HomeMy WebLinkAboutRes 00-48 Approving an Agreement with FMR Texas Limited PartnershipTOWN OF WESTLAKE
RESOLUTION NO. 00-48
A RESOLUTION OF THE BOARD OF ALDERMEN OF THE TOWN OF WESTLAKE,
TEXAS, APPROVING A SUBDIVISION IMPROVEMENT AGREEMENT BETWEEN
THE TOWN OF WESTLAKE AND FMR TEXAS LIMITED PARTNERSHIP, A
MASSACHUSETTS LIMITED PARTNERSHIP REGARDING IMPROVEMENTS AT
THE FIDELITY INVESTMENT PHASE I DEVELOPMENT; AUTHORIZING THE
TOWN MANAGER OF THE TOWN OF WESTLAKE TO EXECUTE THE
SUBDIVISION IMPROVEMENT AGREEMENT ON BEHALF OF THE TOWN;
PROVIDING A SEVERABILITY CLAUSE; AND DECLARING AN EFFECTIVE DATE.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
TOWN OF WESTLAKE, TEXAS:
SECTION 1: That the Subdivision Improvement Agreement as shown on Exhibit "A"
attached hereto is hereby approved and incorporated herein to this Resolution as if copied in its
entirety.
SECTION 2: That the Town Manager is hereby authorized to execute the Subdivision
Improvement Agreement as approved by this Resolution.
SECTION 3: If any section, paragraph., subdivision, clause, phrase, provision or word
of this Resolution shall be held invalid or unconstitutional by a court of competent jurisdiction,
such holding shall not affect the remainder of this Resolution.
SECTION 4: That this Resolution shall become effective upon the date of its passage.
APPROVED BY THE BOARD OF ALDERMEN OF THE TOWN OF WESTLAKE,
TEXAS, this 13'h day of November, 2000.
Scott Bradley, Mayor
ATTEST:
Ging Crosswy, To Secretary Trent O. Petty, Town M6nager
APPROVED AS TO FOAM:
Agreement No.
FIDELITY INVESTMENTS PHASE I
SUBDIVISION IMPROVEMENT AGREEMENT
Agreement between the Town of Westlake, Texas, (the "Town"), and FMR Texas
Limited Partnership, a Massachusetts limited partnership (the "Developer"), as sole owner and
developer of property generally located on the west side of Precinct Line Road south of State
Highway 114 and north of Dove Road and as more particularly described by Exhibit "A",
attached hereto and incorporated herein by reference. This Agreement concerns the development
of an office complex within Phase I of certain real property, commonly known as the "Fidelity
Tract", that is zoned under Ordinance No. 306 for Planned Development District No. 2 ("PD -2"),
and contains provisions for the installation of certain public improvements, easements and
community facilities (the "improvements") located therein; for off-site improvements necessary
to support the Fidelity tract; and for the assurance of completion and maintenance thereof.
This Agreement shall solely relate to the development of Phase I of PD -2 as has been
determined by the submittal and approval of Developer's preliminary plat dated June 28, 1999.
Phase I consists of Lot 1, which is approximately 128.1 acres (net of dedicated or to be dedicated
public right-of-way and easements) and shall hereinafter be referred to as the "development" or
"Phase I."
SECTION 1. GENERAL REQUIREMENTS
A. Completion_ Date of Development. Except as otherwise provided for in this
Agreement, Developer covenants that all required public improvements shall be completed no
later than one (1) year following the date upon which this Agreement is approved by the Board
of Aldermen.
B. Completion of Agreement. This Agreement shall not be considered as complete
until three (3) sets of record drawings and electronic files and one (1) set of sepias for the
drawings for all streets and utilities including street lighting in the subdivision and utility
demarcation points, certified by the Developer's engineer, are filed with the Town Engineer.
C. Covenant Running With the Land. The covenants contained herein shall run with
the land and bind all successors, heirs and assignees of the Developer. In addition a
Memorandum of this Agreement shall be filed of record in the Deed Records of Tarrant County,
Texas as evidence thereof. The Town shall execute and deliver to Developer a release (in
customary and recordable form) upon completion of this Agreement.
D. Maintenance Security. The Developer shall provide reimbursement to the Town
of the reasonable costs incurred by the Town in connection with maintenance of the required
public improvements, which in accordance with- Article VII, Section 6 of PD 2, shall be for a
period of one (1) year for street improvements and two (2) years for utility improvements
Fidelity Phase 1 Agreement 1
following acceptance by the Town of all required public improvements. This reimbursement
requirement shall initially be secured by a first and prior lien on Phase I; provided that, at the
election of Developer, such lien shall be released by Town upon delivery of substitute security,
which pursuant to Article VII, Section 7 of PD 2, may consist of a performance bond, cash
escrow, letter of credit, pledge of governmental securities, or other collateral reasonably
acceptable to the Board of Alderman of the Town. Upon completion, the Town shall execute and
deliver to Developer a release (in customary and recordable form) of this undertaking and any
security related thereto.
E. Secgdiy for Com letion of Public Improvements. The Developer shall furnish the
Town with an undertaking that guarantees completion of public improvements to be constructed
by Developer as provided for in this Agreement. The undertaking shall be in the amount of 100
percent of the funds reasonably estimated by the Town Engineer to be necessary to secure
payment for completion of such public improvements. This undertaking shall initially be secured
by a first and prior lien on Phase I; provided that, at the election of Developer, such lien shall be
released by Town upon delivery of substitute security, which pursuant to Article VII, Section 7
of PD 2, may consist of a performance bond, cash escrow, letter of credit, pledge of
governmental securities, or other collateral reasonably acceptable to the Board of Alderman of
the Town. Upon completion, the Town shall execute and deliver to Developer a release (in
customary and recordable form) of this undertaking and any security related thereto.
F. Performance Bond. Developer shall provide a performance bond from the
contractor, with the Town as a co -obligee.
G. Temporary Improvements. If temporary improvements related to this
development are required by ordinance, statute or federal law, Developer shall enter into and file
a separate improvement agreement and escrow, or letter of credit, in a reasonable amount to
ensure the proper construction, maintenance and removal of the temporary improvement.
Developer shall build and pay for all costs of temporary improvements that are reasonably
required and shall maintain those improvements for the reasonable period specified by the Town.
H. Developer's Engineer. The Developer must employ a civil engineer, architect or
landscape architect, as appropriate, licensed to practice in the State of Texas for the design and
preparation of the plans and specifications for the design and construction of all improvements
covered by this Agreement. Specifically, to date, Developer has employed HKS, Inc., as its
architect, Carter & Burgess, as its planner/engineer, and SWA Group, as its landscape architect.
I. Contractor Approval. On all public improvements for which the Developer
awards its own construction contract(s), the Developer must employ a construction contractor
who is approved by the Town. The contractor must meet the Town's regulatory standards and
statutory requirements for being insured, licensed and bonded to do work in 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. Specifically, to date, Developer has employed H.
Fidelity Phase 1 Agreement 2
C. Beck as its construction contractor/manager.
J. Responsibility for Contractor/Subcontractor Fees. On all public improvements
for which the Developer awards its own construction contract(s) or subcontracts, the Developer
shall be responsible for all costs incurred in the procurement of such services, labor and
materials, subject to Section 3. E. below.
K. Upkeep of_Property while in Development. The Developer and any third parry,
independent entity engaged in the construction on any portion of the development (the "Builder")
will be responsible for reasonably maintaining the aesthetics of all land which has not been sold
to third parties; provided that, certain areas of the development to be shown on the approved Site
Plan, are to remain in a natural state. After fifteen (15) days written notice, should the Developer
or the Builder fail in this responsibility, the Town may contract for this service and bill the
Developer or the Builder for reasonable costs. Should the costs remain unpaid for 90 days after
notice, the Town may file a lien on the property so maintained.
L. Dedication of Property. All required dedications to the Town of real property,
including easements, rights-of-way, pedestrian trail underpass and public open space will be
made pursuant to the Final Plat for Phase I; however, if required by the Town, any dedication to
the Town of real property, including easements may be by separate instrument in a form
mutually agreeable and shall include a metes and bounds description and if located within Phase
I shall be reflected on the Final Plat. It is agreed that certain dedications are outside of Phase I
and will not be reflected on the Phase I plat but will be made by separate instrument mutually
agreeable to the Town and Developer.
SECTION 2. CONSTRUCTION PROCEDURES
A. Engineering Standards. Developer covenants that all public works projects and
improvements shall be constructed in accordance with the Town's engineering standards.
B. Preconstruction Conference. A preconstruction meeting between the Developer and the
Town Engineer is required. The Developer or contractor(s) shall furnish to the Town a list of all
subcontractors and suppliers that will be providing greater than a $10,000 value to the
development.
C. Conditions Prior to Construction. Prior to authorizing construction, the Town Engineer
shall be satisfied that the following conditions have been met:
1. The approved preliminary plat reflects all Town conditions of approval and is signed.
2. All required plans and contract documents, if any, shall have been completed and filed
with the Town.
Fidelity Phase I Agreement
3. All necessary off-site easements or dedications required for public facilities, not shown
on the approved preliminary plat, shall have been conveyed solely to the Town by either final
plat or separate instrument.
4. All contractors participating in the construction shall be presented with a set of approved
plans bearing the Town Engineer's stamp of release. These plans must remain on the job site at
all times.
5. A complete list of the contractors, their representatives on the site, and telephone
numbers where a responsible party may be reached at all times must be submitted to the Town.
6. All applicable fees must be paid to the Town.
7. The Developer or Contractor must furnish to the Town an insurance policy of general
liability in the amount of $1,000,000 naming the Town as co-insured, prior to the
commencement of any work.
D. inspections. Construction of all improvements shall be subject to periodic
inspections by the Town Engineer or the Town Engineer's designee. The property owner and/or
the Developer shall be responsible for completing and/or correcting public improvements not
constructed in accordance with the Town's construction standards and specification. Any change
in design required during construction shall be approved by the Town Engineer.
SECTION 3. IMPROVEMENTS
A. Open Space Corridor. The Developer shall provide private and public open
spaces for the development and the Dove Road pedestrian trail underpass connection as shown
on the approved preliminary plat (to be incorporated in the final plat) and as approved in the PD -
2, Ordinance No. 306, and as otherwise shown in the Open Space Master Plan, as hereinafter
amended. The public open spaces and Dove Road pedestrian trail underpass connection shall be
promptly dedicated to the Town (areas within Phase I will be included on the Phase I plat). It is
agreed and acknowledged that such private and public open spaces and the trail underpass
connection as shown on the approved Preliminary Plat are sufficient to meet the requirements in
PD -2 and the Open Space Master Plan.
B. Interior Streets
1. The interior streets of the development shall be private and built in
accordance with the Town's standards and specifications, including but not limited to, Section
902 of the 1997 Uniform Fire Code 1997, and in accordance with reasonable conditions required
by the Town Engineer, and/or Town Board to ensure the safe passage of motorists and
pedestrians. All interior streets will be designated as a Town fire lane. Developer shall at all
times keep the east -west connector roadway open for public traffic, except for temporary closures
to public traffic as may be reasonably necessary for Developer's construction activities in
Fidelity Phase I Agreement 4
connection with future phases within PD -2 (but during any temporary closure, Developer will
continue to provide access to emergency vehicles). The east west connector shall also contain a
public easement for the Town's utility duct bank.
2. Maintenance of the private streets, drainage easements and facilities,
sidewalks, paths, trails, lakes, water features, and landscape improvements shall be the sole
responsibility of the Developer.
C. Perimeter Streets.
1. Street and roadway dedications, including the Dove Road pedestrian trail
underpass, shall be made in accordance with the PD -2 including the dedication of Precinct Line
Road and Dove Road and accompanying right-of-way in accordance with the approved
preliminary plat. The dedication will provide a 20 -foot area, included within the required right-
of-way, for the NETCRWS water line. The dedication shall be made by separate instrument and
reflected (if within Phase I) on the Phase I final plat.
2. Prior to the signing the final plat, Developer shall place into escrow the
sum of $79,166.00 to provide and install traffic signalization at the intersection of Precinct Line
Road and Kirkwood, Precinct Line Road and Dove Road, and Kirkwood Boulevard and State
Highway 114. At the election of Developer, Developer may defer the escrowing of funds, in
which case (i) Developer's contribution shall be paid within 30 days of receiving written notice
from the Town that the funds are due and payable (such notice from the Town will be given at
such time as the Town has entered into a definitive construction contract and commenced
construction on the project and will therefore begin incurring costs for construction) and (ii)
furnish the Town with security in the form of a first and prior lien on Phase I; provided that, at
the election of Developer, such lien shall be released by Town upon delivery of substitute
security, which pursuant to Article VII, Section 7 of PD 2, may consist of a performance bond,
cash escrow, letter of credit, pledge of governmental securities, or other collateral reasonably
acceptable to the Board of Alderman of the Town. Upon completion or substitution of security,
the Town shall execute and deliver to Developer a release (in customary and recordable form) of
the lien.
3. Prior to the signing of the final plat, Developer shall place into escrow the
sum of $228,700.00 to design Precinct Line Road, as shown on the Town's Master Thoroughfare
Plan. In accordance with the Town's Master Thoroughfare Plan, Precinct Line Road from State
Highway 114 south to the existing intersection with Kirkwood Boulevard is to be designed as a
six- (6) lane divided roadway. Precinct Line Road from the existing intersection of Kirkwood
Boulevard south to the newly aligned right-of-way of Dove Road is to be designed as a four- (4)
lane divided roadway in accordance with the Town's Master Thoroughfare Plan and standards
and specifications. This design will also include the six- (6) foot sidewalk on the West Side of
Precinct Line Road from State Highway 114 south to the newly aligned right-of-way of Dove
Road. The requirement for the Developer to escrow these funds shall be in accordance with
Fidelity Phase I Agreement 5
Section 3.1.B.4, Improvement Agreement and Guarantees of Completion of Public
Improvements, of the Town Subdivision regulations At the election of Developer, Developer
may defer the escrowing of funds, in which case (i) Developer's contribution shall be paid within
30 days of receiving written notice from the Town that the funds are due and payable (such
notice from the Town will be given at such time as the Town has entered into a definitive
engineering design contract and commenced the design of the project and will therefore begin
incurring engineering fees and other design costs) and (ii) Developer shall furnish the Town with
security in the form of a first and prior lien on Phase I; provided that, at the election of
Developer, such lien shall be released by Town upon delivery of substitute security, which
pursuant to Article VII, Section 7 of PD 2, may consist of a performance bond, cash escrow,
letter of credit, pledge of governmental securities, or other collateral reasonably acceptable to the
Board of Alderman of the Town. Upon completion or substitution of security, the Town shall
execute and deliver to Developer a release (in customary and recordable form) of the lien.
4. If the Town reasonably determines that TXDQT will not build Precinct
Line Road within a reasonable time, the Developer shall be responsible for paying to the Town
one-half of $3,025,633.00, which is the cost of construction for one-half of Precinct Line Road
from State Highway 114 to the newly -aligned right-of-way of Dove Road. Precinct Line Road
from State Highway 114 south to the existing intersection with Kirkwood Boulevard is to be
constructed as a six- (6) lane divided roadway in accordance with the Town's Master
Thoroughfare Plan and standards and specifications. Precinct Line Road from the existing
intersection of Kirkwood Boulevard south to the newly -aligned right-of-way of Dove Road is to
be constructed as a four- (4) lane divided roadway in accordance with the Town's Master
Thoroughfare Plan and standards and specifications. These sections shall also include the six -
(6) foot sidewalk on the west side of Precinct Line Road from State Highway 114 south to the
newly -aligned right-of-way of Dove Road. Developer's contribution shall be paid within 30 days
of receiving written notice from the Town that the funds are due and payable (such notice from
the Town will be given at such time as the Town has entered into a definitive construction
contract and commenced construction on the project and will therefore begin incurring costs for
construction).
This amount shall be equitably reduced (or an equitable sum reimbursed to Developer if it has
already been paid) based on the contribution of state highway funds by TXDOT or any other
federal, state, or private funding for the construction of this section of Precinct Line Road.
5. If Precinct Line Road is not rebuilt prior to the time that Developer
completes Phase Il of PD -2 (the development of a second office building), then Developer at its
option may make temporary improvements to existing Precinct Line Road. Such temporary
improvements may include, without limitation: (i) adding temporary lanes from SH 114 south to
the intersection with Kirkwood Boulevard, (ii) temporary improvements at the intersection of SH
114 and Precinct Line Road, (iii) temporary improvements at the intersection of Precinct Line
Road and Kirkwood Boulevard; and (iv) other temporary improvements along Precinct Line
Road from Kirkwood Boulevard to Dove Road. Such temporary improvements shall be
Fidelity Phase I Agreement 6
constructed by Developer, at its expense, in accordance with plans and specifications prepared by
Developer's engineers and approved by the Town's engineer (such approval not to be
unreasonably withheld, conditioned, or delayed.)
6. The Developer shall be solely responsible for the installation,
maintenance, and cost of all landscaping in the roadway medians and from the outside west
pavement edge of Precinct Line Road from State Highway 114 south to the newly aligned Dove
Road to the west right-of-way of Precinct Line Road adjacent to the Fidelity tract, in accordance
with the Town's ordinances, standards and specifications. Installation will be done in
conjunction with construction of Precinct Line. Maintenance will include all permanent
landscaping but will not require Developer to provide seasonal plantings. Provided, however,
that the Town will furnish the necessary water for the Developer's compliance with the
maintenance of the medians as provided in this subsection.
7. The Developer shall have no further obligations for improvement to Dove
Road (including associated utilities), save and except for the dedication of the Dove Road
Pedestrian Trail Underpass easement, it being agreed that the property owner to the south of
Dove Road, Hillwood Services, L.P. or its affiliates, has undertaken to make all necessary Dove
Road improvements.
D. On -Site Water and Sanitary Sewer. The Developer shall construct or cause to be
constructed on-site water and sewer facilities which shall be dedicated to the Town and contained
in public utility easements.
1. On-site facilities shall include any line, main or improvement constructed
or to be constructed in connection with Phase I as shown on the plans and specifications for
Phase I as approved by the Town.
E. Town Participation. The Town shall reimburse the costs of over -sizing any
water or sewer facilities which it requires as funds become available through implementation and
recovery of development fees from subsequent developers of properties benefiting from these
water and sewer lines, except as provided in Section 4 (A) (2). Any participation by the Town in
the cost of providing public improvements may make the construction subject to the competitive
bid and procurement requirements of Chapter 252 of the Texas Local Government Code.
F. Acceptance. Upon completion and acceptance by the Town of any public
improvements under this Agreement, such public improvements shall be perpetually maintained
by the Town (following acceptance and after expiration of any required Developer maintenance
period described above), except as required herein.
SECTION 4. OTHER DEVELOPMENT REQUIREMENTS
A. Off-site Sewer and Water.
Fidelity phase I Agreement 7
1. Off-site sewer facilities shall be constructed and provided in accordance
with the Economic Development Agreement between the Town and the Developer which
requires that the Developer pay its proportionate share for the construction and utilization of off-
site facilities.
2. The Developer shall be required to escrow the funds necessary to construct
a 16 -inch water line along the 'Nest Side of Precinct Line Road adjacent to the Fidelity tract
which shall be contained within a public utility easement and dedicated to the Town. The
Developer shall be required to escrow these funds in the estimated amount of $226,800, which
includes contingencies and engineering in accordance with Section 3.1.13.4, Improvement
Agreement and Guarantees of Completion of Public Improvements, of the Town's Subdivision
regulations. The Town will cause construction of such water line in conjunction with
reconstruction of Precinct Line Road. The Developer shall be reimbursed for Yz of the cost of this
line in accordance with Section 3.E. At the election of Developer, Developer may defer the
escrowing of.funds, in which case (I) Developer's contribution shall be paid within 30 days of
receiving written notice from the Town that the funds are due and payable (such notice from the
Town will be given at such time as the Town has entered into a definitive construction contract
and commenced construction on the project and will therefore begin incurring costs for
construction) and (ii) furnish the Town with security in the form of a first and prior lien on Phase
1; provided that, at the election of Developer, such lien shall be released by Town upon delivery
of substitute security, which pursuant to Article VII, Section 7 of PD 2, may consist of a
performance bond, cash escrow, letter of credit, pledge of governmental securities, or other
collateral reasonably acceptable to the Board of Alderman of the Town. Upon completion or
substitution of security, the Town shall execute and deliver to Developer a release (in customary
and recordable form) of the lien.
3. The Developer shall grant all necessary easements for the placement of
said facilities. Such easements shall be transferred and dedicated to the Town prior to final plat
approval.
B. Dedication of Flood Plain. The Developer shall dedicate to the Town as a
drainage easement those portions of the development in the 100 -year flood plain as shown on the
preliminary plat for Phase I. This dedication shall be by separate instrument and shown on the
final plat.
C. Overhead Utility Lines and Poles. The Developer shall work with the local utility
companies to see that all existing utility lines are buried and poles removed from the
development. All newly constructed utility lines shall be underground and shall be in
compliance with the Town's ordinances.
D. Tree Mitigation, The Developer will comply with the landscape requirements of
PD -2 with respect to tree mitigation.
Fidelity Phase I Agreement 8
SECTION 5. GENERAL PROVISIONS
A. Acceptance of Dedications. Upon completion, the Town hereby agrees to accept
all public improvements provided for in this Agreement, subject to Developer's compliance with
the Town's requirements and specifications applicable to such public improvements. No
dedication of required public improvements shall be accepted until the Developer's engineer has
submitted a certified detailed as -built record drawing of the property, the location, dimensions,
materials and other information reasonably required by the Town's Board of Aldermen or the
Town Engineer. These as -built drawings shall also be submitted in an electronic file format.
Acceptance of the development shall mean that the Developer has transferred all rights to all the
public improvements to the Town for use and maintenance, except as otherwise provided herein.
B. Assigmnent. This Agreement, any part thereof, or any interest herein shall not
be assigned by the Developer without the express written consent of the Town, which consent
will not be unreasonably withheld, Developer shall have the right, without the consent of the
Town, to assign this Agreement to any parent, subsidiary, or other affiliate of Developer,
provided that, Developer shall not be released from its obligations hereunder. If the Developer
assigns any interest under this Agreement with the express consent of the Town, then. (1) the
Developer shall promptly give the Town written notice of the effective date of the assignment;
(2) the Developer shall cause the assignee to assume and agree to perform all of Developer's
obligations as evidenced by an Assigmnent and Assumption Agreement approved by the Town;
and (3) upon such Assignment and Assumption Agreement, Developer shall be released from
any further obligations hereunder. Developer shall also have the right, without the consent of the
Town, to assign this Agreement as collateral to any lender that provides Developer with a loan
that is secured in whole or part by Phase 1.
C. Default Remedies. If the Developer fails to construct, install, or where applicable
maintain, the required public improvements within the terms of this Agreement, the Town may:
1. Declare this Agreement to be in default and require specific performance
that all the public improvements be installed, constructed, or where applicable
maintained, regardless of the extent of completion of the development at the time the
Agreement is declared to be in default;
2. Suspend final plat recording until the public improvements are completed
and record a document to that effect for the purpose of public notice;
3. Obtain funds under the security and complete the public improvements
itself or through a third party. Prior to drawing on any form of security, the Town shall
provide the Developer with notice and give the Developer a reasonable opportunity to
cure;
Fidelity Phase I Agreement 9
4. Assign its right to receive funds under the security to any third party,
including a subsequent owner of the subdivision for which public improvements were not
constructed, in whole or in part, in exchange for that subsequent owner's promise to
complete the public improvements on the tract; or
5. Exercise any other rights available under the law.
D. Waiver. No covenant or condition of this Agreement may be waived without
consent of the parties. Forbearance or indulgence by the Town shall not constitute a waiver of
any covenant or condition to be performed pursuant to this Agreement.
E. Building Permits. Building permits may be issued upon approval of the final plat
and approval and execution of this Agreement.
F. Certificate of Occu ane . No certificate of occupancy will be issued for the
Phase I office building until the water and sewer facilities supporting such office building have
been accepted by the Town or other public entity authorized to accept such improvements and a
final plat approved and filed of record.
G. Independent Contractor Status. Developer covenants that it is an independent
contractor and not an officer, agent, servant or employee of the Town; that the Developer shall
have exclusive control of the details of the work to be performed by it hereunder and all persons
performing same, and shall be responsible for the acts and omissions of its officers, agents,
employees, contractors, subcontractors and consultants; that the doctrine of respondent superior
shall not apply as between the Town and the Developer, its officers, agents, employees,
contractors, subcontractors and consultants, and nothing herein shall be construed as creating a
partnership or joint enterprise between the Town and the Developer.
H. General _Indemnity _Provisions. The Developer 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, from any and all
liability, claims, suits, demands or causes of action, including all expenses of litigation and/or
settlement which may arise by injury to property or person to the extent occasioned by error,
omission, intentional or negligent act of Developer, its officers, agents, consultants, employees,
invitees, collectively,- the "Developer Parties", arising out of or in connection with this
Agreement. Developer will, at its own cost and expense, defend and protect 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 such claims and demands. Also,
Developer agrees to and shall indemnify, defend and hold harmless the Town Parties from and
against any and all claims, losses, damages, causes of action, suit and liability of every kind,
including all expenses of litigation, court costs and attorneys' fees for injury to or death of any
person or for any damage to any property arising out of or in connection with the error, omission,
intentional or negligent acts of the Developer Parties under this Agreement or any and all activity
Fidelity Phase I Agreement 10
or use pursuant to the Agreement. Such indemnification shall not apply to any claim, suit, loss,
damage, cause of action or liability which arises more than two years after the acceptance of the
improvement by the Town. Provided, however, that 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.
1. Indemnity Against Design Defects. 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 flown
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's approval
of only the general design concept of the improvements to be constructed. In this connection, the
Developer shall indemnify and hold harmless the Town, its officials, officers, agents, servants
and employees, 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 defect,
deficiency or negligence of the engineer's designs and specifications to the extent prepared or
caused to be prepared by Developer and incorporated into any improvements constructed in
accordance therewith which arises within two (2) years of the acceptance by the Town of the
improvements and the Developer shall defend at its own expense any suits or other proceedings
brought against the Town, its officials, officers, agents, servants or employees, or any of them,
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.
I Venue and Applicable Law. Venue of any action brought hereunder shall be in
Fort Worth, Tarrant County, Texas, and shall be governed pursuant to the laws of the State of
Texas.
K. Sales Tax. All construction contracts and agreements comprising or related to the
development shall require that the respective contractor(s) enter into a separate contract with the
State of Texas for the purpose and intent of sales tax collection on eligible projects comprising or
related to the development having a point of sale in the Town in accordance with Sections
151.056 and 321.001 et seq. of the Texas Tax Code, and Article 5190.6 of the Development
Corporation Act, and Comptroller's Sales Tax Rule 34, Texas Administrative Code, Section
3.291. The approval of this Agreement is conditioned on the Town and Developer amending the
Economic Development Agreement approved by Resolution No. 98-05, Section 16 Sales Tax
Rebate, to defer the immediate rebate of local sales taxes, generally as follows: The sales tax
deferral will be paid in 15 equal annual installments. The first installment will be due and
payable on the first anniversary date of this Agreement, and a like installment will be due and
Fidelity Phase I Agreement 11
payable on each subsequent anniversary, with a final payment of the 15`x' anniversary date of this
Agreement. The amount due will not bear interest. If the Town should enact an ordinance
imposing a city ad valorem tax before the tenth anniversary of this Agreement, then the
remaining balance (as of the date of such ordinance) will be paid in five equal annual
installments. The first annual installment will be due and payable on the next anniversary date of
this Agreement after the date of such ordinance, and like installment will be due and payable on
each subsequent anniversary, with a final payment of the 5" anniversary date of this Agreement
after the date of such ordinance. The amount due will not bear interest. Notwithstanding the
provisions of this Section, the terms of the definitive amendment to the Economic Development
Agreement shall be controlling over the general description of the terms of the amendment set
out above.
L. Tax Exemptions. The Town is an exempt organization under Section 151.309 of
the Texas Tax Code, and public improvements constructed under this Agreement will be
dedicated to public use and accepted by the Town upon acknowledgment by the Town of
completion under Section 5 of this Agreement.
1. The purchase of tangible personal property, other than machinery or
equipment and its accessories, repair and replacement parts, for use in the installation of public
improvements as described in this Agreement is therefore exempt from taxation under Section
151.309 of the Texas Tax Code, if the tangible property is:
a. Necessary and essential for the installation of public improvements
as described in this Agreement; and
b. Completely consumed at the job site.
2. The purchase of a taxable service for use in the performance of this
Agreement is exempt if the service is performed at the job site and if deemed exempt pursuant to
Section 151.3111 of the Texas Tax Code.
M. Notices. Any notices given or required to be given pursuant to this Agreement
shall be sent by U.S. mail, certified, return receipt requested, to the following addresses, and
shall be deemed delivered on the earlier of actual receipt or first attempted delivery {per records
of the U.S. Postal Service.):
TO THE TOWN OF WESTLAKE TEXAS:
Trent O. Petty
Town Manager
Town of Westlake
3 Village Circle, Suite 207
Westlake, Texas 76262
Fidelity Phase I Agreement 12
With copies to:
L. Stanton Lowry, Esq.
Boyle and Lowry L.L.P.
4201 Wingren, Suite 108
Irving, Texas 75062-2763
TO FMR TEXAS LIMITED PARTNERSHIP
Fidelity Corporate Real Estate, L.L.C.
Attn: Kourosh Panahy, Vice President
400 E. Las Colinas Boulevard
Irving, Texas 75039
With copies to:
Fidelity Investments
Attn: Legal Dept. - David Lucey, Esq.
82 Devonshire Street, Mail Zone F70
Boston, MA 02109
N. Third Party Beneficiaries. For purposes of this Agreement, including its intended
operation and effect, the parties (Town and Developer) specifically agree and contract that (1) the
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 or
Developer or both; 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 them to either
the Town or Developer.
O. Authority to Act. The parties (Town and Developer) 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.
SIGNED AND EFFECTIVE as of the / 3 4day of o��;�r, r_r� , 2000.
FMR TEXAS LIMITED PARTNERSHIP,
a Massachusetts Limited Partnership
Fidelity Phase I Agreement 13
By: FIDELITY CORPORATE REAL
ESTATE, L.L.C.
Its: General Partner
By: FMR CORP.
Its: Sole Member
By: FIDELITY CORPORATE
REAL ESTATE, INC.
Its: Authorized Agent
01
B'
Name:
Title: A&S1bff7V-r
TOWN OF WESTLAKE, TEXAS
Trent O. Petty, To N ger
ATTEST:
A-, Le,2L� ,
dii�g-evCrosswy, To ecretary
FORM APPROVED BY:
Fidelity Phase I Agreement 14
THE STATE OF MASSACHUSETTS §
COUNTY OF .�l�FpL,� § PROPERTY OWNER AND DEVELOPER
§ ACKNOWLEDGMENT
This instrument was acknowledged before me on this `l T� day of
X�`e-&`-11072 2000, by 5the
./,—wT of FIDELITY CORPORATE REAL ESTATE, INC., which
is the Authorized Agent of FMR CORP., which is the Sole Member of Fidelity Corporate Real
Estate, L.L.C., which is the General Partner of FMR TEXAS LIMITED PARTNERSHIP, a
Massachusetts limited partnership.
GIVEN UNDER MY HAND AND SEAL OF O this the / 9� day of
��s c�nrt3g72
.72000.
Notary lic in and for the State of
Massachusetts
Notary's Printed Name
THE STATE OF TEXAS §
§ TOWN OF WESTLAKE
COUNTY OF TARRANT § ACKNOWLEDGMENT
BEFORE ME, the undersigned authority, a notary public in and for the State of Texas, on
this day personally appeared TRENT O. PETTY, Town Manager, known to me to be the person
and officer whose name is subscribed to the foregoing instrument and acknowledged to me that
same was the act of Town of Westlake, and that he executed same for the purposes and
consideration therein expressed and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this the r - r' day of
a n W� . , 2000.
Fidelity Phase I Agreement 15
f A - -. (f��,ens
Notary lic in and for tYe State of Texas
& (YV!R P— r- 0, 1-1 C-5 -IIZI -A , .) (
Notary's rinted Name
l� t-
:Exp,
sswYNot-Iic STATEEXASOF t My Comm./22/2004
Fidelity Phase I Agreement 16
S'L'ATE OF TEXAS § AFTER RECORDING, RETURN TO:
§ Edward J. Fields, Jr.
COUNTY OF TARRANT § Akin, Gump, Strauss, Hauer & Feld
1700 Pacific Ave., Suite 4100
Dallas, Texas 75201
DEED OF TRUST
TO SECURE PERFORMANCE OF
SUBDIVISION IMPROVEMENT AGREEMENT
Effective Date: November 13, 2000
Developer (Grantor): FMR Texas Limited Partnership,
a Massachusetts limited partnership
Developer's Mailing Address:
Trustee:
Trustee's Mailing Address:
Town (Beneficiary):
Town's Mailing Address:
Obligations Secured:
c/o Fidelity Investments
Attn: Legal Dept. - David Lucey, Esq.
82 Devonshire Street, Mail Zone F70
Boston, MA 02109
L. Stanton Lowry, Esq.
Boyle and Lowry L.L.P.
4201 Wingren, Suite 108
Irving, Texas 75062-2763
Town of Westlake, Texas
3 Village Circle, Suite 207
Westlake, Texas 76262
Developer is owner and developer of certain real property in the Town of Westlake, Texas and
generally located on the west side of Precinct Line Road south of State Highway 114 and north of
Dove Road. Developer's property is zoned under Ordinance No. 306 for Planned Development
District No. 2 ("PD -2"). Developer and Town have entered into a certain Subdivision Improvement
Agreement pertaining to an office complex within Phase I of Developer's property. The Subdivision
Improvement Agreement was approved by Resolution 00-48 adopted by the Board of Alderman of
1
013644,o000 DALLAS 413223 vi
the Town of Westlake on November 13, 2000. The Subdivision Improvement Agreement imposes
certain obligations on Developer to pay for construction of public improvements and requires
Developer to provide assurance of payment. The obligations ("Obligations") secured hereby are as
follows:
• The obligation of Developer, pursuant to Paragraph 3.C.2 of the Subdivision Improvement
Agreement to pay the sum of $79,166-00 for traffic signalization at the intersection of
Precinct Line Road and Kirkwood, Precinct Line Road and Dove Road, and Kirkwood
Boulevard and State Highway 111.
• The obligation of Developer, pursuant to Paragraph 3.C.3 of the Subdivision Improvement
Agreement to pay the sum of $228,700.00 for design of Precinct Line Road
• The obligation of Developer, pursuant to Paragraph 4.A.2 of the Subdivision Improvement
Agreement to pay the sum of $226,800 to construct a 16 -inch water line on the west side of
Precinct Line Road.
Property (including any improvements):
Lot 1, and Lot 1S, Fidelity Investments Addition Phase I, an Addition to the Town of Westlake,
according to the final plat thereof approved by the Board of Alderman of the Town of Westlake by
Resolution 00-49 adopted November 13, 2000, and recorded at Cabinet Slide Plat Records,
Tarrant County, Texas.
Conveyance: For value received and to secure performance of the Obligations, Developer conveys
the property to Trustee in trust. This is a first and prior lien against the Property. This conveyance
is made subject to any encumbrances affecting the Property (other than liens and conveyances)
including the following: easements, rights of way, and prescriptive rights, recorded or not; all
presently recorded restrictions, reservations, covenants, conditions, oil and gas leases, mineral
severances, and other instruments, other than liens and conveyances, that affect the Property; rights
of adjoining owners in any fences situated on a common boundary; any discrepancies, conflicts,
shortages in area or boundary lines; any encroachments or overlapping of improvements.
Release: At the election of Developer, the lien of this Deed of Trust shall be released by the Town
upon delivery of substitute security, which pursuant to Article VII, Section 7 of Ordinance PD -2,
may consist of a performance bond, cash escrow, letter of credit, pledge of governmental securities,
or other collateral reasonably acceptable to the Board of Alderman of the Town. The election of
Developer to obtain a release of this Deed of Trust may be made at any time (including, without
limitation, after an alleged default, or in the event of a threatened or pending condemnation). If
Developer satisfies the Obligations according to their terms, or if Developer delivers substitute
security as provided for above, then this Deed of Trust shall have no further effect, and the Town
shall promptly execute and deliver to Developer a release (in customary and recordable form) of
Deed of Trust.
2
013644.0000 DALLAS 413223 vt
Developer's Duties: Developer agrees to:
1. Keep the property in good repair and condition;
2. Pay all taxes and assessments on the property when due;
3. Preserve the lien's priority as it is established in this Deed of Trust.
Town's Rights:
1. The Town may appoint in writing a substitute or successor trustee, succeeding to all rights and
responsibilities of Trustee.
2, If Developer fails to perform any of Developer's Obligations, the Town shall give Developer
written notice specifying the default and the action necessary to cure the default, and if the default
remains uncured after thirty days following said written notice (or if a default is not reasonably
susceptible to being cured within thirty days, then Developer shall have such additional time as is
reasonably necessary to cure the default so long as Developer commences the cure within such thirty
days and then diligently pursues curing the default), the Town may perform those obligations and
be reimbursed by Developer on demand for any sums so paid, including attorney's fees, plus interest
on those sums at the highest rate permitted by law. The sum to be reimbursed shall be secured by
this Deed of Trust.
3. If Developer fails to perform any of Developer's Obligations, the Town shall give Developer
written notice specifying the default and the action necessary to cure the default, and if the default
remains uncured after thirty days following said written notice (or if a default is not reasonably
susceptible to being cured within thirty days, then Developer shall have such additional time as is
reasonably necessary to cure the default so long as Developer commences the cure within such thirty
days and then diligently pursues curing the default), then the Town may:
(a) request Trustee to foreclose this lien, in which case the Town or the Town's agent shall
give notice of the foreclosure sale as provided by the Texas Property Code as then amended; and
(b) purchase the property at any foreclosure sale by offering the highest bid and then have
the bid credited against the Obligations.
Trustee's Duties: If requested by the Town to foreclose this lien, Trustee shall:
1. Either personally or by agent give notice of the foreclosure sale as required by the Texas Property
Code as then amended;
2. Sell and convey all or part of the property to the highest bidder for cash with a special warranty
binding Developer, subject to prior liens and to other exceptions to conveyance and warranty; and
3. From the proceeds of the sale, pay, in this order:
3
013644.0000 DALLAS 413223 vi
(a) expenses of foreclosure, including a commission to Trustee of 5% of the bid;
(b) to the Town, the full amount of the Obligations, interest, attorney's fees, and other
charges due and unpaid;
(c) any amounts required by law to be paid before payment to Developer; and
(d) to Developer, any balance.
General Provisions:
1. If any of the property is sold under this Deed of Trust, Developer shall immediately surrender
possession to the purchaser. If Developer fails to do so, Developer shall become a tenant at
sufferance of the purchaser, subject to an action for forcible detainer.
2. Recitals in any Trustee's deed conveying the property will be presumed to be true.
3. Proceedings under this Deed of Trust, filing suit for foreclosure, or pursuing any other remedy
will not constitute an election of remedies.
4. This lien shall remain superior to Liens later created.
5. If any portion of the Obligations cannot be lawfully secured by this Deed of Trust, payments
shall be applied first to discharge that portion.
6. The Town shall have no claim to sums payable to or received by Developer from condemnation
of all or part of the property, from private sale in lieu of condemnation, and from damages caused
by public works or construction on or near the property. If the value of the property, following the
condemnation, is reasonably adequate to secure the Obligations, then the lien of this Deed of Trust
shall continue as the security for the Obligations. If the value of the property, following the
condemnation, is not reasonably adequate to secure the Obligations, then Developer shall provide
the Town with substitute security, which pursuant to Article VII, Section 7 of Ordinance PD -2, may
consist of a performance bond, cash escrow, letter of credit, pledge of governmental securities, or
other collateral reasonably acceptable to the Board of Alderman of the Town.
7. The Town agrees to subordinate the lien of this Deed of Trust to utility easements that may be
granted by Developer in the future. The Town shall promptly execute such customary instruments
as are necessary to effect such subordination of this Deed of Trust.
8. When the context requires, singular nouns and pronouns include the plural.
9. This Deed of Trust shall bind, inure to the benefit of, and be exercised by successors in interest
of all parties.
4
013644.0000 DALLAS 413223 v1
EXECUTED effective as of (but not necessarily on) the date first above written.
FMR TEXAS LIMITED PARTNERSHIP,
a Massachusetts Limited Partnership
By: FIDELITY CORPORATE REAL
ESTATE, L.L.C.
Its: General Partner
By: FMR CORP.
Its: Sole Member
By: FIDELITY CORPORATE
REAL ESTATE, INC.
Its: Authorized Agent
By:1 44;2<
Name: 6Yf��N /%�• [� L
Title: �5i tf✓T
ACKNOWLEDGEMENT
This instrument was acknowledged before me on thed dray of December, 2000, by 57�V
&'h6 -a- , the F/.ffY 7 of FIDELITY CORPORATE REAL ESTATE, INC.,
Authorized Agent for FMR CORP., Sole Member, of FIDELITY CORPORATE REAL ESTATE,
L.L.C., the General Partner of FMR TEXAS LIMI PARTNERSH a Massachusetts limited
partnership.
� 11/.r�d'l%�.
NOTARY PUBLIC, STATE OF MASSACHUSETTS
5
013644.0000 DALLAS 413223 vl