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Item 10ACity of Southlake, Texas To: From: MEMORANDUM January 11, 2006 Shana Yelverton, City Manager Sharen Jackson, Finance Director Subject: Consider amending Commercial Developer's Agreement for Southlake Town Square Phase IV, Grand Avenue District, a 41.35 Acre Tract Action Requested: Consider amending Commercial Developer's Agreement for Southlake Town Square Please IV, Grand Avenue District, a 41.35 acre tract. Background Information: 2000-01 the developer constructed and installed Steel Casing (the "Sleeve") across Hwy 114 east of Carroll Avenue. Developer cost of S80,6.36. The sleeve was installed in advance of the widening of Hwy 114 to reduce potential cost related to boring underneath Hwy 114 to construct N-4 sewer line. N-4 currently serves the northern half of Town. Square as well as other properties in the N-4 drainage area, Ordinance No. 657-A Section 15A states the "City may offset the present value of any system - related facilities, pursuant to rules established in this section, which have been dedicated and received by the City, including the value of capital improvements constructed pursuant to an agreement with the City, against the value of the impact fee due for that category of capital improvement," On March 1, 2005 City Council approved the Commercial Developer's Agreement for Town Square Phase IV, Grand Avenue, Subsequent to the approval, the developer requested the following amendments: 1. pull credit for Grand Avenue wastewater impact fee of approximately $75,146 with remaining credit of S5,490 to be applied to future development utilizing the N-4 sewer system. 2. Waive all water impact fees for .3 public irrigation meters ($.35,598) Financial Considerations: The city would not be required to pay the wastewater fees due to the provision outlined above in Ordinance No. 657-A, The city or the TI fund would be required to pay the water impact fees of $.35,598. Citizen Input/ Board Review: None Legal Review: Request advice of attorney daring .January 17, 2005 meeting. Alternatives: The Council may approve it, deny it or, modify it. Supporting Documents: Developer's Agreement approved March 1, 2005 N-4 Sewer fine Map Staff Recommendation: Consider amending Commercial Developer's Agreement for Southlake Town Square Phase IV, Grand Avenue District, a 41.35 Acre Tract Commercial Developer's Agreement Page 2 of 2 SOUTHLAKE TOWN SQUARE PHASE IV THE GRAND AVENUE DISTRICT 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 Southlake Town Square Phase IV, The Grand Avenue District, hereinafter referred to as "Addition", to the City of Southlake, Tarrant County, Texas, and COOPER & STEBBINS, L,P, (for limited purposes set forth herein) for the installation of certain community facilities and improvements located therein, and to provide city services thereto. It is understood by and between the parties that this Agreement is applicable to the Addition (a commercial development) and to the off -site improvements necessary to support the Addition. I. GENERAL REQUIREMENTS A. It is agreed and understood by the parties hereto that the Developer shall employ a civil engineer and other design professionals licensed to practice in the State of Texas as necessary for the design and preparation of the plans and specifications for the construction of all facilities and improvements covered by this Agreement, B. Developer and City have executed a Development Agreement, a copy of which is attached hereto as Exhibit C, for the financing of certain public facilities under this Agreement. This Agreement contains certain requirements for the design and construction of the public facilities and improvements covered by this Agreement and the two parking garage structures Developer proposes to construct. The requirements of the Development Agreement are in addition to, and not in lieu or substitution of the obligations imposed upon Developer by this Agreement. C. Developer agrees that the City's specifications for public and private improvements are minimum standards only and Developer shall retain an engineer for purposes of review of City specifications. If, in the engineer's opinion, additional technical design requirements, in addition to the City specifications, are required to design the Public Improvements sufficient for local conditions, Developer will include such design requirements in the specifications for the Public Improvements, The City shall be expressly named as an intended third party beneficiary in the contract between the Developer and the engineer. D. Prior to initiating any construction of the Facilities, the Developer or the construction contractor(s) for Developer, shall provide to the City two originals of the following: A good and sufficient Performance Bond in an amount equal to one hundred percent (100%) of the total cost of the Improvements, guaranteeing the full and faithful execution of the work and performance of this Agreement and for the protection of the City against any improper construction of the work or the use of inferior materials. The Performance Board shall guarantee completion of the Improvements within two years of execution of this Agreement. 2. A good and sufficient Payment Bond in an amount equal to one hundred percent (100%) of the total cost of the Improvements, as guaranteeing payment for all labor, materials and equipment used in the construction of the Facilities, and 3. After construction and prior to acceptance of the facilities a good and sufficient Maintenance Bond in an amount equal to one hundred percent (100%) of the cost of the construction of underground public utilities and 100% of the paving Improvements, guaranteeing payment for all labor, materials and equipment used in the construction of the Facilities. 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. E. Developer may furnish the City one or more irrevocable letter of credits in lieu of the bonds required in Subsection D. In the event the Developer wishes to provide an irrevocable letter of credit, it shall be executed on the form provided by the City and the conditions in Exhibit "A" must be satisfied. F. Each of the bonds described in Subsection D shall be in a form acceptable to the City. The bonds must be issued by a Best -rated surety company that is duly authorized to transact business in the State of Texas; however, the City retains the right to reject any surety company regardless of such company's qualifications or authorization to do business in Texas if the company does not have a resident agent and/or the surety does not meet the requirements of Art. 7.19-1 of the Texas Insurance Code. G. The value of the performance bond, letters 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. Each request for reduction or payment of escrow funds must be accompanied by lien release(s) executed by all subcontractors and/or suppliers prior to the release of escrow funds or reduction in value of the account., Southlake Town square Phase 1V. Grand Avenue District rage 2 of 20 H. The City shall inspect and approve the construction of the Facilities and collect all applicable fees. The City will not issue a Letter of Acceptance for the Improvements until 1'. the Facilities are completely constructed (final completion) to the satisfaction of the City Engineer or his representative; and Z the Developer has delivered and the City has accepted: a. General warranty deeds for any parks; and b, general warranty deeds for streets, all in accordance with the provisions of the TIF Development Agreement. Developer must deliver to the City clear and unencumbered title to the Improvements; and 3. the City has approved a satisfactory maintenance bond, cash escrow or Letter of Credit pursuant to subsection E hereof. I, 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. .1, 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; South€ake Town square Phase €V, Grand Avenue District Page 3 of 20 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); 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; 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, K. 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. Such amount shall become a lien upon all real property of the Addition so maintained by the City, and not previously conveyed to other third parties, 120 days after Developer has notice of costs. L.. 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 southiake Town square Phase IV, Grand Avenue District Page 4 of 20 instrument. Approval by the City shall not be unreasonably withheld or delayed. M. The Developer agrees to fully comply with the terms and conditions of all other applicable development regulations and ordinances of the City. K 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. GENERALLY Developer shall submit, or cause to be submitted, plans and specifications for the public facilities to the City for review prior to the commencement of construction thereof.. Such plans and specifications and construction shall be in conformance with the City of Southlake's design standards, any additional design requirements recommended by Developer's engineers pursuant to Section i.C. above and all applicable ordinances. B. 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. C. 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 Director of Public Works, 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 TNRCC requirements Southlake Town Square Phase IV, Grand Avenue District Page 5 of 2D 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. D. STREETS The street construction in 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. The Developer will be responsible for, a, Installation and two year operation of street lights, which is payable to the City prior to final acceptance of the Addition; or an agreement with utility provider stating that no charge will be made for street lights for the two-year duration. b. Installation of all street signs designating the names of the streets inside the Addition, said signs to be of a type, size, color and design standard generally employed by the Developer and approved by the City in accordance with City ordinances, c. Installation of all regulatory signs recommended based upon the Manual of Uniform Traffic Control Devices, 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 signs Laving unique architectural features. However, should the signs be moved or destroyed by any means, the City shall replace them with signs as identical as possible to those damaged. 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. 3. 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 City Director of Public Works as quickly as possible when such Southtake Town Square Phase 1V, Grand Avenue district Page 5 of 20 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. E, 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 because of City requirements, the City will reimburse the Developer for the oversize cost greater than the cost of an 8" line. F. 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, a, 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. b. 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 Southlake Town Square Phase IV, Grand Avenue District Page 7 of 20 lot/lots from washing into street rights of way, drainage ways or other private property. G. 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, including, but not limited to the street trees and landscaping and plantings within the right-of- way, walls, vegetation, signage, landscaping, street furniture, pond and lake improvements and ensure that such responsibility is turned over to a property owners' association or the City pursuant to Section H of this Agreement. H. 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 until the right -of --way on which they are located is dedicated to and accepted by the City.. The Developer understands that the City shall not be responsible for the replacement of amenities turned over to a homeowners association 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 improvements turned over to an association and for improvements to be turned over to the City, until the City accepts such improvements, and the Developer shall, at his own cost and expense, defend and protect the City against all such claims and demands. START OF CONSTRUCTION Before the construction of the water, sewer, streets or drainage facilities can begin, the Developer must comply with the following; 1. Approved payment and performance bonds must be submitted to the City in the name of the City prior to commencement of any work, Southlake Town Square Phase IV, Grand Avenue District Page 8 of 20 Z At least six (6) sets of construction plans to be stamped "Released for Construction" by the Director of Public Works must be submitted. & All fees required to be paid to the City. 4� The Developer Agreement and Parking Agreement between the Developer and the City must be executed.. 5. The Developer, or Developer's Contractor, should the Developer desire, shall furnish to the City policies or proof of insurance, naming the City as co-insured, which must meet the Requirement of Contractor's Insurance, attached hereto as Exhibit B and incorporated herein. 6„ A Pre -Construction Meeting to be held with all Contractors, major Sub -Contractors, Utilities and appropriate Government Agencies. 7. Before construction of the Parking Garages may commence, Developer must satisfy these conditions, together with the conditions in Section IV, hereof.. Ill. MISCELLANEOUS 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. Southlake Town Square Phase IV, Grand Avenue District Page 9 of 20 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; provided that Developer's obligation under this subsection and subsection C below shall survive the term of this Agreement. 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 ten years after the acceptance by the City of the completed construction project, indemnify and hold harmless the City, its officers, agents, servants and employees, from any loss, damage, liability or expense on account of damage to property and injuries, including death, to any and all persons which may arise out of any defect, deficiency or negligence of the engineer's designs and specifications incorporated into any improvements constructed in accordance therewith, and the Developer shall defend at his own expense any suits or other proceedings brought against the City, its officers, agents, servants or employees, or any of them, on account thereof, to pay all expenses and satisfy all judgments which may be incurred by or rendered against them or any of them in connection with herewith. D, This Developer may not assign this Agreement or any part herein, or any interest herein, without the express written consent of the City Manager. No assignment shall be effective unless the City Manager executes an assignment which provides that the Developer shall continue to be responsible for the covenants herein and the assignee also accepts responsibility for complying with the Agreement. 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 Southlake Town Square Phase IV, Grand Avenue District Page 10 of 20 City and statutory requirements for being insured, licensed and bonded to do work in public projects and to be qualified in all respects to bid on public projects and to be qualified in all respects to bid on public projects of a similar nature. F, Work performed under the Agreement shall be completed within two (2) years from the date thereof. In the event the work is not completed within the two (2) year period, the City may, at its election, draw 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. 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 the sanitary sewer, storm drain, roadway and waterline; all lot lines, and tie in to the state Plane Coordinate System, IV, OTHER ISSUES A. OFF -SITE DRAINAGE Developer shall design on -site storm water systems within the capacity of the downstream drainage facilities, and consistent with the approved Development Site Plan, Ordinance No. 605 and no adverse impact on fully developed receiving stream. Developer shall assume full responsibility for providing engineering calculations and modeling to satisfy all inquiries. All detention structure(s) must be constructed to serve the portion of facility in this agreement. B. OFF -SITE SEWER AND WATER Due to the drainage improvements, Developer intends to make on -site drainage. There are no off site drainage or off -site water structures required for Phase IV, The Grand Avenue District, except as shown on the approved Development Site Plan and/or plans and specifications approved by the City. Requirement for off -site improvement may be necessitated by impact of quantity and level of storm water on receiving fully developed streams. Southlake Town Square Phase IV, Grand Avenue District Page 97 of 20 C. PARK FEES Park dedication requirements applicable to Phase IV, The Grand Avenue District, are 0.6359 acres, based upon the development of 31.798 acres of additional land (district is 41.35 acres total, which includes 9..552 acres of existing development). Cooper and Stebbins, the developer of adjacent Town Square improvements, has a credit of 1.8466 acres from prior development. Cooper and Stebbins, by execution of this Agreement, agrees to apply 0.6359 acres of this credit to satisfy Developer's requirements for dedication for this Addition. The City agrees that Cooper and Stebbins may carry the remaining 1,2107 acres and the 3.5430 acres of park development within Grand Avenue, for a total of 4.7537 acres, forward to future Town Square developments as a credit, 2. Developer agrees that no construction will commence on the parks until the Parks Board and the City Council have approved the proposed park design and proposed improvements. The design and construction costs of any improvements required to be constructed to satisfy requirements for on -site and off -site drainage shall not be permitted to be considered, for any purpose, including the TIF Development Agreement, as Project Costs for the parks, D. PARKING GARAGES On or before the date the City executes this Agreement, Developer shall submit design plans, including architectural and engineering plans and specifications, for the two parking garages Developer intends to construct. 2, The City shall at Developer's expense contract with a registered professional engineer (the "Project Design Engineer") to peer review the plans at 25% and 95% completion milestones, All comments or recommendations concerning the plans shall be implemented to the satisfaction of the City Director of Public Works or his designee. No construction shall commence until City has released the final contract plans and specifications. 3, Once the City has released the plans and has approved a plan for temporary parking for the other phases of the Town Square Addition, and the City has retained a project design engineer, at Developer's expense, Developer may commence construction of one or both garages.. Southlake Town Square Phase IV, Grand Avenue District Page 12 of 20 4.. The Project Design Engineer shall make visits to the project site frequent enough to certify at completion, that the parking garage structures were constructed in full compliance with the contract documents.. At Developer's cost, the City shall hire the services of a Construction Inspection Team approved by the City to manage and inspect the construction on a daily basis. 5, After project completion, the Project Design Engineer shall submit a written operational phase study to the City Director of Public Works, to address proper use of the facility in connection with matters like operating speed, ingress and egress, safety issues and any other recommendations for successful use of the parking garages. 6, City shall not accept the improvements or issue a certificate of occupancy until the Developer has paid the cost of the peer review, inspection and design and construction management services. E. FINANCIAL CONSIDERATIONS This City's participation in the funding of public improvements for the Addition is governed by the TIF Development Agreement, approved by the City Council under separate TIF agreement by Resolution No. 04-074 on November 16, 2004, A copy of this Agreement is attached hereto as Exhibit C and incorporated by reference herein. 1=, 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. 2. The Developer acknowledges and agrees that: a. protected trees removed from the site shall be mitigated as required in the Tree Preservation Ordinance; b., the final mitigation requirements shall be determined by the Landscape Administrator based upon actual removal; c. Developer shall be allowed to mitigate the trees through tree replacement to the extent possible; provided, however, such replacement of trees shall be located within Town Square as approved by the City's Landscape Administrator, and shall not include credit for any trees otherwise required or Southlake Town Square Phase IV, Grand Avenue District Page 13 of 20 previously planned to be planted as part of the City's landscape requirements, bufferyard requirements, street tree plantings, or similar regulations, including the approved site plan; d. Developer shall plant the mitigation trees prior to the issuance of the first certificate of occupancy, or to post a bond as provided by the Tree Preservation Ordinance 585- B, to have all of the plantings completed within 180 days of the issuance of the first certificate of occupancy or to pay the designated amount of mitigation fees into the Reforestation Fund, as outlined by the Tree Preservation Ordinance, within the same time period. 3. Nothing contained herein is intended to conflict with Site Plan for Southlake Town Square, Phase IV, Grand Avenue District, Case No, ZA04-067, as previously approved by City Council, incorporating Tree Preservation Analysis dated September 23, 2004. SIGNED AND EFFECTIVE on the date last set forth below, Southlake Town Square Phase IV, Grand Avenue District Page 14 of 20 CITY OF SOUTHLAKE, TEXAS By: Andy Wambsganss, Mayor ATTESTr, in Lori Farwell, City Secretary STATE OF e-Xa5 COUNTY OF " a r ,-a.kr� SILTS GRAND AVENUE, L.P., a Texas limited partnership By: SILTS Grand Avenue Genpar, L.L.C., a Texas limited liability company, its general partner By: Cooper & Stebbins, L.P., 0,%IIIIIII„►,,►►` a Texas limited partnership, its ,,• SOUTHt", _►giember �,� ••eo•baooem �i i ` •p •ti 1 � USA"; r •co. on a-0a w •'III � .�'� ,,��4w ►�11Fllllll:I�� By: CS Town Centers, LLC, a Texas limited liability company, its general partner By ' �-- Brian '. Stebbins, Managing Member On M29ah I R. , before me, , Notary Public, personally appeared Brian R. Stebbins, 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 '.DPj%'�'�p Notary Public © V. s C ). ; P� w My commission expires: JD I D 6 %''� '° 0 T I' EXHIBIT A - REQUIREMENTS FOR IRREVOCABLE LETTER OF CREDIT 1. The Letter of Credit must have a duration of at least one year. 2. The Letter of Credit may be substituted for utility security deposits exceeding $10,000.00. The City reserves the right to specify the face amount of the letter of credit. & 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.. Southlake Town Square Phase IV, Grand Avenue District Page 16 of 20 EXHIBIT "B" REQUIREMENTS FOR DEVELOPER'S CONTRACTOR'S INSURANCE Contractor's Insurance A, Without limiting: any of the other obligations or liabilities of the Developer, the Developer, or the Developer's contractor, (hereinafter called "Contractor") during the term of the Agreement, 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 Agreement, "Project" shall mean the public improvements to be constructed, pursuant to the Developer's Agreement, by Developer or by a Contractor under Developer's contract with a Contractor. "Developer' shall mean Developer; if Developer has contract with a Contractor to construct the public improvements, the Contractor may submit the proof of insurance coverages required herein. Coverages shall be of the following types and not less than the specified amounts: 1. 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. 2. 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 ECt3 (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 3. 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. 4. Property Insurance (Builder's All Risk) a. Developer shall purchase and maintain, or require its contractor to purchase and maintain, at all times during the term of its Contract with the Developer, property insurance written on a builder's risk "all-risk" or equivalent policy form in the amount of the initial contract price, plus value of subsequent contract modifications and cost of materials supplied or installed by others, comprising total 5outhfake Town Square Phase IV. Grand Avenue District Page 17 of 2€1 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 b. 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 c. If the insurance required by this paragraph requires deductibles, the Developer shall pay costs not covered because of such deductibles. d,. This property insurance shall cover portions of the work stored off the site, and also portions of the work in transit. Owner's Protective Liability Insurance: (i) Developer, or Developer's 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, an Owner'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 Developer or Contractor's liability insurance with a combined bodily injury and property damage minimum limit of $1,000,000 per occurrence. f. "Umbrella" Liability Insurance: Developer shall obtain, pay for and maintain umbrella liability insurance during the term of the Contract between the Contractor and the Developer, insuring Contractor for an amount of not less than $5,000,000 per occurrence combined limit for bodily injury and property damage that follows form and applies in excess of the primary liability coverages required herein above The policy shall provide "drop down" coverage where underlying primary insurance coverage limits are insufficient or exhausted. Policy Endorsements A. Each insurance policy to be furnished by Developer under this Agreement shall include the following conditions by endorsement to the policy: name the City as an additional insured as to all applicable policies; 2. 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; 3. 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; Southlake Town Square Phase IV, Grand Avenue District Page 18 of 20 4 the policy phrase "other insurance" shall not apply to the City where the City is an additional insured on the policy. Ill. Special Conditions A Insurance furnished by the Developer shall be in accordance with the following requirements: 1. 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 Developer. The City`s decision thereon shall be final; 2. all policies are to be written through companies duly licensed to transact that class of insurance in the State of Texas; and 3, all liability policies required herein shall be written with an 'occurrence" basis coverage trigger, B. Developer agrees to the following: 1 Developer waives subrogation rights for loss or damage against the City and agrees to include this provision in its contract with its contractors. Insurers shall have no right of recovery or subrogation against the City, it being the intention that the insurance policies shall protect all parties to the contract and be primary coverage for all losses covered by the policies; 2, Companies issuing the insurance policies and Developer 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 Developer; 3. Approval, disapproval or failure to act by the City regarding any insurance supplied by the Developer shall not relieve the Developer of full responsibility or liability for damages and accidents as set forth in this Agreement. Neither shall bankruptcy, insolvency or denial of liability by the insurance company exonerate the Developer from liability; 4. Deductible limits on insurance policies exceeding $10,000 require approval of the City; b. Any of such insurance policies required under this section may be written in combination with any of the others, where legally permitted, but none of the specified limits may be lowered thereby; & Developer shall require its Contractor to provide notice of any actual or potential claim or litigation that would affect required insurance coverages to the City in a timely manner; 7. Developer agrees to require its Contractor to either require its Subcontractors to maintain the same insurance coverage and limits as specified for the Developer or coverage of Subcontractors shall be provided by the Contractor; and B. Prior to the effective date of cancellation of any policy, Developer shall deliver to the City a replacement certificate of insurance or proof of reinstatement Southlake Town Square Phase IV, Grand Avenue Distdct Pagel 9 of 20 EHXIBIT C - DEVELOPMENT AGREEMENT Southlake Town Square Phase 1V, Grand Avenue District Page 20 of 20