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Res 15-20 Approving an Development Agreement With Carlyle Development LLCTOWN OF WESTLAKE RESOLUTION 15-20 A RESOLUTION BY THE TOWN COUNCIL OF THE TOWN OF WESTLAKE, TEXAS, APPROVING A DEVELOPMENT AGREEMENT WITH CARLYLE DEVELOPMENT, LLC. RELATED TO THEIR DEVELOPMENT KNOWN AS CARLYLE IN WESTLAKE, TEXAS. WHEREAS, the Town of Westlake is experiencing planned growth through the attraction of economic development projects such as Fidelity Investments and Deloitte University, residential developments such as Vaquero, Glenwyck Farms, Terra Bella, and Granada which are consistent with the Town's Comprehensive Plan, as well as enrollment growth at Westlake Academy, all of which contribute to demand for improvements to Westlake's infrastructure and public buildings, and WHEREAS, the Town of Westlake (Town) and Carlyle Development, LLC. (the Developer) desire to entire enter into a partnership to continue this planned growth through a development agreement which sets out responsibilities for the Developer as a part of their development known as Carlyle regarding maintenance of public and private open spaces/amenities in and adjacent to said Carlyle development, and WHEREAS, the Town Council finds that the passage of this Resolution is in the best interest of the citizens of Westlake. NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF WESTLAKE, TEXAS: SECTION 1: THAT, all matters stated in the Recitals hereinabove are found to be true and correct and are incorporated herein by reference as if copied in their entirety. SECTION 2: THAT, the Town Council of the Town of Westlake, Texas, hereby approves the Development Agreement with the Developer attached hereto as Exhibit "A"; and further authorizes the Town Manager to execute said agreement on behalf of the Town of Westlake. SECTION 3: If any portion of this Resolution shall, for any reason, be declared invalid by any court of competent jurisdiction, such invalidity shall not affect the remaining provisions hereof and the Council hereby determines that it would have adopted this Resolution without the invalid provision. Resolution 15-20 Page 1 of 2 SECTION 4: That this resolution shall become effective from and after its date of passage. PASSED AND APPROVED ON THIS 24th DAY OF AUGUST, 2015. ATTEST: Kelly $dwards own Secretary 44z/L,C� GI - A&ez Laura L. Wheat, Mayor Thomas E. Brym own Manager Resolution 15-20 Page 2 of 2 Attachment A Resolution 15-20 RESIDENTIAL DEVELOPER AGREEMENT An Agreement between the Town of Westlake, Texas, hereinafter referred to as the "Town", and the undersigned Developer, Carlyle Development, LLC, hereinafter referred to as the "Developer", of CARLYLE, hereinafter referred to as the "Addition" to the Town of Westlake, Tarrant County, Texas, for the installation of certain community facilities located therein, and to provide Town services thereto. It is understood by and between the parties that this Agreement is applicable to the lots contained within the Addition 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 Preliminary Plat Construction Plans and other permits or regulatory authorizations granted by the Town during the development process. D. Building permits shall not be issued until all Public Works infrastructure is deemed substantially complete by the Town, 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 the remaining building permits or Certificates of Occupancy for residential dwellings will not be issued until the supporting public works infrastructure including permanent street signs with block numbers and regulatory signs within the Addition have been accepted by the Town. This will serve as an incentive to the Developer to see that all remaining items are completed. E. The Developer will present to the Town, in form acceptable to the Town, either (1) a cash escrow, (2) Letters 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, drainage, and any other public infrastructure improvements) to be constructed by the Developer, and providing for payment to the Town of the total remaining amounts required for the completion of the public facilities if the Developer fails to complete the work within twelve (12) months of the signing of this Agreement between the Town and Developer. All bonds shall be issued by a bonding company licensed to do business in the State of Texas. All Letters of RES 15-20 ATTACHMENT A CARLYLE DEVELOPER AGREEMENT.DOCX Page 1 of 14 Credit must meet the Requirements for Irrevocable Letters of Credit which have been incorporated herein. The value of the performance bond, letters of credit or cash escrow will reduce at a rate consistent with the amount of work that has been completed by the Developer and accepted by the Town. Performance and payment bonds, Letters of Credit or cash escrow from the prime contractor(s), hereinafter referred to as Contractor, or other entity acceptable to the Town, may be accepted in lieu of Developer's obligations specified above, at the discretion of the Town. F. Any guarantee of payment instrument (Performance Bond, Letters of Credit, etc.) submitted by the Developer or Contractor on a form other than the one which has been previously approved by the Town as "acceptable" shall be submitted to the Town Attorney and this Agreement shall not be considered in effect until Town Attorney has approved the instrument. Approval by the Town 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 Town, through the Town 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 Town regardless of such company's authorization to do business in Texas. Approval by the Town shall not be unreasonably withheld or delayed. H. The Developer agrees to furnish to the Town a 2 -year maintenance bond, letters 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). This 2 -year maintenance bond, letters 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, letters of credit or cash escrow will be supplied to the Town by the contractors performing the work, and the Town 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, letters of credit or cash escrow required in Paragraphs E and H have been provided to the Town. J. It is further agreed and understood by the parties hereto that upon final acceptance by the Town, title to all public facilities and improvements mentioned herein above which are intended to be public facilities shall be vested in the Town, 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 Town accepts such improvements, the Town shall have no liability or responsibility for any such facilities. Acceptance of the facilities must be in writing, signed by the Town, through its Town Manager or his/her duly appointed representative, acknowledging that all facilities are complete, have been inspected and approved, and are being accepted by the Town. RES 15-20 ATTACHMENT A CARLYLE DEVELOPER AGREEMENT.DOCX Page 2 of 14 K. On all public facilities included in this Agreement for which 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 preconstruction meeting, including the following. a.Inspection fees equal to six percent (6%) of the cost of all facilities (streets, sidewalks, water, sewer, drainage, and any other public or private infrastructure improvements) included in said Addition, based on actual bid or contract construction costs. 2. The Town 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 deemed substantially complete by the Town. L. Both the Developer and any third party, independent entity engaged in the construction of houses, hereinafter referred to as "Builder", will be responsible for mowing all grassed areas and weeds and otherwise reasonably maintaining the aesthetics of all land and lots in said Addition which have not been sold to third parties. After fifteen (15) days written notice, should the Developer or Builder failing this responsibility, the Town 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 Town, and not previously conveyed to other third parties, 120 days after Developer has notice of costs. Il. 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 Town of Westlake. 1. The Developer will be responsible for the following: a. 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 approved by the Town in accordance with Town ordinances and sign standards; b. Installation of all regulatory signs based on the MUTCD as prepared by the Developer's engineer by an engineering study or direction by the Town Engineer. It is understood that Developer may put in signage having unique architectural features, however, should the signs be moved or destroyed by any means, the Town is only responsible for replacement of the standard signage and poles. Developer or Home Owners Association will be responsible for any additional cost for replacement of custom or unique signs. RES 15-20 ATTACHMENT A CARLYLE DEVELOPER AGREEMENT.DOCX Page 3 of 14 2. All street construction will be subject to inspection and acceptance by the Town. No work will begin on any street in said Addition prior to complying with all 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 proposed. 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 preliminary plat of the Addition in accordance with plans and specifications to be prepared by the Developer's engineer and released by the Town for construction and in accordance with Chapter 82, Article IX, Water Facilities, of the Town of Westlake Ordinances, as amended, and any other local, state and federal regulations. The Developer shall be responsible for all construction costs, materials and engineering. C. ON-SITE SANITARY SEWER FACILITIES The Developer hereby agrees to install sanitary sewer collection facilities to service all 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 Town. Further, the Developer agrees to complete this installation in accordance with Chapter 82, Article X, Wastewater Facilities, of the Town of Westlake Ordinances, 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. 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 Town for construction. The Developer also agrees to adhere to Chapter 82, Article X, Drainage Facilities, of the Town of Westlake Ordinances, 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 Town. The Developer hereby agrees to comply with all provisions of the Texas Water Code. RES 15-20 ATTACHMENT A CARLYLE DEVELOPER AGREEMENT.DOCX Page 4 of 14 E. EROSION CONTROL The Developer agrees to comply with Chapter 36, Article IV, Erosion Control, of the Town of Westlake Ordinances, , 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 Town of Westlake 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 Town of Westlake 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 Town may remove the soil build-up either by contract or by Town forces and place the soil within the Addition at the Developer's expense. All expenses must be paid to the Town 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 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. RES 15-20 ATTACHMENT A CARLYLE DEVELOPER AGREEMENT.DOCX Page 5 of 14 F. USE OF PUBLIC RIGHT OF WAY It is agreed by and between the Town 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 a homeowners association. The Developer and his successors and assigns understand that the Town shall not be responsible for the replacement of these amenities under any circumstances and further agrees to indemnify and hold harmless the Town 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 Town against all such claims and demands. G. AMENITIES It is agreed by and between the Town and Developer that the Developer shall be responsible for the construction and maintenance of any unique landscaping, walls, patterned concrete, specialty signage and accessory facilities until such responsibility is turned over to a homeowners association. H. START OF CONSTRUCTION Before the construction of the streets, water, sewer, or drainage facilities can begin; the Developer must do the following: 1. Execute a Developer Agreement by all parties; 2. Schedule and attend a pre -construction meeting between Developer and Town and including all Contractors, major Sub -Contractors, and Utilities; 3. Furnish to the Town 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 Town the payment and performance bonds and 2- year maintenance bond or acceptable alternate security naming the Town as beneficiary; 5. Submit at least 2- 22"x34" (full size) sets and 2-11"x17" (half size) scalable sets of construction plans to be stamped "Released for Construction" by the Town Engineer plus any additional sets needed for the developer and contractor; 6. Pay all fees required to be paid to the Town; 7. Furnish to the Town a policy of general liability insurance, naming the Town as an additional insured, prior to commencement of any work. All insurance must meet the Requirements of Contractor's Insurance attached hereto and incorporated herein. RES 15-20 ATTACHMENT A CARLYLE DEVELOPER AGREEMENT.DOCX Page 6 of 14 III. GENERAL PROVISIONS A. IDEMNIFICATION DEVELOPER COVENANTS AND AGREES TO INDEMNIFY AND DOES HEREBY INDEMNIFY, HOLD HARMLESS AND DEFEND TOWN, 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 TOWN PROPERTY, ARISING OUT OF OR IN CONNECTION WITH ANY AND ALL ACTS OR OMISSIONS OF DEVELOPER, ITS OFFICERS, AGENTS, EMPLOYEES, CONTRACTORS, AND SUBCONTRACTORS BUT NOT OTHERWISE. THIS OBLIGATION TO INDEMNIFY SHALL APPLY TO ALL CLAIMS THAT ARISE FROM EVENTS THAT OCCUR PRIOR TO THE TIME THE TOWN 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 THECONCURRENT NEGLIGENT ACT OR OMISSION, OF THE TOWN, ITS OFFICERS AND EMPLOYEESAND SHALL CONTINUE FOR TWO YEARS AFTER THE TOWN ACCEPTS THE ADDITION. B. Venue of any action brought hereunder shall be in Fort Worth, Tarrant County, Texas. C. Approval by the Town Engineer or other Town 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 Town 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 Town Engineer signifies the Town'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 Town of the completed construction project, indemnify and hold harmless the Town, 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 Developer's 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 Town, its officers, agents, servants or employees, or any RES 15-20 ATTACHMENT A CARLYLE DEVELOPER AGREEMENT.DOCX Page 7 of 14 of them, on account thereof, to pay all expenses and satisfy any judgment 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 Town Manager, which shall not be unreasonably withheld or delayed. E. On all facilities included in this Agreement for which the Developer awards his own construction contract, the Developer agrees to employ a construction contractor who is approved by the Town, and whose approval shall not be unreasonably withheld or delayed, said contractor to meet Town and statutory requirements for being insured, licensed and bonded to do work in public streets and to be qualified in all respects to bid on public streets and to be qualified in all respects to bid on public projects of a similar nature. F. Work performed under the Agreement shall be completed within one (1) year from the date thereof. In the event the work is not completed within the one (1) year period, the Town 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 one (1) year period, the Town may agree to renew the Agreement with such renewed Agreement to be in compliance with the Town policies in effect at that time. G. Prior to final acceptance of the Addition, the Developer shall provide to the Town: a. two (2) copies of Record Drawings of the Addition, showing the facilities as actually constructed. b. Digital As -Built drawings in AutoCAD (.DWG format) c. Digital Shape files of As -Built drawings for GIS Such drawings shall be stamped and signed by the registered professional engineer of record. In addition, the Developer shall provide all electronic files of the drawings in a format acceptable to the Town. The project coordinate system must tie to the State Plane Coordinate System. H. TREE PRESERVATION All construction activities shall comply with the Town of Westlake Ordinances which pertain to Tree Preservation requirements and as may be amended by the Town 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. RES 15-20 ATTACHMENT A CARLYLE DEVELOPER AGREEMENT.DOCX Page 8 of 14 SIGNED AND EFFECTIVE on the date last set forth below. DEVELOPER: Carlyle Development, LLC Title: Todd Handwerk, its President Address: 430 N. Carroll Avenue, Suite 120, Southlake, Texas 76092 STATE OF TEXAS COUNTY OF TARRANT �+ On j •�� - l S , before me, SEA^1 C_ C7G t L -A1 , Notary Public, personally appeared Todd Handwerk, President of Carlyle Development, LLC, 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 -in, rument. SEAN COGHLAN Notary Public, State of Texas— :� My commission Expires WITNESS my hand an sof tial seal. October 31, 2016 (SEAL) - Notary Public My commission expires: ll7 '�• l% TOWN OF WESTLAKE, TEXAS ATTE Date: Date: RES 15-20 ATTACHMENT A CARLYLE DEVELOPER AGREEMENT.DOCX Page 9 REQUIREMENTS FOR IRREVOCABLE LETTER OF CREDIT 1. The Letter of Credit must have a duration of at least two (2) years. 2. The Town 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 Town of Westlake. The Town reserves the right to approve/disapprove the bank issuing the Letter of Credit. 4. The Letter of Credit must be issued by a bank that has a minimum capital ratio of six percent (6%), and has been profitable for each of the last two consecutive years. The DEVELOPER must provide the Town with supporting financial information on the bank to allow the Town to ascertain requirements are met. 6. Partial drawings against Letter of Credit must be permitted. 7. The Town must be able to draft on sight with proof of amount owed. 8. The DEVELOPER pays any and all fees associated with obtaining Letter of Credit. 9. Expiring Letter of Credit must be replaced by substitute Letters of Credit at least 30 days prior to the expiration date on the Letter of Credit held by the Town until all improvements have been inspected and accepted by the Town. RES 15-20 ATTACHMENT A CARLYLE DEVELOPER AGREEMENT.DOCX Page 10 of 14 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 TOWN. 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 TOWN; 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 TOWN'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,OOOEach Occurrence Property Damage...........................$1,000,000 Each Occurrence Products—Components/Operations Aggregate .............................. $1,000,000 Personal and Advertising Injury........................................................... $1,000,000 (With Employment Exclusion deleted) Each Occurrence.................................................................................... $1,000,000 Contractual Liability: Bodily Injury................................$1,000,000 Each Occurrence Property Damage..........................$1,000,000 Each Occurrence The policy shall include coverage extended to apply to completed operations, asbestos hazards (if this project involves work with asbestos) and ECU (explosion, collapse and underground) hazards. The completed operations coverage must be maintained for a minimum of one year after final completion and acceptance of the work, with evidence of same filed with TOWN. c. Comprehensive automobile and truck liability insurance, covering owned, hired and non -owned vehicles, with a combined bodily injury and property damage RES 15-20 ATTACHMENT A CARLYLE DEVELOPER AGREEMENT.DOCX Page I I of 14 minimum limit of $2,000,000 per occurrence; or separate limits of $1,000,000 for bodily injury (per person), and $1,000,000 for property damage. Such insurance shall include coverage for loading and unloading hazards. d. Property Insurance (Builder's All Risk) i. CONTRACTOR shall purchase and maintain, at all times during the term of its Contract with the Developer property insurance written on a builder's risk "all-risk" or equivalent policy form in the amount of the initial contract price, plus value of subsequent contract modifications and cost of materials supplied or installed by others, comprising total value for the entire Project at the site on a replacement cost basis without optional deductibles. Such property insurance shall be maintained, unless otherwise in writing by all persons and entities who are beneficiaries of such insurance, until final payment has been made, or until no person or entity other than the TOWN has an insurable interest in the property required by this paragraph to be covered, whichever is later. This insurance shall include interests of the TOWN, the CONTRACTOR, Subcontractors and Sub -Subcontractors in the Project. ii. Property insurance shall be on an "all-risk" or equivalent policy form and shall include, without limitation, insurance against the perils of fire (with extended coverage) and physical loss or damage including, without duplication of coverage, theft, vandalism, malicious mischief, collapse, earthquake, flood, windstorm, falsework, testing and startup, temporary buildings and debris removal including demolition occasioned by enforcement of any applicable legal requirements, and shall cover reasonable compensation for CONTRACTOR's services and expenses required as a result of such insured loss. iii. If the insurance required by this paragraph requires deductibles, the CONTRACTOR shall pay costs not covered because of such deductibles. iv. This property insurance shall cover portions of the work stored off the site, and also portions of the work in transit. e. OWNER'S Protective Liability Insurance: i. CONTRACTOR shall obtain, pay for and maintain at all times during the prosecution of the work under the contract between the CONTRACTOR and the Developer, a TOWN's protective liability insurance policy naming the TOWN as insured for property damage and bodily injury, which may arise in the prosecution of the work or CONTRACTOR's operations under the contract. ii. Coverage shall be on an "occurrence" basis, and the policy shall be issued by the same insurance company that carries the CONTRACTOR's liability insurance with a combined bodily injury and property damage minimum limit of $1,000,000 per occurrence. f. "Umbrella" Liability Insurance: RES 15-20 ATTACHMENT A CARLYLE DEVELOPER AGREEMENT.DOCX Page 12 of 14 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 $1,000,000 per occurrence combined limit for bodily injury and property damage that follows form and applies in excess of the primary liability coverages required herein above. The policy shall provide "drop down" coverage where underlying primary insurance coverage limits are insufficient or exhausted. Policy Endorsements 1. Each insurance policy to be furnished by CONTRACTOR shall include the following conditions by endorsement to the policy: a. name the TOWN as an additional insured as to all applicable policies; b. each policy shall require that 30 days prior to cancellation, non -renewal or any material change in coverage, a notice thereof shall be given to TOWN by certified mail. If the policy is canceled for nonpayment of premium, only 10 days written notice to TOWN is required; c. the term "TOWN" shall include all authorities, boards, bureaus, commissions, divisions, departments and offices of the TOWN and individual members, employees and agents thereof in their official capacities, and/or while acting on behalf of the TOWN; d. the policy phrase "other insurance" shall not apply to the TOWN where the TOWN is an additional insured on the policy. 2. Special Conditions a. Insurance furnished by the CONTRACTOR shall be in accordance with the following requirements: i. any policy submitted shall not be subject to limitations, conditions or restrictions deemed inconsistent with the intent of the insurance requirements to be fulfilled by CONTRACTOR. The TOWN's decision thereon shall be final. ii. all policies are to be written through companies duly licensed to transact that class of insurance in the State of Texas; and iii. all liability policies required herein shall be written with an "occurrence" basis coverage trigger. b. CONTRACTOR agrees to the following: 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 TOWN, 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 TOWN 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; RES 15-20 ATTACHMENT A CARLYLE DEVELOPER AGREEMENT.DOCX Page 13 of 14 iii. approval disapproval or failure to act by the TOWN 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 $1,000 require approval of the TOWN; 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 TOWN 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 TOWN 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 TOWN a replacement certificate of insurance or proof of reinstatement: RES 15-20 ATTACHMENT A CARLYLE DEVELOPER AGREEMENT.DOCX Page 14 of 14 PLATINUM t)BANK IRREVOCABLE STANDBY LETTER OF CREDIT August 24, 2015 BENEFICIARY: Town of Westlake, Tarrant County, Texas APPLICANT: Carlyle Development, LLC ISSUER: Platinum Bank Ladies and Gentleman: PIatinum Bank (the issuer), hereby opens our irrevocable standby letter of credit (this "LETTER OF CREDIT") in favor of the Town of Westlake, Tarrant County, Texas (the `BENEFICIARY"), on behalf of Carlyle Development, LLC (the "APPLICANT"), whereby we irrevocably authorize you to draw on us from time to time, in accordance with the terms hereof, from and after August 24, 2015 (the "COMMENCEMENT DATE")and through and including August 24, 2016 (the "EXPIRATION DATE), the aggregate amount not exceeding Six Hundred Thousand and No/ 100 dollars (U.S. $600,000.00) Six Hundred Thousand and No 100 dollars (the "MAXIMUM AMOUNT").The period of time between the commencement date and the Expiration Date is herein referred to as "DRAW PERIOD". This Letter of Credit is issued by the issuer to secure obligations of the Applicant for construction costs of the remaining improvements, as identified in the Carlyle Court Final Cost Worksheet dated July 16 2015 and attached here to as Exhibit 1, under a forthcoming Development Agreement (Development and Subdivision Improvement Agreement) by and between Beneficiary and the Applicant (the "DEVELOPMENT AGREEMENT"), for Applicants obligations, to construct all improvements in accordance with the terms and conditions of the Development Agreement (collectively, the "OBLIGATIONS"). 6502 Slide Road, Lubbock, Texas 79424 - (806) 792-5340 - (806) 798-2671 (f) - tcliristcnsen:Wplatinumbanktcxas.com The Issuer hereby agrees to honor one or more drafts made under this Letter of Credit during the Draw Period provided such drafts are in conformity with this Letter of Credit and the form of draft required by this Letter of Credit, and the Issuer's honoring of such draft shall not relieve such obligation to so honor any further drafts, provided however, that the Issuer's aggregate obligation to honor such drafts shall not exceed the Maximum Amount as reduced by prior draws hereunder. Funds under this Letter of Credit are available to Beneficiary during the Draw Period in one or more drawings upon the presentation of one or more executed conforming drafts and certificates as well as the original of this Letter of Credit (including all amendments thereto, if any). Such conforming draft(s) shall be presented to our office at 6502 Slide Road, Suite i 10, Lubbock TX 79424, on any business day except those in which banking institutions in the state of Texas are authorized or required by law to close. Partial drawings ad multiple drawings are permitted under this Letter of Credit; provided, however that the Issuers aggregate obligations to honor such drafts and demands shall not exceed the Maximum Amount as reduced by prior draws hereunder. Drafts made under and in strict compliance with the terms of this Letter of Credit which are presented at the Issuer's office at the address set forth above no later than 10:00 am shall be honored on the third business day after the date of presentation, by payment in accordance with the Beneficiary's payment instructions accompanying each such draft. If requested by the Beneficiary, payment under this Letter of Credit may be made by wire transfer of immediately available funds to the account specified in the draft. This Expiration Date of this Letter of Credit shall be automatically extended without amendment for additional twelve (12) month periods from the present or each future expiration date, until said improvements have been completed and accepted by the Town of Westlake. This Letter of Credit is not transferrable by the Beneficiary without the Issuer's prior written consent. Transfer fees for any approved transfer are to be borne by the Applicant. This Letter of Credit is subject to and shall be governed by Article 5 of the Uniform Commercial Code of the State of Texas, without regard to principals of conflict of laws. Very Truly Yours, Platinum Bank By: Name: -7 -ye- C1yNr;gk(%5cr1 Title: I--✓/ 6502 Slide Road, Lubbock, Texas 79424 - (806) 792-5300 - (806) 798-2671 (0 - tcitristensern uplatinumbanktexas.com By: �`°°� '•R�soUM 15-x-0 MARY LOUISE NICHOLSON °* COUNTY CLERK v "1 a 100 West Weatherford Fort Worth, TX 76196-0401 r° *•'•• ' PHONE (817) 884-1195 TOWN OF WESTLAKE 1500 SOLANA BLVD. BLDG 7, SUITE 7200 WESTLAKE, TX 76262 Submitter: TOWN OF WESTLAKE DO NOT DESTROY WARNING - THIS IS PART OF THE OFFICIAL RECORD. Filed For Registration: 3/11/2019 1:08 PM Instrument #: D219046851 RESOL 17 PGS $76.00 D219046851 ANY PROVISION WHICH RESTRICTS THE SALE, RENTAL OR USE OF THE DESCRIBED REAL PROPERTY BECAUSE OF COLOR OR RACE IS INVALID AND UNENFORCEABLE UNDER FEDERAL LAW.