HomeMy WebLinkAboutRes 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
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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
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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.
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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.
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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.
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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
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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
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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.
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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
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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:
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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.
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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
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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.