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HomeMy WebLinkAbout10-07-19 TC Agenda Packet Page 1 of 2 TOWN OF WESTLAKE TOWN COUNCIL MEETING AGENDA 1500 SOLANA BLVD, BUILDING 7, SUITE 7100, COUNCIL CHAMBER WESTLAKE, TX 76262 OCTOBER 7, 2019 5:30 PM MEETING Vision Statement An oasis of natural beauty that maintains our open spaces in balance with distinctive development, trails, and quality of life amenities amidst an ever expanding urban landscape. Regular Session 1. CALL TO ORDER 2. PLEDGE OF ALLEGIANCE 3. CITIZEN COMMENTS: This is an opportunity for citizens to address the Council on any matter whether or not it is posted on the agenda. Any person desiring to make a public comment must first be recognized by the presiding officer, and sign in at the podium with their name and address. Individual citizen comments are normally limited to three (3) minutes; however, time limits can be adjusted by the presiding officer. The presiding officer may ask the citizen to hold their comment on an agenda item if the item is posted as a Public Hearing. The Council cannot by law take action nor have any discussion or deliberations on any presentation made to the Council at this time concerning an item not listed on the agenda. The Council will receive the information, ask staff to review the matter, or an item may be noticed on a future agenda for deliberation or action. 4. DISCUSSION AND CONSIDERATION OF RESOLUTION 19-32, APPROVING A DEVELOPERS AGREEMENT WITH WATERSIDE LAND COMPANY LLC, REGARDING PLANNED DEVELOPMENT PD-7, KNOWN AS SPENCER RANCH. 5. EXECUTIVE SESSION The Council will conduct a closed session pursuant to Texas Government Code, annotated, Chapter 551, Subchapter D for the following: a. Section 551.087 Deliberation Regarding Economic Development Negotiations (1) to discuss or deliberate regarding commercial or financial information that the governmental body has received from a business prospect that the governmental body seeks to have locate, stay, or expand in or near the territory of the governmental body and with which the governmental body is conducting economic development negotiations; or (2) to deliberate the offer of a financial or other incentive to a business prospect described by Subdivision (1) for the following: - Entrada Page 2 of 2 - Waterside Land Company LLC - Front 44 b. Section 551.071 Consultation with Attorney - to seek advice of counsel on legal matters involving pending or contemplated litigation, settlement offers, or other legal matters not related directly to litigation or settlement. Pending or contemplated litigation and settlement offers include but are not limited to the following: Cause No. 236-304811-18 - Builder Recover Services, LLC v The Town of Westlake 6. RECONVENE MEETING 7. TAKE ANY ACTION, IF NEEDED, FROM EXECUTIVE SESSION ITEMS. 8. ADJOURNMENT ANY ITEM ON THIS POSTED AGENDA COULD BE DISCUSSED IN EXECUTIVE SESSION AS LONG AS IT IS WITHIN ONE OF THE PERMITTED CATEGORIES UNDER SECTIONS 551.071 THROUGH 551.076 AND SECTION 551.087 OF THE TEXAS GOVERNMENT CODE. CERTIFICATION I certify that the above notice was posted at the Town Hall of the Town of Westlake, 1500 Solana Blvd., Building 7, Suite 7100, Westlake, TX 76262, October 3, 2019, by 5:00 p.m. under the Open Meetings Act, Chapter 551 of the Texas Government Code. _____________________________________ Kelly Edwards, Town Secretary If you plan to attend this public meeting and have a disability that requires special needs or translation services, please advise the Town Secretary 48 hours in advance at 817-490-5710 and reasonable accommodations will be made to assist you. Town Council Item # 2 – Pledge of Allegiance Texas Pledge: "Honor the Texas flag; I pledge allegiance to thee, Texas, one state under God, one and indivisible." CITIZEN COMMENTS: This is an opportunity for citizens to address the Council on any matter whether or not it is posted on the agenda. Any person desiring to make a public comment must first be recognized by the presiding officer, and sign in at the podium with their name and address. Individual citizen comments are normally limited to three (3) minutes; however, time limits can be adjusted by the presiding officer. The presiding officer may ask the citizen to hold their comment on an agenda item if the item is posted as a Public Hearing. The Council cannot by law take action nor have any discussion or deliberations on any presentation made to the Council at this time concerning an item not listed on the agenda. The Council will receive the information, ask staff to review the matter, or an item may be noticed on a future agenda for deliberation or action. Town Council Item # 3 – Citizen Comments Page 1 of 2 Westlake Town Council TYPE OF ACTION Regular Meeting - Action Item Westlake Town Council Meeting Monday, October 07, 2019 TOPIC: Discussion and consideration of a resolution approving a Development Agreement for subdivision improvements with Waterside Land Company, LLC, for Planned Development District 7, known as Spencer Ranch. STAFF CONTACT: Jarrod Greenwood, Assistant Town Manager Strategic Alignment Vision, Value, Mission Perspective Strategic Theme & Results Outcome Objective Planned / Responsible Development Citizen, Student & Stakeholder High Quality Planning, Design & Development - We are a desirable well planned, high-quality community that is distinguished by exemplary design standards. Preserve Desirability & Quality of Life Time Line - Start Date: October 7, 2019 Completion Date: October 7, 2019 Funding Amount: N/A Status - N/A Source - N/A Contract: No Forms: Forms 1295 & 2270 EXECUTIVE SUMMARY (INCLUDING APPLICABLE ORGANIZATIONAL HISTORY) In May 2019, the Town Council approved the rezoning of a 37.798-acre tract of land on the southeast corner of Aspen Lane and Pearson Lane, establishing the land use prerequisites for a proposed 38-home residential development. Town Council approved the Preliminary Site Evaluation at the Regular Town Council meeting on September 30, 2019, by approving Resolution 19-31, that shows lot configurations along with existing and proposed conditions of the site such as drainage, utilities, topography, streets, etc. This document is a precursor to the final plat and construction plans which details an initial idea of infrastructure placement while also ensuring compliance with the zoning and concept plan for the development. Page 2 of 2 The purpose of this item is to approve the Development Agreement between the Town of Westlake and Waterside Land Company, LLC, the developer of Planned Development District 7, known as Spencer Ranch. Subsequent Development Agreements will be needed to satisfy remaining Developer obligations including: • Development covenants, conditions and restrictions (CCR’s) • Master Landscape Plan • Architectural design guidelines demonstrating full compliance with the Town approved Building Quality Manual • Homebuilder requirements and obligations • Regulation of public/guest parking spaces and maintenance • Cluster mailbox designs and locations • Parkland dedication. The attached Development Agreement is required by both Ordinance 882 and the Code of Ordinances. Approval of this agreement will allow construction of the development to proceed. AGREEMENT PROVISIONS The attached agreement includes the following provisions: • Construction and engineering specifications and conditions relative to land disturbance activities and public and private improvements; • Utility requirements and specifications; • Requirement to maintain unique amenities within public right-of-way, such as landscaping, irrigation, lighting, patterned concrete, etc. until such responsibility is turned over to the HOA; • The developer (Waterside) and homebuilder of all homes in the development shall operate and be managed by a single entity; • Other miscellaneous requirements. SUMMARY AND RECOMMENDATION Staff recommends approval ATTACHMENTS Resolution with Exhibit A –Spencer Ranch Development Agreement Resolution 19-32 Page 1 of 2 TOWN OF WESTLAKE RESOLUTION NO. 19-32 A RESOLUTION BY THE TOWN COUNCIL OF THE TOWN OF WESTLAKE, TEXAS, APPROVING A DEVELOPMENT AGREEMENT FOR SUBDIVISION IMPROVEMENTS WITH WATERSIDE LAND COMPANY, LLC, FOR PLANNED DEVELOPMENT DISTRICT 7, KNOWN AS SPENCER RANCH. WHEREAS, the Spencer Ranch residential development was approved by the Town Council by Ordinance 882 on May 20, 2019; and, WHEREAS, the Spencer Ranch Preliminary Site Evaluation was approved by the Town Council by Resolution 19-31 on September 30, 2019; and, WHEREAS, the Town of Westlake (Town) and Waterside Land Company, LLC (the Owner) desire to enter into a partnership to continue this planned growth through a Development Agreement for Subdivision Improvements, which sets out responsibilities for the Owner and the Town as it relates to the development in Westlake; and, WHEREAS, Waterside Land Company, LLC, as the owner of land located within the Town, intends to develop 37.798 acres (as defined herein), and the development and construction on such Land is expected to significantly enhance the economic base of the Town; and WHEREAS, the Town Council finds that the passage of this Resolution is in the best interest of the citizens of Westlake. NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF WESTLAKE, TEXAS: SECTION 1: That, all matters stated in the Recitals hereinabove are found to be true and correct and are incorporated herein by reference as if copied in their entirety. SECTION 2: That, the Town Council of the Town of Westlake, Texas, hereby approves the Development Agreement for Subdivision Improvements attached hereto as Exhibit “A” with the Owner; and further authorizes the Town Manager to execute said agreements and pursue any necessary procedures on behalf of the Town of Westlake. SECTION 3: If any portion of this Resolution shall, for any reason, be declared invalid by any court of competent jurisdiction, such invalidity shall not affect the remaining provisions hereof and the Council hereby determines that it would have adopted this Resolution without the invalid provision. Resolution 19-32 Page 2 of 2 SECTION 4: That this resolution shall become effective from and after its date of passage. PASSED AND APPROVED ON THIS 7TH DAY OF OCTOBER 2019. ATTEST: _____________________________ Carol K. Langdon, Mayor Pro Tem ____________________________ Kelly Edwards, Town Secretar y APPROVED AS TO FORM: ____________________________ L. Stanton Lowry, Town Attorney EXHIBIT “A” Resolution 19-32 Spencer Ranch Development Agreement Page 1 of 13 DEVELOPMENT AGREEMENT FOR SUBDIVISION IMPROVEMENTS – SPENCER RANCH This Agreement is entered into by and between the Town of Westlake, Texas, hereinafter referred to as the “Town”, and the undersigned Developer, Waterside Land Co,, LLC, hereinafter referred to as the “Developer”, as developer of SPENCER RANCH, hereinafter referred to as the “Development”, for the installation of certain community facilities and improvements, hereinafter referred to as the “Improvements”, located therein, and for the provision of Town services thereto. It is understood by and between the parties that this Agreement is applicable to the lots contained within the Development and to the off-site Improvements necessary to support the Development as shown on Spencer Ranch Preliminary Site Evaluation approved by Resolution 19-31. Further, it is understood that this agreement is specific to subdivision improvements and that a subsequent agreement between the Developer and the Town that addresses the remaining outstanding provisions contained in Ordinance 882 shall be approved no later than 12 (twelve) months from the date that this agreement is executed. NOW, THEREFORE, in consideration of the premises cited hereinabove and the mutual covenants and promises contained herein, the sufficiency of which is acknowledged, the parties hereto agree as follows: A. DEFINITIONS In Development to the terms defined in the body of this Agreement, the following terms shall have the definitions ascribed to them as follows: Agreement shall mean this Development Agreement between the Town of Westlake and Waterside Land Co., LLC. Affiliate shall mean all entities, incorporated or otherwise, under common control with, controlled by or controlling the Developer. For purposes of this definition, “control” means fifty percent (50%) or more of the ownership determined by either value or vote. Developer shall mean the Developer and/or its Affiliates or assigns. Development shall mean the single family detached residential development depicted on the Spencer Ranch Preliminary Site Evaluation, approved by the Town of Westlake Town Council on October 30, 2019. Town shall mean the Town of Westlake, Texas, and its officials assigned by the Town Manager to review and approve submittals in accordance with the Town of Westlake Code of Ordinances and published standards, restrictions, rules and regulations. B. GENERAL DESIGN AND CONSTRUCTION REQUIREMENTS 1. The Developer shall furnish, at its own expense, all engineering services required for the Development and the Improvements. Engineering services shall be performed by a professional engineer registered in the State of Texas. Such engineering services shall EXHIBIT “A” Resolution 19-32 Spencer Ranch Development Agreement Page 2 of 13 conform in all respects to the Town engineering and design standards. Engineering services shall consist of, but not be limited to, survey, designs, plans and profiles, estimates, construction supervision, and the furnishing of necessary documents in connection therewith. All engineering plans shall be submitted for review by, and be subject to, the stamped acceptance by the town engineer. The town engineer's review and acceptance does not relieve the Developer or Developer's engineer of the responsibility for design and construction. 2. Construction of the Improvements shall be in strict conformance with the plans to be prepared by the Developer and reviewed and accepted by the town engineer and with all policies, standards, and standards and specifications adopted by the Town relating thereto. The town engineer's review and acceptance of the plans shall not limit or affect the Developer's responsibility for design and construction. 3. The Developer shall employ, at its own expense, a qualified testing company, previously approved by the Town, to perform all testing of materials or construction that may be required by the Town and shall furnish copies of test results to the town engineer. 4. At all times during construction of the Improvements, the Town shall have the right, but not the duty, to inspect materials and workmanship, and all materials and work shall conform to the accepted plans and specifications. Any material or work not conforming to the accepted plans and the Town’s engineering standards shall promptly be removed or replaced to the satisfaction of the town engineer at the Developer's expense. 5. The Developer will be responsible for mowing all grass and weeds and otherwise reasonably maintaining all land within the Development which has not been sold to third parties. After fifteen (15) days written notice, should the Developer fail in this responsibility, the Town may contract for this service and bill the Developer for reasonable costs. Should the costs remain unpaid for 30 days after notice, the Town may issue a construction stop work order until all costs are paid. 6. The obligations of the Developer provided for in this agreement pertaining to Development Improvements shall be performed no later than two (2) years from the issuance of the notice to proceed for construction of Development Improvements, and proper application for acceptance of the Improvements shall be made by such date. 7. No Improvements shall be deemed to be completed until the town engineer has certified, in writing, that the Improvements have been completed in general conformance with the plans therefore as accepted by the Town. 8. The Developer shall provide the town engineer with a sworn affidavit, signed by the Developer's authorized representative, that the Improvements completed have been paid for, in full, by the Developer. The Developer shall be responsible for the information so provided. Said written certification will be reviewed by the Town, but the Town shall assume no responsibility or liability to any party regarding the veracity of the information so provided. EXHIBIT “A” Resolution 19-32 Spencer Ranch Development Agreement Page 3 of 13 9. Before the Town accepts the Improvements, Developer shall furnish to the Town reproducible "as constructed" drawings, certified accurate by the town engineer. 10. Developer is responsible for all permit fees associated with the construction or installation of the Improvements. These fees include all fees contained in the Westlake Code of Ordinances and the most recently adopted fee schedule. 11. Before commencing the construction of any Improvements herein agreed upon, the Developer shall acquire at its own expense good and sufficient title to streets and easements, free and clear of any liens or encumbrances on all lands and facilities other than Developer’s development loan, if any, traversed by the proposed Improvements. All such streets and easements shall be dedicated or conveyed either to the HOA or the Town, and, if to the Town, the documents of dedication or conveyance shall be furnished to the Town for recording. A policy of title insurance insuring title in the Town for a commercially reasonable policy amount may be required by the Town, and the Developer shall pay the premium for such title insurance policy. 12. As described and required in Ordinance 882 the Developer as defined herein, and homebuilder of all homes in the development, shall operate and be managed by a single entity- Waterside Land Co, LLC -or by Affiliate(s) of Waterside Land Co, LLC. All building permits issued for new construction in the development shall only be issued to Developer’s home building entity, Waterside Properties SR, LLC or its Affiliate. 13. Per the provisions of Ordinance 882, not later than 90 days after the approval of the preliminary site evaluation, the developer shall submit a master landscape plan for the development prepared by a State of Texas registered landscape architect. No building permit for new home construction shall be issued until said landscape plan receives final approval per the provisions of Ordinance 882. 14. Not later than twelve (12) months from the date Westlake Town Council approves this agreement and prior to the issuance of any building permit for new home construction, an additional mutually acceptable development agreement(s) shall be entered into by and between the Developer and Town that details the following items: development covenants, conditions and restrictions (CCR’s) to be enforced by the homeowner’s association (HOA), which should include HOA dues, duties and powers, transitional details providing for an orderly transition from the declarant to the HOA, and Town review of HOA dues to provide for adequacy of funding of maintenance of private infrastructure to Town standards by the HOA; architectural design guidelines demonstrating full compliance with the Town approved Building Quality Manual; homebuilder requirements and obligations; regulation of public/guest parking spaces and maintenance; cluster mailbox designs and locations; parkland dedication. The additional agreement(s) may be entered into as amendment to this agreement or as a separate agreement. 15. The gate house, as described in Ordinance 882, may be constructed upon the issuance of the notice to proceed for the development subject to the following conditions: EXHIBIT “A” Resolution 19-32 Spencer Ranch Development Agreement Page 4 of 13 a. Driveway access and parking for the gate house shall be installed prior to the final inspection for the gate house and before the building is occupied. Said facilities shall meet all related ordinance and code requirements. b. The architectural design of the gate house shall be consistent with the elevations and design requirements contained in Ordinance 882. c. At no time shall the gate house be used as a residence. 16. Per the requirements of the Code of Ordinances, all existing overhead electric utility lines within and immediately adjacent to the development shall be relocated underground at the developer’s expense to the extent permitted by the adjacent landowners. 17. Construction, grading and/or clearing activities shall not commence until a notice to proceed is issued by the town manager or designee. 18. Prior to the issuance of the notice to proceed, the developer shall submit an erosion control plan to the town manager or designee for review and approval. At a minimum, the plan shall meet all Town ordinance requirements in addition to any additional conditions required by the town manager or designee. 19. Town personnel shall have unrestricted access to this development in perpetuity for official Town business including inspection of construction, and general inspection of the condition of the development and for maintenance of utilities C. UTILITIES 1. The Developer shall furnish proof that proper arrangements have been made for the installation of water, sanitary sewer, gas, electric and duct bank utilities. 2. The Developer hereby agrees to install water facilities to serve all lots shown on the Preliminary Site Evaluation of the Development in accordance with plans and specifications to be prepared by the Developer’s engineer and released by the Town for construction and in accordance with Chapter 82, Article IX, Water Facilities, of the Town of Westlake Ordinances, as amended, and any other local, state and federal regulations. The Developer shall be responsible for all construction costs, materials and engineering 3. The Developer hereby agrees to install sanitary sewer collection facilities to service all lots as shown on the final plat of the Development. Sanitary sewer facilities will be installed in accordance with the plans and specifications to be prepared by the Developer’s engineer and released by the Town. Further, the Developer agrees to complete this installation in accordance with Chapter 82, Article X, Wastewater Facilities, of the Town of Westlake Ordinances, as amended, and any other local, state and federal regulations. The Developer shall be responsible for all construction costs, materials, engineering, and permits. 4. The Developer hereby agrees to install drainage facilities to service all lots as shown on the final plat of the Development in accordance with the plans and specifications to be EXHIBIT “A” Resolution 19-32 Spencer Ranch Development Agreement Page 5 of 13 prepared by Developer’s engineer and released by the Town for construction. The Developer also agrees to adhere to Chapter 82, Article X, Drainage Facilities, of the Town of Westlake Ordinances, as amended. The Developer hereby agrees to fully comply with all EPA, TCEQ and FEMA requirements relating to the planning, permitting and management of storm water which may be in force at the time that development proposals are being presented for approval to the Town. The Developer hereby agrees to comply with all provisions of the Texas Water Code. D. COMPLETION OF AGREEMENT This Agreement shall not be considered complete until: 1. All public improvements and infrastructure must be finished and complete, then accepted by the Town. 2. Lighting Plan must be complete and street lights installed in accordance with the Plan and accepted by the Town. 3. All requirements of the Economic Development Agreement must be satisfied. 4. Record Drawings for all streets and utilities in the Development, including street lighting, must be certified by the Developer Engineer, and accepted by and filed with the Town Engineer and provided in the following format: a. Three (3) sets of record drawings; b. Digital record drawings with GIS spatial data and coordinates compatible with the latest version of Arc View / ArcGIS; c. Digital record drawings compatible with the latest version of AutoCAD; d. Digital record drawings in PDF format. 5. All fees must have been paid. 6. Original Maintenance Bonds must have been provided, and any other required bonds. 7. Lien Release(s) must have been provided. 8. All Developer Obligations under this Agreement, Economic Developer Agreement, and Ordinance 882 must have been met. E. USE OF PUBLIC RIGHT OF WAY It is agreed by and between the Town and Developer that the Developer may provide unique amenities within public right-of-way, such as landscaping, irrigation, lighting, patterned concrete, etc., for the enhancement of the Development. The Developer agrees to maintain these amenities until such responsibility is turned over to the HOA. The Developer and successors and assigns understand that the Town shall not be responsible for the replacement of these amenities under any circumstances and further agrees to indemnify and hold harmless the Town from any and all damages, loss or liability of any kind whatsoever by reason of injury to property or third person occasioned by the Developer’s use of the public right-of-way with regard to these improvements and EXHIBIT “A” Resolution 19-32 Spencer Ranch Development Agreement Page 6 of 13 the Developer shall, at his own cost and expense, defend and protect the Town against all such claims and demands. F. DEFAULT, TERMINATION AND FAILURE BY THE DEVELOPER TO MEET VARIOUS DEADLINES AND COMMITMENTS. 1. Failure to Pay Town Taxes or Fees An event of default shall occur under this Agreement if during the term hereof any legally-imposed Town taxes or fees owed on, or generated by, the Developer or one of its Affiliates with regard to the Development become delinquent and Developer or the Affiliate does not either pay such taxes when due or follow the legal procedures for protest and/or contest of any such taxes. In this event, the Town shall notify the Developer in writing and the Developer shall have sixty (60) calendar days to cure such default. If the default has not been fully cured by such time, the Town shall have the right to terminate this Agreement immediately by providing written notice to the Developer and shall have all other rights and remedies that may be available to it under the law or in equity. 2. Violations of Town Code, State or Federal Law An event of default shall occur under this Agreement if during the term hereof any written citation is issued to the Developer or an Affiliate due to the occurrence of a violation of a material provision of the Town Code with respect to the Development (including, without limitation, any violation of the Town’s Building or Fire Codes, and any other Town Code violations related to the environmental condition of the Development, or to matters concerning the public health, safety or welfare) and such citation is not paid or the recipient of such citation does not properly follow the legal procedures for protest and/or contest of any such citation. An event of default shall further occur under this Agreement if the Developer or its Affiliate is in violation of any material state or federal law, rule or regulation on account of the Development, improvements in the Development or any operations thereon (including, without limitation, any violations related to the environmental condition of the Development; the environmental condition on other land or waters which is attributable to operations of the Development; or to other matters concerning the public health, safety or welfare related to the Development). Upon the occurrence of such default, the Town shall notify the Developer in writing and Developer shall have (i) thirty (30) calendar days to cure such default or (ii) if Developer has diligently pursued cure of the default but such default is not reasonably curable within thirty (30) calendar days, then such amount of time that the Town reasonably agrees is necessary to cure such default. If the default has not been fully cured by such time, the Town shall have the right to terminate this Agreement immediately by providing written notice to the Developer and shall have all other rights and remedies that may be available to under the law or in equity. EXHIBIT “A” Resolution 19-32 Spencer Ranch Development Agreement Page 7 of 13 3. General Breach Unless stated elsewhere in this Agreement, the Developer shall be in default under this Agreement if the Developer breaches any term or condition of this Agreement. In the event that such breach remains uncured after thirty (30) calendar days following receipt of written notice from the Town referencing this Agreement (or, if the Developer has diligently and continuously attempted to cure following receipt of such written notice but reasonably requires more than thirty (30) calendar days to cure, then such additional amount of time as is reasonably necessary to effect cure, as determined by both Parties mutually and in good faith), the Town shall have the right to terminate this Agreement immediately by providing written notice to Developer. G. NO INDEPENDENT CONTRACTOR OR AGENCY RELATIONSHIP It is expressly understood and agreed that the Developer shall not operate as a servant, contractor agent, representative or employee of the Town. Developer shall have the exclusive right to control all details and day-to-day operations relative to its operations and obligations that it is required to perform under the Agreement and shall be solely responsible for the acts and omissions of its officers, agents, servants, employees, contractors, subcontractors, licensees and invitees. Developer acknowledges that the doctrine of respondeat superior will not apply as between the Town and Developer, or Town’s officers, agents, servants, employees, contractors, subcontractors, licensees, and invitees. The Developer further agrees that nothing in this Agreement will be construed as the creation of a partnership or joint enterprise between the Town and Developer. H. INDEMNIFICATION THE DEVELOPER, AT NO COST OR LIABILITY TO THE TOWN, AGREES TO DEFEND, INDEMNIFY AND HOLD THE TOWN, ITS OFFICERS, ELECTED AND APPOINTED OFFICIALS, AGENTS, ATTORNEYS, SERVANTS AND EMPLOYEES (TOGETHER WITH THE TOWN, EACH A “TOWN INDEMNIFIED PERSON”) HARMLESS AGAINST ANY AND ALL THIRD PARTY CLAIMS, LAWSUITS, ACTIONS, COSTS AND EXPENSES RELATED THERETO, INCLUDING, BUT NOT LIMITED TO, THOSE FOR PROPERTY DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO THE DEVELOPER’S BUSINESS AND ANY RESULTING LOST PROFITS) AND/OR PERSONAL INJURY, INCLUDING DEATH, THAT RELATE TO, ARISE OUT OF OR ARE OCCASIONED BY (i) THE DEVELOPER’S BREACH OF ANY OF THE TERMS OR PROVISIONS OF THIS AGREEMENT; OR (ii) ANY ACT OR OMISSION OR INTENTIONAL MISCONDUCT OF THE DEVELOPER, ITS OFFICERS, AGENTS, ASSOCIATES, EMPLOYEES, CONTRACTORS (OTHER THAN THE TOWN, OR ITS EMPLOYEES, OFFICERS, AGENTS, ASSOCIATES, CONTRACTORS OR SUBCONTRACTORS), OR SUBCONTRACTORS DUE EXHIBIT “A” Resolution 19-32 Spencer Ranch Development Agreement Page 8 of 13 OR RELATED TO, FROM, OR ARISING FROM THE OPERATION AND CONDUCT OF ITS OPERATIONS AND OBLIGATIONS OR OTHERWISE TO THE PERFORMANCE OF THIS AGREEMENT. NOTWITHSTANDING THE FOREGOING, NOTHING IN THIS SECTION SHALL REQUIRE DEVELOPER TO INDEMNIFY OR DEFEND FOR ANY CLAIMS ARISING OUT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE TOWN ENGINEER OR ANY TOWN INDEMNIFIED PERSON. I. INDEMNITY AGAINST NEGLIGENT DESIGN APPROVAL OF THE TOWN ENGINEER OR OTHER TOWN EMPLOYEE, OFFICIAL, CONSULTANT, EMPLOYEE, OR OFFICER OF ANY PLANS, DESIGNS OR SPECIFICATIONS SUBMITTED BY THE DEVELOPER UNDER THIS AGREEMENT SHALL NOT CONSTITUTE OR BE DEEMED TO BE A RELEASE OF THE RESPONSIBILITY AND LIABILITY OF THE DEVELOPER, ITS ENGINEER, CONTRACTORS, EMPLOYEES, OFFICERS, OR AGENTS FOR THE ACCURACY AND COMPETENCY OF THEIR DESIGN AND SPECIFICATIONS. SUCH APPROVAL SHALL NOT BE DEEMED TO BE AN ASSUMPTION OF SUCH RESPONSIBILITY OR LIABILITY BY THE TOWN FOR ANY DEFECT IN THE DESIGN AND SPECIFICATIONS PREPARED BY THE CONSULTING ENGINEER, ITS OFFICERS, AGENTS, SERVANTS, OR EMPLOYEES, IT BEING THE INTENT OF THE PARTIES THAT APPROVAL BY THE TOWN ENGINEER OR OTHER TOWN EMPLOYEE, OFFICIAL, CONSULTANT, OR OFFICER SIGNIFIES THE TOWN APPROVAL OF ONLY THE GENERAL DESIGN CONCEPT OF THE IMPROVEMENTS TO BE CONSTRUCTED. IN THIS CONNECTION, THE DEVELOPER SHALL INDEMNIFY AND HOLD HARMLESS EACH TOWN INDEMNIFIED PERSON, FROM ANY LOSS, DAMAGE, LIABILITY OR EXPENSE ON ACCOUNT OF DAMAGE TO PROPERTY AND INJURIES, INCLUDING DEATH, TO ANY AND ALL PERSONS WHICH MAY ARISE OUT OF ANY NEGLIGENT DESIGN OF THE ENGINEER INCLUDED IN DESIGNS AND SPECIFICATIONS INCORPORATED INTO ANY IMPROVEMENTS CONSTRUCTED IN ACCORDANCE THEREWITH, AND THE DEVELOPER SHALL DEFEND AT ITS OWN EXPENSE ANY SUITS OR OTHER PROCEEDINGS BROUGHT AGAINST ANY TOWN INDEMNIFIED PERSON, ON ACCOUNT THEREOF, TO PAY ALL EXPENSES AND SATISFY ALL JUDGMENTS WHICH MAY BE INCURRED BY OR RENDERED AGAINST THEM, COLLECTIVELY OR INDIVIDUALLY, PERSONALLY OR IN THEIR OFFICIAL CAPACITY, IN CONNECTION HEREWITH; PROVIDED THAT DEVELOPER SHALL HAVE THE RIGHT TO SELECT COUNSEL OF ITS OWN CHOOSING AND SHALL HAVE ALL REQUISITE AUTHORITY TO ENTER INTO ANY SETTLEMENT AGREEMENT AT ANY TIME IN CONNECTION WITH ANY SUCH CLAIMS OR LIABILITIES FOR WHICH DEVELOPER OWES INDEMNITY UNDER THIS SECTION. EXHIBIT “A” Resolution 19-32 Spencer Ranch Development Agreement Page 9 of 13 NOTWITHSTANDING THE FOREGOING, NOTHING IN THIS SECTION SHALL REQUIRE DEVELOPER TO INDEMNIFY OR DEFEND FOR ANY CLAIMS ARISING OUT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE TOWN ENGINEER OR ANY TOWN INDEMNIFIED PERSON. J. NOTICES All written notices called for or required by this Agreement shall be addressed to the following, or such other party or address as either party designates in writing, by certified mail, postage prepaid, or by hand delivery: If to Developer: Waterside Land Co., LLC Attn: Paul Pastore 5055 Keller Springs Road, Suite 540 Addison, TX 75001 With a copy to: Watson Law Group PLLC Attn: Monty Watson 4925 Greenville Avenue, Suite 717 Dallas, Texas 75206 If to Town: Town of Westlake Attn: Town Manager 1500 Solana Blvd. Building 7, Suite 7200 Westlake, Texas 76262 With a copy to: Boyle & Lowry, L.L.P. Attn: L. Stanton Lowry 4201 Wingren Dr., Suite 108 Irving, Texas 75062 K. ASSIGNMENT AND SUCCESSORS As described and required in Ordinance 882 (but notwithstanding the specific language of Section 1.G thereof), a single family of companies (whose affiliated and subsidiary entities are collectively referred to as “Waterside”) will manage and oversee the development and homebuilding of all homes in the development. For purposes of Section 1.F of Ordinance 882, the “developer that is the signatory party in the development agreement” is hereby identified as Waterside Land Co, LLC. All building permits issued for new construction of single-family homes in the development shall only be issued to Waterside’s homebuilding entity, Waterside Properties SR, LLC or its Affiliate, Any lawful assignee or successor in interest of the Developer of all rights and obligations under this Agreement shall be EXHIBIT “A” Resolution 19-32 Spencer Ranch Development Agreement Page 10 of 13 deemed ‘the Developer’ for all purposes under this Agreement. A permitted successor to Waterside must (1) assume this Agreement and (2) agree to follow the approved architectural design guidelines established by the Developer and approved by the Town. A third party appointed by Waterside (may include a financial institution providing financing to Waterside [a “Lender”]) may manage and oversee the development of, and homebuilding within, the development under the same requirements. The Developer may not assign, transfer or otherwise convey any of its rights or obligations under this Agreement to any other person or entity without the prior consent of the Town Council, which consent will not be unreasonably withheld, provided that any lender to Developer is a permitted assignee, under the terms of a collateral assignment, as are such lender’s assignees. L. COMPLIANCE WITH LAWS, ORDINANCES, RULES AND REGULATIONS This Agreement will be subject to all applicable Federal, State and local laws, ordinances, rules and regulations, including, but not limited to, all provisions of the Town’s codes and ordinances, as amended, M. GOVERNMENTAL POWERS It is understood that by execution of this Agreement, the Town does not waive or surrender any of it governmental powers or immunities that are outside of the terms, obligations, and conditions of this Agreement. N. NO WAIVER The failure of either party to insist upon the performance of any term or provision of this Agreement or to exercise any right granted hereunder shall not constitute a waiver of that party’s right to insist upon appropriate performance or to assert any such right on any future occasion. O. VENUE AND JURISDICTION If any action, whether real or asserted, at law or in equity, arises on the basis of any provision of this Agreement, venue for such action shall lie in state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas – Fort Worth Division. This Agreement shall be construed in accordance with the laws of the State of Texas. P. NO THIRD PARTY RIGHTS The provisions and conditions of this Agreement are solely for the benefit of the Town and The Developer, and any lawful assign or successor of The Developer, and are not intended to create any rights, contractual or otherwise, to any other person or entity. EXHIBIT “A” Resolution 19-32 Spencer Ranch Development Agreement Page 11 of 13 Q. FORCE MAJEURE It is expressly understood and agreed by the Parties to this Agreement that if the performance of any obligation hereunder is delayed by reason of war, civil commotion, acts of God, inclement weather that prohibits compliance with any portion of this Agreement, or other circumstances which are reasonably beyond the control or knowledge of the party obligated or permitted under the terms of this Agreement to do or perform the same, regardless of whether any such circumstance is similar to any of those enumerated or not, the party so obligated or permitted shall be excused from doing or performing the same during such period of delay, so that the time period applicable to such requirement shall be extended for a period of time equal to the period such party was delayed. R. INTERPRETATION In the event of any dispute over the meaning or application of any provision of this Agreement, this Agreement shall be interpreted fairly and reasonably, and neither more strongly for or against any party, regardless of the actual drafter of this Agreement. S. SEVERABILITY CLAUSE. It is hereby declared to be the intention of the Parties that sections, paragraphs, clauses and phrases of this Agreement are severable, and if any phrase, clause, sentence, paragraph or section of this Agreement shall be declared unconstitutional or illegal by the valid judgment or decree of any court of competent jurisdiction, such unconstitutionality or illegality shall not affect any of the remaining phrases, clauses, sentences, paragraphs or sections of this Agreement since the same would have been executed by the Parties without the incorporation in this Agreement of any such unconstitutional phrase, clause, sentence, paragraph or section. It is the intent of the Parties to provide the economic incentives contained in this Agreement by all lawful means. T. CAPTIONS Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. U. ENTIRETY OF AGREEMENT This Agreement, including any attachments attached hereto, including the Requirements for Contractor’s Insurance and any documents incorporated herein by reference, and the Economic Development Program Agreement, contain the entire understanding and Agreement between the Town and the Developer, and any lawful assign and successor of the Developer, as to the matters contained herein. Any prior or contemporaneous oral or written Agreement is hereby declared null EXHIBIT “A” Resolution 19-32 Spencer Ranch Development Agreement Page 12 of 13 and void to the extent in conflict with any provision of this Agreement. Notwithstanding anything to the contrary herein, this Agreement shall not be amended unless executed in writing by both parties and approved by the Town Council of the Town in an open meeting held in accordance with Chapter 551 of the Texas Government Code. V. COUNTERPARTS This Agreement may be executed in multiple counterparts, each of which shall be considered an original, but all of which shall constitute one instrument. EXHIBIT “A” Resolution 19-32 Spencer Ranch Development Agreement Page 13 of 13 SIGNED AND EFFECTIVE on the date last set forth below. DEVELOPER: Waterside Land Co, LLC __________________________________ By: Paul Pastore Title: Managing Member Address: 5055 Keller Springs Road, Suite 540 Addison, TX 75001 STATE OF TEXAS COUNTY OF TARRANT On _____________________, before me, ___________________________, Notary Public, personally appeared Paul Pastore, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument, the person, or the entity upon behalf of which the person acted, executed the instrument. ________________________________ WITNESS my hand and official seal. (SEAL) - Notary Public My commission expires: ______________________________ TOWN OF WESTLAKE , TEXAS By: _______________________________________________ Amanda DeGan, Town Manager ATTEST: ______________________________________________ Kelly Edwards, Town Secretary _______________________________________________ Stan Lowry, Town Attorney Date: _______________________________________________ EXECUTIVE SESSION The Council will conduct a closed session pursuant to Texas Government Code, annotated, Chapter 551, Subchapter D for the following: a. Section 551.087 Deliberation Regarding Economic Development Negotiations (1) to discuss or deliberate regarding commercial or financial information that the governmental body has received from a business prospect that the governmental body seeks to have locate, stay, or expand in or near the territory of the governmental body and with which the governmental body is conducting economic development negotiations; or (2) to deliberate the offer of a financial or other incentive to a business prospect described by Subdivision (1) for the following: - Entrada - Waterside Land Company LLC - Front 44 b. Section 551.071 Consultation with Attorney - to seek advice of counsel on legal matters involving pending or contemplated litigation, settlement offers, or other legal matters not related directly to litigation or settlement. Pending or contemplated litigation and settlement offers include but are not limited to the following: Cause No. 236-304811-18 - Builder Recover Services, LLC v The Town of Westlake Town Council Item # 5 – Executive Session Town Council Item # 6 – Reconvene Council Meeting NECESSARY ACTION a. Section 551.087 Deliberation Regarding Economic Development Negotiations (1) to discuss or deliberate regarding commercial or financial information that the governmental body has received from a business prospect that the governmental body seeks to have locate, stay, or expand in or near the territory of the governmental body and with which the governmental body is conducting economic development negotiations; or (2) to deliberate the offer of a financial or other incentive to a business prospect described by Subdivision (1) for the following: - Entrada - Waterside Land Company LLC - Front 44 b. Section 551.071 Consultation with Attorney - to seek advice of counsel on legal matters involving pending or contemplated litigation, settlement offers, or other legal matters not related directly to litigation or settlement. Pending or contemplated litigation and settlement offers include but are not limited to the following: Cause No. 236-304811-18 - Builder Recover Services, LLC v The Town of Westlake Town Council Item #7 – Necessary Action Town Council Item # 8 – Adjournment Regular Session