Loading...
Res 12-29 Approving an Economic Development Agreement with Hillwood Alliance ServicesTOWN OF WESTLAKE RESOLUTION 12-29 A RESOLUTION BY THE TOWN COUNCIL OF THE TOWN OF WESTLAKE, TEXAS, (TOWN) APPROVING AN ECONOMIC DEVELOPMENT PROGRAM AGREEMENT BETWEEN THE TOWN AND HILLWOOD ALLIANCE SERVICES (HAS) FOR VARIOUS TOWN FUNDED IMPROVEMENTS RELATED TO THE DOVE ROAD/OTTINGER ROAD PROJECT AS DESCRIBED IN A DEVELOPMENT AGREEMENT DATED APRIL 25, 2011 BETWEEN THE TOWN AND HAS. WHEREAS, The Town of Westlake (Town) is experiencing planned growth through the attraction of economic development projects such as Deloitte University, which is consistent with the Town's comprehensive plan, as well as enrollment growth at the Westlake Academy, and growth in the area in general, all of which contribute to demand for improvements to the Town's public roadway infrastructure; and, WHEREAS, the Town and Hillwood Alliance Services, LLC (HAS) along with participation and contribution of HW 2421 Land, LP and HW 164 Land LP (collectively the "Hillwood Entities"), has previously entered into a development agreement dated April 25, 2011 (the "Development Agreement") whereby the Hillwood Entities agreed to invest approximately $4.6 million to fund certain public roadway and related improvements to Dove and J.T. Ottinger Roads in the Town; and, WHEREAS, as more specifically described and detailed in Section 3 of the April 25, 2011 Development Agreement, the Town agreed to grant to HAS monies for any costs over and above the amount that the Hillwood Entities contributed towards the Public Improvements; and WHEREAS, in order to maximize the economic benefits that the Public Improvements can bring to the Town, the Town and HAS desire to enter into this Agreement. The Town Council has determined that by entering into this Agreement, the potential economic benefits that will accrue to the Town under the terms and conditions of this Agreement are consistent with the Town's economic development objectives and the 380 Program and that construction and continuous operation of the Public Improvements will further the goals for positive and continued economic growth in the Town. In addition, the Town Council has determined that the 380 Program is an appropriate means to achieve the construction and operation of the Public Improvements, which the Town Council has determined are necessary and desirable, and that the potential economic benefits that will accrue to the Town pursuant to the terms and conditions of this Agreement are consistent with the Town's economic development objectives as outlined in the 380 Program. This Agreement is authorized by Chapter 380 of the Texas Local Government Code and the 380 Program. Resolution 12-29 Page 1 of 2 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 this resolution and the Economic Development Program Agreement Exhibit "A"; and further authorizes the Town Manager to execute said Economic Development Program 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. SECTION 4: That this resolution shall become effective from and after its date of passage. PASSED AND APPROVED ON THIS 27TH DAY OF AUGUST 2012. of wES 140 ATTEST: TE X AS Kelly dwar s Town Secretary APPROVED AS TO Lau a L, Wheat, Mayor .!Town(Manager Resolution 12-29 Page 2 of 2 ECONOMIC DEVELOPMENT PROGRAM AGREEMENT This ECONOMIC DEVELOPMENT PROGRAM AGREEMENT ("Agreement") is entered into by and between the TOWN OF WESTLAKE, TEXAS (the "Town"), a general law municipal corporation organized under the laws of the State of Texas, and HILLWOOD ALLIANCE SERVICES, L.L.C. ("HAS"), a Texas limited liability company, and executed to be effective as of the 2t:5 day of September, 2012 (the "Effective Date"). The Town and HAS are collectively referred to as the ("Parties"). RECITALS The Town and HAS hereby agree that the following statements are true and correct and constitute the basis upon which the Town and HAS have entered into this Agreement: A. The Town is experiencing planned growth through the attraction of economic development projects such as Deloitte University, which is consistent with the Town's comprehensive plan, as well as enrollment growth at the Westlake Academy, and growth in the area in general, all of which contribute to demand for improvements to the Town's public roadway infrastructure. B. The Town and HAS along with participation and contribution of HW 2421 Land, LP and HW 164 Land LP (collectively the "Hillwood Entities"), has previously entered into a development agreement dated April 25, 2011 (the "Development Agreement") whereby the Hillwood Entities agreed to invest approximately $4.6 million to fund certain public roadway and related improvements to Dove and J.T. Ottinger Roads in the Town (the "Public Im rovements"). A true and correct copy of the Development is attached hereto and incorporated herein as Exhibit "A." C. As more specifically described and detailed in Section 3 of the Development Agreement, the Town agreed to fund the Town's portion of the Public Improvements by granting to HAS monies for any costs over and above the amount that the Hillwood Entities contributed towards the Public Improvements. D. In order to maximize the economic benefits that the Public Improvements can bring to the Town, the Town and HAS desire to enter into this Agreement. E. In accordance with the Town's economic development policies and programs, the Town has established an economic development incentive policy and program pursuant to which the Town will, on a case-by-case basis, offer economic incentive packages authorized by Chapter 380 of the Texas Local Government Code, Article III, Section 52-a of the Texas Constitution, and other applicable laws, that include Page l Economic Development Program Agreement monetary loans and grants of public money, as well as the provision of personnel and services of the Town, to businesses and entities that the Town Council determines will promote state or local economic development and stimulate business and commercial activity in the Town, in return for verifiable commitments from such businesses or entities to cause specific infrastructure, employment and other public benefits to be made or invested in the Town (the 11380 Program"). F. The Town Council has determined that by entering into this Agreement, the potential economic benefits that will accrue to the Town under the terms and conditions of this Agreement are consistent with the Town's economic development objectives and the 380 Program and that construction and continuous operation of the Public Improvements will further the goals for positive and continued economic growth in the Town. In addition, the Town Council has determined that the 380 Program is an appropriate means to achieve the construction and operation of the Public Improvements, which the Town Council has determined are necessary and desirable, and that the potential economic benefits that will accrue to the Town pursuant to the terms and conditions of this Agreement are consistent with the Town's economic development objectives as outlined in the 380 Program. This Agreement is authorized by Chapter 380 of the Texas Local Government Code and the 380 Program. NOW, THEREFORE, in consideration of the mutual benefits and promises contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: AGREEMENT 1. INCORPORATION OF RECITALS. The Town Council has found at a duly -called and legally -noticed public meeting through the adoption of Town Resolution No. , attached hereto as Exhibit "B" and hereby made a part of this Agreement for all purposes, and the Town and HAS hereby agree, that the recitals set forth above, including the reference to any exhibits and attachments, are incorporated herein and true and correct and form the basis upon which the Parties have entered into this Agreement. 2. DEFINITIONS. In addition to terms defined in the body of this Agreement, the following terms shall have the definitions ascribed to them as follows: 380 Program has the meaning ascribed to it in Recital E. Affiliate means all entities, incorporated or otherwise, under common control with, controlled by or controlling HAS. For purposes of this definition, "control" means fifty percent (50%) or more of the ownership determined by either value or vote. Page 2 Economic Development Program Agreement Completion Date means the date as of which Certificate of Completion and acceptance has been issued by the Town to HAS for the Public Improvements. Completion Deadline means October 25, 2013 (subject to Force Majeure, the Contribution deadline, and Public Contribution as defined in the Development Agreement). Construction Costs means actual construction costs directly expended by HAS on behalf of the Town for the Public Improvements described in this Agreement. Final Construction Spending Report has the meaning ascribed to it in Section 4.2. Monthly Construction Syendin2 Report has the meaning ascribed to it in Section 4.2. Program Grants means the total economic development grants paid by the Town to HAS to fund the Town's portion of the Public Improvements in accordance with this Agreement, the Development Agreementand as part of the 380 Program, not to exceed a total of nine hundred ninety four thousand dollars ($994,000.00). Program Source Funds means an amount of Town funds legally available for inclusion in a Program Grant that is payable to HAS in accordance with the terms and conditions of this Agreement. Public Improvements has the meaning ascribed to it in Recital B and more specifically referred to as Project 5 in the Development Agreement. Records has the meaning ascribed to it in Section 4.3. Term has the meaning ascribed to it in Section 3. 3. TERM. This Agreement shall be effective as of the Effective Date and, unless terminated earlier in accordance with this Agreement, shall expire on the date as of which the Town has paid all Program Grants required herein (the "Term"). 4. HAS' OBLIGATIONS AND COMMITMENTS. 4.1. HAS shall construct the Public Improvements, more specifically referred to as Project 5 in the Development Agreement, by the Completion Deadline. 4.2. Reports and Filings. Within thirty (30) calendar days following the commencement of construction of the Public Improvements HAS will provide the Town Manager with a monthly report in a form reasonably acceptable to the Town that Page 3 Economic Development Prograin Agreement specifically outlines the total Construction Costs, expenditures and related documents that delineate the monthly expenditures spent for the Public Improvements, and other non-proprietary documents reasonably necessary to demonstrate that such amounts were actually paid and expended on the Public Improvements (the "Monthly Construction Spending Report'). Thereafter, HAS shall submit a Monthly Construction Spending Report each month throughout the term of this Agreement. Within thirty (30) days of the completion and acceptance of the Public Improvements HAS shall submit a final report to the Town (the "Final Construction Spendingport"). The most recent Monthly Construction Spending Report is attached hereto and is considered approved concurrent with the approval of this Agreement. 4.3. Records. The Town will have the right throughout the Term to review business records of HAS that directly relate to the construction and completion of the Public Improvements as reasonably necessary to evaluate HAS' compliance with this Agreement (collectively "Records"). For purposes of this Section 4.3, copies of the construction documents and invoices shall be delivered to the Town upon completion of the Public Improvements and shall fulfill HAS's requirement to deliver Records to the Town. Notwithstanding anything to the contrary, (a) HAS's obligation to proceed with contracting for or construction of any Public Improvements pursuant to this Agreement shall be contingent on the Town providing adequate assurances to HAS that the funds for the Public Contribution portion (if any) of the cost of such Public Improvements pursuant to this Agreement are available and have been appropriated for such use, (b) HAS will have no obligation to commence the design process or any other work or spend any money on a Public Improvements pursuant to this Agreement until the Town provides such assurances, and (c) any delay by the Town in providing such assurances shall operate to extend the Completion Deadline for such Public Improvements pursuant to this Agreement on a day -far -day basis, but will not operate to extend the Contribution Deadline. 5. TOWN OBLIGATIONS. 5.1. Payment of Amounts Contained in Monthly Construction Spending Report. Within Five (5) calendar days following receipt by the Town of the Monthly Construction Spending Report for the Public Improvements, as required by Section 4.2.1, and assessment and approval by the Town of the information contained therein the Town will remit payment to HAS for the expenditures contained in the Monthly Construction Spending Report, not to exceed the cumulative total contained in Section 5.2. 5.2. Program Grant Amount. Page 4 Economic Development Program Agreement Subject to the terms and conditions of this Agreement the Town will pay for actual costs of the Public Improvements not to exceed a total amount of $994,000.00. 6. DEFAULT, TERMINATION AND FAILURE BY HAS TO MEET VARIOUS DEADLINES AND COMMITMENTS. 6.1. Failure to Submit Reports. Without limiting the application of Section 6.3, if HAS fails to submit any report required by and in accordance with Section 4.2, the Town's obligation to pay any Program Grants at the time, if any, shall be suspended until HAS has provided all required reports. 6.3. General Breach. If HAS fails to construct the HAS Improvements pursuant to the terms and conditions of this Agreement, then upon a failure of HAS to cure a default within thirty (30) days following HAS's receipt of a written notice from the Town specifying such default, the Town, as its sole and exclusive remedies, may: Declare this Agreement to be in default and require specific performance of HAS's obligations set forth herein; or 2. Obtain funds under the security and complete the Public Improvements itself or through a third party, provided that HAS will be given first opportunity by the Town to provide such remedy. Prior to drawing on the security, the Town shall provide HAS with notice and give HAS a reasonable opportunity to cure. 3. Notwithstanding anything to the contrary, in no event may the Town terminate this Agreement upon a default by HAS or otherwise. Page S Economic Development Program Agreement 7. NO INDEPENDENT CONTRACTOR OR AGENCY RELATIONSHIP. It is expressly understood and agreed that HAS shall not operate as an independent contractor or as an agent, representative or employee of the Town. HAS shall have the exclusive right to control all details and day-to-day operations relative to the Public Improvements and shall be solely responsible for the acts and omissions of its officers, agents, servants, employees, contractors, subcontractors, licensees and Invitees. HAS acknowledges that the doctrine of respondeat superior will not apply as between the Town and HAS, its officers, agents, servants, employees, contractors, subcontractors, licensees, and invitees. HAS further agrees that nothing in this Agreement will be construed as the creation of a partnership or joint enterprise between the Town and HAS. 8. INDEMNIFICATION. HAS shall waive all claims, fully release, indemnify, defend and hold harmless the Town and all of its officials, officers, agents, consultants, employees and invitees in both their public and private capacities (collectively, the "Town Parties") from any and all liability, claims, suits, demands or causes of action, including all expenses of litigation, court costs and attorneys' fees, which may arise by injury to or death of any person or damage to any property or person to the extent caused by the negligent acts of HAS, its officers, agents, consultants, employees or invitees (collectively, the "HAS Parties") arising out of or in connection with this Agreement. Such indemnification shall not apply to any claim, loss, damage cause of action, suit or liability that arises more than two years after the completion of construction of the applicable Project. Notwithstanding anything to the contrary, nothing contained in this Agreement shall waive the Town's defenses or immunities under Section 101.001 et seq, of the Texas Civil Practice and Remedies Code or other applicable statutory or common law. 9. NOTICES. All written notices called for or required by this Agreement shall be addressed to the following, or such other party or address as either party designates in writing, by regular U.S. mail, or certified mail, postage prepaid: Town: Town of Westlake Attn: Town Manager 3 Village Circle, Suite 202 Westlake, Texas 76262 Page 6 Economic Development Program Agreement HAS: Hillwood Alliance Services, LLC c/o Hillwood Development Company 13600 Heritage Parkway, Suite 200 Fort Worth, Texas 76177 Attn: Russell Laughlin With Copies to (which shall not constitute notice): Boyle & Lowry, L.L.P. Attn: L. Stanton Lowry 4201 Wingren Dr., Suite 108 Irving, Texas 75062 10. ASSIGNMENT AND SUCCESSORS. HAS may at any time assign, transfer or otherwise convey any of its rights or obligations under this Agreement to an Affiliate without the approval of the Town so long as HAS, the Affiliate and the Town first execute an agreement under which the Affiliate agrees to assume and be bound by all covenants and obligations of HAS under this Agreement. Otherwise, HAS may not assign, transfer or otherwise convey any of its rights or obligations under this Agreement to any other person or entity without the prior consent of the Town Council, which consent shall not be unreasonably withheld 11. COMPLIANCE WITH LAWS, ORDINANCES, RULES AND REGULATIONS. This Agreement will be subject to all applicable federal, state and local laws, ordinances, rules and regulations, including, but not limited to, all provisions of the Town's codes and ordinances, as amended. 12. GOVERNMENTAL POWERS. It is understood that by execution of this Agreement, the Town does not waive or surrender any of it governmental or sovereign powers or immunities that are outside of the terms, obligations, and conditions of this Agreement. Page 7 Economic Development Program Agreement 13. NO WAIVER. No covenant or condition of this Agreement may be waived without consent of the parties to which the covenant or conditions benefit. Forbearance or indulgence by any party shall not constitute a waiver of any covenant or condition to be performed pursuant to this Agreement or the Development Agreement. 14. VENUE AND JURISDICTION. If any action, whether real or asserted, at law or in equity, arises on the basis of any provisionn of this Agreement, venue for such action shall lie in state courts located in Tarrant County, Texas This Agreement shall be construed in accordance with the laws of the State of Texas. 15. NO THIRD PARTY RIGHTS. The provisions and conditions of this Agreement are solely for the benefit of the Town and HAS, and any lawful assign or successor of HAS, and are not intended to create any rights, contractual or otherwise, to any other person or entity. 16. FORCE MAJEURE. It is expressly understood and agreed by the Parties to this Agreement that if the performance of any obligations hereunder (other than the payment of money) is delayed by reason of war, civil commotion, acts of God, inclement weather, or other circumstances which are reasonably beyond the control or knowledge of the party obligated or permitted under the terms of this Agreement to do or perform the same, regardless of whether any such circumstance is similar to any of those enumerated or not, the party so obligated or permitted shall be excused from doing or performing the same during such period of delay, so that the time period applicable to such requirement shall be extended for a period of time equal to the period such party was delayed. 17. INTERPRETATION. In the event of any dispute over the meaning or application of any provision of this Agreement, this Agreement shall be interpreted fairly and reasonably, and neither more strongly for or against any party, regardless of the actual drafter of this Agreement. 18. SEVERABILITY CLAUSE. It is hereby declared to be the intention of the Parties that sections, paragraphs, clauses and phrases of this Agreement are severable, and if any phrase, clause, sentence, paragraph or section of this Agreement shall be declared unconstitutional or illegal by the valid judgment or decree of any court of competent jurisdiction, such unconstitutionality or illegality shall not affect any of the remaining phrases, clauses, sentences, paragraphs or sections of this Agreement since the same would have been executed by the Parties Page 8 Economic Development Program Agreement without the incorporation in this Agreement of any such unconstitutional phrase, clause, sentence, paragraph or section. It is the intent of the Parties to provide the economic incentives contained in this Agreement by all lawful means. 19. CAPTIONS. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 20. ENTIRETY OF AGREEMENT. This Agreement, including any exhibits attached hereto and any documents incorporated herein by reference, contains the entire understanding and agreement between the Town and HAS, and any lawful assign and successor of HAS, as to the matters contained herein. Any prior or contemporaneous oral or written agreement is hereby declared null and void to the extent in conflict with any provision of this Agreement. Notwithstanding anything to the contrary herein, this Agreement shall not be amended unless executed in writing by the Parties and approved by the Town Council of the Town in an open meeting held in accordance with Chapter 551 of the Texas Government Code. 21. 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. TOWN OF WESTLAKE: Thomas : r Town .•- Page 9 Economic Development Program Agreement IIILLWOOD ALLIANCE SERVICES, LLC, a Texas limited liability company N $y. 'OL L. ussell in Sr. Vice President. Properties Division THE STATE OF TEXAS § COUNTY OF TARRANT § The foregoing instrument was acknowledged before me on the 20th day of p. ellYl y 2012, by Thomas E. Brymer, Town Manager of the Town of Westlake, Texas, on behalf ofthe Town of Westlake, Texas. My Commission Expires: ©ZIa�lt4- THE STATE OF TEXAS § COUNTY OF TARRANT § Not4 PublidN and for the State of Texas AW ry j%myCRYEDWAMSDMISSON EXPIRES�t�,t*uary 3, 2014 The foregoing instrument was acknowledged before me on the day of 2012, by L. Russell Laughlin, Senior Vice President of Hillwood Alliance Services, LLC, a Texas limited liability company, on behalf of said limited liability company. PU,,,, CASEY MINER Notary Public, State of Texas =w;•. My Commission Expires May 11, 2016 My Commission Expires: 6 �' 1 Page 10 Economic Development Program Agreement Notary Publi ' and for the State of Texas EXHIBITS "A" — Development Agreement and Resolution No. 11-15 "B" — Town of Westlake Resolution No. I2'ZC� Page 11 Economic Development Program Agreement TOWN OF WESTLAKE RESOLUTION NO. 11-15 A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF WESTLAKE, TEXAS, APPROVING A DEVELOPMENT AGREEMENT BETWEEN THE TOWN OF WESTLAKE AND HILLWOOD ALLIANCE SERVICES, LLC (HAS) , HW 2421 LAND, LP, AND HW 164 LAND, LP, PERTAINING TO RESPONSIBILITIES AND FUNDING FOR CERTAIN PUBLIC ROADWAY IMPROVEMENTSIEXTENSIONS, SIDEWALK/PEDESTRIAN TRAILS, AND LANDSCAPING FOR SECTIONS OF DOVE AND J.T. OTTINGER ROADS; AND PROVIDING A SEVERABILITY CLAUSE. WHEREAS, the Town of Westlake (the "Town") is experiencing planned growth through the attraction of economic development projects such as Deloitte University, which is consistent with the Town's comprehensive plan, as well as enrollment growth at Westlake Academy and growth in the area in general, all of which contribute to demand for improvements to Town's public roadway infrastructure, and — WHEREAS, the Town and Hillwood Alliance Services (HAS), HW 2421 LAND, LP, AND HW 164 LAND, LP (collectively referred to as "Hillwood") desire to entire enter into a partnership whereby Hillwood will invest approximately $4.6 million to fund certain public improvements to Dove and J.T. Ottinger Roads in the Town, and WHEREAS, the Town and Hillwood approved a Memorandum of Understanding ("MOU") on March 28, 2011, with the understanding that the terms and conditions agreed upon in the MOU would be converted into a development agreement approved by both the Town and Hillwood within thirty (30) days of the MOU's approval, and WHEREAS, the development agreement, attached hereto and incorporated herein as Exhibit A, sets out the responsibilities and funding for certain public roadway improvements/extensions, sidewalk/pedestrian trail improvements, and landscaping on Dove Road and J.T. Ottinger Road and removes requirements for construction of a westerly road for Deloitte University per the terms of a June 12, 2008, development agreement between the Town and Hillwood adopted by Resolution 08-36; and WHEREAS, the Town Council finds that the passage of this Resolution is in the best interest of the citizens of the Town. 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. Resolution 11-15 Page I of 2 SECTION 2: That the development agreement, attached hereto and incorporated herein as Exhibit (the "Development Agreement"), is here by approved. SECTION 3: If any portion, provision, term or condition, of this Resolution, including any portion, provision, term or condition of the Development Agreement, shall, for any reason, be declared invalid by any court of competent jurisdiction, such invalidity shall not affect the remaining portions, provisions, terms or conditions hereof and the Council hereby determines that it would have adopted this Resolution and the Development Agreement without the invalid portion, provision, term or condition. SECTION 4: That this Resolution shall become effective from and after its date of passage. PASSED AND APPROVED ATTEST: TH DAY OF APRIL 2011. pW N 0P� M A S Kelly wardj, own Secretary APPROVED AS TO V Attorney L. � �,Z -/� 2�&e Laura f. Wheat, Mayor V7PCmoMR. Z. Resolution 11-15 Page 2 of 2 Approved by Town of Westlake Resolution No. 11-15 DEVELOPMENT AGREEMENT This Development Agreement ("Agreement") is executed to be effective as of the V6+h day of �pY-% � , 2011 ("Effective Date") by and among the Town of Westlake, Texas (the "Town"), HW 2421 Land, LP ("HW 2421 ") and 1W 164 Land, LP ("HW 164") (HW 2421 and HW 164 being collectively referred to in this Agreement as "HW"), and Hillwood Alliance Services, LLC (`HAS"). HW is the owner of that certain real property generally located on the north side of Dove Road as more particularly described in Exhibit "A", attached hereto and incorporated herein by reference (the "HW Property"). This Agreement concerns the installation of certain public improvements near or adjacent to both (i) the HW Property and (ii) that certain real property generally located on the north side of Dove Road as more particularly described in Exhibit "B" attached hereto and incorporated herein by reference (the "DCLI Property"). Notwithstanding anything to the contrary, (x) this Agreement shall wholly replace that certain Development Agreement executed by and among the Town, AIL Investment, L.P. and HAS which was approved by the Town on June 9, 2008, in resolution number 08-36 (the "2008 Development Agreement"), (xx) the 2008 Development Agreement is hereby terminated in its entirety and shall be void and of no further force or effect, and (xxx) the parties to the 2008 Development Agreement and their successors and assigns shall have no further rights or obligations under the 2008 Development Agreement. SECTION 1. THE PUBLIC IMPROVEMENTS A. Public Improvements. The term "Public Improvements" shall mean, collectively, those certain improvements described as Project 1, Project 2, Project 3, Project 4, Project 5, Project 6 and Project 7, as described and depicted on Exhibits "C" and "D" attached hereto, with each Project being more specifically described as follows; 1. Project 1. The term "Project 1" shall mean that portion of the Public improvements described and depicted as Project 1- Ottinger Road at Deloitte Entrance on Exhibits "C" and "D" attached hereto. 2. Project 2. The term "Project 2" shall mean that portion of the Public Improvements described and depicted as Project 2 - Ottinger Road on Exhibits "C" and "D" attached hereto. 3. Project 3. The term "Project 3" shall mean that portion of the Public Improvements described and depicted as Project 3 - Culvert Crossing at HillHunter Creek on Exhibits_ "C" and "D" attached hereto. 4. Project 4. The term "Project 4" shall mean that portion of the Public Improvements described and depicted as Project 4 - Pearson/Dove Road Intersection on Exhibits "C" and "D" attached hereto. 1236149_6 5. Pr�ect 5. The term "Project 5" shall mean that portion of the Public Improvements described and depicted as Project 5 — Trail/Sidewalk and Landscaping on Exhibits "C" and "D" attached hereto. 6. Project 6. The term "Project 6" shall mean that portion of the Public Improvements described and depicted as Project 6 — Remaining Dove and Ottinger Road Improvements (not covered by Projects 1-5 above or Project 7 below) on Exhibits "C" and "D" attached hereto. 7. Proiect 7. The term "Project 7" shall mean that portion of the Public Improvements described and depicted as Project 7 — Ottinger/Dove Intersection Improvements on Exhibits "C" and "D" attached hereto. Each of Projects 1-7 is referred to herein individually as a "Project" and collectively as the "Projects". Each Project is limited to the area identified for such Project on Exhibit "C" and limited to the specific improvements described for such Project on Exhibit "D" attached -- hereto. B. Required Projects. Project 1, Project 2, Project 3 and Project 4 are collectively referred to be -rein as the "Required Projects" because the Town and HAS agree that these Projects will be approved and constructed pursuant to the timetable set forth in Exhibit B to this MOU. The Town agrees that the Required Projects will take priority over, and will be approved, funded and constructed prior to or simultaneously with the Elective Projects (defined below). In the event that funds are insufficient to complete both the Required Projects and the Elective Projects, the Required Projects will be funded and approved first and will take priority over funding, approval and completion of the Elective Projects. C. Elective Projects, Project 5, Project 6 and Project 7 are collectively referred to herein as the "Elective Projects" because the Town may decide whether to approve and construct these Projects depending on the amount of funds available for such Elective Projects after construction of the Required Projects. D. General Terms and Conditions. The Public improvements shall be constructed pursuant to the terms and conditions set forth in this Agreement. HAS and the Town agree that their respective roles, responsibilities and obligations for each specific Project are set forth (i) in the body of this Agreement and (ii) in Exhibit "D" attached hereto. SECTION 2. PRIVATE CONTRIBUTION TO THE PiIBLIC UYIPROVEMENTS A. Private Contribution. Subject to the terms and conditions set forth herein, HAS agrees to contribute up to a maximum amount of $4,665,818.00 (the "Maximum Obligation') on the planning, design, engineering and construction of the Public Improvements. Any funds or property contributed by HW, HAS, their affiliates and their respective successors and assigns to the Public Improvements are collectively referred to herein as the "Private Contribution". Notwithstanding anything to the contrary, in no event shall the Private Contribution exceed the Maximum Obligation. HAS and the Town hereby agree and acknowledge that, subject to the teams and conditions of this Agreement, the amount of the Private Contribution may ultimately be less than the Maximum Obligation if not timely used prior to the Contribution Deadline. Page 2 of 22 B. Uses of the Private Contribution. Notwithstanding anything to the contrary, the Private Contribution shall only be used for capital improvements. No portion of the Private Contribution will be used for the following purposes (the "Non -Included Uses"): (i) for street or road overlays, refurbishment or repairs, (ii) for maintenance, repairs, operations or similar purposes, or (iii) for acquisition of right-of-way, easements or other land acquisitions which may be necessary in connection with the Projects. Any costs associated with the Non - Included Uses shall be solely the obligation of the Town. C. Monthly Reports. During the term of this Agreement, HAS will provide the Town with monthly reports and records of the amount of the Private Contribution expended to date, broken down by specific Project. D. Contribution Deadline. The term "Contribution Deadline" shall mean the date that is thirty (3 Q) months after the Effective Date of this Agreement. The term "Fully Approved Project" shall mean any Project for which all of the following have been fully satisfied: (i) such Project has been fully approved by the Town (including, without limitation, the Town's approval of plans and specifications for such Project, the Town's approval of the contractor(s) for such Project, the Town's approval of construction contract(s) for such Project, and the Town's approval of commencement of construction for such Project), (ii) the Town has fully satisfied all of its obligations set forth in Section 7.D., if any, with regard to such Project, and (iii) if portions of such Project will be paid for with a Public Contribution, the Town has fully funded such Public Contribution (including appropriation of such funds for such use and adequate assurances to HAS that such funds are available as necessary to pay for completion of construction of such Project). Notwithstanding anything to the contrary, regardless of whether the full Maximum Obligation has actually been spent, as of the Contribution Deadline: (x) HAS and its affiliates will be immediately relieved of any further obligations under this Agreement or related to the Public Improvements other than obligations related to the Projects which are Fully Approved Projects as of the Contribution Deadline, and (xx) HAS and its affiliates shall have no further obligation to expend any additional funds or incur any additional costs or liabilities except on those Projects which are Fully Approved Projects as of the Contribution Deadline. This provision is intended to encourage the Town to proceed with approval of plans and construction of the Projects in a timely manner on the dates set forth in Section 4 below. Subject to the terns and conditions set forth in this Agreement, following receipt of all necessary approvals of a Project by the Town and satisfaction of all other applicable conditions, HAS will diligently pursue completion of construction of such Project. The Town agrees and acknowledges that the Contribution Deadline will not be delayed or extended for any reason, including, without limitation, as a result of Force Majeure or as a result of delays caused by the Town's provision of approvals for a Project or determining whether the Town desires to move forward with design or construction of a Project. SECTION 3. PUBLIC CONTRIBUTION TO THE PUBLIC IMPROVEMENTS A. Public Contribution. The Town understands and agrees that any cost related to the Public Improvements over and above the amounts that HAS is required to contribute pursuant to this Agreement will be at the Town's sole cost and responsibility (the "Public Contribution"). Accordingly, HAS's obligation to proceed with contracting for or construction of any Project shall be contingent on the Town providing adequate assurances to HAS that the funds for the Public Contribution portion (if any) of the cost of such Project are available and have been appropriated. Page 3 of 22 B. Funding of the Public Contribution. HAS and the Town understand and agree that it is their intention that, to the extent possible, any Public Contribution to the Public Improvements will be funded by the Town through an Economic Development Agreement between the Town and HAS pursuant to the terms of Chapter 380 of the Texas Local Government Code, as such may be amended from time to time. SECTION 4. SCHEDULE A. Design and Construction Schedule. HAS and the Town agree that each party shall have the responsibilities assigned to such party for the respective Projects as set forth in Exhibit "B" attached hereto. HAS and the Town agree that the schedule for approval and construction of the Projects shall be as follows: 1. Project 1. Project 1 will be approved and constructed in accordance with the following Milestone Deadlines and Completion Deadlines: Milestone Events Deadlines Town approval of plans and specification, contractor(s), construction contract and commencement of construction: 4/30/2011 Completion of construction: 7/30/2011 2. Project 2. Project 2 will be approved and constructed in accordance with the following Milestone Deadlines and Completion Deadlines: Milestone Events Deadlines Town approval of plans and specification, contractor(s), construction contract and commencement of construction: 5/20/2011 Completion of construction: 8/23/2011 Project 3. Project 3 will be approved and constructed in accordance with the following Milestone Deadlines and Completion Deadlines: Milestone Events Deadlines Town approval of plans and specification, contractor(s), construction contract and commencement of construction: 7/30/2011 Completion of construction: 1/31/2012 4. Project 4. Project 4 will be approved and constructed in accordance with the following Milestone Deadlines and Completion Deadlines: Milestone Events Deadlines Town approval of plans and specification, contractor(s), construction contract and commencement of construction: 7/30/2011 Completion of construction: 1/31/2012 Page 4 of 22 5. Project 5. Project 5 will be approved and constructed in accordance with the following Milestone Deadlines and Completion Deadlines: Milestone Events Deadlines Town approval of plans and specification, contractor(s), construction contract and commencement of construction: 4/34/2012 Completion of construction: 9/30/2013 6. Project 6_ Project 6 will be approved and constructed in accordance with the following Milestone Deadlines and Completion Deadlines: Milestone Events Deadlines Town approval of plans and specification, contractor(s), construction contract and commencement of construction: 4/30/2412 Completion of construction: 9/30/2013 7. Project 7. Project 7 will be approved and constructed in accordance with the following Milestonc Deadlines and Completion Deadlines: Milestone Events Deadlines Town approval of plans and specification, contractor(s), construction contract and commencement of construction: 4/30/2012 Completion of construction: 9/30/2013 B. Notwithstanding anything to the contrary, (a) HAS's obligation to proceed with contracting for or construction of any Project shall be contingent on the Town providing adequate assurances to HAS that the fiords for the Public Contribution portion (if any) of the cost of such Project are available and have been appropriated for such use, (b) HAS will have no obligation to commence the design process or any other work or spend any money on a Project until the Town provides such assurances, and (c) any delaybythe Town in providing such assurances shall operate to extend the Completion Deadline for such Project on a day - for -day basis, but will not operate to extend the Contribution Deadline. SECTION 5. GENERAL REQUIREMENTS FOR THE PUBLIC EMPROVEMENTS A. Completion Deadlines. Each deadline for completion of a Project set forth in Section 4 above is referred to herein as the "Completion Deadline" for the applicable Project. The Completion Deadlines set forth in Section 4 above shall be subject to Force Majeure. The Completion Deadline for each Project is also dependent upon timely approvals by the Town for such Project (i,e., if Town approval is delayed beyond the deadline for such approval as set forth in the table for such Project in Section 4 above, the Completion Deadline for such Project shall also be automatically deemed extended on a day -for -day basis, but the Contribution Deadline will not be extended). B. Maintenance Security for Public IMProvements. At the time of initial construction of each Project, HAS shall obtain a maintenance bond provided by its general contractor that guarantees maintenance of the public improvements included within such Project for aperiod Page 5 of 22 of not less than two (2) years following completion of construction and acceptance by the Town of such public improvements (said acceptance not to be unreasonably withheld, conditioned or delayed). The bond shall be in the amount of 100 percent of the costs of the maintenance of such public improvements for this period as reasonably determined by HAS, and the Town. C. Securityfor!Completion of the Public Improvements. HAS shall obtain a performance bond from the general contractor to insure the completion of each Project, and either assign such performance bond to the Town or cause the Town to be listed on such bond as a co -obligee. The performance bond shall be in the amount of 100 percent ofthe funds estimated by HAS's Engineer to be necessary to pay for completion of such Project. Notwithstanding anything to the contrary, HAS's obligation to obtain a performance bond as set forth in this paragraph shall be contingent on the Town providing adequate assurances to HAS that the Public Contribution (if any) necessary to construct such Project is available and appropriated for such use. D. HAS Engineer. HAS must employ civil engineers licensed to practice in the State of Texas, for the design and preparation of the plans and specifications for construction of each Project. E. Contractor Approval. HAS shall employ construction contractors who are approved by the Town in connection with construction of each Proj ect. The contractors must meet the Town's regulatory standards and statutory requirements for being insured, licensed, and bonded to do work on public streets and/or public projects, and to be qualified in all respects to bid on public streets and upon public projects of similar nature, as the case may be. F. Dedication of Pmpertx. if required by the Town, any dedication to the Town of real property, including right-of-way and easements, shall include a metes and bounds description. The Town is financially and procedurally responsible for the acquisition of any and all additional right of way needed for the construction of the Projects on property not owned by HW, and neither f1W nor HAS shall have any liability in connection therewith. Any delays related to the Town's acquisition of the right-of-way or easements needed for construction of the Projects shall be considered Force Majeure and will operate to extend the Completion Deadline for the applicable Project, but will not operate to extend the Contribution Deadline. SECTION 6. APPROVAL AND CONSTRUCTION PROCEDURES FOR THE PUBLIC IMPROVEMENTS A. Engineering Standards. The Public Improvements shall be constructed to the Town's engineering standards in place as of the Effective Date of this Agreement. B. Design Team Task Force. HAS and the 'Town agree to establish and participate in a design team task force ("Task Force") for the entire duration of the design and construction of the Projects. The membership of the Task Force will consist of a maximum of six (6) members, with an equal number of representatives being appointed by both HAS and the Town (i.e., if there are 6 members of the Task Force, then 3 members will be appointed by HAS and 3 members will be appointed by the Town). The Task Force will review and approve the design of the improvements to be included in each of the Projects subject to the schedule for each Project set forth in Section 4 above. Page 6 of 22 C. Conditions Prior to Construction. Prior to approving commencement of construction of each Project, the Town shall be satisfied that the following conditions have been met with respect to such Project: I . All required plans and contract documents for such Project, if any, shall have been completed and filed with the Town. 2. All contractors participating in the construction of such Project shall be presented with a set of approved plans bearing the Town stamp of release. These plans for such Project must remain on the job site at all times. A complete list of the contractors for such Project, their representatives on the site, and the telephone numbers where a responsible party may be reached at all times, must be submitted to the Town. HAS or the contractor for such Project must furnish to the Town an insurance policy of general liability in the amount of $1,000,000 naming the Town as an additional insured prior to the commencement of any work on such Project. Said insurance policy shall remain in place until final acceptance by the Town of such Project (said acceptance not to be unreasonably withheld, conditioned or delayed). D. Fees. Any and all applicable Town fees related to the Projects will be waived, including, without limitation, review, inspection and permit fees. Said waiver of fees shall be considered a grant under Chapter 380 of the Texas Local Government Code. E. Inspections. Construction of the Projects shall be subject to periodic inspcctions by the Town or the Town's designee. HAS shall be responsible for completing and/or correcting any of the Projects completed by HAS which are not constructed in accordance with the Town's engineering standards and the plans and specifications approved by the Town for such Project. Any change in design required during construction shall be reviewed and approved by the Town (said approval not to be unreasonably withheld, conditioned or delayed). SECTION 7. OTHER OBLIGATIONS A. Limitation on HW and HAS Obligations for Dove Road and Ottinger Road. Notwithstanding anything to the contrary, as consideration for the agreements and obligations of HW and HAS set forth in this Agreement, the Town agrees and acknowledges that, other than the obligations specifically set forth in this Agreement, in no event shall HW, HAS or any oftheir respective affiliates, successors or assigns at any time have any obligation with regard to the portions of Dove Road and Ottinger Road shown on Exhibit "C" attached hereto, including, without limitation, any obligation to acquire or negotiate for additional casement or right-of- way property, dedicate land, relocate utilities, construct improvements or repair or maintain such portions of Dove Road and Ottinger Road, to pay impact or other fees or to make other payments related to such portions of Dove Road and Ottinger Road. The limitations in this section apply only to the specific Projects defined herein and do not in any way prohibit the Town from utilizing its constitutional and statutory powers at any time in the future for public purpose beyond the scope of this Agreement. B. Limitation on HW and HAS Dedication Requirements. The Town hereby agrees and acknowledges that HW, HAS and their affiliates, successors and assigns have previously Page 7 of 22 dedicated all necessary right-of-way or other land for the Public Improvements and fdr the portions of Dove Road and Ottinger Road shown on Exhibit "C" attached hereto, except for -a maximum of one and one half (1.51 acres of additional right -oft -way, if necessary, to accommodate the construction of Project 1 along Ottinger Road, as depicted on Exhibit "C" attached hereto, and that no additional right-of-way, easements or other land will be required from HW, HAS or their affiliates, successors or assigns with regard to the Public Improvements. The limitations in this section apply only to the specific Projects defined herein and do not in any way prohibit the Town from utilizing its constitutional and statutory powers at any time in the future for public purpose beyond the scope of this Agreement. C. Limitation on DCLI Obligations. 1. Projects, Dove Road, Ottinger Road. Notwithstanding anything to the contrary, the Town agrees and acknowledges that in no event shall the owner of the DCLI Property at any time have any obligation to the Town to in any way fund improvements to the Projects, including, without limitation, any obligation to dedicate land, construct improvements or repair or maintain the Projects, nor to pay impact or other fees or to make other payments related to the Projects. The Town further agrees and acknowledges that, provided that the use of the DCLI Property remains consistent in all material respects with the current uses contemplated by current approvals allowed in the Town's zoning district PD 3-12 as approved by Ordinance 591, and the related approved Site Plan (collectively, the "Current Approvals"), then in no event shall the owner of the DCLI Property at any time have any obligation to make future improvements to Dove Road or Ottinger Road, or in any way fund future improvements to Dove Road or Ottinger Road, including without limitation, any obligation to dedicate land, construct improvements or repair or maintain Dove Road or Ottinger Road, nor to pay impact or any other fees or to make other payments related to Dove Road or Ottinger Road. The preceding sentence does not limit the Town's right to utilize its constitutional and statutory powers at any time in the future in which the owner of the DCLI Property creates a material amount of additional service traffic (beyond the amount of service traffic contemplated by the DCLI Property's Current Approvals) along Dove Road or Ottinger Road (excluding, for example, the owner of the DCLI Property's construction of additional guest rooms allowed by the Current Approvals that does not materially increase service traffic along Dove Road or Ottinger Road). 2. Westerly Road, Permitting. DCLI, its affiliates or any other third parties shall have no obligation to the Town to improve, construct or pay for the construction of any portion of the Westerly Road (as defined in the 2008 Development Agreement). Further, the Town agrees to amend any existing agreements between the Town and DCLI, its affiliates or any other third parties to delete any such obligations with regard to the Westerly Road (as defined in the 2008 Development Agreement), including, without limitation, plats and site plans. Further, the Town agrees that the incomplete nature of the Projects shall not in any way delay or otherwise affect the Town's issuance of permits, approvals and/or certificates of occupancy with respect to the corporate training and learning center being constructed on the DCLI Property. D. Specific Town Obligations Related to the Public Improvements. The Town must, at the Town's sole expense: Page 8 of 22 except as set forth in Section -7.13. above, acquire any and all additional right-of-way necessary to construct each Project in a timely manner that does not delay construction of such Project. 2. relocate any and all utilities (including both those owned by the Town and those owned -by private utility companies) as necessary to construct each Project in a timely manner that does not delay construction of such Project. pay for any and all costs related to the Public Improvements in excess of the amounts required to be expended by HAS under this Agreement. HW, HAS and their respective affiliates, successors and assigns shall have no obligation to pay for any of the items set forth in this Section 7.D., and to the extent that HAS agrees, in its sole discretion to pay for any of the items set forth in this Section 7.D., such amounts shall be credited against the Maximum Obligation. Notwithstanding anything to the contrary, (a) HAS's obligation to proceed with contracting for or construction of any Project shall be contingent on the Town first fully satisfying all of its obligations set forth in this Section 7.D., if any, with regard to such Project, (b) HAS will have no obligation to commence the design process or any other work or spend any money on a Project until the Town satisfies such obligations, and (c) any delay by the Town in satisfying such obligations shall operate to extend the Completion Deadline for such Project on a day -for -day basis, but will not operate to extend the Contribution Deadline. E. Termination and Release of 2008 Development Agreement. Notwithstanding anything to the contrary, upon execution of this Agreement by the Parties, (x) this Agreement shall wholly replace the 2008 Development Agreement, (xx) the 2008 Development Agreement is hereby terminated in its entirety and shall be void and of no further force or effect, and (xxx) the parties to the 2008 Development Agreement and their successors and assigns, arc hereby released from, and shall have no further rights or obligations under, the 2008 Development Agreement, including, without limitation, all obligations related to the Westerly Road (as defined in the 2008 Development Agreement). SECTION 8. GENERAL PROVISIONS A. Assignment. This Agreement, any part thereof, or any interest herein shall not be assigned by HAS without the express written consent of the Town which may not be unreasonably withheld. B. Default Remedies — HAS. If HAS fails to construct the HAS Improvements pursuant to the terms and conditions of this Agreement, then upon a failure of HAS to cure a default within thirty (30) days following HAS's receipt of a written notice from the Town specifying such default, the Town, as its sole and exclusive remedies, may: Declare this Agreement to be in default and require specific performance of HAS's obligations set forth herein; or 2. Obtain funds under the security and complete the Public Improvements itself or through a third party, provided that HAS will be given first opportunity by the Town to provide such remedy. Prior to drawing on the security, the Town shall provide HAS with notice and give HAS a reasonable opportunity to cure. Page 9 of 22 3. Notwithstanding anything to the contrary, in no event may the Town terminate this Agreement upon a default by HAS or otherwise. C. Waiver. No covenant or condition of this Agreement may be waived without consent of the parties to which the covenant or conditions benefit. Forbearance or indulgence by any party shall not constitute a waiver of any covenant or condition to be performed pursuant to this Agreement. D. Independent Contractor Status. HAS covenants that it is an independent contractor and not an officer, agent, servant or employee of the Town; that HAS shall have exclusive control ofthe details of the work performed by HAS hereunder and all persons performing same, and shall be responsible for the acts and omissions of HAS's officers, agents, employees, contractors, subcontractors and consultants; that the doctrine of respondent superior shall not apply as between the Town, HAS, and HAS's officers, agents, employees, contractors, subcontractors and consultants, and nothing herein shall be construed as creating a partnership or joint enterprise between the Town, HW or HAS. E. General Indemnity Provisions. HAS shall waive all claims, fully release, indemnify, defend and hold harmless the Town and all of its officials, officers, agents, consultants, employees and invitees in both their public and private capacities (collectively, the "Town Parties") from any and all liability, claims, suits, demands or causes of action, including all expenses of litigation, court costs and attorneys' fees, which may arise by injury to or death of any person or damage to any property or person to the extent caused by the negligent acts of HAS, its officers, agents, consultants, employees or invitees (collectively, the "HAS Parties") arising out of or in connection with this Agreement. Such indemnification shall not apply to any claim, loss, damage cause of action, suit or liability that arises more than two years after the completion of construction of the applicable Project. Notwithstanding anything to the contrary, nothing contained in this Agreement shall waive the Town's defenses or immunities under Section 101.001 et sell. of the Texas Civil Practice and Remedies Code or other applicable statutory or common law. F. Responsibility for Design Defects. Approval of the Town Engineer or other Town employee, official, consultant, employee, or officer of any plans, designs or specifications submitted by HAS under this Agreement shall not constitute or be deemed to be a release of the responsibility and liability of HAS, its engineer, contractors, 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 or 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 or other Town employee, official, consultant, or officer signifies the Town approval of only the general design concept of the improvements to be constructed. G. Venue. Venue of any action brought hereunder shall be in Tarrant County, Texas. H. Tax Exemptions. The Town is an exempt organization under Section 151.309 of the Texas Tax Code, and if any of the HAS Improvements are dedicated to the Town under this Agreement, such improvements will be dedicated to public use and accepted by the Town Page 10 of 22 subject to the terms of this Agreement. 1. Notices. Any notices given or required to be given pursuant to this Agreement shall be sent by regular U.S. mail or certified mail, return receipt requested, to the following: TO THE TOWN: Town of Westlake 3 Village Circle, Suite 202 Westlake, Texas 76262 Attn: Town Manager with copy to: Boyle and Lowry, L.L.P. 4201 Wingren, Suite 108 Irving, Texas 75062 Attn: L. Stanton Lowry TO HW: HW 2421 Land, LP and Hillwood 164 Land, LP c/o Hillwood Development Company, LLC 13600 Heritage Parkway, Suite 200 Fort Worth, TX 76177 Attention: Russell Laughlin with copy to: Hillwood Development Company, LLC 13600 Heritage Parkway, Suite 200 Fort Worth, TX 76177 Attention: Don Reid with copy to: Kelly Hart & Hallman LLP 201 Main Street, Suite 2500 Fort Worth, TX 76102 Attention: Chad Key TO HAS: Hillwood Alliance Services, LLC c/o Hillwood Development Company, LLC 13600 Heritage Parkway, Suite 200 Fort Worth, TX 76177 Attention: Russell Laughlin with copy to: Page 11 of 22 Hillwood Development Company, LLC 13600 Heritage Parkway, Suite 200 Fort Worth, TX 76177 Attention: Don Reid with copy to: Kelly Hart & Hallman LLP 201 Main Street, Suite 2500 Fort Worth, TX 76102 Attention: Chad Key TO THE OWNER OF THE DCLI PROPERTY: DCLI LLC c/o Deloitte LLP 1633 Broadway New York, NY 10019 Attn: Matt Ross with copy to: DCLI LLC c/o Deloitte LLP 120 South Sixth Street, Suite 400 Minneapolis, MN 55402-1844 Attn: Jon Eisele with copy to: Vinson & Elkins LLP 2001 Ross Avenue, Suite 3700 Dallas, TX 75201 Attn: Paul A. Martin Reference: C/M DEL255/16000 Third Party Beneficiaries. For purposes of this Agreement, including its intended operation and effect, the parties specifically agree that (1) this Agreement only affects matters/disputes between the parties to this Agreement, and is in no way intended by the parties to benefit or otherwise affect any third person or entity, notwithstanding the fact that such third person or entities may be in a contractual relationship with the Town, HW or 14AS or all of them; and (2) the terms of this Agreement are not intended to release, either by contract or operation of law, any third person or entity from obligations owing by them to any party. Notwithstanding the foregoing or anything else to the contrary, the owner of the DCLI Property shall be a third party beneficiary exclusively with regard to Sections 7.C. and 8.B.3. of this Agreement. K. Several Obligations. Notwithstanding anything to the contrary contained herein, this Agreement is not intended to create a relationship (contractual or otherwise) between HAS Page 12 of 22 and HW, but rather only between each of HAS and the Town and HW and the Town. The Town agrees not to hold HW liable or in default of its obligations hereunder for any failure of HAS to perform its obligations hereunder, and further agrees not to hold HAS liable or in default of its obligations hereunder for any failure of HW to perform its obligations hereunder. L. Authority to Act. The parties each represent and warrant that the signatories on this Agreement are authorized to execute this Agreement and bind his/her principals to the terms and provisions hereof. Each party warrants that any action required to be taken in order for this Agreement to be binding on it has been duly and properly taken prior to the execution of this Agreement. [Signatures on following pages] Page 13 of 22 EXECUTED TO BE EFFECTWE as of the Effective Date. HW 2421 Land, LP, a Texas limited partnership By: HW 2421 Land GP, LLC, a Texas limited liability company, its general partner THE STATE OF TEXAS COUNTY OF 7Ckj-{'0,qN,-'C The foregoing instrument was acknowledged before me on ftj aq , 2011, by L��� lire's ( iCJE' of HW 2421 Land GP, LLC, a Texas limited liability company, I neral partner of HW 2421 Land, LP, a Texas limited partnership, on behalf of said limited partnership. MA ;- - BOWIING Notary Public, State of Texas � •'' haiery Public, Stats o. Cexas - '•'„ Wty (,unimisslon Expires C)ciober 17. 201'1 J, HW 164 Land, LP, a Texas limited partnership By. HW 2421 Land GP, LLC, a Texas limited liability company, its general partner By. Title: Sc. V icf N,. THE STATE OF TEXAS COUNTY OF dl,(`i�ri The foregoing instrument was acknowledged before me on2011, by - La 1xit n -Sc. Cf Q eV of HW 2421 Land GP, LLC, a Texas limited liability company, ge eral partner of HW 154 Land, LP, a Texas limited partnership, on behalf of said limited partnership. Notary Public, State of Texas LORI L. BOWUNG lute, Public. State of "texas 't KAV commission Expires October 17, 2011 HILLWOOD ALLIANCE SERVICES, LLC, a Texas limited liability company M • t �r a i l • • THE STATE OF TEXAS COUNTY.OF—�-,CrOLAA -- The foregoing instrument was acknowledged before nae on LL 2011, by L- L ofHillwood Alliance Services, LLC, a Texas limited liability com ny, on behalf of said limited liability company. UVlpr. lA�o�F4vPy8{,r LGt?i 7'lltv'Cs !- - Notary Public, State oT kMs � Notary Public, State of Texas My Ccmmission Expires re OF was .W AS THE STATE OF TEXAS TOWN OF WESTLAKE, TEXAS By: Name:_, Title: G.l� ATTEST: COUNTY OF J�QYYO�+'+ § The foregoing instrument was acknowledged before me on 2011, by r'aL � &fo± , Mayor of the Town of Westlake, on behalf of the Town. Notary ublic, to of Texas X L.Y EDWARD MY CCMMMSM EORE3 JOINDER DCLI LLC, a Delaware limited liability company, as express third -party beneficiary to Sections 5.D. and 7.C.3. of the 2008 Development Agreement and Sections 7.C. and 8.B.3. of this Agreement, hereby joins in the execution of this Agreement to evidence its approval of the terms of this Agreement, including the ten-nination of the 2008 Development Agreement. All of the parties to this Agreement acknowledge and agree that Sections 7.C. and 8.8.3. of this Agreement may not be amended, terminated or altered in any way without the express written approval of the owner of the DCLI Property. DCLI LLC, a Delaware limited liability company By: N e • -'1 Title: VF 'Thb dow�!ent wos repo under 22 TAC 21 does not deet ma raPLFu 1pn on the smun � surratr, and is of to bG usddig carrmv or establish r&erE�*tresir in > q a }� ry o! a g7Ns icto,) � stud" su for wh'�dre it wsue ?trca! � Pr'eAo i � r9� r�•0rr ryfa 3003.09' My i • i Yy YY �r tg W� .0 I cera-mv 4MLTP AIL lwsrmw. L.P. vm.175".P6.1r 10 A- .90'991 �j}Q a.i�.9a.00AA �i �N Exhibit A ~ o e1'• A 4� Er ro w 5 Z's __ rq ACF#2550 ., NO. sr$ ----��� 1 f �` •''� � �` +?f 9 3�0 Jot mice. JOB # 015007.094 JDATE 07-2&-08 JDRAWN. TAM 101ECKEM JFK 5 Z's __ rq ACF#2550 ., NO. Exhibit 8 �a p Y % 49 A~ w i ON Jr PEA1iSIN LKtt z►r1.rt.sa,�os a N!' co RD� sya S a rm C X 0 T.�.42, »o �z N o °'�• s ga�zZ'11 o a s sp "' I �fn f uo. +uqx +q C Cr T.a Z in~ A t PIE On D� C� ii in r JAI+ ACF# 2165 CarbW ar es 5.i"u SHT. N0. . 'ol W- WE 01-5 DATE: 0549-O8 DRAWN. 7M IME&EM JFK t' it • M '� R all. IHVfSTMONT. C.A. 2+ p VaLAW5. PC.542 I TRACT ? I 11.6z AY o40Na�1 ,r Of* J4 ~ JIr•l`F �rn wy r. OUiOY iY11Yi1[ Aii$MCT HUMORS ?s +c m 4 � r w rn 12.m p Ir 31,56,E 128&. 3Y J.PPPRIMATE SWAY EINE lo lot cm p cm u + ILI 7C 1 s usi �a p Y % 49 A~ w i ON Jr PEA1iSIN LKtt z►r1.rt.sa,�os a N!' co RD� sya S a rm C X 0 T.�.42, »o �z N o °'�• s ga�zZ'11 o a s sp "' I �fn f uo. +uqx +q C Cr T.a Z in~ A t PIE On D� C� ii in r JAI+ ACF# 2165 CarbW ar es 5.i"u SHT. N0. . 'ol W- WE 01-5 DATE: 0549-O8 DRAWN. 7M IME&EM JFK t' Exhibit C -------`--'------------`----`—`----------'---`-------------`-`- -� F... -.1.1---l-I ...... ------------------- ----------- ...... .. _­ ...... . I .......... .. — _71'...., fit mo Exhibit D Westlake Dove/Ottinger Road Improvements Projects Summary of Obligations and Schedule April 25, 2011 Proiect 1 — Ottigger Road at Deloitte Entrance (to be completed in accordance with Section i of the Agreement) Hillwood Responsibilities • Survey • Coordination with Town for design • omplete design per Town requirements • Provided limited additional right of way as needed for Project • Obtain Town approval • Price Project • Hire contractor • Construct Project per approved plans • Provide for normal and appropriate materials testing • Fund design, construction and materials testing costs up to cap in the Agreement Town Responsibilities • Coordinate with Hillwood on design in a timely manner (all plans coordinated and approved in accordance with Section l of the Agreement) • Coordinate relocation of utilities necessary for the construction of the Project at Town's direction and/or cost • Approve plans • Provide Project inspection at Town's cost • Accept Project for operation and maintenance Dove Road Scope and Obligaion Summary 201104 26 1 4/26/2011 3:21 PM5/31 /2011 9:46 AM Exhibit D Westlake Dove/Ottinger Road Improvements Projects Summary of Obligations and Schedule April 25, 2011 Project 2 — Ottineer Road at Westlake Academy Entries (to be completed in accordance with Section 1 of the Agreement) Hillwood Responsibilities • Survey • Coordination with Town for -design • Complete design per Town requirements • Provided limited additional right of way on Hillwood Property as needed for Project • Obtain Town approval • Price Project • Hire contractor • Construct Project per approved plans • Provide for normal and appropriate materials testing • Fund design, construction and materials testing costs up to cap in the Agreement Town Responsibilities • Coordinate with Hillwood on design in a timely manner (all plans coordinated and approved in accordance with Section 1 of the Agreement) • Coordinate relocation of utilities necessary for the construction of the Project at Town's direction and/or cost • Obtain additional property or easement as necessary from the Lee property for construction of the north access road. • Approve plans • Provide Project inspection at Town's cost • Accept Project for operation and maintenance Dove Road Scope and Obligaion Summary 2011 04 26 2 4/26/20113:21 PM931/2011 9:46 AM Exhibit D Westlake Dove/Ottinger Road Improvements Projects Summary of Obligations and Schedule April 25, 2011 Project 3 — Culvert Crossine at B[Munter Creek (to be completed in accordance with Section 1 of the Agreement) Hillwood Responsibilities Survey • Coordination with Town for design • Complete design per Town requirements • No additional ROW needed from Hillwood or DCL/ for this Project • Obtain Town approval • Price Project + Hire contractor + Construct Project per approved plans + Provide for normal and appropriate materials testing • Fund design, construction and materials testing costs up to cap in the Agreement Town Responsibilities • Coordinate with Hillwood on design in a timely manner (all plans coordinated and approved in accordance with Section 1 of the Agreement) • Coordinate relocation of utilities necessary for the construction of the Project at Town's direction and/or cost • Obtain additional property or easement as necessary from the Bradley property for construction of the Culvert Improvements • Approve plans • Provide Project inspection at Town's cost • Accept Project for operation and maintenance upon completion of construction. Dove Road Scope and Obligaion Summary 201104 26 3 4/26/2011 3.21 PM5/31 /201 1 9:46 AM Exhibit D Westlake Dove/attinger Road Improvements Projects Summary of Obligations and Schedule April 25, 2011 Project 4 — Pearson/Dove Road Intersection (to be completed in accordance with Section 1 of the Agreement) Hiliwood Responsibilities • Survey • Coordination with Town for design • Complete design per Town requirements • No additional ROW needed from Hillwood or DCLI for this Project • Obtain Town approval • Price Project • Hire contractor • Construct Project per approved plans • Provide for normal and appropriate materials testing • Fund design, construction and materials testing costs up to cap in the Agreement Town Responsibilities • Coordinate with Hllwood on design in a timely manner (all plans coordinated and approved in accordance with Section 1 of the Agreement) • Coordinate relocation of utilities necessary for the construction of the Project at Town's direction and/or cost • Obtain additional property or easement as necessary from the Bonola's or Estates of Westlake properties for construction of the Culvert Improvements • Approve plans • Provide Project inspection at Town's cost • Accept Project for operation and maintenance upon completion of construction. Dove Road scope and dbligaion Summary 2011 04 26 4 4/26/2011 3:21 PM5/31/2011 9:46 AM Exhibit D Westlake Dove/Ottinger Road Improvements Projects Summary of Obligations and Schedule April 25, 2011 Projects 5 — 7 (all design, approvals and construction to be completed in accordance with Section 1 of the Agreement) Project 5 - Trail/Sidewalk and Landscaping Project 6 - Remaining Dove and Ottinger Road Improvements (not covered by Projects I to 5 above) Project 7 - Ottinger/Dove Intersection Improvements Hillwood Responsibilities • Survey • Coordination with Town for design • Complete design per Town requirements • No additional ROW needed from Hillwood or DCLI for this Project • Obtain Town approval • Price Project • Hire contractor • Construct Project per approved plans • Provide for normal and appropriate materials testing • Fund design, construction and materials testing costs up to cap in the Agreement Town Responsibilities • Coordinate with Hillwood on design in a timely manner (all plans coordinated and approved in accordance with Section 1 of the Agreement) • Coordinate relocation of utilities necessary for the construction of the Project at Town's direction and/or cost • Obtain additional property or easement as necessary from the Bradley's, Bonola's, Estates of Westlake or other properties for construction of the Culvert Improvements • Approve plans • Provide Project inspection at Town's cost • Fund all Project costs beyond the cap in the Agreement • Accept Project for operation and maintenance upon completion of construction. If any Projects are not designed., with plans approved by the Town, and construction commenced within 30 months of the date of the agreement, then Hillwood will have no further obligation to fund any of the remaining Projects or improvements on the Dove/Ottinger section. Dove Road Scope and Obligaien Summary 2011 04 26 5 4/26/20113:21 PM5/31 /2011 9:46 AM Dove/Ottinger Road Analysis February 28, 2011 (Revised April 26, 201 1) Funds Available Deloitter'Hillwood West Road Funding Hiliwood Obligation to Town for Dove Ottinger Roads Total Less Spent to Date on West Road Less Spent to Date for Dove'Ottinger Engineering Net available for final design and construction of DovetOttinger Road Improvements Proposed lmsiroyernents (1) 2011 Projects OttingerlDeloitte Entry Intersection Otttinger Road Improvemenis at Westlake Academy Creek Crossing (Including paving improvements) Dove/Pearson Improvements Total Future Projects Exhibit E $ 3,645,818 $ 1,500,000 $ 5.145,818 $ 454,000 $ 30,000 S 4,665,818 Deadlines Tovx n Map Item DesignlApproval Construction $ 500,000 1 4/30.11 7130/11 $ 5605400 2. 5/20/11 8123/11 $ 606.666 3 7130/11 1/31112 $ 225,000 4 7130/11 1/31/12 $ 1,885.000 Trail from Vaquero to School (for total project - can be broken up in segmet $ 500,000 5 4/30/12 9/30.13 Landscaping (for total project - can he broken up into segments) $ 800,000 5 4130/12 9/34113 Remaining Permanent Improvements to Dove $ 575,000 6 450/12 9/30113 Dove/Ottinger intersection Improvements $ 1,800,000 7 430/12 9/30/13 Total $ 3,675,000 Total 2011 and Future Projects $ 5,560,090 Remaining from Funds available (in 2011 dollars) $ (894,182) Notes: (1) Proposed improvements include a premium on original estimates due to the projects being completed as separate prnjects and not as one continuous project (2) Otttinger Road Improvements at Westlake Academy were not included in the original estimates DOES NOT INCLUDE ANY ADDITIONAL UTILITY RELOCATIONS REQUIRED FOR ADDITIONAL PAVEMENT DOES NOT INCLUDE ANY ADDITIONAL ROW ACQUISITION DOES NOT INCLUDE ANY ADDITIONAL LANDSCAPINGlrREE REPLACEMENT DUE TO ADDL. CONSTRUCTION Assumes: This is a prefimina order of magnitude estimate only, subject to final engineering 2 Town to acquire all additional ROW, if needed from parties other than Hilhvood related entities. Printed: 4i26./20I l Dove Road Segments 2011 02 28 V4 Page I af2 3:19 PM Exhibit E Dove/Ottinger Road Analysis February 28, 2011 (Revised April 26, 2011) 3 Dove and Ottingcr, south of the school, is a 2 lane undivided Dove Road section similar to west end of Vaquero,'Fidclity 4 Deleted 5 No utility relocates necessary, and no costs for utility relocates are included 6 No walls or fences other than potential retaining walls at the DovelOttinger intersection 7 "Landscaping" includes all "Tree Mitigation" required for the construction of the road - no other landscaping is included. The amount shown is an approximate allowance for this mitigation 8 Potential retaining calls at the Dove:Ottinger Road intersection are to be manufactured stone or stone faced 9 "Curb" is a flat or rolled curb with no drainage carrying capacity. Drainage will be via "borrow" ditches along the road 10 Road section (thickness and composition) design is based on historical design associated with Dove Road. Final design will be based on geotechnical data obtained during the design process. 11 8' sidewalk is a concrete sidewalk with a medium to heavy broom finish. 12 One lane of traffic will be open during work hours. Some short duration road closures and detours will be required during the project duration 13 No Traffic Signals are included at any intersections 14 No improvements to the SH 170fOttinger Road intersection 15 Deleted 16 Dove'Ottinger Road intersection is a "T" intersection and not a roundabout_ 17 Engineer and contractor are chosen by and contracted directly with a Hillwood entity. 18 Drainage structures are sized to accoinrnodate anticipated flows assuming that all upstream development will be required to detain their flows to pre-deveiopment conditions. 19 No street lights are included 20 All budget costs are for the above improvements only. Budget is limited to the estimate as prepared. Any modification in project ~cope will require that the budget be rearranged (i.e. increase in scope in one area will require a reduction in scope in another area). 21 Engineer and contractor are chosen by, and contracted directly with, a Hillwood entity. Printed: 4,26, 201 1 Dove Road 'Segments 2011 02 28 V4 Page 2 of 2 3:19 Plvl By: k schkh m MARY LOUISE NICHOLSON r 1 a q COUNTY CLERK 100 West Weatherford Fort Worth, TX 76196-0401 9 �x x•%z w • '' PHONE (817) 884-1195 TOWN OF WESTLAKE 1500 SOLANA BLVD BLDG 7 STE 7200 WESTLAKE. TX 76262 Submitter: TOWN OF WESTLAKE DO NOT DESTROY WARNING - THIS IS PART OF THE OFFICIAL RECORD. Filed For Registration: 2/27/2019 10:45 AM Instrument #: D219037687 OPR 44 PGS $184.00 D219037687 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.