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Res 18-49 Approving an Development Agreement with Wilbow-Solana LLC for Subdivision Improvements at the Knolls TOWN OF WESTLAKE RESOLUTION 18-49 A RESOLUTION BY THE TOWN COUNCIL OF THE TOWN OF WESTLAKE, TEXAS, APPROVING A DEVELOPMENT AGREEMENT FOR SUBDIVISION IMPROVEMENTS WITH WILBOW-SOLANA LLC, RELATED TO THE KNOLLS AT SOLANA DEVELOPMENT IN WESTLAKE, TEXAS. WHEREAS, the Town is a duly created and validly existing Type A General Law Municipality, created under the laws of the State of Texas, including particularly, but not by way of limitation, Chapter 51, Texas Local Government Code ("LGC"); and WHEREAS, the Town of Westlake (Town) and Wilbow-Solana, LLC (the Owner) desire to enter into a partnership to continue this planned growth through a Development Agreement for Subdivision Improvements, which sets out responsibilities for the Owner and the Town as it relates to the development in Westlake; and, WHEREAS, Wilbow-Solana, LLC, as the owner of land located within the Town, intends to develop 62.531 acres (as defined herein), and the development and construction on such Land is expected to significantly enhance the economic base of the Town; 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 for Subdivision Improvements attached hereto as Exhibit "A" with the Owner; and further authorizes the Town Manager to execute said agreements and pursue any necessary procedures 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 provision ns hereof and the Council hereby determines that it would have adopted this Resolution without the invalid provision. Resolution 18-49 Page 1 of 2 SECTION 4: That this resolution shall become effective from and after its date of passage. PASSED AND APPROVED ON THIS 10th DAY OF DECEMBER, 2018. La ra Wheat, Mayor ATTEST: ot.ar i ... Kel Ed rds, Town Secretary homas E.$rymer;ow►. Manager ., '00• 1fOWEST ,. APPROVp A . TO(F6?6 1. dl/frr.- --- - / s:' * :'. fk : 'OMPF•owry, To OW orney ...•. .. TE i fx ,,o''1 Resolution 18-49 Page 2 of 2 EXHIBIT"A" DEVELOPMENT AGREEMENT FOR SUBDIVISION IMPROVEMENTS—THE KNOLLS AT SOLANA This Agreement is entered into by and between the Town of Westlake, Texas, hereinafter referred to as the "Town", and the undersigned Developer, Wilbow-Solana LLC, hereinafter referred to as the "Developer", as developer of THE KNOLLS AT SOLANA, hereinafter referred to as the "Development", for the installation of certain community facilities and improvements, hereinafter referred to as the "Improvements", located therein, and for the provision of Town services thereto. It is understood by and between the parties that this Agreement is applicable to the lots contained within the Development and to the off-site Improvements necessary to support the Development as shown on The Knolls at Solana Preliminary Site Evaluation approved by Resolution 18-36 attached hereto as Exhibit "A-1". Further, it is understood that this agreement is specific to subdivision improvements and that a subsequent agreement between the Developer and the Town that addresses the remaining outstanding provisions contained in Ordinance 846 shall be approved no later than six months from the date that this agreement is executed. NOW,THEREFORE,in consideration of the premises cited hereinabove and the mutual covenants and promises contained herein, the sufficiency of which is acknowledged, the parties hereto agree as follows: A. GENERAL DESIGN AND CONSTRUCTION REQUIREMENTS 1. The Developer shall furnish, at its own expense, all engineering services required for the Development and the Improvements. Engineering services shall be performed by a professional engineer registered in the State of Texas. Such engineering services shall conform in all respects to the Town engineering and design standards. Engineering services shall consist of,but not be limited to,survey,designs,plans and profiles,estimates, construction supervision, and the furnishing of necessary documents in connection therewith. All engineering plans shall be submitted for review by, and be subject to, the stamped acceptance by the town engineer. The town engineer's review and acceptance does not relieve the Developer or Developer's engineer of the responsibility for design and construction. 2. Construction of the Improvements shall be in strict conformance with the plans to be prepared by the Developer and reviewed and accepted by the town engineer and with all policies, standards, and standards and specifications adopted by the Town relating thereto. The town engineer's review and acceptance of the plans shall not limit or affect the Developer's responsibility for design and construction. 3. The Developer shall employ, at its own expense, a qualified testing company, previously approved by the Town, to perform all testing of materials or construction that may be required by the Town and shall furnish copies of test results to the town engineer. 4. At all times during construction of the Improvements, the Town shall have the right, but not the duty, to inspect materials and workmanship, and all materials and work shall conform to the accepted plans and specifications. Any material or work not conforming to Page 1 of 17 Resolution 18-49 EXHIBIT"A" the accepted plans and the Town's engineering standards shall promptly be removed or replaced to the satisfaction of the town engineer at the Developer's expense. 5. The Developer will be responsible for mowing all grass and weeds and otherwise reasonably maintaining all land within the Development which has not been sold to third parties. After fifteen (15) days written notice, should the Developer fail in this responsibility,the Town may contract for this service and bill the Developer for reasonable costs. Should the costs remain unpaid for 30 days after notice, the Town may issue a construction stop work order until all costs are paid. 6. The obligations of the Developer provided for in this agreement pertaining to Development Improvements shall be performed no later than two(2)years from the issuance of the notice to proceed for construction of Development Improvements, and proper application for acceptance of the Improvements shall be made by such date. 7. No Improvements shall be deemed to be completed until the town engineer has certified, in writing, that the Improvements have been completed in general conformance with the plans therefore as accepted by the Town. 8. The Developer shall provide the town engineer with a sworn affidavit, signed by the Developer's authorized representative, that the Improvements completed have been paid for, in full, by the Developer. The Developer shall be responsible for the information so provided. Said written certification will be reviewed by the Town, but the Town shall assume no responsibility or liability to any party regarding the veracity of the information so provided. 9. Before the Town accepts the Improvements, Developer shall furnish to the Town reproducible "as constructed" drawings, certified accurate by the town engineer. 10. Developer is responsible for all permit fees associated with the construction or installation of the Improvements. These fees include all fees contained in the Westlake Code of Ordinances and the most recently adopted fee schedule. 11. Before commencing the construction of any Improvements herein agreed upon, the Developer shall acquire at its own expense good and sufficient title to streets and easements, free and clear of any liens or encumbrances on all lands and facilities other than Developer's development loan, if any,traversed by the proposed Improvements. All such streets and easements shall be dedicated or conveyed either to the HOA or the Town, and, if to the Town, the documents of dedication or conveyance shall be furnished to the Town for recording. A policy of title insurance insuring title in the Town for a commercially reasonable policy amount may be required by the Town, and the Developer shall pay the premium for such title insurance policy. 12. Not later than six months from the execution date of this agreement, an additional mutually acceptable development agreement(s) shall be entered into by and between the Developer and Town that details the following items: development covenants, conditions and Page 2 of 17 Resolution 18-49 EXHIBIT "A" restrictions (CCR's)to be enforced by the homeowner's association (HOA), which should include HOA dues, duties and powers, transitional details providing for an orderly transition from the declarant to the HOA, and Town review of HOA dues to provide for adequacy of funding of maintenance of private infrastructure to Town standards by the HOA; architectural design guidelines; final landscaping details and maintenance; homebuilder requirements and obligations; regulation of public/guest parking spaces and maintenance; cluster mailbox designs and locations; parkland dedication. The additional agreement(s) may be entered into as amendment to this agreement or as a separate agreement. 13. Per the provisions of Ordinance 846, a 22.881-acre portion of the development shall be conveyed to the Town as a conservation area as depicted on Exhibit "A-4". Said conservation area shall be conveyed not later than 60 days from the execution date of this agreement and prior to the construction of any permanent Improvements. Prior to any construction of permanent Improvements, said area shall be fenced from the remainder of the development by a permanent metal fence no less than four feet in height in order to restrict any encroachments onto the conservation area. The fence shall be consistent with drawing shown in Exhibit "A-2". Said fence shall be maintained in good condition into perpetuity by the Developer and/or the homeowner's association. Prior to grading and/or clearing of any portion of the property, a tree protection plan shall be submitted and approved by the town manager or designee. Performance of the following uses and activities are hereby restricted and prohibited on the conservation area: a. Altering the surface or general topography of the area, including but not limited to any alterations to habitat, excavating, mining, drilling, natural resource extraction, removal of topsoil, building roads or trails, paving or otherwise covering the area with concrete, asphalt or any other impervious material. b. Construction or placing of any building or structure on the area; c. Removing, destroying, or cutting of trees, shrubs or other vegetation, except as required for (i) fire breaks, or (ii)prevention or treatment—of disease; d. Impounding any natural water course or body of water or making alterations to any natural water course or body of water located in the area; e. Dumping or storage of materials, vegetation and/or waste of any kind and burial of any deceased animal or human being; £ Operation of any motorized and human powered transportation device including bicycles, scooters, skateboards, etc. This restriction shall not apply to a device utilized by a disabled person for primary mobility purposes; g. Burning of any fires including but not limited to campfires, grilling, torches, candles, matches, burning of trash, etc. Page 3 of 17 Resolution 18-49 EXHIBIT "A" h. Consumption of drugs, alcohol and/or any other controlled substance; i. Any activity deemed illegal criminal activity under the laws of the State of Texas and/or the United States; j. Any acts detrimental to the natural and ecological integrity of the area including the operation of an internal combustion engine, hunting or other wildlife disturbance, camping, any activity that involves accessing the property during nighttime hours; k. Any violation of the provisions listed above shall result in the assessment of a civil penalty by the town manager or designee as prescribed by Ordinance 846. 14. Pre-grading of individual residential lots prior to issuance of a building permit by the Developer is hereby prohibited except that no more than two areas that are identified as staging areas on Exhibit "A-3" attached hereto (the "Staging Areas") which may be pre- graded in order to provide a staging area for construction activities provided that said areas do not in any way encroach upon the conservation area. 15. Other than the trail to be constructed along Solana Blvd. by the developer, there shall be no trail constructed, including any other structures, within the conservation area as defined above. 16. Construction, grading and/or clearing activities shall not commence until a notice to proceed is issued by the town manager or designee. 17. Prior to the issuance of the notice to proceed,the developer shall submit an erosion control plan to the town manager or designee for review and approval. At a minimum, the plan shall meet all Town ordinance requirements in addition to any additional conditions required by the town manager or designee. 18. Town personnel shall have unrestricted access to this development in perpetuity for official Town business including inspection of construction, and general inspection of the condition of the development. B. UTILITIES 1. The Developer shall furnish proof that proper arrangements have been made for the installation of water, sanitary sewer, gas, electric and duct bank utilities. 2. The Developer hereby agrees to install water facilities to serve all lots shown on the Preliminary Site Evaluation of the Development 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 save and except as follows: In accordance with Chapter 82, Subdivisions, Article XIV, Page 4 of 17 Resolution 18-49 EXHIBIT"A" Participation, The Town will participate in the actual cost of constructing the cost difference between the installation of approximately 850 LF, an 8" waterline and 12" waterline (WL-A) that extends from a northeast corner of the property where it intersects Sam School Road right-of-way, south along the right-of-way to the southeast corner of the property (beginning Sta 18+12.64 to end Sta 26+65.26). The amount of Town participation shall include all actual infrastructure costs of the waterlines, valves, plugs, bores, bends, etc. and shall be determined on the final development agreement for the Development, but shall not exceed $45,000.00. Payment shall not occur until all public infrastructure final acceptance requirements have been fulfilled. 3. The Developer hereby agrees to install sanitary sewer collection facilities to service all lots as shown on the final plat of the Development. 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, and permits. 4. The Developer hereby agrees to install drainage facilities to service all lots as shown on the final plat of the Development 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. C. 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 Development. The Developer agrees to maintain these amenities until such responsibility is turned over to the HOA. The Developer and 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 the Developer's use of the public right-of-way with regard to these improvements and the Developer shall, at his own cost and expense, defend and protect the Town against all such claims and demands. D. DEFAULT,TERMINATION AND FAILURE BY THE DEVELOPER TO MEET VARIOUS DEADLINES AND COMMITMENTS. Page 5 of 16 Resolution 18-49 EXHIBIT"A" 1. Failure to Pay Town Taxes or Fees An event of default shall occur under this Agreement if during the term hereof any legally-imposed Town taxes or fees owed on,or generated by,the Developer or one of its Affiliates with regard to the Development become delinquent and Developer or the Affiliate does not either pay such taxes when due or follow the legal procedures for protest and/or contest of any such taxes. In this event, the Town shall notify the Developer in writing and the Developer shall have sixty (60) calendar days to cure such default. If the default has not been fully cured by such time, the Town shall have the right to terminate this Agreement immediately by providing written notice to the Developer and shall have all other rights and remedies that may be available to it under the law or in equity. 2. Violations of Town Code, State or Federal Law An event of default shall occur under this Agreement if during the term hereof any written citation is issued to the Developer or an Affiliate due to the occurrence of a violation of a material provision of the Town Code with respect to the Development (including, without limitation, any violation of the Town's Building or Fire Codes, and any other Town Code violations related to the environmental condition of the Development, or to matters concerning the public health, safety or welfare) and such citation is not paid or the recipient of such citation does not properly follow the legal procedures for protest and/or contest of any such citation. An event of default shall further occur under this Agreement if the Developer or its Affiliate is in violation of any material state or federal law,rule or regulation on account of the Development, improvements in the Development or any operations thereon (including,without limitation,any violations related to the environmental condition of the Development; the environmental condition on other land or waters which is attributable to operations of the Development; or to other matters concerning the public health, safety or welfare related to the Development). Upon the occurrence of such default,the Town shall notify the Developer in writing and Developer shall have (i) thirty (30) calendar days to cure such default or (ii) if Developer has diligently pursued cure of the default but such default is not reasonably curable within thirty(30)calendar days,then such amount of time that the Town reasonably agrees is necessary to cure such default. If the default has not been fully cured by such time, the Town shall have the right to terminate this Agreement immediately by providing written notice to the Developer and shall have all other rights and remedies that may be available to under the law or in equity. 3. General Breach Unless stated elsewhere in this Agreement, the Developer shall be in default under this Agreement if the Developer breaches any term or condition of this Agreement. In the event that such breach remains uncured after thirty (30) calendar days following receipt of written notice from the Town referencing this Agreement (or, if the Developer has diligently and continuously attempted to cure following receipt Page 6 of 17 Resolution 18-49 EXHIBIT "A" of such written notice but reasonably requires more than thirty (30) calendar days to cure, then such additional amount of time as is reasonably necessary to effect cure, as determined by both Parties mutually and in good faith), the Town shall have the right to terminate this Agreement immediately by providing written notice to Developer. E. NO INDEPENDENT CONTRACTOR OR AGENCY RELATIONSHIP It is expressly understood and agreed that the Developer shall not operate as a servant, contractor agent, representative or employee of the Town. Developer shall have the exclusive right to control all details and day-to-day operations relative to its operations and obligations that it is required to perform under the Agreement and shall be solely responsible for the acts and omissions of its officers, agents, servants,employees,contractors,subcontractors,licensees and invitees. Developer acknowledges that the doctrine of respondeat superior will not apply as between the Town and Developer, or Town's officers, agents, servants, employees, contractors, subcontractors, licensees, and invitees. the Developer further agrees that nothing in this Agreement will be construed as the creation of a partnership or joint enterprise between the Town and Developer. F. INDEMNIFICATION THE DEVELOPER,AT NO COST OR LIABILITY TO THE TOWN,AGREES TO DEFEND, INDEMNIFY AND HOLD THE TOWN, ITS OFFICERS, ELECTED AND APPOINTED OFFICIALS, AGENTS, ATTORNEYS, SERVANTS AND EMPLOYEES (TOGETHER WITH THE TOWN, EACH A "TOWN INDEMNIFIED PERSON') HARMLESS AGAINST ANY AND ALL THIRD PARTY CLAIMS, LAWSUITS, ACTIONS, COSTS AND EXPENSES RELATED THERETO, INCLUDING, BUT NOT LIMITED TO, THOSE FOR PROPERTY DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO THE DEVELOPER'S BUSINESS AND ANY RESULTING LOST PROFITS) AND/OR PERSONAL INJURY, INCLUDING DEATH, THAT RELATE TO, ARISE OUT OF OR ARE OCCASIONED BY (i) THE DEVELOPER'S BREACH OF ANY OF THE TERMS OR PROVISIONS OF THIS AGREEMENT; OR (ii) ANY ACT OR OMISSION OR INTENTIONAL MISCONDUCT OF THE DEVELOPER, ITS OFFICERS, AGENTS, ASSOCIATES,EMPLOYEES, CONTRACTORS(OTHER THAN THE TOWN, OR ITS EMPLOYEES, OFFICERS, AGENTS, ASSOCIATES, CONTRACTORS OR SUBCONTRACTORS), OR SUBCONTRACTORS DUE OR RELATED TO, FROM, OR ARISING FROM THE OPERATION AND CONDUCT OF ITS OPERATIONS AND OBLIGATIONS OR OTHERWISE TO THE PERFORMANCE OF THIS AGREEMENT. NOTWITHSTANDING THE FOREGOING, NOTHING IN THIS SECTION F SHALL REQUIRE DEVELOPER TO INDEMNIFY OR DEFEND FOR ANY CLAIMS ARISING OUT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE TOWN ENGINEER OR ANY TOWN INDEMNIFIED PERSON. Page 7 of 17 Resolution 18-49 EXHIBIT"A" G. INDEMNITY AGAINST NEGLIGENT DESIGN APPROVAL OF THE TOWN ENGINEER OR OTHER TOWN EMPLOYEE, OFFICIAL, CONSULTANT, EMPLOYEE, OR OFFICER OF ANY PLANS, DESIGNS OR SPECIFICATIONS SUBMITTED BY THE DEVELOPER UNDER THIS AGREEMENT SHALL NOT CONSTITUTE OR BE DEEMED TO BE A RELEASE OF THE RESPONSIBILITY AND LIABILITY OF THE DEVELOPER, 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, ITS 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. IN THIS CONNECTION, THE DEVELOPER SHALL INDEMNIFY AND HOLD HARMLESS EACH TOWN INDEMNIFIED PERSON, 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 NEGLIGENT DESIGN OF THE ENGINEER INCLUDED IN DESIGNS AND SPECIFICATIONS INCORPORATED INTO ANY IMPROVEMENTS CONSTRUCTED IN ACCORDANCE THEREWITH, AND THE DEVELOPER SHALL DEFEND AT ITS OWN EXPENSE ANY SUITS OR OTHER PROCEEDINGS BROUGHT AGAINST ANY TOWN INDEMNIFIED PERSON, ON ACCOUNT THEREOF, TO PAY ALL EXPENSES AND SATISFY ALL JUDGMENTS WHICH MAY BE INCURRED BY OR RENDERED AGAINST THEM, COLLECTIVELY OR INDIVIDUALLY, PERSONALLY OR IN THEIR OFFICIAL CAPACITY, IN CONNECTION HEREWITH; PROVIDED THAT DEVELOPER SHALL HAVE THE RIGHT TO SELECT COUNSEL OF ITS OWN CHOOSING AND SHALL HAVE ALL REQUISITE AUTHORITY TO ENTER INTO ANY SETTLEMENT AGREEMENT AT ANY TIME IN CONNECTION WITH ANY SUCH CLAIMS OR LIABILITIES FOR WHICH DEVELOPER OWES INDEMNITY UNDER THIS SECTION G. NOTWITHSTANDING THE FOREGOING,NOTHING IN THIS SECTION G SHALL REQUIRE DEVELOPER TO INDEMNIFY OR DEFEND FOR ANY CLAIMS ARISING OUT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE TOWN ENGINEER OR ANY TOWN INDEMNIFIED PERSON Page 8 of 17 Resolution 18-49 EXHIBIT "A" H. 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 certified mail, postage prepaid, or by hand delivery: If to Developer: Wilbow-Solana LLC Attn: Lawrence Corson 4131 N. Central Expressway Suite 990, Lockbox 13 Dallas, TX 75204 With a copy to: Watson Law Group PLLC Attn: Monty Watson 4925 Greenville Avenue, Suite 717 Dallas, TX 75206 If to Town: Town of Westlake Attn: Town Manager 1500 Solana Blvd. Building 7, Suite 7200 Westlake, Texas 76262 With a copy to: Boyle & Lowry, L.L.P. Attn: L. Stanton Lowry 4201 Wingren Dr., Suite 108 Irving, Texas 75062 I. ASSIGNMENT AND SUCCESSORS The Developer 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. Any lawful assignee or successor in interest of the Developer of all rights and obligations under this Agreement shall be deemed 'the Developer' for all purposes under this Agreement. J. 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. Page 9 of 17 Resolution 18-49 EXHIBIT"A" K. GOVERNMENTAL POWERS It is understood that by execution of this Agreement, the Town does not waive or surrender any of it governmental powers or immunities that are outside of the terms, obligations, and conditions of this Agreement. L. NO WAIVER The failure of either party to insist upon the performance of any term or provision of this Agreement or to exercise any right granted hereunder shall not constitute a waiver of that party's right to insist upon appropriate performance or to assert any such right on any future occasion. M. VENUE AND JURISDICTION If any action,whether real or asserted, at law or in equity, arises on the basis of any provision of this Agreement, venue for such action shall lie in state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas — Fort Worth Division. This Agreement shall be construed in accordance with the laws of the State of Texas. N. NO THIRD PARTY RIGHTS The provisions and conditions of this Agreement are solely for the benefit of the Town and The Developer, and any lawful assign or successor of The Developer, and are not intended to create any rights, contractual or otherwise, to any other person or entity. O. FORCE MAJEURE It is expressly understood and agreed by the Parties to this Agreement that if the performance of any obligation hereunder is delayed by reason of war, civil commotion, acts of God, inclement weather that prohibits compliance with any portion of this Agreement, 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. P. 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 Page 10 of 17 Resolution 18-49 EXHIBIT "A" more strongly for or against any party, regardless of the actual drafter of this Agreement. Q. 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 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. R. CAPTIONS Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. S. ENTIRETY OF AGREEMENT This Agreement, including any attachments attached hereto, including the Requirements for Contractor's Insurance [DO YOU HAVE?] and any documents incorporated herein by reference, and the Economic Development Program Agreement, contain the entire understanding and Agreement between the Town and the Developer, and any lawful assign and successor of the Developer, 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 both 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. T. 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. Page 11 of 17 Resolution 18-49 EXHIBIT "A" SIGNED AND EFFECTIVE on the date last set forth below. DEVELOPER: Wilbow-Solana, LLC By: Lawrence Corson Title: Co-President Address: 4131 N. Central Expressway Suite 990, Lockbox 13 Dallas, TX 75204 STATE OF TEXAS COUNTY OF TARRANT On , before me, ,Notary Public, personally appeared Lawrence Corson, 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 capaTown, and that by his signature on the instrument, the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. (SEAL) -Notary Public My commission expires: TOWN OF WESTLAKE, TEXAS By: // 1t`\ 9 /y//) Thomas E. Brym=,T `n Ma a ATTEST: . R,,,„ Kelly)Edwa is, Town Secretary 'a ` rn \, T Stan owry, Town AttorneyFXAS • , Date: Page 12 of 17 Resolution 18-49 EXHIBIT"A" SIGNED AND EFFECTIVE on the date last set forth below. DEVELOPER: Wilbow- olana, LLC By: awrence Corson Title: Co-President Address: 4131 N. Central Expressway Suite 990, Lockbox 13 Dallas, TX 75204 STATE OF TEXAS COUNTY OF TARRANT On C"QnAber 1\)2 before me, )011 l lU( l� L(ftt' ,Notary Public, personally appeared Lawrence Corson, 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 capaTown, and that by his signature on the instrument, the person, or the entity upon behalf of which the person acted, executed the instrument. X10°'°°°°` Jennifer Turner r n 00vPUBo NOTARY PUBLIC �J 1 * " ID 13084306-0 '9 r< State of Texas WI =: my hand official seal. on, Comm.Exp.09-29-2020 (SEAL)-Notary Public My commission expires: 0,600 TOWN OF WESTLAKE, TEXAS By: Thomas E. Brymer, Town Manager ATTEST: Kelly Edwards, Town Secretary Stan Lowry, Town Attorney Date: Page 12 of 16 Resolution 18-49 EXHIBIT "A" Exhibit"A-1"—Preliminary Site Evaluation a iii 1 1] I€55'3553 . i" i ;2 1 {a it its Pe5;1j .i i c igl aa1 11 ii ,At 4 41 3 - `.i =5S {3ld `i fi, 33YtcO9ai'1 i I ,i '' - { f, till ; 1 1 ' l01 ?11 f Sqa q .-. t 3 i i 1 { Slq 15 s I 1 € 1 i to i1� I I /% t 1 i F S +I it d l l t : �i Z L3 '' . I 1 p r\.`, 1 is di @1111 .I -;.21• �%,'I''''.--',.'- =-1 s Z I F f� §31 a 14 _I e l /�j�_ ( ild_ii i '1;If "I,',-.'"- :• ' / i ;;I t �,1 r S ✓ $ 1 . I � I I RI 4 � f (� C� FFi o 1 I � 5 E it aaS 41 c� 5,. R T I _ I t ti _ lii I, l:: 7 � I fit ` t !{ I ii ;.44-......If. d 111 Ii!- N r Y 4• eget '� — y II� � _I II o p I 4- I t' =k �i • 01 i a � Io ' 8 I :� T lig r..4;i.13 2 a ; , 5 o ?.tIE44j£l 412 I f c IL TI i'. ' IzI I I I '", . s{jt fI i0i t , sus ¢ qq ;_ yyi_ i L 1 __ EtzY�3 i4 �i!9 5� i9 __— —I v ,t - 4i €n� E 111 iiii 1 l „u„ ♦ ,§ q - Y SF ' �_ V rise $ 3 q II c � € H't ;8 ' s1 Ii3i 'I .€i A - i01%, fF iFne .e {k1?aN . E I €aC zx g� r ppm 9, Nile 21xo t \ -CP'o omiC ilii0 p-O DDI I .\ '' R I?iii 9 > Page 13 of 17 Resolution 18-49 EXHIBIT"A" Exhibit "A-2"—Conservation Area Fence . — :,_I -•%, i..: :.' I'dr - Api: ' ' f),.-5,.,, .; n,v l...1i. T i - .:Aw ' ' 4 - Pa. 1' ';': e-'7' "" ----- -r - ,-. - ., - • i - ,... ., . , .. • • ....•-2,- - lif• , . i,, -. .4, - -, • s',Iv . ../.. .1.1.. $, i411-..:•,,, ,' -; —..& .. . .p:,,,: , 1? .,. '' •.,,—, - 46 : '4 ; . • i -" I - . , . . . • " .., 7--i- i L. . , ... , • . ,,, . . - .. 1 , ! • r - , • ---- _, • I - 1 74'. • .• • . . 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'"I'77:-::---s' -----.---------v.' • 341'- " ',Atli TD .0, W.._ 1.....,.. Page 17 of 17 Resolution 18-49 Form 2270 VERIFICATION REQUIRED BY TEXAS GOVERNMENT CODE CHAPTER 2270 By signing below, Company hereby verifies the following: 1. Company does not boycott Israel; and 2. Company will not boycott Israel during the term of the contract. 11 SIGNED BY: di _ Print Name & Title: t-i'WIP(e4 t 4. S W- 1 t Company Name: w 1 l DOW Sc IGlrk LLL Date Signed: (Jame I � ! a"I NOTARIZATION THE STATE OF-TEXAS} COUNTY OF DAtL/5 } BEFORE ME, the undersigned notary public on this day personally appeared L.#Wrat L, 74.Cason ,on behalf of INI II2X060lCtrWr LLC (Company),who,being duly sworn, stated under oath that he/she has read the foregoing verification required by Texas Government Code Section 2270.002 and said statements contained therein are true and correct. 11,,, . SWORN TO AND SUBSCRIBED before me on the day of lath ,2011 . Jennifer Turner ��1 �r �"u° NOTARY PUBLIC •L t, ID 13084306-0 NOT Y PUBLIC IN AND l'k OF� Stara of Texas FOI iT iE �s`� STATE OF 1 C'?C.1t-S Comm.Exp.09-29.2020 The following definitions apply to Texas Government Code Section 2270.001: (1) "Boycott Israel" means refusing to deal with, terminating business activities with, or otherwise taking any action that is intended to penalize, inflict economic harm on, or limit commercial relations specifically with Israel, or with a person or entity doing business in Israel or in an Israeli-controlled territory, but does not include an action made for ordinary business purposes;and (2) "Company" means a for-profit sole proprietorship, organization,association,corporation, partnership, joint venture, limited partnership, limited liability partnership, or limited liability company, including a wholly owned subsidiary, majority-owned subsidiary, parent company, or affiliate of those entities or business associations that exists to make a profit. State law requires verification from a Company for contracts involving goods or services (regardless of the amount) before the Town can enter into the contract. 1 2 3 5 6 CERTIFICATE OF INTERESTED PARTIES FORM 1295 1 of 1 Complete Nos. 1 - 4 and 6 if there are interested parties. OFFICE USE ONLY Complete Nos. 1, 2, 3, 5, and 6 if there are no interested parties. CERTIFICATION OF FILING Name of business entity filing form, and the city, state and country of the business entity's place of Certificate Number: business. 2019-439516 Wilbow Solana LLC Dallas, TX United States Date Filed: Name of governmental entity or state agency that is a party to the contract for which the form is being 01/09/2019 filed. Town of Westlake Date Acknowledged: Provide the identification number used by the governmental entity or state agency to tracic or identify the contract, and provide a description of the services, goods, or other property to be provided under the contract. 18-49 DADevelopment Improvements Nature of interest Name of Interested Party City, State, Country (place of business) (check applicable) Controlling Intermediary Check only if there is NO Interested Party. 0 UNSWORN DECLARATION My name is l.Awt2..1:a:"10-� A. C..otzso,.J , and my date of birth is My address is !il3 I tJ,Ce>.t� ��, L:B l3 , l)�,_li_, 752-0�osA (street) (city) (state) (zip code) (country) I declare under penalty of perjury that the foregoing is true and correct. Executed in J2G..-\iQ.S County, State of [ x.a_,S "ff\ -, on the LO -aay of J o...ri u;;)i, 20-1.i_. (month) (year) s;g�t���,01;� (Declarant) Forms provided by Texas Ethics Comm1ss1on www.eth1cs.state.tx.us Version V1.1.28ab6150 01/16/2019 By: 'o MARY LOUISE NICHOLSON �6010b IQ .49 COUNTY CLERK 100 West Weatherford Fort Worth, TX 76196-0401 ••• 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: 3/29/2019 12:54 PM Instrument#: D219063043 RESOL 21 PGS $92.00 D219063043 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.