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Item 4D (2)Item 41) CITY OF SOUTH LAKE MEMORANDUM (April 15, 2014) To: Shana Yelverton, City Manager From: Robert H. Price, P.E., Director of Public Works Subject: Approve Amendment No. 1 to the Commercial Developer Agreement with Excel Southlake, LLC for Park Village Lot 1, Block 1 and Lot 1, Block 2 Action Requested: Approve Amendment No. 1 to the Commercial Developer Agreement with Excel Southlake, LLC for Park Village Lot 1, Block 1 and Lot 1, Block 2. Background Information: Excel Southlake, LLC is developing the Park Village addition within the City of Southlake. The Park Village addition is located at the southwest corner of East Southlake Boulevard and South Carroll Avenue. The addition will consist of 22.48 acres of commercial development consisting of shops, restaurants and a grocery store. The Commercial Developer Agreement includes the developer's obligation for the construction of the public improvements only. The developer will construct two public roadways as part of this development; Zena Rucker Road and Tower Boulevard. The developer will dedicate 60-feet of right of way for the purpose of constructing 1,925 LF of pavement. Also, the developer will dedicate the right of way necessary to widen South Carroll Avenue and will construct the median improvements to match Scenario 3 of the design schematic recommendations from the Kimley-Horn study conducted in 2012 for South Carroll Avenue. Approximately 920 LF of pavement will be widened primarily to the west onto the Park Village site to accommodate right turn deceleration lanes into the main entrance of the Park Village development as well as onto Zena Rucker Road. The developer will also construct all public water, sanitary sewer, storm sewer and detention to serve this development. The standard Commercial Developer Agreement (CDA) was executed on November 25, 2013. The CDA did not include any reimbursement provisions as outlined in the Chapter 380 Agreement which was approved by City Council under Resolution Item 4D 14-003 on February 25, 2014. The provisions will be included in Amendment No. 1 of the Commercial Developer Agreement and are as follows: Up -Front Incentives as outlined in the 380 Agreement The developer shall be reimbursed the following amounts of the fees paid under the Commercial Developer Agreement dated November 25, 2013. The developer is responsible for constructing the public improvements as outlined in the original Commercial Developer Agreement. A. PUBLIC WORKS ADMINISTRATION FEES $37,000 B. PARK DEDICATION FEES $53,954 The Up -Front Incentives for the Public Works Fees and Park Fees may be paid 30 days after the Effective Date of the Chapter 380 Agreement, as specified in that agreement. The developer shall submit a written request for reimbursement to the Public Works Department and provide supporting information of fees paid. C. ROADWAY IMPACT FEES $205,044 The Up -Front Incentive for the Roadway Impact Fees may be reimbursed after the City has received payment for the fees through the Building Permit process. The Developer shall submit a written request for reimbursement to the Public Works Department and provide the supporting information of fees paid. UP -Front Incentives Total: $295,996 Mutli-Year Incentives as outlined in the 380 Agreement Reimbursement to the developer will begin in 2016 and shall be paid out over 4-5 years based on performance measures being met. Any reimbursement to the developer shall not exceed 50% of the total tax revenue (sales and ad valorem) received each year by the City from the development. Total tax revenue is estimated at $700,000 annually. Section 5.J.iii of the Chapter 380 Agreement Item 4D outlines the payment schedule for the reimbursements to the developer. As a prerequisite of any program payments being made to the developer, the developer has agreed that a minimum of one hundred fifty thousand (150,000) square feet of Eligible Improvements must reach substantial completion by November 1, 2014. The following improvements shall be constructed by the developer as outlined in the Commercial Developer Agreement. A. CARROLL MEDIAN AND DRIVE LANE The Program Payment Incentives are as follows for the median and drive lane improvements - not to include the deceleration lane into the South Carroll Avenue private drive: • Cap One Not to exceed 100% of actual construction costs • Cap Two Not to exceed $237,538 The lesser of Cap One or Cap Two shall be eligible for Program Payments as outlined in Section 5.E of the Chapter 380 Agreement. B. ZENA RUCKER ROAD AND DECELERATION LANE The Program Payment Incentives are as follows for the construction of Zena Rucker Road and the deceleration lane on South Carroll Avenue to Zena Rucker Road: • Cap One Not to exceed 60% of actual construction costs after deduction of Roadway Impact Fees • Cap Two Not to exceed $44,097 The lesser of Cap One or Cap Two shall be eligible for Program Payments as outlined in Section 5.F of the Chapter 380 Agreement. C. TOWER BOULEVARD AND DECELERATION LANE The Program Payment Incentives are as follows for the construction of Tower Blvd. and the deceleration lane along eastbound FM1709 (Southlake Blvd.) to Tower Blvd. — not to include the deceleration lane into the Southlake Blvd. private drive: • Cap One Not to exceed 50% of actual construction costs Item 4D • Cap Two Not to exceed $262,144 The lesser of Cap One or Cap Two shall be eligible for Program Payments as outlined in Section 5.G of the Chapter 380 Agreement. D. TOWER BOULEVARD SIGNAL Construction of the Tower Boulevard signal is subject to TxDOT approval. The Program Payment Incentives for the Tower Blvd. Signal are as follows for the construction of the traffic signal at the intersection of Fm1709 (Southlake Blvd.) and Tower Blvd., including any median modifications along FM1709 (Southlake Blvd.), pavement markings, and appurtenances. The Program Payment Incentives are as follows: • Cap One Not to exceed 50% of actual construction costs of the signal • Cap Two Not to exceed $118,339 The lesser of Cap One or Cap Two shall be eligible for Program Payments as outlined in Section 5.H of the Chapter 380 Agreement. The Program Payments shall be paid once per year within 90 days after all ad valorem and sales taxes have been paid and received by the City. The Developer shall submit a written request for reimbursement for the Multi -Year Incentives to the Public Works Department and provide the supporting information that all the requirements outlined in the Chapter 380 Agreement have been met. Multi -Year Incentives Total: $662,118 Other Provisions as outlined in the 380 Agreement: The developer shall provide a $4.75M Letter of Credit (LOC) to the City no later than 15 business days from the Effective Date of the Chapter 380 Agreement as outlined in Section 5X of the Chapter 380 Agreement. The developer shall also provide to the City a written right of access to the Property, in a form acceptable to the City Attorney, in the event City must draw on the letter of credit and complete construction of the Amenities. Item 4D Financial Considerations: Southlake Park Village drains into Critical Drainage Structure #23 and will require a fee of $6,965.35 to be paid prior to beginning construction. ($309.83/Acre X 22.4812 Acres = $6,965.35). The developer shall pay park fees in the amount of $53,954.88 ($2,400/acre X 22.4812 Acres = $53,954.88). In addition, the developer shall complete all common area trails and public pathways consistent with approved site plan and City of Southlake 2030 Master Pathways and in accordance with the State of Texas accessibility requirements. The developer shall be reimbursed the following amounts starting in 2016 over 4-5 years depending on performance, not to exceed 50% of the total tax revenue (sales and ad valorem) received each year for the City from the development. Total tax revenue is estimated at $700,000 annually. Section 5.J.iii of the Chapter 380 Agreement outlines the payment schedule for the reimbursements to the developer. Strategic Link: This Commercial Developer Agreement links to the city's strategy map relative to the focus area of Quality Development by investing to provide and maintain high quality public assets. Citizen Input/ Board Review: N/A Legal Review: This is the City's standard Commercial Developer Agreement (CDA) originally drafted by the City Attorney and revised to include the incentives from the approved Chapter 380 Agreement which has been reviewed by the City Attorney. Alternatives: The City Council may approve Amendment No. 1 to the Commercial Developer Agreement or deny it. Supporting Documents: Location Map Commercial Developer Agreement —Amendment No. 1 Resolution 14-003 Staff Recommendation: Approve Amendment No. 1 to the Commercial Developer Agreement with Excel Southlake, LLC for Park Village Lot 1, Block 1 and Lot 1 Block 2 Staff Contact: Robert H. Price, P.E., Public Works Director Item 41) Cheryl Taylor, P.E., Deputy Director Public Works/City Engineer Alejandra Ayala, P.E., Civil Engineer Park Village Lot 1, Block 1 Lot 1, Block 2 COMMERCIAL DEVELOPER AGREEMENT (Amendment No. 1) An agreement between the City of Southlake, Texas, hereinafter referred to as the "City", and the undersigned Developer, Excel Southlake, LLC, hereinafter referred to as the "Developer", of the Park Village Lot 1, Block 1 and Lot 1, Block 2 hereinafter referred to as "Addition" to the City of Southlake, Tarrant County, Texas, for the installation of certain community facilities located therein, and to provide city services thereto. It is understood by and between the parties that this Agreement is applicable to the Addition (a commercial development) and to the off -site improvements necessary to support the Addition. I. GENERAL REQUIREMENTS A. It is agreed and understood by the parties hereto that the Developer shall employ a civil engineer licensed to practice in the State of Texas for the design and preparation of the plans and specifications for the construction of all facilities covered by this Agreement. B. The Developer hereby agrees to comply with all federal, state, and local laws that are applicable to development of this Addition. C. 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 process. D. Building permits shall not be issued until all Public Works infrastructure is deemed substantially complete by the City, all appropriate Fire Code requirements are satisfied and street signs with street names are in place. Temporary, all-weather signs as specified in the Manual of Uniform Traffic Control Devices (MUTCD) securely fastened in the ground are acceptable until permanent street signs are installed. The Developer recognizes that Certificates of Occupancy will not be issued until the supporting public works infrastructure including permanent street signs with block numbers and regulatory signs within the Addition have been accepted by the City. This will serve as an incentive to the Developer to see that all remaining items are completed. E. The Developer will present to the City, in form acceptable to the City, either (1) a cash escrow, (2) Letter of Credit, or (3) performance bond and payment bond, guaranteeing and agreeing to pay an amount equal to 100% of the value of the construction cost of all public facilities (streets, sidewalks, water, sewer, Pagel of 20 2013 Revision CDA— Park Village (Amendment 1) Excel Southlake, LLC drainage, and any other public infrastructure improvements) to be constructed by the Developer, and providing for payment to the City of the total remaining amounts required for the completion of the public facilities if the Developer fails to complete the work within two (2) years of the signing of this Agreement between the City and Developer. All bonds shall be issued by a bonding company licensed to do business in the State of Texas. The Letter of Credit must meet the Requirements for Irrevocable Letter of Credit which have been incorporated herein. The value of the performance bond, letter of credit or cash escrow will reduce at a rate consistent with the amount of work that has been completed by the Developer and accepted by the City. Performance and payment bonds, Letter of Credit or cash escrow from the prime contractor(s), hereinafter referred to as Contractor, or other entity acceptable to the City, may be accepted in lieu of Developer's obligations specified above, at the discretion of the City. F. 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. G. 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. H. The Developer agrees to furnish to the City a 2-year maintenance bond, letter of credit or cash escrow in an amount equal to 100% of the cost of construction of all public facilities (streets, sidewalks, water, sewer, drainage, and any other public infrastructure improvements). The 2-year maintenance bond, letter of credit or cash escrow will take effect on the date of final acceptance of all of the public facilities in the Addition, and shall secure all costs of maintenance of such public facilities for a period of two (2) years. The 2-year maintenance bond, letter of credit or cash escrow will be supplied to the City by the contractors performing the work, and the City will be named as the beneficiary. I. No work shall be initiated on or in said Addition by Developer, save and except as provided above; until the payment, performance and 2-year maintenance bond, letter of credit or cash escrow required in Paragraphs E and H have been provided to the City. J. 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 Page 2 of 20 2013 Revision CDA— Park Village (Amendment 1) Excel Southlake, LLC 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. K. On all public facilities included in this Agreement for which the Developer awards his own construction contract, Developer agrees to the following procedures: 1. Developer shall pay all applicable fees and costs prior to scheduling a pre - construction meeting, including the following: a. Administrative fees equal to two percent (2%) of the cost of all public facilities (streets, sidewalks, water, sewer, drainage, and any other public infrastructure improvements) included in said agreement, based on actual bid or contract construction costs; b. Inspection fees equal to three percent (3%) of the cost of all public facilities (streets, sidewalks, water, sewer, drainage, and any other public infrastructure improvements) included in said Addition, based on actual bid or contract constructions costs. 2. Developer shall also be responsible for the following fees and costs: a. Cost of trench backfill density testing (95% Standard); b. Any charges for re -testing as a result of failed tests; c. Water usage after obtaining a fire hydrant meter from the City to be utilized for construction purposes only; d. Actual charges for inspections during Saturday, Sunday, holidays and after normal working hours will be assessed to the project and payment by the Developer will be required prior to final acceptance. 3. 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; c. Concrete cylinder tests and concrete coring samples; Page 3 of 20 2013 Revision CDA— Park Village (Amendment 1) Excel Southlake, LLC d. All gradation tests required to insure proper cement and/or lime stabilization; e. Soil series for cement or lime. 4. The City can delay connection of private services to public utility mains constructed under this Agreement until water mains, sanitary sewer mains and storm drain lines have been tested and accepted by the City. L. Both the Developer and any third party entity engaged in the construction of the Development ("Builder") will be responsible for mowing all grass and weeds and otherwise reasonably maintaining the aesthetics of all land in said Addition. After fifteen (15) days written notice, should the Developer fail in this responsibility, the City may contract for this service and bill the Developer and Builder 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. II. FACILITIES A. STREETS Street construction in the Addition shall be installed in conformance with the requirements and 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 the following: a. Installation and two-year operational cost of street lights, which is payable to the City prior to final acceptance of the Addition; or an executed agreement with utility provider stating that no charge will be made for street lights for the two-year duration. The executed agreement must be presented to the City prior to final acceptance; b. Installation of all street signs based on the Manual on Uniform Traffic Control Devices (MUTCD) as prepared by the Developer's engineer designating the names of the streets inside the 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 based on the MUTCD as prepared by the Developer's engineer by an engineering study or direction by the Director of Public Works. It is understood that Developer may install signage having unique architectural features, however, should the signs be moved or destroyed by any means, the City is only responsible for replacement of standard signage and poles. Developer or property owner Page 4 of 20 2013 Revision CDA— Park Village (Amendment 1) Excel Southlake, LLC will be responsible for any additional cost for replacement of custom or unique signs. 2. All street construction will be subject to inspection and acceptance by the City. No work will begin on any street in said Addition prior to complying with the requirements contained elsewhere in this Agreement. All streets, water, sewer, drainage, and any other public infrastructure improvements which are anticipated to be installed within the street or within the street right of way will be completed prior to the commencement of street construction on the specific section of street in which the utility improvements have been placed or for which they are programmed. The Developer hereby agrees to advise the Director of Public Works as soon as possible when any physical modifications to the alignment of public infrastructure is required after construction has been completed. The Developer agrees to cooperatively work with and assist in the coordination of such modifications in a manner that will be least disruptive to street construction and/or the integrity of surrounding public infrastructure. B. ON -SITE WATER The Developer hereby agrees to install water facilities to serve all lots shown on the final plat of the Addition in accordance with plans and specifications to be prepared by the Developer's engineer and released by the City for construction and in accordance with Ordinance No. 170, as amended, and any other local, state and federal regulations. The Developer shall be responsible for all construction costs, materials and engineering. In the event that certain public water lines are to be oversized to comply with the City's Water Master Plan, the City will reimburse the Developer for the oversize cost greater than the cost of an 8" line. C. 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 accordance with Ordinance No. 440, as amended, and any other local, state and federal regulations. The Developer shall be responsible for all construction costs, materials, engineering, permits and impact fees. In the event that certain public sanitary sewer lines are to be oversized to comply with the City's Wastewater Master Plan, the City will reimburse the Developer for the oversize cost greater than the cost of an 8-inch line. Page 5 of 20 2013 Revision CDA— Park Village (Amendment 1) Excel Southlake, LLC D. DRAINAGE The Developer hereby agrees to install drainage facilities to service all lots as shown on the final plat of the Addition in accordance with the plans and specifications to be prepared by Developer's engineer and released by the City for construction. The Developer also agrees to adhere to Ordinance No. 605, as amended. The Developer hereby agrees to fully comply with all EPA, TCEQ and FEMA requirements relating to the planning, permitting and management of storm water which may be in force at the time that development proposals are being presented for approval to the City. The Developer hereby agrees to comply with all provisions of the Texas Water Code. The Developer agrees to provide a maintenance agreement to the City for any underground detention facilities proposed with this development. The Developer or property owner of record shall be responsible for the operation and maintenance of all underground detention facilities in accordance with said maintenance agreement. E. EROSION CONTROL The Developer agrees to comply with Ordinance No. 946, as amended, regarding erosion and sediment control during construction of the Addition. The Developer also agrees to comply with the Texas Commission on Environmental Quality TPDES General Permit No. TXR150000, and all other applicable local, state and federal ordinances, regulations and laws. The Developer agrees to keep the streets and storm drain systems (MS4) free from soil build-up by using soil control measures, such as those included in the NCTCOG STANDARD SPECIFICATIONS FOR PUBLIC WORKS CONSTRUCTION, Division 1000 EROSION AND SEDIMENT CONTROL to prevent soil erosion. It will be the Developer's responsibility to present to the Director of Public Works a Storm Water Pollution Prevention Plan (SWPPP) and/or erosion control plan that will be implemented for this Addition. When in the opinion of the Director of Public Works there is sufficient soil build-up on the streets or other drainage areas and notification has been given to the Developer, the Developer will have seventy-two (72) hours to clear the soil from the affected areas. If the Developer does not remove the soil from the affected areas within 72 hours, the City may remove the soil build-up either by contract or by 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. Developer or its contractors must commence final stabilization of any disturbed areas immediately after completion of all soil disturbing activities. The TDPDES General Permit No. TXR150000 defines final stabilization as when all soil - disturbing activities at the site have been completed and a uniform (i.e., evenly distributed, without large bare areas) perennial vegetative cover with a density of Page 6 of 20 2013 Revision CDA— Park Village (Amendment 1) Excel Southlake, LLC at least 70% of the native background vegetative cover for the area has been ESTABLISHED on ALL unpaved areas and areas not covered by permanent structures, or equivalent permanent stabilization measures (such as the use of riprap, gabions, or geotextiles) have been employed. Where construction activity on a portion of the site has temporarily ceased, and earth disturbing activities will be resumed within 21 days, temporary erosion control and stabilization measures are not required on that portion of the site, except as provided below. Erosion control and stabilization measures must be initiated as soon as practicable in semi -arid areas and areas experiencing droughts by the 14th day after construction activity. After final stabilization has been established on all disturbed areas of the Addition and all permanent erosion control measures have been installed and working effectively, the Developer shall request final acceptance of the project to the Director of Public Works. Inspection of the site will be required to ensure that the erosion control plan has been properly installed and the permanent erosion control measures will prevent soil erosion from the newly created lots from washing into the street right-of-way, drainage -way or other private property. F. USE OF PUBLIC RIGHT OF WAY It is agreed by and between the City and Developer that the Developer may provide unique amenities within public right-of-way, such as landscaping, irrigation, lighting, patterned concrete, etc., for the enhancement of the Addition. The Developer agrees to maintain these amenities until such responsibility is turned over to the property owner. 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 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. G. AMENITIES It is agreed by and between the City and Developer that the Addition may incorporate a number of unique amenities and aesthetic improvements in common areas of the Addition such as ponds, aesthetic lakes, unique landscaping, walls, patterned concrete, specialty signage and accessory facilities. The Developer shall be responsible for the construction and maintenance of all such aesthetic or specialty items such as walls, vegetation, signage, landscaping, street furniture, pond and lake improvements until such responsibility is turned over to the property owner. H. START OF CONSTRUCTION Page 7 of 20 2013 Revision CDA— Park Village (Amendment 1) Excel Southlake, LLC Before the construction of the streets, water, sewer, streets or drainage facilities can begin, the Developer must do the following: 1. Execute a Developer Agreement; 2. Schedule and attend a pre -construction meeting between Developer and City and including all Contractors, major Sub -Contractors, Utilities and appropriate Government Agencies; 3. Furnish to the City a list of all subcontractors and suppliers which will be providing greater than $1,000 of work in the Addition; 4. Submit for approval by the City the payment and performance bonds and 2- year maintenance bond or acceptable alternate security naming the City as beneficiary; 5. Submit at least two (2) - 22"x34" (full size) sets and five (5) - 11 "x17" (half size) scalable sets of construction plans to be stamped "Released for Construction" by the Director of Public Works plus any additional sets needed for the developer and contractor; 6. Pay all fees required to be paid to the City; 7. Furnish to the City a policy of general liability insurance, naming the City as co-insured, prior to commencement of any work. All insurance must meet the Requirements of Contractor's Insurance attached hereto and incorporated herein. III. GENERAL PROVISIONS A. INDEMNIFICATION DEVELOPER COVENANTS AND AGREES TO INDEMNIFY AND DOES HEREBY INDEMNIFY, HOLD HARMLESS AND DEFEND CITY, ITS OFFICERS, AGENTS, SERVANTS AND EMPLOYEES, FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR PROPERTY DAMAGE OR LOSS AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS OF WHATSOEVER KIND OR CHARACTER, WHETHER REAL OR ASSERTED, (INCLUDING, WITHOUT LIMITATION, REASONABLE FEES AND EXPENSES OF ATTORNEYS, EXPERT WITNESSES AND OTHER CONSULTANTS), ARISING OUT OF OR IN CONNECTION WITH, DIRECTLY OR INDIRECTLY, THE CONSTRUCTION, MAINTENANCE, OCCUPANCY, USE, EXISTENCE OR LOCATION OF SAID IMPROVEMENT OR IMPROVEMENTS BY DEVELOPER, DEVELOPER'S AGENTS, CONTRACTORS AND SUBCONTRACTORS, AND SHALL FURTHER BE LIABLE FOR INJURY OR DAMAGE TO CITY PROPERTY, ARISING OUT OF Page 8 of 20 2013 Revision CDA— Park Village (Amendment 1) Excel Southlake, LLC OR IN CONNECTION WITH ANY AND ALL ACTS OR OMISSIONS OF DEVELOPER, ITS OFFICERS, AGENTS, EMPLOYEES, CONTRACTORS, AND SUBCONTRACTORS. THIS OBLIGATION TO INDEMNIFY SHALL APPLY TO ALL CLAIMS THAT ARISE FROM EVENTS THAT OCCUR PRIOR TO THE TIME THE CITY ACCEPTS THE ADDITION, REGARDLESS OF WHETHER ANY SUCH DAMAGES, CLAIMS OR LIABILITIES ARE CAUSED, IN WHOLE OR IN PART, BY THE NEGLIGENT ACT OR OMISSION, OR OF THE CONCURRENT NEGLIGENT ACT OR OMISSION, OF THE CITY, ITS OFFICERS AND EMPLOYEES, AND SHALL CONTINUE FOR TWO YEARS AFTER THE CITY ACCEPTS THE ADDITION. B. Venue of any action brought hereunder shall be in Fort Worth, Tarrant County, Texas. C. Approval by the Director of Public Works or other City employee of any plans, designs or specifications submitted by the Developer pursuant to this Agreement shall not constitute or be deemed to be a release of the responsibility and liability of the Developer, his engineer, employees, officers or agents for the accuracy and competency of their design and specifications. Such approval shall not be deemed to be an assumption of such responsibility and liability by the City for any defect in the design and specifications prepared by the consulting engineer, his officers, agents, servants or employees, it being the intent of the parties that approval by the Director of Public Works signifies the City's approval on only the general design concept of the improvements to be constructed. In this connection, the Developer shall for a period of two (2) years after the acceptance by the City of the completed construction project, indemnify and hold harmless the City, its officers, agents, servants and employees, from any loss, damage, liability or expense on account of damage to property and injuries, including death, to any and all persons which may arise out of any defect, deficiency or negligence of the engineer's designs and specifications incorporated into any improvements constructed in accordance therewith, and the Developer shall defend at his own expense any suits or other proceedings brought against the City, its officers, agents, servants or employees, or any of them, on account thereof, to pay all expenses and satisfy all judgments which may be incurred by or rendered against them or any of them in connection herewith. D. This Agreement or any part herein, or any interest herein, shall not be assigned by the Developer without the express written consent of the City Manager, which shall not be unreasonably withheld or delayed. E. On all facilities included in this Agreement for which the Developer awards his or her own construction contract, the Developer agrees to employ a construction contractor who is approved by the City, and whose approval shall not be unreasonably withheld or delayed, said contractor to meet City and statutory requirements for being insured, licensed and bonded to do work in public projects Page 9 of 20 2013 Revision CDA— Park Village (Amendment 1) Excel Southlake, LLC 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 on the performance bond, Letters 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. 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 two (2) copies of Record Drawings of the Addition, showing the facilities as actually constructed. Such drawings shall be stamped and signed by the registered professional engineer of record. In addition, the Developer shall provide electronic files of the drawings in a format acceptable to the City. The project coordinate system must tie to the State Plane Coordinate System. Page 10 of 20 2013 Revision CDA— Park Village (Amendment 1) Excel Southlake, LLC IV. OTHER ISSUES A. TOWER BOULEVARD AND ZENA RUCKER ROAD The developer shall be required to provide a 60-foot wide right of way dedication to the City for the construction of Tower Boulevard and Zena Rucker Road. The roadways, and the deceleration lane to Zena Rucker Road, shall be constructed to City standards. Substantial completion of Tower Boulevard, Zena Rucker Road and deceleration lane shall be required prior to the issuance of any Certificates of Occupancy for any buildings within the Development. B. CARROLL AVENUE IMPROVEMENTS The developer shall construct the improvements on Carroll Avenue needed to accommodate the development. The improvements on Carroll Avenue shall be in accordance with the approved Site Plan for the development. Substantial completion of the Carroll Avenue Improvements shall be required prior to the issuance of any Certificates of Occupancy for any buildings within the Development. C. FM 1709 IMPROVEMENTS The developer shall construct a right turn deceleration lane along the eastbound lane of FM 1709 to Tower Boulevard. The developer shall construct a second right turn deceleration lane along the eastbound lane of FM 1709 into the northern entrance of the Park Village addition. Substantial completion of the FM 1709 improvements shall be required prior to the issuance of any Certificates of Occupancy for any buildings within the Development. D. TOWER BOULEVARD SIGNAL The developer shall construct the Tower Boulevard signal improvements prior to or concurrently with the public infrastructure associated with the development. E. OFF -SITE SANITARY SEWER The developer shall construct approximately 100 linear feet of 8-inch sanitary sewer to serve this addition. The sanitary sewer main shall be constructed to City standards. F. OFF -SITE WATER The developer shall construct approximately 1,840 linear feet of 8-inch water line to serve this addition. The water line main shall be constructed to City standards. Page 11 of 20 2013 Revision CDA— Park Village (Amendment 1) Excel Southlake, LLC G. CRITICAL STRUCTURE FEE Southlake Park Village drains into Critical Drainage Structure #23 and will require a fee of $6,965.35 to be paid prior to beginning construction. ($309.83/Acre X 22.4812 Acres = $6,965.35). H. DETENTION The development will require detention which will be located at the southwest intersection of S. Carroll Ave. and Zena Rucker Rd. within Lot 1, Block 2 of the platted addition. The pond will have staged discharge to accommodate the 2-, 10- and 100-year release rates. PARK FEES The developer shall pay park fees in the amount of $53,954.88 ($2,400/acre X 22.4812 Acres = $53,954.88). In addition, the developer shall complete all common area trails and public pathways consistent with approved site plan and City of Southlake 2030 Master Pathways and in accordance with the State of Texas accessibility requirements. J. TREE PRESERVATION ORDINANCE All construction activities shall comply with Ordinance No. 585-D, as amended, and Ordinance No. 585-B, as amended, which pertain to Tree Preservation 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 protection measures to be maintained throughout the duration of the project. V. RESOLUTION 14-003 — 380 AGREEMENT City Council approved a Chapter 380 Agreement under Resolution No. 14-003 on February 25, 2014 in which the following provisions have been outlined. The reimbursement of fees has been divided into Up -Front Incentives and Mutli-Year Incentives. Up -Front Incentives The developer shall be reimbursed the following amounts of the fees paid under the Commercial Developer Agreement dated November 25, 2013. The developer is still responsible for constructing the public improvements as outlined in the Commercial Developer Agreement. The developer shall provide a formal written request for each reimbursement to the Public Works Department. A. PUBLIC WORKS ADMINISTRATION FEES $37,000 B. PARK DEDICATION FEES $53,954 Page 12 of 20 2013 Revision CDA— Park Village (Amendment 1) Excel Southlake, LLC The Up -Front Incentives for the Public Works Fees and Park Fees shall be paid 30 days after the Effective Date of the 380-Agreement. C. ROADWAY IMPACT FEES $205,044 The Up -Front Incentives for the Roadway Impact Fees shall be paid after the City has received payment for the fees through the building permit. The Developer shall request the reimbursement in writing to the Public Works Department and provide the supporting information of fees paid. UP -Front Incentives Total: $295,996 Mutli-Year Incentives The developer shall be reimbursed the following amounts starting in 2016 over 4- 5 years depending on performance, not to exceed 50% of the total tax revenue (sales and ad valorem) received each year for the City from the development. Total tax revenue is estimated at $700,000 annually. Section 5.J.iii of the 380- Agreement outlines the payment schedule for the reimbursements to the developer. The agreement also includes a "Minimum Construction Requirement" of 150,000 square feet in order to receive Program Payments. The payments will be pro- rated against the percentage of construction completed at the time of each payment. The following improvements shall be constructed prior to or concurrently with the development of the Minimum Construction Requirements as outlined in the 380- Agreement. A. CARROLL MEDIAN AND DRIVE LANE The Program Payment Incentives are as follows: • Cap One Not to exceed 100% of actual construction costs • Cap Two Not to exceed $237,538 The lesser of Cap One or Cap Two shall be eligible for Program Payments as outlined in Section 5.E of the 380-Agreement. B. ZENA RUCKER ROAD AND DECELERATION LANE The Program Payment Incentives are as follows: • Cap One Not to exceed 60% of actual construction costs after deduction of Roadway Impact Fees • Cap Two Not to exceed $44,097 Page 13 of 20 2013 Revision CDA— Park Village (Amendment 1) Excel Southlake, LLC The lesser of Cap One or Cap Two shall be eligible for Program Payments as outlined in Section 5.F of the 380-Agreement. C. TOWER BOULEVARD AND DECELERATION LANE The Program Payment Incentives are as follows: • Cap One Not to exceed 50% of actual construction costs • Cap Two Not to exceed $262,144 The lesser of Cap One or Cap Two shall be eligible for Program Payments as outlined in Section 5.G of the 380-Agreement. D. TOWER BOULEVARD SIGNAL The Tower Boulevard Signal; subject to TxDOT approval; shall be constructed prior to or concurrently with the other public infrastructure associated with the development of the Minimum Construction Requirements as outlined in the 380-Agreement. The Program Payment Incentives are as follows: • Cap One Not to exceed 50% of actual construction costs after of the signal • Cap Two Not to exceed $118,339 The lesser of Cap One or Cap Two shall be eligible for Program Payments as outlined in Section 5.H of the 380-Agreement. The Multi -Year Incentives for the Public Improvements shall be paid after the Developer submits a written request for the reimbursement. The Developer shall provide supporting information that all the requirements outlined in the 380- Agreement have been met. Multi -Year Incentives Total: $662,118 Other Provisions: The developer shall provide a $4.75M Letter of Credit (LOC) to the City no later than 15 business days from the Effective Date of the 380-Agreement as outlined in Section 5X of the 380-Agreement. The developer shall also provide to the City a written right of access to the Property, in a form acceptable to the City Attorney, in the event City must draw on the letter of credit and complete construction of the Amenities. Page 14 of 20 2013 Revision CDA— Park Village (Amendment 1) ExcelSouthlake, LLC SIGNED AND EFFECTIVE on the date last set forth below. DEVELOPER By: Title: Address: STATE OF TEXAS COUNTY OF TARRANT 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: Page 15 of 20 2013 Revision CDA— Park Village (Amendment 1) Excel Southlake, LLC CITY OF SOUTHLAKE, TEXAS la John Terrell - Mayor ATTEST: Alicia Richardson - City Secretary Date: Page 16 of 20 2013 Revision CDA— Park Village (Amendment 1) Excel Southlake, LLC REQUIREMENTS FOR IRREVOCABLE LETTER OF CREDIT 1. The Letter of Credit must have duration of at least one year. 2. The Letter of Credit may be substituted for utility security deposits exceeding $10,000.00. The City reserves the right to specify the face amount of the letter of credit. 3. The Letter of Credit must be issued by a FDIC insured bank in a form acceptable to the City of Southlake. The City reserves the right to approve/disapprove the bank issuing the Letter of Credit. 4. The Letter of Credit must be issued by a bank that has a minimum capital ratio of six (6%) percent, and has been profitable for each of the last two consecutive years. 5. The customer must provide the City with supporting financial information on the bank to allow the City to ascertain requirements are met. Suitable financial information would be the previous two (2) years December 31 Call Reports submitted to the FDIC and audited financial statements. 6. Partial drawings against 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 a substitute Letter of Credit at least 30 days prior to the expiration date on the Letter of Credit held by the City. Page 17 of 20 2013 Revision CDA— Park Village (Amendment 1) Excel Southlake, LLC 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........................................................................................ $1,0001000 Contractual Liability: Bodily Injury .............................................$1,000,000 Each occurrence Property Damage .................................... $1,000,000 Each occurrence The policy shall include coverage extended to apply to completed operations, asbestos hazards (if this project involves work with asbestos) and ECU (explosion, collapse and underground) hazards. The completed operations coverage must be maintained for a minimum of one year after final completion and acceptance of the work, with evidence of same filed with CITY. c. Comprehensive automobile and truck liability insurance, covering owned, hired and non -owned vehicles, with a combined bodily injury and property damage minimum limit of $1,000,000 per occurrence; or separate limits of $500,000 for bodily injury (per person), and $500,000 for property damage. Such insurance shall include coverage for loading and unloading hazards. d. Property Insurance (Builder's All Risk) 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 Page 18 of 20 2013 Revision CDA— Park Village (Amendment 1) Excel Southlake, LLC 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. 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. e. OWNER'S Protective Liability Insurance: 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. 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 Each insurance policy to be furnished by CONTRACTOR shall include the following conditions by endorsement to the policy: name the CITY as an additional insured as to all applicable policies; 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; 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; the policy phrase "other insurance" shall not apply to the CITY where the CITY is an additional insured on the policy. Page 19 of 20 2013 Revision CDA— Park Village (Amendment 1) Excel Southlake, LLC Special Conditions 1. Insurance furnished by the CONTRACTOR shall be in accordance with the following requirements: any policy submitted shall not be 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. 2. CONTRACTOR agrees to the following: i. 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 policies and CONTRACTOR shall have no recourse against the CITY for payment of any premiums or assessments for any deductibles, as all such premiums and deductibles are the sole responsibility and risk of the CONTRACTOR; iii. approval, disapproval or failure to act by the CITY regarding any insurance supplied by the CONTRACTOR (or any Subcontractors) shall not relieve the CONTRACTOR of full responsibility or liability for damages and accidents as set forth in the Contract Documents or this Agreement. Neither shall be bankruptcy, insolvency or denial of liability by the insurance company exonerate the CONTRACTOR from liability; iv. deductible limits on insurance policies exceeding $10,000 require approval of the CITY; 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. Page 20 of 20 2013 Revision RESOLUTION NO. 14-003 A RESOLUTION OF THE CITY OF SOUTHLAKE, TEXAS, APPROVING THE TERMS AND CONDITIONS OF A PROGRAM TO PROMOTE ECONOMIC DEVELOPMENT AND STIMULATE BUSINESS AND COMMERCIAL ACTIVITY IN THE CITY; AUTHORIZING THE MAYOR TO EXECUTE AN AGREEMENT WITH EXCEL SOUTHLAKE I LP, A DELAWARE LIMITED PARTNERSHIP, FOR SUCH PURPOSES; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, Chapter 380 of the Texas Local Government Code authorizes municipalities to establish and provide for the administration of programs that promote economic development and stimulate business and commercial activity in the City; and WHEREAS, the City Council has been presented with a proposed agreement by and between the City of Southlake and Excel Southlake I LP, a Delaware limited partnership ("Excel'), a copy of which is attached hereto as Exhibit "A" and incorporated herein by reference (hereinafter called the "Agreement"); and WHEREAS, upon full review and consideration of the Agreement and all matters attendant and related thereto, the City Council is of the opinion that the Agreement will assist in implementing a program whereby economic development will be promoted and business and commercial activity will be stimulated in the City. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SOUTHLAKE, TEXAS, THAT: SECTION 1. The City Council finds that the terms of the Agreement will promote economic development and stimulate business and commercial activity in the City and otherwise meet the criteria of Section 380.001 of the Texas Local Government Code. SECTION 2. The City Council hereby adopts an economic development program whereby the City of Southlake will make economic development program payments to Excel, and take other specified actions, in accordance with the terms outlined in the Agreement. SECTION 3. The terms and conditions of the Agreement, having been reviewed by the City Council of the City of Southlake and found to be acceptable and in the best interest of the City and its citizens are hereby approved. Resolution 14-003 - Park Village Development - Chapter 380 Agreement Page 1 of 3 SECTION 4. The Mayor is hereby authorized to execute the Agreement and all other documents in connection therewith on behalf of the City substantially according to the terms and conditions set forth in the Agreement. SECTION 5. This Resolution shall become effective from and after its passage. PASSED AND APPROVED this the 4th day of March, 2014. L � John Terrell, May ATTEST: -**fee : Alicia Richardson, �� •••seeoo••f ��, City Secretary ••, Resolution U-003 - Park Village Development Page 2 of 3 - Chapter 380 Agreement EXHIBIT A Chapter 380 Agreement Resolution 14-003 - Park Village Development - Chapter 380 Agreement Page 3 of 3 ECONOMIC DEVELOPMENT PROGRAM AGREEMENT (Chapter 380 Agreement) This Economic Development Program Agreement (the "Agreement") is made and entered into by and between the City of Southlake, Texas (the "City"), and Excel Southlake I LP, ("Excel") a Delaware limited partnership, organized under the laws of Texas. City and Excel are sometimes hereinafter referred to collectively as the "parties" or individually as a "party". WITNESSETH: WHEREAS, on March 4, 2014, the City adopted Resolution No. 14-003 (the "Resolution") establishing an Economic Development Program pursuant to Section 380.001 of the Texas Local Government Code ("Section 380.001") and authorizing this Agreement as part of the Economic Development Program established by City Council Resolution (the "Program"); and WHEREAS, Excel desires to participate in the Program by entering into this Agreement; and WHEREAS, the City Council of the City of Southlake (the "City Council") finds and determines that this Agreement will effectuate the purposes set forth in the Program, and that Excel's performance of its obligations herein will promote local economic development and stimulate business and commercial activity in the City; and NOW, THEREFORE, in consideration of the mutual benefits and premises contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. AUTHORIZATION The City has concluded that this Agreement is authorized by Section 380.001, and is authorized by Resolution of the City Council. 2. DEFINITIONS The following definitions shall apply to the terms used in this Agreement: Amenities: All of those features listed on the attached Exhibit "C". Building Permit: A permit issued by the City authorizing one to construct, enlarge, alter, repair, move, improve, remove, convert or demolish any building or structure or portion thereof regulated by the City's building, plumbing, electrical, fire, energy, mechanical, and related codes. It does not include earth disturbance permits, tree removal permits or other non -building permits. Carroll Median and Drive -Lane Improvements: Construction of improvements to the median and the addition of drive-lane(s) or drive -lane width(s) for South Carroll Avenue adjacent to the Property, as shown on the Site Plan. Cam: The City of Southlake, Texas. City Attorney: The attorney for the City. Excel: Park Village - 380 Agreement (Approved March 4, 2014) Page 1 of 22 Certificate of Occupancy: A temporary or permanent certificate of occupancy as defined in the City's building codes. Commencement of Construction: The earlier of the approval and issuance of the appropriate building permits or the commencement of actual on -site physical excavation or site grading required for installation of Eligible Improvements, excluding permits for clearing and grubbing. Commercial Developer Agreement (CDA): That certain Commercial Developer Agreement (or multiple Agreements) relating to the construction of public infrastructure in form and substance to be mutually agreed upon by Excel and the City. Construction Costs: The cost of design, construction document preparation, bidding, permits, fees, surveying, and construction of buildings, parking facilities, site improvements, landscaping, site grading and such other reasonable industry -standard costs. Does not include the cost of land or interest on construction financing. Corner Amenity Feature Fountain: The large fountain within the Property at the southwest corner of F.M. 1709 and Carroll Avenue, having an approximate surface area of 3,000 square feet. Development: The 22.48 acre retail development called Park Village at the southwest corner of F.M. 1709 and Carroll Avenue, and represented by the Site Plan referenced herein. Effective Date: The date that all parties have executed this Agreement. Eligible Improvements: All or a portion of the buildings shown on the Site Plan, parking, or accessory improvements related to these improvements. Force Maieure: Any acts of God or the public enemy, war, riot, civil commotion, insurrection, governmental or de facto governmental action, (except actions taken by the City pursuant to or permitted by the terms of this Agreement, and except actions taken as a result of acts or omissions of Excel), fire, explosion or flood, and strikes or other act beyond the reasonable control of Excel, or the City, but not including the lack of funds. Land Value: The appraised value of land as determined by the Tarrant Appraisal District. Person: An individual or a corporation, partnership, trust, estate, unincorporated organization, association, or other entity. Personal Property: As defined by the Texas Tax Code. Program: Has the meaning set forth in the recitals to this Agreement. Program Payments: The annual grant payments to be made by the City to Excel pursuant to Section 5 of this Agreement. Property: The approximate 22.48 acres located at the southwest corner of F.M. 1709 and Carroll Avenue, being real property located in Tarrant County, Texas, as more particularly described on Exhibit A herein. Real Property: As defined by the Texas Tax Code. Excel: Park Village - 380 Agreement (Approved March 4, 2014) Page 2 of 22 Roadway Construction Costs: Excavation and grading, drainage improvements, paving, curbs, gutters, striping, turf, signage, lighting and other reasonable and customary costs as determined by the City. Does not include the cost of land or sidewalks or interest on construction financing. Roadway Impact Fees: Has the meaning set forth in the City of Southlake Impact Fee Ordinance. Section 380.001: Has the meaning set forth in the recitals to this Agreement. Site Plan: The site plan for the Development, attached hereto as Exhibit B, approved or as may be amended by the City pursuant to the City's zoning regulations. Substantial Completion: When an Eligible Improvement meets the requirements for a shell final approval, as defined by the City's Building Official. Taxable Value: Appraised value after the application of any lawful exemptions as determined by the Tarrant Appraisal District. Total Tax Revenue: The sum of the Ad Valorem real property and business personal property taxes and the City's one percent (1%) sales tax collected by the City in one Calendar Year. This specifically excludes sales taxes collected for the Southlake Park Development Corporation or the Crime Control and Prevention District, or any other Economic Development Tax collected now or in the future. Tower Blvd. and Decel Lane: A two-lane public roadway with turn lanes as appropriate along the west side of the Property and the associated east -bound deceleration lane on F.M. 1709. Tower Blvd. Signal: Acquisition of all required permitting for effectively all non-TxDOT construction; construction of all control mechanisms, wiring, conduit, support arms and signal heads, illuminated street name signs, battery backups; establishment of appropriate signal timing; installation of required signage and pavement markings; construction of any required median modifications; and the cost of the warrant study for Tower Blvd. Signal and only the cost of the warrant study for a possible future signal at Zena Rucker Road and S. Carroll Ave. Excel Affiliate: Excel Southlake I LP, or any Person directly controlling or controlled by, Excel, or any Person controlling or controlled by the same Person who is controlling or is controlled by Excel. As used in this definition, the term "control" means ownership or the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities, by contract or otherwise. Zena Rucker Road and Decel Lane: A two-lane public roadway with turn lanes as appropriate along the south side of the Property and associated south -bound deceleration turn lane on South Carroll Avenue. Excel: Park Village - 380Agreement (Approved March 4, 2014) Page 3 of 22 3. TERM This Agreement shall be effective as of the Effective Date of execution by all parties and shall terminate upon completion of the Program Payments as provided in Section 5, unless earlier terminated pursuant to Section 7. 4. EXCEL COVENANTS In consideration and as a prerequisite of the City's incentives under this Agreement, Excel agrees to the following: A. Construction Commencement: Excel commenced Construction on or before December 31, 2013. B. Construction Requirements: Excel agrees to construct a total of one hundred eighty thousand (180,000) square feet of Eligible Improvements ("Construction Requirements") L City Council Amendment: The Southlake City Council may amend the Construction Requirements concurrently with the approval of a Site Plan for the Eligible Improvements. ii. Substantial Completion: As a prerequisite to Program Payments noted herein, Excel agrees that a minimum of one hundred fifty thousand (150,000) square feet of Eligible Improvements must reach Substantial Completion by November 1, 2014 (the "Minimum Construction Requirements"). Excel shall have additional time as determined by the City to complete the Minimum Construction Requirements (1) if in the sole opinion of the City, Excel has made substantial progress towards the completion of the Minimum Construction Requirements, or (2) in the event of Force Majeure. iii. Workmanlike Pursuit: Excel agrees and covenants that it will diligently and faithfully in a good and workmanlike manner pursue (or cause to be pursued) the completion of the Eligible Improvements as good and valuable consideration of this Agreement. C. Compliance with Laws and Regulations: Excel further covenants and agrees that all construction of the Development will be in compliance with all applicable local, state and federal laws and regulations or valid waiver thereof. D. Commercial Developer's Agreement: Excel agrees to execute the City's Commercial Developer's Agreement(s). E. Inspection: Excel further agrees that the City and its agents and employees, upon reasonable prior written notice to Excel, shall have reasonable right of access to the Property to inspect the Eligible Improvements in order to insure that the construction of the Eligible Improvements are in accordance with this Agreement and all applicable state and local laws and regulations or valid waiver thereof; and subject to Excel's Excel: Park Village - 380 Agreement (Approved March 4, 2014) Page 4 of 22 reasonable security requirements, they shall have the continuing right to inspect Property to insure that the Eligible Improvements are thereafter maintained, operated and occupied in accordance with this Agreement. F. Corner Amenity Feature Fountain: Excel agrees to construct the Corner Amenity Feature Fountain in accordance with the design approved with the Zoning as a pre- requisite to Program Payments noted herein. i. Construction Documents: Excel shall prepare full construction documents in accordance with regulations and procedures adopted by the City. ii. Timing: The Corner Amenity Feature Fountain shall be constructed prior to or concurrently with the development of the Minimum Construction Requirements. iii. Maintenance: The Corner Amenity Feature Fountain shall be maintained in a status safe for public use, adequate to eliminate stagnation and/or proliferation of nuisance bugs or animals. G. Carroll Median and Drive -Lane Improvements: Excel agrees to construct Carroll Median and Drive -Lane Improvements as a pre -requisite to Program Payments noted herein. i. ROW Dedication: As a part of normal platting requirements, unless otherwise agreed to by both parties, Excel shall dedicate right-of-way to the City adequate for full -width lane construction, and any right-of-way required for turn lanes to serve the Property at no cost to the City. ii. Construction Documents: Excel shall prepare full construction documents in accordance with regulations and procedures adopted by the City. iii. Timing: Carroll Median and Drive -Lane Improvements shall be constructed prior to or concurrently with the development of the Minimum Construction Requirements. H. Zena Rucker Road and Decel Lane: Excel agrees to construct Zena Rucker Road and Decel Lane as a pre -requisite to Program Payments noted herein. i. ROW Dedication: As a part of normal platting requirements, unless otherwise agreed to by both parties, Excel shall dedicate right-of-way to the City adequate for full -width lane construction, and any right-of-way required for turn lanes to serve the Property at no cost to the City. ii. Construction Documents: Excel shall prepare full construction documents in accordance with regulations and procedures adopted by the City. iii. Timing: Zena Rucker Road shall be constructed prior to or concurrently with the development of the Minimum Construction Requirements. Excel: Park Village - 380 Agreement (Approved March 4, 2014) Page 5 of 22 Tower Blvd. and Decel Lane: Excel agrees to construct Tower Blvd. and Decel Lane as a pre -requisite to Program Payments noted herein. i. ROW Dedication: As a part of normal platting requirements, unless otherwise agreed to by both parties, Excel shall dedicate or cause to be dedicated right-of- way to the City adequate for full -width lane construction, and any right-of-way required for turn lanes to serve the Property at no cost to the City. ii. Construction Documents: Excel shall prepare full construction documents in accordance with regulations and procedures adopted by the City. iii. Timing: Tower Blvd. shall be constructed prior to or concurrently with the other public infrastructure associated with the development of the Minimum Construction Requirements. J. Tower Blvd. Signal: Excel agrees to construct Tower Blvd. Signal improvements as a prerequisite to Program Payments noted herein. i. Construction Documents: Excel shall prepare full construction documents in accordance with regulations and procedures adopted by the City. ii. Timing: Subject to TOOT approval, Tower Blvd. Signal shall be constructed prior to or concurrently with the other public infrastructure associated with the development of the Minimum Construction Requirements. K. Other on -site Amenities: Excel agrees to construct the Amenities in accordance with the zoning and Site Plan approved by the City as a prerequisite to Program Payments noted herein. Timing: The Amenities shall be constructed prior to or concurrently with the development of the Minimum Construction Requirements. ii. Letter of Credit: Excel agrees to provide the City a letter of credit no later than fifteen (15) business days from the Effective Date of this Agreement, in a form acceptable to the City Attorney, in the amount of $4,750,000 as assurance that these Amenities will be constructed at the time stated above. The parties agree that the letter of credit may be periodically amended, at Excel's sole cost and expense and on a form acceptable to the City Attorney, to a lesser amount to reflect the actual construction costs incurred for those Amenities already completed and those Amenities still outstanding. Prior to any amendment, Excel will provide the City with sufficient documentation of costs incurred. The actual cost spent on each individual amenity item may vary slightly from the cost shown on Exhibit C as long as the total cost of the Amenities is met or exceeded. The amount of any amended letter of credit will be at least 125% of the costs of those remaining Amenities, as listed on Exhibit C. Excel: Park Village - 380 Agreement (Approved March 4, 2014) Page 6 of 22 iii. Right of Access: Excel further agrees that it will provide City a written right of access to the Property, in a form acceptable to the City Attorney, in the event City must draw on the letter of credit and complete construction of the Amenities. L. Ad Valorem Taxes: Excel agrees to remain current on payment of ad valorem property taxes for the term of this Agreement; provided, however, Excel retains the right to timely and properly protest and contest any such ad valorem taxes and so long as Excel is timely and properly protesting or contesting the same, it shall not constitute an event of default under this agreement. If Excel becomes delinquent in the payment of ad valorem taxes on Property owned by Excel, it shall be an event of default under this Agreement. M. Roll -Back Taxes: Excel agrees to remain current on payment of roll -back taxes payable as land parcels within the Property are developed. N. Design: The Development shall substantially conform to the Site Plan unless amended by the City and Excel during subsequent Site Plan approvals. 0. Documentation: Excel shall submit to the City, as a condition of payment of any incentive, reasonably detailed evidence of compliance with Section 4 herein. This shall include detailed invoicing from contractors and payments made sufficient to identify the costs directly related to this Section. P. Compliance: Excel shall comply with any and all remaining terms and provisions herein. 5. CITY'S ECONOMIC DEVELOPMENT PROGRAM INCENTIVES Subject to Excel's performance of its obligations as required by this Agreement, and subject to the provisions of this section, to promote local economic development pursuant to the Program, the City shall grant Excel the following economic development incentives: A. Park Dedication Fee Reimbursement: The City agrees that Excel, in consideration for construction of amenities and pedestrian areas within the development, shall be granted a reimbursement of the City's park dedication fee. This incentive shall be paid to Excel within 30 days after the Effective Date and shall not be included in the Program Payments. B. Roadway Impact Fee Reimbursement: The City agrees that Excel, in consideration for construction of Zena Rucker Road and Decel Lane, shall be granted a reimbursement of the Roadway Impact Fees in an amount equal to 100% of the Roadway Impact Fees paid by Excel. This incentive shall be paid to Excel within 30 days after the Effective Date and shall not be included in the Program Payments. C. Public Works Fees: The City agrees that Excel, in recognition that Excel is constructing Zena Rucker Road and making improvements to South Carroll Avenue as public Excel: Park Village - 380 Agreement (Approved March 4, 2014) Page 7 of 22 roadways, shall be granted a reimbursement of a portion of the Public Works Department's Plan Review and Inspection Fees as follows: i. Cap One: This incentive shall not exceed thirty-seven thousand dollars ($37,000). ii. Program Payment: This incentive shall be granted as a reimbursement and shall not be included in the Program Payments summarized in Section 5.1. herein. D. Corner Amenity Feature Fountain: The City agrees that Excel, in consideration for construction of an Amenity Feature and Fountain at the southwest corner of F.M. 1709 and Carroll Avenue, shall be granted an incentive towards the cost of the Fountain as follows: i. Cap One: The amount of this incentive shall be capped not to exceed fifty percent (50%) of the actual Construction Cost of the Fountain. ii. Cap Two: This incentive shall not exceed five -hundred sixteen thousand dollars ($516,000). iii. Program Payment: The lesser of Cap One or Cap Two noted for this incentive shall be eligible for Program Payments as summarized in Section 5.1. herein. E. Carroll Median and Drive -lane Improvements: The City agrees that Excel, in consideration of constructing Carroll Median and Drive -lane Improvements, shall be granted an incentive towards the cost of the Improvements as follows: i. Cap One: The amount of this incentive shall be capped not to exceed One Hundred percent (100%) of the actual Roadway Construction Costs of the Carroll Median and Drive -lane Improvements. ii. Cap Two: This incentive shall not exceed Two Hundred Thirty Seven Thousand, Five Hundred and Thirty Eight dollars ($237,538). iii. Program Payment: The lesser of Cap One or Cap Two noted for this incentive shall be eligible for Program Payments as summarized in Section 5.1. herein. F. Zena Rucker Road and Decel Lane Construction: The City agrees that Excel, in consideration of constructing Zena Rucker Road and Decel Lane, shall be granted an incentive towards the cost of this construction as follows: i. Cap One: The amount of this incentive shall be capped not to exceed sixty percent (60%) of the actual Roadway Construction Costs of Zena Rucker Road and Decel Lane after deducting the Roadway Impact Fee Credit as summarized in Section 5.6 herein. ii. Cap Two: This incentive shall not exceed Forty -Four Thousand, and Ninety Seven dollars ($44,097). Excel: Park Village - 380 Agreement (Approved March 4, 2014) Page 8 of 22 iii. Program Payment: The lesser of Cap One or Cap Two noted for this incentive shall be eligible for Program Payments as summarized in Section 5.1. herein. G. Tower Blvd. and Decel Lane Construction: The City agrees that Excel, in consideration of constructing Tower Blvd. and Decel Lane, shall be granted an incentive towards the cost of the Improvements as follows: Cap One: The amount of this incentive shall be capped not to exceed fifty percent (50%) of the actual Construction Costs of Tower Blvd. and Decel Lane. ii. Cap Two: This incentive shall not exceed Two Hundred Sixty -Two Thousand, One Hundred and Forty -Four dollars ($262,144). iii. Program Payment: The lesser of Cap One or Cap Two noted for this incentive shall be eligible for Program Payments as summarized in Section 5.1. herein. H. Tower Blvd. Signal: The City agrees that Excel, in consideration of constructing Tower Blvd. Signal on F.M. 1709, shall be granted an incentive towards the cost of the Improvements as follows: Cap One: This incentive shall not exceed Fifty percent (50%) of the actual Construction Costs of Tower Blvd. Signal. ii. Cap Two: This incentive shall not exceed One Hundred Eighteen Thousand, Three Hundred and Thirty -Nine dollars ($118,339). iii. Program Payment: The lesser of Cap One or Cap Two noted for this incentive shall be eligible for Program Payments as summarized in Section 5.1. herein. I. Program Payment Summary: Program Payments shall include the following: Corner Amenity Feature Fountain: As noted in Section 5.1) herein. ii. Carroll Median and Drive -Lane Improvements: As noted in Section 5.E herein. iii. Zena Rucker Road and Decel Lane: As noted in Sections 5.F herein. iv. Tower Blvd. and Decel Lane: As noted in Section 5.G herein. V. Tower Blvd. Signal: As noted in Section S.H. herein Program Payments: The City shall utilize revenues generated within the Development as identified below for annual Program Payments in accordance with and subject to the following: Ad Valorem Taxes: The City shall utilize a portion of the ad valorem real and business personal property taxes generated within the Development and collected by the City to contribute to the Program Payment as described in Section 5.J herein. a. Land Excluded: This incentive does not include the Ad Valorem taxes derived from the 2014 land value of the Property as determined by the Excel: Park Village - 380 Agreement (Approved March 4, 2014) Page 9 of 22 Tarrant Appraisal District, whether held in an AG exempt status or not. (i.e. the tax revenues pooled for Program Payments shall be reduced by this amount prior to payment by the City to Excel.) For the purposes of this Agreement, this amount shall be Twenty Two Thousand Five Hundred Dollars ($22,500). b. Protested Amounts Excluded: Program Payments shall not include any amounts under protest. After resolution of the protest, the appropriate incentive amounts shall be determined and included in the Program Payments. C. Cap: The annual incentive shall be capped not to exceed fifty percent (50%) of the ad valorem real property taxes from the Property and fifty percent (50%) of the ad valorem personal property taxes as received by the City from businesses located on the Property. ii. Sales and Use Taxes: The City shall utilize a portion of the 1% general fund sales and use taxes (i.e., does not include Southlake Park Development Corporation, Crime Control and Prevention District or any other economic development sales and use taxes) collected within the Property by the City from tenants occupying the Eligible Improvements on the Property to contribute to the Program Payments as described in Section 5.J herein. These taxes must be easily segregated and attributable to the location on the Property. a. Cap: This incentive shall be capped not to exceed fifty percent (50%) of the sales and use taxes collected annually. iii. Payment Schedule: The Program Payments shall be paid once per year within 90 days after all ad valorem and sales taxes have been paid and received by the City. Program Payments shall begin in calendar year 2016. a. TiminP Example Only: • November 2014: C.O. issued • Nov — Dec 2014: Businesses operate • January 31, 2015: 2014 taxes due to Tarrant County • No program payments made in 2015 • January 31, 2016: 2015 taxes due to Tarrant County • Feb 2016: AV taxes received by City • Feb 2016: All 2015 sales taxes received by City • April 2016: First Program Payment made Excel: Park Village - 380 Agreement (Approved March 4, 2014) Page 10 of 22 iv. Proportional Payments: a. Generally: Program Payments shall be made in proportion to the percentage of Construction Requirements that have met Substantial Completion. (50% of Total Tax Revenue x percentage of Construction Requirements that have met Substantial Completion). b. Maximum Payment: Under no circumstances will the total amount of Program Payments paid under this Agreement exceed the total amount of Program Payments due multiplied by the percentage of Construction Requirements completed. C. Examples: Attached hereto as Exhibit D are scenarios in which this section could affect the Program Payments. The information included within Exhibit D is for example purposes only. V. Term: The term of this Agreement shall end upon the payment of five (5) Program Payments unless all obligations of the City are reached earlier. vi. Resolution of Appeals: Upon resolution of any appeals and subsequent payment of taxes to the City, the City shall reimburse Excel the appropriate amount due in accordance with the provisions herein. vii. Condition Precedent: Notwithstanding any other provisions hereof, City shall not be obligated to make any Program Payments or other payment or grant pursuant to this Agreement unless and until Excel is in compliance with the provisions of this Agreement in all material respects. 6. CONFLICT OF INTEREST The Property is not owned or leased to any member of the Southlake City Council or any member of the Southlake Planning and Zoning Commission. In addition, Excel agrees to complete a Conflict of Interest Questionnaire as required by Chapter 176 of the Texas Local Government Code. 7. DEFAULT AND TERMINATION If either party should fail to comply with the terms of this Agreement, or if a bankruptcy or other insolvency proceeding shall be filed by or against either party and such proceeding is not vacated within 30 days, it shall be deemed a default and the party shall have 30 days after delivery of written notice of such default from the other party to cure such default. If the noncompliance is not cured within that period, the non -defaulting party may terminate this Agreement by written notice and shall have no further obligation to the other party; provided that the City may grant Excel an extension to cure the default if Excel demonstrates, to the reasonable satisfaction of the City Council that: the default cannot be cured by the payment of monies and (2) cannot be reasonably cured within 30 days and (3) that Excel is diligently pursuing cure. Excel: Park Village - 380 Agreement (Approved March 4, 2014) Page 11 of 22 8. FORCE MAJEURE Either party may be excused from performance under this Agreement when its performance is prevented as the result of Force Majeure as defined in Section 2. If a party suffers an event of Force Majeure, it shall provide written notice of the event to the other party promptly after its occurrence. Subject to this provision, such nonperformance shall not be deemed an event of default. Following the occurrence of any event of Force Majeure, Excel shall have such additional time to complete the applicable portion of the Eligible Improvements as may be reasonably required if Excel is diligently and faithfully pursuing the completion of the same. 9. AUDIT If necessary to determine whether the Construction Requirements in Section 4.13 are met and if requested by the City, an independent firm mutually agreeable to the City and Excel (the "Auditor") shall audit the construction associated with the Eligible Improvements, and shall determine whether Excel has met its requirements in accordance with this Agreement. The conclusion of the Auditor shall be final, binding and conclusive on the City and Excel and the City's payments shall be adjusted in accordance therewith. The City shall be responsible for the cost of the audit. 10. INDEMNIFICATION EXCEL EXPRESSLY AGREES TO FULLY AND COMPLETELY DEFEND, INDEMNIFY, AND HOLD HARMLESS THE CITY, AND ITS OFFICERS, AND EMPLOYEES, AGAINST ANY AND ALL CLAIMS, LAWSUITS, LIABILITIES, JUDGMENTS, COSTS, AND EXPENSES FOR PERSONAL INJURY (INCLUDING DEATH), PROPERTY DAMAGE OR OTHER HARM, DAMAGES OR LIABILITY FOR WHICH RECOVERY OF DAMAGES IS SOUGHT, SUFFERED BY ANY PERSON OR PERSONS, THAT MAY ARISE OUT OF OR BE OCCASIONED BY ANY NEGLIGENT, GROSSLY NEGLIGENT, WRONGFUL, OR STRICTLY LIABLE ACT OR OMISSION OF EXCEL OR ITS AGENTS, EMPLOYEES, OR CONTRACTORS, ARISING OUT OF THE PERFORMANCE OF THIS AGREEMENT. Nothing in this paragraph may be construed as waiving any immunity available to the City under state law. This provision is solely for the benefit of Excel and the City and is not intended to create or grant any rights, contractual or otherwise, in or to any other Person. Excel's obligations under this section will survive the Term of this Agreement. 11. MISCELLANEOUS MATTERS A. Section or Other Headings: Section or other headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. B. Attorneys Fees: The prevailing party in the adjudication of any proceeding relating to this Agreement shall be authorized to recover its reasonable and necessary attorney's fees. C. Entire Agreement: This Agreement contains the entire agreement between the parties with respect to the transactions contemplated herein. Excel: Park Village - 380 Agreement (Approved March 4, 2014) Page 12 of 22 D. Amendment: This Agreement may only be amended, altered, or revoked by written instrument signed by the Excel and the City. E. Successors and Assigns: This Agreement shall be binding on and inure to the benefit of the parties, their respective successors and assigns. Excel may assign all or part of its rights and obligations hereunder (a) to any Excel Affiliate effective upon written notice to the City, provided the Excel Affiliate agrees in writing to comply with each and every obligation of Excel in this Agreement including constructing the Eligible Improvements to a design standard consistent with the Site Plan, or (b) to any Person other than a Excel Affiliate with the prior written approval of the City, which approval shall not be unreasonably withheld or delayed, so long as in the City's sole discretion the Eligible Improvements will be constructed to a design standard consistent with the Site Plan and the assignee is financially able to perform this Agreement and experienced in high quality land development. After Substantial Completion of the Minimum Construction Requirements and all other infrastructure obligations, Excel's obligation under this Agreement may be assigned to unrelated third parties upon written notice to the City and the assignees written agreement to comply with each and every obligation of Excel contained herein as the same relate to the applicable portion of the Property conveyed to such third party. Nothing in this Section shall release Excel from its obligations under this Agreement unless the City gives its express written consent. F. Notice: Any notice and/or statement required and permitted to be delivered shall be deemed delivered by hand delivery, depositing same in the United States mail, certified with return receipt requested, postage prepaid, addressed to the appropriate party at the following addresses, or at such other addresses provided by the parties in writing: Excel: Excel Southlake I, L.P. 17140 Bernardo Center Drive, Suite 310 San Diego, California 92128 Attention: Nathan Hilbig With a copy to: The Woodmont Company 2100 W. 7th Street Fort Worth, Texas 76107 Attention: Stephen Coslik City: City of Southlake 1400 Main Street, Suite 460 Southlake, Texas 76092 Attention: Mayor Excel: Park Village - 380 Agreement (Approved March 4, 2014) Page 13 of 22 With a copy to: Taylor, Olson, Adkins, Sralla & Elam, L.L.P. 6000 Western Place, Suite 200 1-30 at Bryant -Irvin Road Fort Worth, Texas 76107 Attention: Drew Larkin G. Interpretation: Regardless of the actual drafter of this Agreement, this Agreement shall, in the event of any dispute over its meaning or application, be interpreted fairly and reasonably, and neither more strongly for or against any party. H. Applicable Law and Venue: This Agreement is made, and shall be construed and interpreted under the laws of the State of Texas and is fully performable in Tarrant County, Texas, and venue of any dispute relating to this Agreement shall lie in Tarrant County, Texas. I. Counterparts: This Agreement may be executed in multiple counterparts, each of which shall be considered an original, but all of which shall constitute one instrument. J. Limitation on Liability: Excel agrees that City shall not be liable to Excel or any other party for any special or consequential damages, direct or indirect, punitive damages, interest, or cost of court or expenses related to litigation other than reasonable and necessary attorney's fees, as provided in Section 11.6. hereof for any act of default by City under this Agreement. K. Representations: Excel represents and warrants to the City that it has the requisite authority to enter into this Agreement. L. No Joint Venture: The parties agree that the terms hereof are not intended to and shall not be deemed to create a partnership or joint venture among the parties. The City, its elected officials, directors, employees and agents do not assume any responsibility to any third party in connection with Excel's construction or operation of the Project. M. Conflicting Agreements: Where conflicts might arise between this Agreement and the Developer's Agreement or other agreements between the City and Excel, this Agreement shall prevail. Excel agrees to comply with the City's normal development regulations while developing the Property, except where those regulations conflict with the provisions of this Agreement. N. Revenue Sharing Agreement: The City designates this Agreement as a revenue sharing agreement, thereby entitling the City to request Sales and Use Tax information from the State Comptroller, pursuant to Section 321.3022 of the Texas Tax Code, as amended. O. Source of Funds: All payments required to be made by the City hereunder shall be made by the City from current revenues available to the City. Excel: Park Village - 380 Agreement (Approved March 4, 2014) Page 14 of 22 12. REMEDIES CUMULATIVE The rights and remedies provided by this Agreement are cumulative and the use of any one right or remedy by either party shall not preclude or waive its rights to use any or all other remedies. Said rights and remedies are given in addition to any other rights the parties may have by law, statute, ordinance or otherwise. 13. WAIVER No waiver by a party in any event of default, or breach of any covenant, condition or stipulation herein contained shall be treated as waiver of any subsequent default or breach of the same or any other covenant, condition or stipulation hereof. 14. RIGHT TO OFFSET City may, at its option, offset any amounts due and payable to Excel under this Agreement against any debt (including taxes) lawfully due to City from Excel and which are delinquent under applicable law or by agreement, regardless of whether the amount due arises pursuant to the terms of this Agreement or otherwise and regardless of whether or not the debt due to City has been reduced to judgment by a court, provided that if Excel is in good faith challenging the validity of any debt, in accordance with applicable laws, the City may not offset unless and until such challenge is finally resolved. 15. SEVERABILITY In the event that any provision of this Agreement is illegal, invalid, or unenforceable under present or future laws, then, and in that event, it is the intention of the parties hereto that the remainder of this Agreement shall not be affected thereby, and it is also the intention of the parties to this Agreement that in lieu of each clause or provision that is found to be illegal, invalid, or unenforceable, a provision shall be added to this Agreement which is legal, valid and enforceable and is as similar in terms as possible to the provision found to be illegal, invalid or unenforceable. 16. ROUGH PROPORTIONALITY Excel agrees that all property dedicated to the City and all public facilities constructed pursuant to this Agreement are reasonably necessary to serve the Project and are roughly proportional to the need generated by the Development for such land and facilities. Excel acknowledges its right to seek a variance to the dedication and/or construction requirements and that it has voluntarily chosen not to pursue such remedies and waives any claim for a taking of property, or any other constitutional or statutory claim, that it may have under either the Texas or United States Constitutions or statutes. Excel: Park Village - 380 Agreement (Approved March 4, 2014) Page 15 of 22 17. UNDOCUMENTED WORKERS Excel certifies that it does not and will not knowingly employ an undocumented worker in accordance with Chapter 2264 of the Texas Government Code, as amended. If during the Term of this Agreement, Excel is convicted of a violation under 8 U.S.C. § 1324a(f), Excel shall repay the amount of the public subsidy provided under this Agreement plus interest, at the rate of the prime rate plus two percent (2%) per annum, not later than the 120th day after the date the City notifies Excel of the violation. IN WITNESS WHEREOF, the City and EXCEL SOUTHLAKE I LP, have executed this Agreement as of the I &+day of & 0 < < , 2014. THE CITY OF SOUTHLAKE By: John Terrell, Mayor EXCEL SOUTHLAKE I L.P., a Delaware limited partnership By: Excel Southlake LLC, a Delaware limited liability company its sole general partner v , r By: Nathan Hilbig, Vice Pre 'dent �p•puu�ap,� ATTEST ��.•`� cOUTy��.,. 4 . • Alicia Richardson, TRIAC CITY SECRETARY %� •, r, aa. +A'.• iAl YYY1 APPROVED AS TO FORM: �f (��� CITY ATTORNEY Excel: Park Village - 380 Agreement (Approved March 4, 2014) Page 16 of 22 EXHIBIT A-1 Description of Property Being approximately 10.6995 acres out of a tract of land situated in the OBEDIAH W. KNIGHT SURVEY, ABSTRACT NUMBER 899, City of Southlake, Tarrant County, Texas and being more particularly described on Exhibit A attached hereto and made a part hereof for all purposes. BEING all that certain lot, tract or parcel of land situated in the O. W. Knight Survey, Abstract No. 899 in the City of Southlake, Tarrant County, Texas, and being a part of the 19.299 acre tract of land conveyed to RCP Southlake Boulevard # 2, Ltd. by Deed and recorded in Instrument No. D203471724 of the Deed Records of Tarrant County, Texas, and being more particularly described by metes and bounds as follows; COMMENCING at an 'Y' set in concrete for the Northeast corner of a 49.724 acre tract of land conveyed to Anne Shannon and Ogden K. Shannon 111, Co -Trustees of the Anita H. Prade Testamentary Trust B, as recorded Volume 10315, Page 1256 of the Deed Records of Tarrant County, Texas, said point also being the Southeast corner of an 0.151 acre tract of land described Lis Pendens Notice for widening of Southlake Boulevard (FM 1709) (variable width right of way) as recorded in Volume 10316 at Page 1258 of the Deed Records of Tarrant County, Texas, and further evidence in Judgment in Absence of Objection recorded in Volume 10479 at Page 595 of the Deed Records of Tarrant County, Texas, said point of commencing also being the intersection of the South right of way line of said Southlake Boulevard (FM 1709) with the West right of way line of South Carroll Avenue (variable width right of way) (69.18 foot wide at this point); THENCE North 89 degrees 29 minutes 29 seconds West and continuing along said South right of way line of Southlake Boulevard (FM 1709) as reflected in said Lis Pendens Notice for a distance of 261.69 feet to a 5/8" iron rod set for corner, said point also being in a curve to the left having a central angle of 00 degrees 53 minutes 49 seconds with a radius of 11394.16 and a chord bearing South 89 degrees 57 minutes 29 seconds West at a distance of 178.38 feet; THENCE Westerly along said South right of way line of Southlake Boulevard (FM 1709) as reflected in said Lis Pendens Notice for an arc distance of 178.38 feet to a 5/8" iron rod set for corner to the POINT OF BEGINNING for this description, said point being in the in the West line of said Prade 49.724 acre tract, same being the Northeast corner of the aforesaid 19.299 acre tract of land conveyed to RCP Southlake Boulevard #2, Ltd., as recorded under Document No. D203471724 of the Deed Records of Tarrant County, Texas, and the Southeast corner of a called 0.226 acre tract of land conveyed to the State of Texas for right of way as recorded in Volume 9769 at Page 2091 of the Deed Records of Tarrant County, Texas. THENCE South 00 degrees 51 minutes 33 seconds East (BASIS OF BEARINGS PER TEXAS NORTH CENTRAL ZONE 4202-NAD 83) (South 00 degrees 16 minutes 50 seconds East per deed) along the common line of said Prade 49.724 acre tract and the RCP Southlake Boulevard #2, Ltd., 19.299 acre tract for a distance of 908.67 feet to a 5/8" iron rod set for corner; THENCE North 89 degrees 41 minutes 51 seconds West and departing the common lineof said Prade 49.724 acre tract and the RCP Southlake Boulevard #2, Ltd., 19.299 acre tract, across said RCP Southlake Boulevard #2, Ltd., 19.299 acre tract, for a distance of 361.32 feet to a 5/8" iron rod set for corner; THENCE South 88 degrees 12 minutes 55 seconds West for a distance of 127.69 feet to a 5/8" iron rod set for corner in the West line of said RCP Southlake Boulevard # 2, Ltd., called 19.299 acre tract, same being the East line of a tract of land conveyed to Vision Southwest Silverlake, LLC, by deed recorded in Instrument No. D207135294 of the Real Property Records of Tarrant County, Texas; THENCE North 00 degrees 44 minutes 54 seconds West (North 00 degrees 12 minutes 53 seconds West per deed) and following said RCP Southlake Boulevard # 2, Ltd., called 19.299 acre tract, same being the East line of a tract of land conveyed to Vision Southwest Silverlake, LLC, by deed recorded in Instrument No. D207135294 of the Real Property Records of Tarrant County, Texas for a distance of 391.23 feet to a 5/8" iron rod set for corner; Excel: Park Village - 380 Agreement (Approved March 4, 2014) Page 17 of 22 EXHIBIT A-2 Description of Property — cont. THENCE North 11 degrees 34 minutes 17 seconds West (North 10 degrees 58 minutes 56 seconds West per deed) and following along the West line of said RCP Southlake Boulevard #2, Ltd. called 19.299 acre tract, and being common with the East line of a Quit Claim Deed recorded in Instrument No. D211300126 of the Real Property Records of Tarrant County, Texas, for a distance of 519.52 feet to a "x" found in concrete for the Northwest corner of said RCP Southlake Boulevard #2, Ltd. called 19.299 acre tract in the South right of way line of the aforesaid Southlake Boulevard (FM 1709); THENCE North 88 degrees 54 minutes 51 seconds East (North 89 degrees 30 minutes 53 seconds East per deed) and following along the South right of way line of aforesaid Southlake Boulevard (FM 1709) as established by said right of way deed to the State of Texas recorded in Volume 9769 at Page 2091 of the Deed Records of Tarrant County, Texas, for a distance of 446.64 feet (446.77 feet per deed) to a 1/2" iron rod found for corner, said point being the beginning of a curve to the right having a central angle of 00 degrees 41 minutes 40 seconds with a radius of 11,394.16 feet and a chord bearing North 89 degrees 09 minutes 45 seconds East at a distance of 138.09 feet; THENCE Northeasterly and continuing along the South right of way line of said Southlake Boulevard (FM 1709) and said curve to the right for an arc distance of 138.09 feet (138.05 feet per deed) to the POINT OF BEGINNING and CONTAINING 10.6995 ACRES OF LAND, more or less. BEING all that certain lot, tract or parcel of land situated in the O. W. Knight Survey, Abstract No. 899 in the City of Southlake, Tarrant County, Texas, and being a part of 49.724 acre tract of land conveyed to Anne Shannon and Ogden K. Shannon III, Co -Trustees of the Anita H. Prade Testamentary Trust B, as recorded under Instrument No. D211012231 of the Deed Records of Tarrant County, Texas, and being more particularly described by metes and bounds as follows; BEGINNING at an "x" set in concrete for the Northeast corner of said 49.724 acre tract, said point also being the Southeast corner of an 0.151 acre tract of land described Lis Pendens Notice for widening of Southlake Boulevard (FM 1709) (variable width right of way) as recorded in Volume 10316 at Page 1258 of the Deed Records of Tarrant county, Texas, said point of beginning also being the intersection of the South right of way line of said Southlake Boulevard with the West right of way line of South Carroll Avenue (variable with right of way) (69.18 foot wide at this point); THENCE South 010 02' 58" East (Basis of Bearing per Texas North Central Zone 4202 State Plane Coordinates) and following along the West line of said South Carroll Avenue and being common to the East line of said Prade 49.724 acre tract for a distance of 848.86 feet to a 5/8" iron rod set for corner; THENCE North 890 41' 51" West and departing the West line of said Carroll Avenue for a distance of 442.88 feet to a 5/8" iron rod set for corner in the West line of said Prade 49.724 acre tract, same being the East line of a 19.299 acre tract of land conveyed to RCP Southlake Boulevard #2, Ltd, as recorded under Document No. D203471724 of the Deed Records of Tarrant County, Texas; THENCE North 000 51' 33" West along the common line of said Prade 49.724 acre tract and the RCP Southlake Boulevard #2, Ltd., 19.299 acre tract for a distance of 878.67 feet to a 518" iron rod set for the Northwest corner of said Prade 49.724 acre tract in the aforesaid South right of way line of Southlake Boulevard (FM 1709) as reflected in said Lis Pendens Notice recorded in Volume 10316 at page 1258 of the Deed Records of Tarrant County, Texas, said point also being in a curve to the right having a central angle of 00 ° 53' 49" with a radius of 11394.16 and a chord bearing North 89 ° 57' 29" East at a distance of 178.38 feet; THENCE Easterly along said South right of way line of Southlake Boulevard (FM 1709) as reflected in said Lis Pendens Notice for an arc distance of 178.38 feet to a 5/8" iron rod set for corner; THENCE South 89029' 29" East and continuing along said South right of way line of Southlake Boulevard (FM 1709) as reflected in said Lis Pendens Notice for a distance of 261.69 feet to the POINT OF BEGINNING AND CONTAINING 8.6060 ACRES OF LAND, more or less. Excel: Park Village - 380 Agreement (Approved March 4, 2014) Page 18 of 22 EXHIBIT A-3 Description of Property — cont. OFFSITE DETENTION PARCEL BEING all that certain lot, tract or parcel of land situated in the O. W. Knight Survey, Abstract No. 899 in the City of Southlake, Tarrant County, Texas, and being a part of the 49.724 acre tract of land conveyed to Anne Shannon and Ogden K. Shannon III, co -trustees of the Anita H. Prade Testamentary Trust B, as recorded under Instrument No. D211012231 of the Deed Records of Tarrant County, Texas, and being more particularly described by metes and bounds as follows: COMMENCING at an 'Y' set in concrete for the Northeast corner of said 49.724 acre tract of land conveyed to Anne Shannon and Ogden K. Shannon III, co -trustees of the Anita H. Prade Testamentary Trust B, as recorded Volume 10315, Page 1256 of the Deed Records of Tarrant County, Texas, said point also being the Southeast corner of an 0.151 acre tract of land described Lis Pendens notice for widening of Southlake Boulevard (FM 1709) (variable width right of way) as recorded in Volume 10316 Page 1258 of the Deed Records of Tarrant County, Texas, and further evidence in Judgment in Absence of Objection recorded in Volume 10479 at Page 595 of the Deed Records of Tarrant County, Texas, said point of commencing also being the intersection of the South right of way line of said Southlake Boulevard (FM 1709) with the West right of way line of South Carroll Avenue (variable width right of way) (69.18 foot wide at this point); THENCE South 010 02' 58" East (basis of bearing per Texas North Central Zone 4202 State Plan coordinates) and following along the West line of said South Carroll Avenue and being common to the East line of said Prade 49.724 acre tract for a distance of 847.51 feet to a point for corner; THENCE South 000 53' 15" East and continuing along the West line of said Carroll Avenue for a distance of 60.01 feet to a 5/8" iron rod set for the point of beginning for this description. THENCE South 000 53' 13" East and continuing along the West line of said Carroll Avenue for a distance of 237.78 feet to a point for corner, said point being the Northeast corner of a 38.000 acre tract of land conveyed to TerraM/inding Creek LLC, by Deed recorded under Instrument Number D212056812 of the Deed Records of Tarrant County, Texas; THENCE South 88° 59' 25" West and departing the West line of said Carroll Avenue and following along the North line of said TerraMinding Creek, LLC, 38.000 acre tract for a distance of 479.19 feet to a %" iron rod round for the Northwest corner of said 38.000 acre tract corner, and being in the East line of the 8.597 acre tract of land conveyed to TerraMlnding Creek, LLC, by Deed recorded under County Clerks File Number D212056832 of the Deed Records of Tarrant County, Texas; THENCE North 120 31' 32" East and following along said East line of said 8.597 acre tract for a distance of 154.65 feet to a %" iron rod found for corner; THENCE North 000 46' 32" West and following along the East line of said 8.597 acre tract for a distance of 96.58 feet to an aluminum disc found for the Northeast corner of said 8.597 acre tract; THENCE South 890 49' 31" East a distance of 443.21 feet to the POINT OF BEGINNING and CONTAINING 2.5283 ACRES OF LAND, more or less. Excel: Park Village - 380 Agreement (Approved March 4, 2014) Page 19 of 22 Pnqurd:Wp�.l EXHIBIT B Site Plan E. 96UTHLAKE BLVD. — 1 -- uwwA9dd I IIII BLDG I BLDG.) BLDG R �� I IIII ;—A a, y° BLDG L I I k I I 5`' I II1 BLDG N j G BLI}C.0 r l I II11 / � •�, 4•. � ,`b .y ; ` II IIII m BLDG t BLDG Fz y m I I :i nit. 12 ma PROPOSED ZENA RUCKER RD- �1! it r PARK VILtHGE ---- --- �� y -&&- Excel: Park Village - 390 Agreement (Approved March 4, 2014) Page 20 of 22 Exhibit C The Amenities Park Village Southlake, Texas COMMON AREA AROWTECrURAL ENHANCEMEN M 10/11 /2013 :-d,DESCRPMM 1 SIGNATURE FOUNTAIN (1) 3,000 SF fountain at corner of FM 1709 & Carroll Ave $ 1,100,000 2 INTERIOR FOUNTAIN (1) Go0 SF fountain located east of Building "N" $ 200,000 3 LINEAR FOUNDTAIN(5) (2), totalling 84 SF, located in the "Village" area $ 60,000 4 FIRE PIT (1), located in the "Village" area $ 20,000 5 ARCHITECTURAL TOWER FEATURE (1), located in the "Rim" area $ 150,000 6 ISEATING Archttectural/decorative seating located throughout development $ 100,00Q 7 1 PLANTERS - CAST IN PLACE (8), raised planters in "Village" area $ 40,000 8 PLANTERS - POTS (25), raised pot planters located in Rim and Village areas $ 100,000 9 DECORATIVE BOLLARDS (50), located at corner of FM 1709 & Carroll and throughoutthe "Village" area $ 50,000 10 1 CONCRETE - COLOR UPCHARGE (95,000 sf), inclusive of upcharge for colored concrete in "Village" area. $ 427,500 11 PAVERS / STAMPED CONCRETE (30,000 sf), located throughout the "Village" area $ 210,000 12 RETAINING WALLS - CARROLL AVE Architectural planters and retaining walls $ 248,005 13 ISCREEN WALLS - ZENA RUCKER RD Architectural screenwalls on Zena Rucker Rd $ 125,000 14 ❑ECORATIVE LIGHTING (30), decorative light poles and fixtures. $ 180,000 15 DENT£NTION POND AMENITIES Landscaping, lighting, seating and pond aeriator $ 132,000 15 LANDSCAPING/IRRIGATION 3firoughout project I $ 650,000 TC1m CAST $ 3,792,505 Excel: Park Village - 380 Agreement (Approved March 4, 2014) Page 21 of 22 Exhibit D Proportional Payment Scenarios THE FOLLOWING ARE FOR EXAMPLE PURPOSES ONLY. The following examples are for purposes of clarification only. For the purposes of these examples, we will assume the City's total Program Payments would be $500,000, receiving $200,000 in Total Tax Revenue per year (TTR), unless otherwise noted, and due to the 50% cap (as described in Sections 51i.c. and 51ii.a.), paying $100,000 per year aver five years. o Scenario 1 (Proportional Payment): Excel only constructs 80% of the Construction Requirements. The City receives $200,000 in TTR from the project. Since there is a cap of 50% of the TTR, where normally the Program Payment for that year would be $100,000, for this year it would only be $80,000 because of the proportional payment provision. o Scenario 2 (Catch up): Year one is as represented in Scenario 1. In year two, Excel completes 100% of the Construction Requirements. The City receives $300,000 in TTR from the project. Since there is a cap of 50% of the TTR, the Program Payment for that year would be $150,000, in essence "catching up" the amount short the prior year. a Scenario 3 (Early Payment): The City receives TTR of $400,000 each of the first three years resulting in a Program Payment of $200,000 in years 1 and 2, and $100,000 in year three, thus fulfilling the total required Program Payments of $500,000. o Scenario 4 Reduced Total Payment): Excel only completes 80% of the Construction requirements for the first four years, then 100% for the fifth year. The City only receives TTR of $200,000 each year. Where normally the Program Payment would be $100,000, the Proportional Payment provision reduces the Payment to $80,000 for the first four years and $100,000 for the fifth year, resulting in a Program Payments totaling only $420,000 for the five yearterm. o Scenario 5 (Total Proportional Payment): In a scenario where Excel never completes the Construction Requirements, the total Program Payments shall be in proportion to the amount completed. i.e. if they only complete 80% of the required minimum construction for the term of the Agreement, the City's total Program Payments would be $400,000 (80% of $500,000). o Scenario 6 (Maximum Proportional Payment): Assume the City receives $300,000 in TTR from the project in the first 3 years and 80% of the Construction Requirements have been met. With the 50% cap of the TTR, Program Payments for the first 3 years would be $120,000 each year, for a total of $360,000. Assume in year four, the Construction Requirements are still at 80%. For year four, Excel is only entitled to $40,000 because any amount higher would exceed 80% of the total Program Payments (80% x $500,000 = $400,000). Excel: Park Village - 380 Agreement (APPrvved March 4, 2014) Page 22 of 22