Loading...
Res 11-15 Approving a Development Agreement with Hillwood Alliance Services 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 IMPROVEMENT'S/EXTENSIONS, 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 terns 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 1 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 _ TH DAY OF APRIL 2011. N Op * h ATTEST: rn Laura L. Wheat, Mayor Ag Kelly dward , own Secretary Thomas E. Bry r, T vn Manager A4PPRED,�,,TO L , Attorney 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 'ZS4h day of A Yi i , 2011 ("Effective Date") by and among the Town of Westlake, Texas (the "Town"), HW 2421 Land,LP("HW 2421")and HW 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. Project 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. Project 7. The term"Project 7'shall mean that portion of the Public Improvements described and depicted as Project 7--OttingerlDove 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 herein 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 PUBLIC IMPROVEMENTS 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 terms 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 0)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 flown 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 terms 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 aresult 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 sale 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 parry 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 3. 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: 4/30/2012 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: 4/30/2012 Completion of construction: 9/30/2013 7. Project 7. Project 7 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: 4/30/2012 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 funds 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 delay by the 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 IMPROVEMENTS 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 a period 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. Security for 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 of the 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 Project. 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 Property. 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 HW 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. En ing eering 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: 1. 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. 3. 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. 4. 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 inspections 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 Ottin er 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 of their 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 easement 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 for the portions of Dove Road and Ottinger Road shown on Exhibit"C"attached hereto,except for-a maximum of one and one half(1.5) acres of additional right-of-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. I. 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 fature 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 anytime 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 anyway 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 1. 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. 3. 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, are 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 S. 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: 1. 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 of the 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 seq. 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. I. 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: Felly Hart &Hallman LLP 201 Main Street, Suite 2500 Fort Worth,TX 76102 Attention: Chad Key TO THE OWNER OF THE DCLI PROPERTY: DCL-I-L-LC 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: CIM DEL255/16000 J. 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 HAS 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 there 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 EFFECTIVE 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 By. JZ14� Name: t• Title: SC . 11 4Cf '�es id n THE STATE OF TEXAS § COUNTY OF 7Ck.-"'C ,40- § The foregoing instrument was acknowledged before me on � 2011, by in , S C A ke of HW 2421 Land GP,LLC,a Texas limited liability company,Oneral partner of HW 2421 Land,LP,a Texas limited partnership,on behalf of said limited partnership. t � L prhrGlta Notary Public, State of Texas 5 ) r FUIDEG.Stats 0#Texas ' r _ /y Commission Expir¢s g y 9 ^ 17,2011 HW 164 Land,LP, a Texas limited partnership By: HW 2421 Land GP, LLC, a Texas limited liability company, its general partner By: i 1f;"Name: h t n Title: THE STATE OF TEXAS § COUNTY OF —TG t r&n § The foregoing instrument was acknowledged before me on2011, by �- kk1+n , SC ,�►t.P Pt es'Z of HW 2421 Land GP,LLC,a Texas limited liability company,ge eral partner of HW 164 Land,LP,a Texas limited partnership,on behalf of said limited partnership. Notary Public, State of Texas t.ORi L. BOWLING _ , w Notary Public,state of Texas - My Commission ExPires Ortot�er 17,2011 HILLWOOD ALLIANCE SERVICES,LLC, a Texas limited liability company i By: 4zWW4 - Name: kk iA Title: THE STATE OF TEXAS § COUNTY OF T&(T Gk_MA §§ The foregoing instrument was acknowledged before me on MAU 2011, by L. - , St. L'r e- �, ;C�,� A- ofHillwood Alliance Services, LLC,a Texas limited liability com ny,on behalf of said limited liability company. C ify LORI L. BOWLING Notary Public,state of Texas Notary Public, State of Texas •' - My Commission Expires TOWN OF WESTLAKE,TEXAS Mame: _ Title: ATTEST: By: !.O �m �yName: Title: V wea l( 3 TE;(A5 FORINT AP7, t �y L.' _ lit on LoZW2rjo"Attorney y THE STATE OF TEXAS § COUNTY OF�U,YY-aY-% § The foregoing instrument was acknowledged before me on T �- 2011, by LA-Lcra-W col , Mayor of the Town of Westlake, on behalf of the Town. Notaryublic, t to of Texas KELLY EDWAF08 MY COMMISSION EXPIRES FdXualy 3,2D14 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 8.133. of this Agreement, hereby joins in the execution of this Agreement to evidence its approval of the terms of this Agreement,including the termination of the 2008 Development Agreement. All of the parties to this Agreement acknowledge and agree that Sections 7.C. and 8.B.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 B y Nal e- - Title; G ' Exhibit A `Ibis docurpant�ras prepaj underZ2 7AC 3.21, does notr�tled the for o pn an a grown j wrvey,rand is pot to a used Co or esfpbllah �i itMer�esh; in Tal property x ept rights and inc��eoonn imIredq rest blu y f e cre do or seumn`1s�an for whi E iwaa pare a potifical ssss.es' HH � elf•`' � wq 'd L—J a s •+ M N K f Y'4 643.64:K �_ i.-i LJ—jSaWC5,Iry ' • Nm HM Ay y, HA 1321.64• tr Nr Iw P �L .a4 -•132 • "! Y OMMMER ED 2S O0 r� f • YN 6'n n T N 2 mm 00 r E0 an oc v W W- w o �� � Nal•O�g.S.'rS,21`sz 1+ItLTT' `"e rn a X100+6triv rr ti AIL Js'L91 N o u.'S'•gy N ' r* JJNfSTMFM, L.P. &.up.Lt,OOK wK 00 h ! VJJL.JI.PL'.Sf r .; w \ 1 rrAV �4 ~ � .S r ..,,���S''�� 4. air s. �w•ate At TIS c� Cn gogfll s ,*til+�tts 3.KASACS rJe. 3.ii'La!c5 CL `�5 t ACF#2550 Car Burgess 1.41 �� SHT.NO. TF9!5 BURGr. T1G :��� JO9 # 015007.094 DATE: 07-25-08 DRAWN: TAM CHECKED: JFK Exhibit B 7 � 0 + Dn !!4Y z v C: y K AIL HzINpaeV4E)Sk?T20N4EONFT, L.P. VOL.J3275,PG.542c TRACT ? N2se o!g I ,a n ,I+ �E sxxi b � so 41-t 0 �''m Air � 4asse alasoY SURVEY ARACT Wump mp ` 'tMPass a : NOW 31.56'E 1296.32' APRGXINATE SURVEY LINE ,�wi �wwe 6O 7iG. rt a ,ccti � N appp w I � r Nq� PEARSO 1N .LL'z►r1 34Z.so, IDS CO RD '}dl sy lift a N v F5 f pA v nQ o?Jy r DV me ko Sir a f1G 6s �' 3.CY,ZE000S �Cv '_ ! ,e SAN I I iw ry��v+ lI OF O N2 =i N�Z oro a ° Wt }.o a JOE E O t0++6 �YCZ BD rn CAS G} Ic • m 0."tr zrnm 1-4 �v $ �� + �' ACF# 2165 Bill o" 5iiiSHT.NO.Fii-Cartor KAMM 04C. �� JOE 015407.094 DATE: 0549-48 DRAWN: TM CHEMD: JFK Exhibit C ..............................-................................... ............................,......................-........................................................ a.._. sM Sf'.;,^'�7:.,� b ; .r � •fid ril I�I .. r. Fp•, j � 1 Ll '-�—' -. ,�`- � 3s j•-�------t" l7TTINGERTtiY-- rF� � S� -�`'0 - � � I ❑ _ ` - ' - c 1 , • _----%tet-:----L � �_ �. �}�� _ �``! iii l n' gg �.a�`.� ® �-•, I id •,,E -11 IS . I 6d1 ----------- -MV J+fp Pa., _ 5 d O�1-•7v000 0 m ! . ._.-�. .. !L......_ ±r---------------•-----•------ o z�'O n m m 6? z 'Z-oo tin o t; •;. i weosnofl m A =L)o-am�to s • h :•-` + i m m m zo (.7 ---------------------- . _ - $.... ....... ... ....... ...... ......... . --- - "WHIM'.. .. ... ... . ..... .... rriD 9 _ Z a Fad 6 SS $ a ;�� m0 ao C0 'Oki �`6 aQ li-g Q mK Z u V a 0 �-n C7 m Exhibit p Westlake Dove/Ottinger Road Improvements Projects Summary of Obligations and Schedule April 25, 2011 Project 1 — Ottin er Road at Deloitte Entrance (to be completed in accordance with Section I of the Agreement) Hillwood Responsibilities • Survey • Coordination with Town for design • Complete 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 1 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 4/26/20113:21 PM5/31/2011 9:46 AM Exhibit D Westlake Dove/Ottinger Road Improvements Projects Summary of Obligations and Schedule April 25, 2011 Proiect 2 — Ottin2er 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 4/26/2011 3:21 PM5/31/2011 4:46 AM Exhibit D Westlake Dove/Ottinger Road Improvements Projects Summary of Obligations and Schedule April 25, 2011 Project 3 --Culvert Crossing at HMHunter 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 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 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 2011 04 26 3 4/26/2011 3:21 PM5/31/201 1 4:46 AM Exhibit D Westlake DovelOttinger 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) Fullwood 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 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 Obligaion 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 1 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 obligaion Summary 201104 26 5 4/26/20113 i2l PM5/31/2011 9:46 AM Exhibit E Dove/Ottinger Road Analysis February 28,2011 (Revised April 26,201 l) Funds Available DeloitteiHillwood West Road Funding $ 3,645,818 Hillwood Obligation to Tovni for Dove;Ottinger Roads S 1,500,000 Total 5 5,145,818 Less Spent to Date on West Road $ 450,000 Less Spent to Date for Dove"Ottinger Engineering $ 30,000 Net available for final design and construction of $ 4,665,818 DovelOttinger Road Improvements Proposed Improvements(1) Deadlines 2011 Projects Town Map Item DesignrApproval Construction OttingWDeloitte Entry Intersection $ 500,000 1 4,'30111 7/3011 l Otttinger Road Improvements at Westlake Academy $ 560,000 2 5120(]1 8J23/11 Creek Crossing(Including paving improvements) $ 6001000 3 7130/11 1131/12 Dove/Pearson Improvements $ 225,000 4 7130/11 1131112 Total $ 1,885,000 Future Projects Trail from Vaquero to School(for total project-can be broken up in segmei $ 500,000 5 4/30/12 9/30;13 Landscaping(for total project-can be broken up into segments) $ 800,000 5 4130/12 9130113 Remaining Permanent Improvements to Dove $ 575,000 6 4,'30;12 9/30113 Dove/Ottinger Intersection Improvements $ 1,800,000 7 4.34F12 9/30/13 Total $ 3,675,000 Total 2011 and Future Projects $ 5,560,000 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 projects and not as one continuous project (2) Outinger Road Improvements at Westlake Academy were not included in the original estimates DOES NOT INCLUDE ANYADDITIONAL UTILITY RELOCATIONS REQUIRED FOR ADDITIONAL PAVEMENT DOES NOT INCLUDE ANY ADDITIONAL ROW ACQUISITION DOES NOT INCLUDE ANY ADDITIONAL LANDSCAPING/TREE REPLA CEMENT DUE TO ADDL.CONSTRUCTION Assumes: This is a Urriiminar order of magnitude estimate only,subject to final engineering 2 Town to acquire all additional ROW, if needed from parties other than Hillwood related entities, Printed;4i26/2011 Dove Road Segments 2011 02 28 V4 Page ] of 2 3:19 PM Exhibit E Dove/Ottinger Road Analysis February 28,2011 (Revised April 26,2011) 3 Dove and Ottinger,south of the school,is a 2 lane undivided Dove Road section similar to west end of Vaquero/Fidelity 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 Dove/Ottinger 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 walls 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 aria"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 170/Ottinger Road intersection 15 Deleted 16 Dow'Ottinger Road intersection is a"T"intersection and not a roundabout. 17 Engineer and contractor arc chosen by and contracted directly with a Hillwood entity. 18 Drainage structures are sized to accommodate anticipated flows assuming that all upstream development will he required to detain their floras to pre-development 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 scope 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 Hill arood entity. Printed:4 26F'201 1 Dove Road Segments 2011 02 28 V4 Page 2 of 2 3.19 PNI By: sgt'��U•'� MARY LOUISE NICHOLSON iN COUNTY CLERK 100 West Weatherford Fort Worth, TX 76196-0401 S • ,'.. • ° 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: 2/25/2019 10:26 AM Instrument#: D219035393 RESOL 31 PGS $132.00 D219035393 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.