HomeMy WebLinkAbout10-07-19 TC Agenda Packet
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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
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- 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
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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.
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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
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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
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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.
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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
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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.
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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
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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.
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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