Dollars ($13,000); and
e. Condition Precedent Notwithstanding any other provisions hereof, City shall
not be obligated to make any Program Payment or other payment or grant
pursuant to this Agreement unless and until: (1) the Developer is in
compliance with the provisions of this Agreement in all material respects and
(2) the Ad Valorem Tax Revenues for the City for the year in which the
payment is due equal or exceed $10,000,000.
6. Covenants Running with the Land
The Developer's covenants, restrictions, burdens, and charges set forth in this
Agreement shall exist at all times as long as this Agreement is in effect, and shall be
covenants running with the land, binding upon all parties having any right, title or interest in
any portion of all the Property. Developer agrees that the City may file a copy of this
Agreement in the deed records of Tarrant County, Texas, for the purpose of providing
notice regarding these covenants.
7. Default and Termination
a. Default If either party should fail to comply with the terms of this Agreement,
the party shall have 30 days after delivery of written notice of such default
from the other party to cure such default. If the noncompliance is not cured
within that period, the non - defaulting party may terminate this Agreement by
written notice and shall have no further obligation to the other party; provided
that the City shall grant Developer an extension of 30 days to cure the
default if Developer demonstrates, to the reasonable satisfaction of the City
The Shops of Southlake 380 Agreement - Approved February 7, 2006 - Page 6 of 18
Council that: the default cannot be cured by the payment of monies and (2)
cannot be reasonably cured within 30 days and (3) that Developer is
diligently pursuing cure. Notwithstanding the foregoing, in the event either
party fails to pay the other party any monetary amounts owing under this
Agreement when due, and such failure continues for a period of 30 days
after delivery of written notice of such default, then such outstanding
amounts shall accrue interest from the date owing until paid at the rate of
seven and one half percent (7.5 %) per annum.
C. Automatic Termination If the Developer has not received a certificate of
occupancy for at least 140,000 square feet of commercial space on the
Premises inclusive of an HEB Central Market grocery store or other
reasonably comparable "specialty grocer" or major retail anchor, by June 30,
2007, this Agreement shall terminate and the City shall have no obligation
hereunder.
8. Audit
If requested by the City, Weaver & Tidwell or such other independent accounting
firm mutually agreeable to the City and the Developer (the "Auditor") shall audit the Eligible
Costs associated with the Park Improvements, and shall determine whether the Developer
has properly calculated the Eligible Costs. The conclusion of the Auditor shall be final,
binding and conclusive on the City and the Developer and the City's payments shall be
adjusted in accordance therewith.
9. Indemnification
a. DEVELOPER EXPRESSLY AGREES TO FULLY AND COMPLETELY
DEFEND, INDEMNIFY, AND HOLD HARMLESS THE CITY, AND ITS
OFFICERS, AND EMPLOYEES, AGAINST ANY AND ALL CLAIMS,
LAWSUITS, LIABILITIES, JUDGMENTS, COSTS, AND EXPENSES FOR
PERSONAL INJURY (INCLUDING DEATH), PROPERTY DAMAGE OR
OTHER HARM, DAMAGES OR LIABILITY FOR WHICH RECOVERY OF
DAMAGES IS SOUGHT, SUFFERED BY ANY PERSON OR PERSONS,
THAT MAY ARISE OUT OF OR BE OCCASIONED BY ANY NEGLIGENT,
GROSSLY NEGLIGENT, WRONGFUL, OR STRICTLY LIABLE ACT OR
OMISSION OF THE DEVELOPER OR ITS AGENTS, EMPLOYEES, OR
CONTRACTORS, ARISING OUT IN THE PERFORMANCE OF THIS
CONTRACT, REGARDLESS OF WHETHER OR NOT THE NEGLIGENCE,
GROSS NEGLIGENCE, WRONGFUL ACT, OR FAULT OF THE CITY OR
ITS OFFICERS, AGENTS, OR EMPLOYEES, CONTRIBUTES IN ANYWAY
TO THE DAMAGE, INJURY, OR OTHER HARM. THE REQUIREMENT OF
THE DEVELOPER TO DEFEND THE CITY ALSO UNCONDITIONALLY
APPLIES REGARDLESS OF WHETHER OR NOT THE NEGLIGENCE OR
FAULT (BUT NOT GROSS NEGLIGENCE OR WILLFUL MISCONDUCT)
OF THE CITY OR ITS OFFICERS, AGENTS, OR EMPLOYEES
CONTRIBUTES IN ANY WAY TO THE DAMAGE, INJURY, OR OTHER
The Shops of Southlake 380 Agreement - Approved February 7, 2006 - Page 7 of 18
HARM. Nothing in this paragraph may be construed as waiving any immunity
available to the City under state law. This provision is solely for the benefit of
the Developer and the City and is not intended to create or grant any rights,
contractual or otherwise, in or to any other Person.
b. No Joint Venture The parties agree that the terms hereof are not intended
to and shall not be deemed to create a partnership or joint venture among
the parties. The City, its elected officials, directors, employees and agents do
not assume any responsibility to any third party in connection with the
Developer's construction or operation of the Project.
10. Miscellaneous Matters
a. Section or Other Headings Section or other headings contained in this
Agreement are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement.
b. Attorneys Fees The prevailing party in the adjudication of any proceeding
relating to this Agreement shall be authorized to recover its reasonable and
necessary attorney's fees pursuant to Section 271.159 of the Texas Local
Government Code.
C. Entire Agreement This Agreement contains the entire agreement between
the parties with respect to the transactions contemplated herein.
d. Amendment This Agreement may only be amended, altered, or revoked by
written instrument signed by the Developer and the City.
e. Successors and Assigns This Agreement shall be binding on and inure to
the benefit of the parties, their respective successors and assigns. The
Developer may assign all or part of its rights and obligations hereunder (a) to
any Developer Affiliate effective upon written notice to the City, or (b) to any
Person other than a Developer Affiliate with the prior written approval of the
City.
f. Notice Any notice and /or statement required and permitted to be delivered
shall be deemed delivered by hand delivery, depositing same in the United
States mail, certified with return receipt requested, postage prepaid,
addressed to the appropriate party at the following addresses, or at such
other addresses provided by the parties in writing:
Developer:
c/o Cencor Realty Services
3102 Maple Ave., Ste. 500
Dallas, TX 75201
Attention: David C. Palmer
The Shops of Southlake 380 Agreement - Approved February 7, 2006 - Page 8 of 18
With a copy to: Jenkens & Gilchrist, P.C.
1445 Ross Avenue, Suite 3200
Dallas, Texas 75202
Attention: Mark R. Vowel[, Esq.
City: Mayor
City of Southlake
1400 Main Street, Suite 460
Southlake, Texas 76092
With a copy to: Taylor, Olson, Adkins, Sralla & Elam, L.L.P.
6000 Western Place, Suite 200
1 -30 at Bryant -Irvin Road
Fort Worth, Texas 76107
Attention: Debra Drayovitch
g. Interpretation Regardless of the actual drafter of this Agreement, this
Agreement shall, in the event of any dispute over its meaning or application,
be interpreted fairly and reasonably, and neither more strongly for or against
any party.
h. Applicable Law and Venue This Agreement is made, and shall be construed
and interpreted under the laws of the State of Texas and is fully performable
in Tarrant County, Texas, and venue of any dispute relating to this
Agreement shall lie in Tarrant County, Texas.
Counterparts This Agreement may be executed in multiple counterparts,
each of which shall be considered an original, but all of which shall constitute
one instrument.
Limitation on Liability Developer agrees that City shall not be liable to
Developer or any other party for any special or consequential damages,
direct or indirect, punitive damages, interest, or cost of court or expenses
related to litigation other than reasonable and necessary attorney's fees, as
provided in subsection b. hereof for any act of default by City under this
Agreement.
k. Representations The Developer represents and warrants to the City that it
has the requisite authority to enter into this Agreement.
11. Right to Offset
City may, at its option, offset any amounts due and payable to Developer under this
Agreement against any debt (including taxes) lawfully due to City from Developer and
which are delinquent under applicable law or by agreement, regardless of whether the
amount due arises pursuant to the terms of this Agreement or otherwise and regardless of
The Shops of Southlake 380 Agreement - Approved February 7, 2006 - Page 9 of 18
whether or not the debt due to City has been reduced to judgment by a court, provided that
if Developer is in good faith challenging the validity of any debt, in accordance with
applicable laws, the City may not offset unless and until such challenge is finally resolved.
12. Rough Proportionality
Developer agrees that all property dedicated to the City and all public facilities
constructed pursuant to this Agreement are reasonably necessary to serve the Project and
are roughly proportional to the need generated by the subdivision for such land and
facilities. Developer acknowledges its right to seek a variance to the dedication and /or
construction requirements and that it has voluntarily chosen not to pursue such remedies
and waives any claim for a taking of property, or any other constitutional or statutory claim,
that it may have under either the Texas or United States Constitutions or statutes.
THE CITY OF SOUTHLAKE
A Mayor
ATTEST:
♦.••� c u r y
°
aM
CITY SECRETA Y
c
Carroll /1709, Ltd., a Texas limited partnership
By: Carroll /1709 One, L. , a Texas limited
liability cgmpany, its General Partner,
M
Herbert D. Weitzvr;Fn, Manager
The Shops of Southlake 380 Agreement - Approved February 7, 2006 - Page 10 of 18
APPROVED AS TO FORM:
THE STATE OF TEXAS §
§
COUNTY OF TARRANT §
BEFORE ME, the undersigned authority, on this day personally appeared Andrew
Wambsganss, Mayor of the CITY OF SOUTHLAKE, a municipal corporation, known to me
to be the person whose name is subscribed to the foregoing instrument, and acknowledged
to me that he was duly authorized to perform the same by appropriate resolution of the City
Council of the City of Southlake and that he executed the same as the act of the said City
for the purposes and consideration therein expressed and in the capacity therein stated..
GIVEN UNDER MY HAND AND SEAL OF OFFICE this � day of
F-e6r a.r , 2006.
Ono
a
Notary Public in and for the State of Texas
Lori A • Fa cw Q (f
op
Notary's Printed Name
My Commission Expires: b ' U
The Shops of Southlake 380 Agreement - Approved February 7, 2006 - Page 11 of 18
THE STATE OF TEXAS §
COUNTY OF DALLAS §
BEFORE ME, the undersigned authority, on this day personally appeared Herbert D.
Weitzman, Manager of Carroll /1709 One, L.C., a Texas limited liability company, the
General Partner of Carroll /1709, Ltd., a Texas limited partnership, known to me to be the
person whose name is subscribed to the foregoing instrument, and acknowledged to me
that said instrument was signed on behalf of said entities, in the capacities therein stated,
and said Herbert D. Weitzman acknowledged said instrument to be his free act and deed.
GLEN UNDER MY HAND AND SEAL OF OFFICE in said County and State
this day of R , 2006.
E gg WISE Notary Pu I c in and for the State of Texas
ate of Texas p. 04 -1 t -2006
Notary's Printed Name
My Commission Expires:
The Shops of Southlake 380 Agreement - Approved February 7, 2006 - Page 12 of 18
EXHIBIT A
Description of Premises
OWNER'S CERTIFICATE
STATE OF TEXAS
COUNTY OF DALLAS
WHEREAS, SOUTH CARROLL /1709, LTD., is the owner of all that certain lot, tract or
parcel of land situated in the City of Southlake, Tarrant County, Texas, and being o
part of a 29.516 acre tract of land conveyed from W.E. Dalton and wife Dorothy L.
Dalton, to South Carroll /1709, LTD. By deed recorded in Volume 13242 at Page 76
of the Deed Records of Tarrant County, Texas, and being more particularly described
by metes and bounds as follows;
BEGINNING at a 1/2" iron rod found in the South right of way line of East Southlake
Boulevard (130 foot right of way) for the Northeast corner of said 29,516 acre tract
and also being the Northwest corner of Lot 1R in Block 1 of Garbutt Addition, an
addition to the City of Southlake, Texas, according to the plot thereof recorded in
Cabinet 'A', Slide 92.10, of the Plat Records of Tarrant County, Texas;
THENCE South 0' 13' 20" West along the West line of said Lot 1R in Block 1 of the
Garbutt Addition for a distance of 959.70 feet to a 1/2" iron rod found for the the
Southeast corner of said 29.516 acre tract and also being the Southwest corner of
said Lot 1R in Block 1 of the Garbutt Addition, and being in the North line of Lot 8
in Block 1 of Oak Hill Estates, an addition to the City of Southlake, Texas, according
to the plot thereof recorded in Cabinet "A" at Slide 2122 of the Plot Records of
Tarrant County, Texas;
THENCE North 88' 36' 13" West (Basis of Bearings per deed recorded in Volume
13242 at Page 76 of the Deed Records of Tarrant County, Texas) along the North
line of said Oak Hill Estates Addition for a distance of 1317.16 feet to a 5/8" iron
rod found in the East right of way line of South Carroll Avenue (54 foot right of
way);
THENCE North 0' 03` 09" West along he East right of way line of South Carroll
Avenue for a distance of 462.54 feet to a 5/8" iron rod set for corner, said point
being the beginning of a curve to the left having a central angle of 05' 49' 42" with
a radius of 635.00 feet and a chord bearing North 02' 57' 58" West at a distance
of 84.90 feet;
THENCE Northwesterly along said curve to the left and continuing along the East right
of way line of said South Carroll Avenue for a distance of 84.94 feet to a 5/8" iron
rod set for corner and being the beginning of a curve to the right having a central
angle of 03' 45.' 22" with a radius of 765.00 feet and a chord bearing North 04' 00'
08" West at a distance of 50.14 feet;
THENCE Northwesterly along said curve to the left and continuing to follow along the
East right of way line of said South Carroll Avenue for a distance of 50.15 feet to a
5/8" iron rod set for corner;
THENCE North 0' 03' 09" West and continuing along the East right of way line of
said South Carroll Avenue for a distance of 352.01 feet to a 5/8 iron rod set for
the cutoff line for the aforesaid East Southake Boulevard;
THENCE North 45' 38' 51" East along said cutoff line for East Southlake Boulevard
for a distance of 13.96 feet to a 5/8" iron rod set for corner in the South right of
way line of East Southake Boulevard;
THENCE South 88' 37' 53" East along the South right of way line of -said East
Southlake Boulevard for a distance of 1319..52 feet to the POINT OF BEGINNING AND
CONTAINING 29.1276 ACRES OF LAND, more or less.
The Shops of Southlake 380 Agreement - Approved February 7, 2006 - Page 13 of 18
EXHIBIT B
Concept Plan and Southern Buffer
The Shops of Southlake 380 Agreement - Approved February 7, 2006 - Page 14 of 18
EXHIBIT C
Special Warranty Deed for Park
Date: , 200_
Grantor: Carroll /1709, Ltd.
3102 Maple Ave., Suite 500
Dallas, TX 75201
Dallas County, Texas
Grantee: The City of Southlake, Texas,
A Municipal Corporation
1400 Main Street
Southlake,
Tarrant County, Texas 76028
Consideration: Ten dollars and no /100 and other valuable consideration
Property (including any improvements):
Being Block_, Lot_, The Shops of Southlake Addition, an addition
to the City of Southlake, Tarrant County, Texas, pursuant to the Plat
approved by the City of Southlake for Case No. ZA05- ,
, 2005
[NOTE: Description to be adjusted at time of conveyance]
Reservations from and Exceptions to Conveyance and Warranty:
See Exhibit `A' attached hereto and made a part hereof for all purposes.
Grantor, for the consideration and subject to the reservations from and exceptions
to conveyance and warranty set forth on Exhibit `A' attached hereto, conveys to Grantee
the Property, together with all and singular the rights and appurtenances thereto in any
wise belonging, to have and to hold it to Grantee, Grantee's successors and assigns, and
to warrant and forever defend all and singular the Property to Grantee and Grantee's
successors and assigns against every person whomsoever lawfully claiming or to claim
the same or any part thereof, except as to the reservations from the exception to
conveyance and warranty, when the claim is by, through or under Grantor, but not
otherwise.
When the context requires, singular nouns and pronouns include the plural.
The Shops of Southlake 380 Agreement - Approved February 7, 2006 - Page 15 of 18
GRANTOR:
Carroll /1709, Ltd., a Texas limited partnership
By: Carroll /1709 One, L.C., a Texas limited
liability company, its General Partner
Herbert D. Weitzman, Manager
THE STATE OF TEXAS §
COUNTY OF DALLAS §
BEFORE ME, the undersigned authority, on this day personally appeared Herbert D.
Weitzman, Manager of Carroll /1709 One, L.C., a Texas limited liability company, the
General Partner of Carroll /1709, Ltd., a Texas limited partnership, known to me to be the
person whose name is subscribed to the foregoing instrument, and acknowledged to me
that said instrument was signed on behalf of said entities, in the capacities therein stated,
and said Herbert D. Weitzman acknowledged said instrument to be his free act and deed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE in said County and State
this day of , 2006.
Notary Public in and for the State of Texas
Notary's Printed Name
My Commission Expires:
AFTER RECORDING RETURN TO:
Ms. Lori Farwell
City Secretary
City of Southlake
1400 Main Street, Suite 270
Southlake, Texas 76092
The Shops of Southlake 380 Agreement - Approved February 7, 2006 - Page 16 of 18
EXHIBIT "A" TO SPECIAL WARRANTY DEED
Permitted Exceptions
Reservation of all rights and interest in and to all oil, gas and other minerals in and under the
property as described in Deed executed by Walter J. Rusek to M.L. Dalton and W.E. Dalton,
dated September 5, 1980, filed September 8, 1980, recorded in Volume 6992, Page 719,
Deed Records, Tarrant County, Texas, as noted on survey by David Petree, R.P.L.S. 1890,
dated January 7, 2005, last revised July 14, 2005, last revised September 7, 2005.
2. City of Southlake Permanent Waterline Easement executed by and between W.E. Dalton and
Dorothy H. Dalton and the City of Southlake, dated February 19, 1997, filed March 26, 1997,
recorded in Volume 12712, Page 1651, Deed Records, Tarrant County, Texas, as shown on
survey by David Petree, R.P.L.S. 1890, dated January 7, 2005, last revised July 14, 2005, last
revised September 7, 2005.
3. Airport Zoning Ordinance dated December 16,1971, a certified copy of which is recorded in
7349 / 1106, Real Property Records of Tarrant County, Texas.
4. Terms, conditions and stipulations contained in Reciprocal Easement executed by and
between Cambridge - Southlake Partners, L.P. and South Carroll/1709, Ltd., dated January 20,
2004, filed February 4, 2004, recorded in County Clerk's File No. 37687, Deed Records,
Tarrant County, Texas, as noted on survey by David Petree, R.P.L.S. 1890, dated January 7,
2005, last revised July 14, 2005, last revised September 7, 2005.
The Shops of South lake 380 Agreement - Approved February 7, 2006 - Page 17 of 18
EXHIBIT D
Declaration of Easement and Restrictive Covenants
To be executed at time of deed transfer of the Park Property to the City.
The Shops of South/ake 380 Agreement - Approved February 7, 2006 - Page 18 of 18