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Item 10DCity of Southlake, Texas MEMORANDUM April 20, 2004 To: Billy Campbell, City Manager From: Pedram Farahnak, P.E., Director of Public Works, ext. 2308 Subject: Authorize the Mayor to execute a revised residential developer's agreement for Pin Oak Estates, a 57 lot addition located on Randol Mill Avenue, formerly known as Oak Hill Mobile Home Park. Action Requested: Authorize the Mayor to execute a revised residential developer's agreement for Pin Oak Estates, a 57 lot addition located on Randol Mill Avenue, formerly known as Oak Hill Mobile Home Park. Background Information: The area known as Oak Hill Mobile Home Park was recently re- zoned to allow site -built homes and the final plat of the area now known as Pin Oak Estates was approved as Hillwood Oaks Addition on November 7, 2002. The street name in this addition was changed from Oak Lane North and Oak Lane South to Pin Oak Circle on February 18, 2003. On June 3, 2003, the Council approved a 380 Agreement and residential developer's agreement for Pin Oak Estates. In 2001, sanitary sewer was provided in this addition by the City as part of the Community Development Block Grant (CDGB) program. In 2002, water lines were installed by the City. The developer proposes to reconstruct the streets, 24 feet wide with a storm sewer system, on -site and off -site. The streets will be lowered two feet below existing grade, necessitating the reconstruction of the water lines. The developer has received a bid of $67,878.75 to reconstruct the water line in Pin Oak Estates. In this re -development, the developer proposes the following: 1. Four Peaks Development will contract and undertake the reconstruction of the streets and to install both the on -site and off -site drainage systems in a design as mutually agreed upon. The cost estimate for paving and drainage improvements is $675,000. 2. Four Peaks Development will make its best effort to acquire the remaining lots within Pin Oak Estates that are not now owned by Four Peaks Development. 3. Four Peaks Development will cause site built single family homes to be built upon all of the lots that it controls within Pin Oak Estates. 4. The City will reimburse Four Peaks Development $250,000. 5. The City will waive 100 percent of all building permit fees, and any other ancillary fees associated the construction of homes. 6. The City will submit the city owned lot that exists with Pin Oak Estates for public auction. 7. The City will reimburse Four Peaks Development for the cost of replacing the water line in Pin Oak Estates up to a maximum of $80,000. Financial Consideration: Funds for the $250,000 reimbursement have been programmed in the CIP for FY 03-04. Funds for the water distribution pipe lines reimbursement will need to be programmed in the CIP for FY 04- 05. The City will reimburse the developer for reconstructing the water lines after the construction is accepted by the City in an amount not to exceed $80,000 when funds are available. Any changes to the original bid of $67,878.75 shall be approved in writing, in advance by the Director of Public Works. Citizen Input/ Board Review: None. Legal Review: City attorney has prepared the original agreement. Alternative: The City Council may approve it, deny it or modify it. Supporting Documents: Agreement Location Map Staff Recommendation: Authorize the Mayor to execute a revised residential developer's agreement for Pin Oak Estates, a 57 lot addition located on Randol Mill Avenue, formerly known as Oak Hill Mobile Home Park.k DIN OAK ESTATES G 7 Staff Contact: Pedram Farahnak, P.E., Director of Public Works, ext. 2308 Charlie Thomas, P.E., City Engineer, ext. 2175 PIN OAK ESTATES RESIDENTIAL 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 PIN OAK ESTATES, hereinafter referred to as the "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 57 lots contained within the Addition 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. IF DEVELOPER HAS ELECTED TO RECEIVE THE BENEFITS OF THE DEVELOPMENT INCENTIVES OFFERED IN THE ECONOMIC DEVELOPMENT AGREEMENT, Developer agrees that the INITIAL IMPROVEMENTS TO THE Addition will consist solely of single-family residential site built homes. "Site built" means a structure or home built and assembled entirely at the home site, and specifically excludes mobile homes, manufactured homes, modular homes, industrialized buildings, and industrialized housing, as those terms are defined in Texas Revised Civil Statutes, Article 5221(f). IF DEVELOPER DOES NOT ELECT TO RECEIVE THE BENEFITS OF THE DEVELOPMENT INCENTIVES, NO RESTRICTION SHALL BE REQUIRED AND DEVELOPER MAY IMPROVE THE PROPERTY IN ACCORDANCE WITH THE USES AUTHORIZED IN ZONING ORDINANCE 480. Since the Developer is prepared to develop the Addition as rapidly as possible and is desirous of selling lots to builders and having residential building activity begin as quickly as possible and the City is desirous of having the Addition completed as rapidly as possible, the City agrees to release 10% of the lots, 5, after installation of the water and sewer mains. Framing shall not commence until water quality is approved by the City and all appropriate Fire Code requirements are satisfied, and street signs with street names are in place. Temporary all-weather metal signs securely fastened in the ground are acceptable until permanent street signs are installed. The Developer recognizes that the DIN OAK ESTATES remaining building permits or Certificates of Occupancy for residential dwellings will not be issued until the supporting public works infrastructure including permanent street signs with block numbers and regulatory signs within the Addition have been accepted by the City. This will serve as an incentive to the Developer to see that all remaining items are completed. C. The Developer will present to the City either a cash escrow, Letters of Credit or 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 of the 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 Addition 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, 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. Performance and payment bond, Letters 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. D. The Developer agrees to furnish to the City maintenance bonds, letters of credit or cash escrow amounting to 100% of the cost of construction of underground utilities and, IF IMPROVED BY DEVELOPER, 100% of the construction cost for paving. These maintenance bonds, letters 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, letters 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. If the Developer chooses to construct bar ditches in lieu of curb and gutter, and the City approved the design and grade of bar ditches, Developer understands and agrees to provide maintenance on the DIN OAK ESTATES bar ditches for a period of two years from the date of acceptance of the Addition. Maintenance includes trash and debris cleanup, mowing, and erosion control. E. Until the performance and payment bonds, Letters of Credit or cash escrow required in Paragraph C have been furnished as required, no approval of work on or in the Addition shall be given by City and no work shall be initiated on or in said Addition by Developer, save and except as provided above. F. It is further agreed and understood by the parties hereto that upon acceptance by the City, title to all facilities and improvements mentioned hereinabove 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 shall occur at such time that the City, through its City Manager or his duly authorized representative, provides Developer with a written acknowledgement that all facilities are complete, have been inspected and approved and are being accepted by the City. G. On all public facilities included in this Agreement for which Developer awards his own construction contract, Developer agrees to the following procedure: 1. Developer agrees to pay the following: a. Inspection fees on all facilities included in this Agreement ARE WAIVED. b. Administrative Processing fees on all facilities included in this Agreement ARE WAIVED. C. Trench testing (95% Standard); d. The additional charge for inspections during Saturday, Sunday, holidays, and after normal working hours; e. Any charges for re -testing as a result of failed tests; f. All gradation tests required to insure proper cement and/or lime stabilization. DIN OAK ESTATES 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, SUCH SATISFACTION AND ACCEPTANCE NOT TO BE UNREASONABLY WITHHELD, DELAYED OR CONDITIONED. H. The Developer and any third party, independent entity engaged in the construction of houses, hereinafter referred to as "Builder" 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 or Builder fail in this responsibility, the City may contract for this service and bill the Developer or Builder for reasonable costs. Should such cost remain unpaid for 120 days after notice, the City can file a lien on such property so maintained. 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. J. 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. DIN OAK ESTATES II. FACILITIES A. ON SITE WATER —INTENTIONALLY DELETED B. DRAINAGE IF DEVELOPER ELECTS TO RECEIVE THE DEVELOPMENT INCENTIVES FROM THE CITY AND TO RESTRICT THE INITIAL DEVELOPMENT IN THE PROPERTY TO SITE -BUILT HOMES, 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 WHICH SHALL BE SUBSTANTIALLY IN COMPLIANCE WITH THE DESCRIPTIONS THEREOF IN THE ENGINEER'S LETTER ATTACHED HERETO AND MADE A PART HEREOF AS EXHIBIT "A", released by the Director of Public Works for the City, and made part of the final plat as approved by the Planning and Zoning Commission, and the drainage facilities shall be constructed to meet 100 year flood conditions. IF DEVELOPER HAS ELECTED TO RECEIVE THE DEVELOPMENT INCENTIVES, The Developer hereby agrees to fully comply with all EPA and TCEQ 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. The Developer hereby agrees to comply with all provisions of the Texas Water Code. C. LAW COMPLIANCE Developer hereby agrees to comply with all federal, state, and local laws that are applicable to development of this Addition. D. STREETS 1. IF DEVELOPER ELECTS TO RECEIVE THE DEVELOPMENT INCENTIVES FROM THE CITY, The street construction, IF ANY, in the Addition shall conform to the requirements in accordance with plans and specifications to be prepared by the Developer's engineer (WHICH SHALL BE SUBSTANTIALLY IN COMPLIANCE WITH THE DESCRIPTION THEREOF IN THE ENGINEER'S LETTER ATTACHED HERETO AND MADE A PART HEREOF AS EXHIBIT "A') and released by the Director of Public Works. Streets will be installed in accordance with the plans and DIt\I fl/�L! CCTA TCC specifications to be prepared by the Developer's engineer and released by the Director of Public Works. 2. The Developer will be responsible for: a. 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. b. 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 put in signage having unique architectural features, however, should the signs be moved or destroyed by any means the City is only responsible for replacement of standard signage. 3. All street improvements, IF ANY, 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 hereby agrees to advise the City 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. DIN OAK ESTATES E. ON SITE SANITARY SEWER FACILITIES —INTENTIONALLY DELETED 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 the NCTCOG STANDARD SPECIFICATIONS FOR PUBLIC WORKS CONSTRUCTION, Division 1000 EROSION AND SEDIMENT CONTROL to prevent soil erosion. It will be the Developer's responsibility to present to the Director of Public Works a 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 streets or affected areas. If the Developer does not remove the soil from the street 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 Developer's expense. All expenses must be paid to the City 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 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, and 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 item such as walls, vegetation, signage, landscaping, street furniture, pond and lake improvements until such responsibility is turned over to a homeowners association. H. USE OF PUBLIC RIGHT-OF-WAY DIN OAK ESTATES 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 such responsibility is turned over to a homeowners association. The Developer and his successors and assigns understand that the City shall not be responsible for the replacement of these amenities under any circumstances and further agrees to indemnify and hold harmless the City from any and all damages, loss or liability of any kind whatsoever by reason of injury to property or third person occasioned by its use of the public 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. START OF CONSTRUCTION Before the construction of the streets, and the water, sewer, 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 the commencement of any work. 2. At least ten (10) 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, AS MODIFIED HEREIN. 4. Developer Agreement must be executed. 5. The Developer, or Contractor, shall furnish to the City a policy of general liability insurance, naming the City as AN ADDITIONAL INSURED G^-yea, prior to commencement of any work. All insurance must meet the Requirement of Contractor's Insurance attached hereto and incorporated herein. 6. A pre -construction meeting between Developer and City is required. Developer or contractor shall furnish to the City a list of all subcontractors and suppliers, which will be providing greater than a $1,000 value to the Addition. III. GENERAL PROVISIONS DIN OAK ESTATES 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, OR INVITEES, SAID INDEMNIFICATION TO REMAIN IN EFFECT UNTIL THE CITY ACCEPTS THE ADDITION. 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 DIt\I fl/�L! CCTA TCC this connection, the Developer shall for a period of two (2) years after the acceptance by the City of the completed construction project, indemnify and hold harmless the City, its officers, agents, servants and employees, from any loss, damage, liability or expense on account of damage to property and injuries, including death, to any and all persons which may arise out of any defect, deficiency or negligence of the engineer's designs and specifications incorporated into any improvements constructed in accordance therewith, and the Developer shall defend at his own expense any suits or other proceedings brought against the City, its officers, agents, servants or employees, or any of them, on account thereof, to pay all expenses and satisfy all judgement 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 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 streets and to be qualified in all respects to bid on public streets and to be qualified in all respects to bid on public projects of a similar nature. F. Work performed under the Agreement shall be completed within two (2) years from the date thereof. In the event the work is not completed within the two (2) year period, the City may, at its election, draw on the performance bond, 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. The City is an exempt organization under Section 151.309, Tax Code, and the facilities constructed under this Agreement will be dedicated to public use and accepted by the City upon acknowledgement by the City of completion under Paragraph 1.F. DIN OAK ESTATES 1. The purchase of tangible personal property, other than machinery or equipment and its accessories, repair, and replacement parts, for use in the performance of this Agreement is, therefore, exempt from taxation under Chapter 151, Tax Code, if the tangible property is: a. necessary and essential for the performance of the Agreement; and b. completely consumed at the job site. 2. The purchase of a taxable service for use in the performance of this Agreement is exempt if the service is performed at the job site and if: a. this Agreement expressly requires the specific service to be provided or purchased by the person performing the Agreement; or b. the service is integral to the performance of the Agreement. H. Prior to final acceptance of the Addition, the Developer shall provide to the City four (4) 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. DIN OAK ESTATES 3 IV. OTHER ISSUES A. STREETS AND ON -SITE AND OFF -SITE DRAINAGE IF DEVELOPER HAS ELECTED TO RECEIVE THE DEVELOPMENT INCENTIVES, The developer will have construction plans prepared and contract for the construction of the streets and drainage, which shall meet City standards as more fully detailed above. B. BUILDING PERMIT FEES The City will waive all building permit fees associated with the construction of new single-family residential site built homes in the addition. No building permit fees shall be waived by the City for other than site built homes. Developer agrees that IF IT HAS ELECTED TO RECEIVE THE DEVELOPMENT INCENTIVES AND HAS THUS, RESTRICTED INITIAL DEVELOPMENT IN THE PROPERTY TO SITE -BUILT HOMES, in the event that any non - site built home or structure is established on any developable lot in the addition, AS PART OF THE INITIAL DEVELOPMENT OF THE PROPERTY, developer shall make reimbursement of all sums paid to developer by the City for contribution for the street and drainage construction within 60 days of receipt of notice and demand by the City. C. CITY OWNED LOT After construction of streets and drainage is complete and improvements have been accepted by the City, the City will transfer title to the one lot that it owns in the addition, Lot 1, Block 1, to Developer. Developer and City acknowledge that Chapter 272, Texas Local Government Code, requires that before land owned by the City may be sold or exchanged, notice to the public of the offer of the land for sale must be published and the land must be bid. D. ROADWAY, WATER AND WASTEWATER IMPACT FEES The City will give the developer credit for the roadway, water and wastewater impact fees for Block 1, Lots 1, 4, 8 and 17 and Block 2, Lots 1, 9, 15, 22 and 26. E. ONSITE WATER The City will reimburse the developer for reconstructing the water lines after the construction is accepted by the City in an amount not DIN OAK ESTATES to exceed $80,000 when funds are available. Any changes to the original bid of $67,878.75 shall be approved in writing, in advance by the Director of Public Works. F. PARK FEES There are no park fees due on this addition as it was originally subdivided prior to the City's park land dedication ordinance. G. TREE PRESERVATION ORDINANCE All construction activities should meet the requirements of the Tree Preservation Ordinance No. 585-A. SIGNED AND EFFECTIVE on the date last set forth below. DEVELOPER: SOUTHLAKE PHOENIX HOMES, LTD., A TEXAS LIMITED PARTNERSHIP BY: OAK LANE PARTNERS, LTD., A TEXAS LIMITED PARTNERSHIP, GENERALPARTNER BY: PIMA PROPERTIES, INC., A TEXAS CORPORATION, GENERAL PARTNER in 2/G11G1: 3 TITLE: ADDRESS: 726 COMMERCE ST., SUITE 109 SOUTHLAKE, TX 76092 ATTN: TOM MATTHEWS STATE OF TEXAS COUNTY OF TARRANT DIt\I fl/�L! CCTA TCC On , before me, Notary Public, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument, the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. (SEAL) Notary Public My commission expires: CITY OF SOUTHLAKE, TEXAS By: Mayor ATTEST: City Secretary Date: DIN GAK ESTATES 3 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 percent (6%), and has been profitable for each of the last two consecutive years. 5. The customer must provide the City with supporting financial information on the bank to allow the City to ascertain requirements are met. Suitable financial information would be the previous two (2) years December 31 Call Reports submitted to the FDIC and audited financial statements. 6. Partial drawings against Letter of Credit must be permitted. 7. The City must be able to draft on sight with proof of amount owed. 8. The customer pays any and all fees associated with obtaining Letter of Credit. 9. Expiring Letter of Credit must be replaced by substitute Letters of Credit at least 30 days prior to the expiration date on the Letter of Credit held by the City. DIN OAK ESTATES 3 REQUIREMENTS FOR CONTRACTOR'S INSURANCE Contractor's Insurance 1. Without limiting any of the other obligations or liabilities of the CONTRACTOR, during the term of the Contract, the CONTRACTOR shall purchase and maintain the following minimum insurance coverages with companies duly approved to do business in the State of Texas and satisfactory to the CITY. In this section "Project" shall mean the public facilities to be constructed by Developer or under Developer's contract with a CONTRACTOR. Coverages shall be of the following types and not less than the specified amounts: a. Workers' compensation as required by Texas law, with the policy endorsed to provide a waiver of subrogation as to the CITY; employer's liability insurance of not less than the minimum statutory amounts. b. Commercial general liability insurance, including premises - operations; independent CONTRACTOR's liability, completed operations and contractual liability covering, but not limited to, the liability assumed under the indemnification provisions of this Contract, fully insuring CONTRACTOR's (or Subcontractor's) liability for injury to or death of CITY's employees and third parties, extended to include personal injury liability coverage with damage to property of third parties, broad form property damage, with minimum limits as set forth below: General Aggregate......................$2,000,000 Bodily Injury $1,000,000 Each Occurrence Property Damage $1,000,000 Each Occurrence Products—Components/Operations Aggregate . $1,000,000 Personal and Advertising Injury ............ $ 1,000,000 (With Employment Exclusion deleted) Each Occurrence ...................... $ 1,000,000 Contractual Liability: Bodily Injury $1,000,000 Each occurrence Property Damage $1,000,000 Each occurrence The policy shall include coverage extended to apply to completed operations, asbestos hazards (if this project involves work with asbestos) and ECU (explosion, collapse and underground) hazards. The completed operations coverage must be maintained for a minimum of one year after final completion and acceptance of the work, with evidence of same filed with CITY. RESIrvENTT141 DEy€18PER AGREEMENT PIN DIN OAK ESTATES C. Comprehensive automobile and truck liability insurance, covering owned, hired and non -owned vehicles, with a combined bodily injury and property damage minimum limit of $1,000,000 per occurrence; or separate limits of $500,000 for bodily injury (per person), and $500,000 for property damage. Such insurance shall include coverage for loading and unloading hazards. d. Property Insurance (Builder's All Risk) (i) CONTRACTOR shall purchase and maintain, at all times during the term of its Contract with the Developer property insurance written on a builder's risk "all-risk" or equivalent policy form in the amount of the initial contract price, plus value of subsequent contract modifications and cost of materials supplied or installed by others, comprising total value for the entire Project at the site on a replacement cost basis without optional deductibles. Such property insurance 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. DIN OAK ESTATES e. OWNER's Protective Liability Insurance: (i) CONTRACTOR shall obtain, pay for and maintain at all times during the prosecution of the work under the contract between the CONTRACTOR and the Developer, a CITY's protective liability insurance policy naming the CITY as insured for property damage and bodily injury, which may arise in the prosecution of the work or CONTRACTOR's operations under the contract. (ii) Coverage shall be on an "occurrence" basis, and the policy shall be issued by the same insurance company that carries the CONTRACTOR's liability insurance with a combined bodily injury and property damage minimum limit of $1,000,000 per occurrence. f. "Umbrella" Liability Insurance: The CONTRACTOR shall obtain, pay for and maintain umbrella liability insurance during the term of the Contract between the CONTRACTOR and the Developer, insuring CONTRACTOR for an amount of not less than $5,000,000 per occurrence combined limit for bodily injury and property damage that follows form and applies in excess of the primary liability coverages required herein above. The policy shall provide "drop down" coverage where underlying primary insurance coverage limits are insufficient or exhausted. Policy Endorsements 1. Each insurance policy to be furnished by CONTRACTOR shall include the following conditions by endorsement to the policy: a. name the CITY as an additional insured as to all applicable policies; b. each policy shall require that 30 days prior to cancellation, non - renewal or any material change in coverage, a notice thereof shall be given to CITY by certified mail. If the policy is canceled for nonpayment of premium, only 10 days written notice to CITY is required; C. the term "CITY" shall include all authorities, boards, bureaus, commissions, divisions, departments and offices of the CITY and individual members, employees and agents thereof in their official capacities, and/or while acting on behalf of the CITY; DIN OAK ESTATES d. the policy phrase "other insurance" shall not apply to the CITY where the CITY is an additional insured on the policy. 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 recovery or subrogation against the CITY, it being the intention that the insurance policies shall protect all parties to the contract and be primary coverage for all losses covered by the policies; ii. companies issuing the insurance polices and CONTRACTOR shall have no recourse against the CITY for payment of any premiums or assessments for any deductibles, as all such premiums and deductibles are the sole responsibility and risk of the CONTRACTOR; iii. approval, disapproval or failure to act by the CITY regarding any insurance supplied by the CONTRACTOR (or any Subcontractors) shall not relieve the CONTRACTOR of full responsibility or liability for damages and accidents as set forth in the Contract Documents or this Agreement. Neither shall be bankruptcy, insolvency or denial of liability by the insurance company exonerate the CONTRACTOR from liability; iv. deductible limits on insurance policies exceeding $10,000 require approval of the CITY; DIN OAK ESTATES V. any of such insurance policies required under this paragraph may be written in combination with any of the others, where legally permitted, but none of the specified limits may be lowered thereby; vi. prior to commencement of operations pursuant to this Contract, the Developer or the Developer's CONTRACTOR shall furnish the CITY with satisfactory proof that he has provided adequate insurance coverage in amounts and by approved carriers as required by this Agreement; vii. CONTRACTOR shall provide notice of any actual or potential claim or litigation that would affect required insurance coverages to the CITY in a timely manner; viii. CONTRACTOR agrees to either require its Subcontractors to maintain the same insurance coverage and limits as specified for the CONTRACTOR or coverage of Subcontractors shall be provided by the Contract; and ix. Prior to the effective date of cancellation, CONTRACTOR shall deliver to the CITY a replacement certificate of insurance or proof of reinstatement. DIN OAK ESTATES 3 Pin Oak Estates