Item 10D AgreementSOUTHLAKE 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.
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:
1. 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 IV. Grand Avenue District Page 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
2. 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.
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.
J. 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;
Southlake Town Square Phase IV, 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;
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.
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
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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.
N. 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
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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.
1. 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 having 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
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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
1. 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
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lot /lots from washing into street rights of way, drainage ways
or other private property.
G. AMENITIES
1. 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.
2. Developer agrees to maintain the amenities described in
subsection 1. above until such time that the property owners'
association accepts such responsibility.
3. Developer understands and agrees that the City shall not be
responsible for the replacement of any such amenities under any
circumstances.
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.
Southlake Town Square Phase IV, Grand Avenue District Page 8 of 20
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;
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. 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.
III. 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,
Southlake Town Square Phase IV. Grand Avenue District Page 9 of 20
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; 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
Southlake Town Square Phase IV. Grand Avenue District Page 10 of 20
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
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
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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.
C. PARK FEES
1. 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
1. 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.
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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.
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.
F. TREE PRESERVATION ORDINANCE
1. 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;
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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
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-
6, 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.
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BOARD OF DIRECTORS OF THE
REINVESTMENT ZONING NO. ONE,
CITY OF SOUTHLAKE, TEXAS
By:
Keith Shankland, Board Chairman
CITY OF SOUTHLAKE, TEXAS
Andy Wambsganss, Mayor
ATTEST:
IN
Lori Farwell, City Secretary
SLTS GRAND AVENUE, L.P.,
a Texas limited partnership
By: SLTS Grand Avenue Genpar, L.L.C.,
a Texas limited liability company, its
general partner
By: Cooper & Stebbins, L.P.,
a Texas limited partnership, its
member
By: CS Town Centers, LLC,
a Texas limited liability
company, its general
partner
By:
Brian R. Stebbins,
Managing Member
Southlake Town Square Phase IV, Grand Avenue District Page 15 of 20
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.
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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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 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.
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
Southlake Town Square Phase IV, Grand Avenue District Page 17 of 20
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.
e. 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.
III. 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;
City;
4. Deductible limits on insurance policies exceeding $10,000 require approval of the
5. 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;
6. 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
8. 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.
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EHXIBIT C - DEVELOPMENT AGREEMENT
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