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HomeMy WebLinkAboutResolution 23-58 EDC Villaggio Residential Development with ExhibitsTOWN OF WESTLAKE RESOLUTION NO.23-58 A RESOLUTION BY THE TOWN COUNCIL OF THE TOWN OF WESTLAKE, TEXAS, APPROVING A DEVELOPMENT AGREEMENT FOR SUBDIVISION IMPROVEMENTS AND AN ECONOMIC DEVELOPMENT AGREEMENT WITH WESTLAKE RE DEVELOPMENT PARTNERS INC., FOR THE VILLAGGIO RESIDENTIAL DEVELOPMENT (PD9 ZONING DISTRICT), AND AUTHORIZING THE TOWN MANAGER TO EXECUTE THE AGREEMENT. WHEREAS, the concept/development plan for the PD9 zoning district was approved by the Town Council by Ordinance 965 on February 27, 2023; and, WHEREAS, the Town is a duly created and validly existing Type A General Law Municipality, created under the laws of the State of Texas, including particularly, but not by way of limitation, Chapter 51, Texas Local Government Code ("LGC"); and WHEREAS, the Town of Westlake is experiencing planned growth through the attraction of economic development projects such as Fidelity Investments, Deloitte University, and Charles Schwab, residential developments such as Vaquero, Glenwyck Farms, Terra Bella, Granada, Entrada, the Knolls at Solana and Westlake Ranch/Aspen Estates, which are consistent with the Town's Comprehensive Plan, as well as enrollment growth at Westlake Academy, all of which contribute to demand for improvements to Westlake's infrastructure and public buildings: and, WHEREAS, the Town of Westlake (Town) and Westlake RE Development Partners, Inc. (the Owner) desire to enter into a partnership to continue this planned growth through an Economic Development Agreement, which sets out certain responsibilities for the Owner and the Town as it relates to the development in Westlake; and, WHEREAS, the Economic Development Policy and the Tax Abatement Policy constitute appropriate guidelines and criteria governing economic development agreements to be entered into by the Town as contemplated by Chapter 378 and Chapter 380 of the LGC and Chapter 312 of the Tax Code, providing for the availability of economic incentives for new facilities and structures; and WHEREAS, Westlake RE Development Partners, Inc., as the owner of land located within the Town, intends to develop 34.798 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 Constitution and laws of the State of Texas, including, but not by way of limitation, Chapter 378 and Chapter 380 of the LGC, Chapter 312 of the Tax Code and the Texas Constitution, authorize the Town to enter into economic development agreements; and 30; and WHEREAS, the Town has an economic development policy adopted by Resolution 16- Resolution 23-58 Page I of 4 WHEREAS, the Town of Westlake (Town) and Westlake RE Development Partners, Inc. (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, 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: Tbat, ail 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 Economic Development Agreement attached hereto as Exhibit "A", and the Development Agreement for Subdivision Improvements attached hereto as Exhibit "B", 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 provision ns hereof and the Council hereby determines that it would have adopted this Resolution without the invalid provision. SECTION 4: That this resolution shall become effective from and after its date of passage. PASSED AND APPROVED ON THIS 25TH DAY OF SEPTEMBER 2023 ATTEST: 11 Amy Piukana, Town Secretary Sean Kilbride, Mayor Resolution 23-58 Page 2 of 4 L. Stanton Lowry, Town Attorney Resolution 23.58 Page 3 of 4 EXHIBITS EXHIBIT A ECONOMIC DEVELOPMENT AGREEMENT EXHIBIT B DEVELOPMENT AGREEMENT FOR SUBDIVISION IMPROVEMENTS Resolution 23-58 Page 4 of 4 Exhibit "A" ECONOMIC DEVELOPMENT PROGRAM AGREEMENT This ECONOMIC DEVELOPMENT PROGRAM AGREEMENT ("Agreement') is entered into by and between the TOWN OF WESTLAKE, TEXAS (the "Town"), a Type- A general law municipal corporation organized under the laws of the State of Texas, and WESTLAKE RE DEVELOPMENT PARTNERS INC. (the "Owner"), for the purposes and considerations stated below. The Town and Owner are referred to from time to time as "Parties" herein. WHEREAS, the Town has established an economic development program as authorized by Resolution 16-30, adopted by the Town Council on August 22, 2016; and WHEREAS, in order to increase and enhance the local tax base and local economy in the Town, and to maximize the economic benefits of the Development (as defined below), Owner and/or one or more of its Affiliates has been permitted to sell lots for the construction of single- family residential homes on 34.798 acres within the Villaggio development. Section 1. RECITALS The Town and Owner hereby agree that the following statements are true and correct and constitute the basis upon which the Town and Owner have entered into this Agreement: A. The Town has concluded that this Agreement is authorized by Chapter 380 of the Texas Local Government Code, Article 1I1, Section 52(a) of the Texas Constitution and is authorized by Resolution No. 16-30, adopted by the Town Council on August 22, 2016, and hereby made a part of this Agreement for all purposes, in which the Town has established an Economic Development Incentive Policy and program pursuant to which the Town will, on a case -by -case basis, offer economic incentive packages that include monetary loans and grants of public money, as well as the provision of personnel and services of the Town, to businesses and entities that the Town Council determines will promote local economic development and stimulate business and commercial activity in the Town in return for verifiable commitments from such businesses or entities to cause specific infrastructure, employment and other public benefits to be made or invested in the Town (the "380 Program"). B. Owner and/or one or more of its Affiliates is the owner of an approximately 37.514 acre residential properly located at the southwest comer of Pearson Lane and Dove Road to include primarily single family residential uses (the "Development"). C. The Town Council finds and determines that the Development will promote economic development and stimulate business and commercial activity consistent Resolution 23-58, Exhibit "A" Villaggio - Economic Development Agreement Page 1 of 10 with the 380 Program, and that the Development will significantly expand the local tax base, enhance the local economy, and provide positive growth. NOW, THEREFORE, in consideration of the mutual benefits and promises contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: Section 2. DEFINITIONS In addition to 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 Westlake RE Development Partners Inc. Affiliate shall mean all entities, incorporated or otherwise, under common control with, controlled by or controlling the Developer and/or Owner. 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 Villaggio (PD9) Concept/Development Plan, approved by the Town of Westlake Town Council on February 27, 2023 by Ordinance 965. Owner shall mean the property owner and developer of the development, and its Affiliates or assigns. 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. Section 3. AGREEMENT - INCORPORATION OF RECITLUS The Town Council has found at a duly -called and legally -noticed public meeting through the adoption of Town Resolution No. 16-30, and hereby made a part of this Agreement for all purposes, and the Town and Owner and its Affiliates hereby agree, that the recitals set forth above are incorporated herein and true and correct and form the basis upon which the Parties have entered into this Agreement. Section 4. TERM This Agreement shall be effective from the latest date of execution by the Parties (the "Effective Date") and shall remain in force for the duration of the term of the Agreement as defined herein unless terminated earlier in accordance with this Agreement. The term of this Agreement shall not Resolution 23-58, Exhibit "A" Villaggio -Economic Development Agreement Page 2 of 10 be considered complete until: A. The Villaggio Development Agreement for subdivision improvements has been completed. B. Issuance by the Town of a Letter of Final Acceptance of the publicly dedicated improvements. C. The payment of $15,000 by the Owner to the Town of Westlake for Westlake Academy for every residential lot in the Development as shown on its final recorded plat, which shall be paid prior to the recording of the final plat for the Development. D. All Owner Obligations under this Agreement, Development Agreement and the Ordinance approving the development must have been met. Section 5. TOWN'S AND OWNER'S OBLIGATIONS AND COMMITMENTS A. Owner's Specific Obligations. Owner and/or one or more of its Affiliates will provide for sale from the Development residential lots for the construction of single family homes with a net minimum aggregate taxable value of $60 (sixty) million. 1. Park Land Dedication and Public Open Space. The dedication of one acre of park land is required for every thirty residential lots. Additionally, the development contains open space areas that are indicated as open space on the Town comprehensive plan — land use plan, which will not be publicly accessible. Therefore, the park land dedication requirement, and the requirement that open space areas, as shown on the comprehensive plan - land use plan, be publicly accessible is hereby waived by this agreement pursuant to the terms of Chapter 82 in the Westlake Code of Ordinances, and, instead, is satisfied by the payment terms of Section 4(C) as described herein. 2. Maintenance of Improvements. Notwithstanding other requirements stated herein or any other official development documentation, the Owner and/or HOA shall perpetually maintain all streets, storm drains, ponds, amenities as identified in the approving zoning ordinance, parkland and public trails, and lighting, irrigation and landscape maintenance within the Pearson and Dove Road right-of-way adjacent to the perimeter of the development as depicted on the approved Concept/Development Plan contained in Ordinance 965. Section 6. DEFAULT, TERMINATION AND FAILURE BY OWNER TO MEET VARIOUS DEADLINES AND COMMITMENTS A. Failure to Pay Town Taxes or Fees An event of default shall occur under this Agreement if during the term hereof any Resolution 23-58, Exhibit "A" Villaggio - Economic Development Agreement Page 3 of 10 legally -imposed Town taxes or fees owed on, or generated by, the Owner or one of its Affiliates with regard to the Development become delinquent and Owner 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 Owner in writing and Owner 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 Owner and shall have all other rights and remedies that may be available to it under the law or in equity. B. 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 Owner 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 Owner 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 Owner in writing and Owner shall have (i) thirty (30) calendar days to cure such default or (ii) if Owner 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 Owner and shall have all other rights and remedies that may be available to under the law or in equity. C. General Breach Unless stated elsewhere in this Agreement, Owner shall be in default under this Agreement if Owner 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 Owner 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 Resolution 2;-58, Exhibit "A" Villaggio - Economic Development Agreement Page 4 of 10 by both Parties mutually and in good faith), the Town shall have the right to terminate this Agreement immediately by providing written notice to Owner. D. Effect of Breach The Town shall have no obligation to make the payment set forth in Section 5.1, above, during the pendency of any default by Owner hereunder and, in the event of the Town's termination of this Agreement for default prior to the Owners satisfaction of its obligations under Section 5.1, shall be relieved from making such payment The Town shall have no right to compel or carry out any required performance of Owner hereunder, nor shall the Town have any rights in the Development as a consequence hereof, and both parties specifically disclaim any right to consequential, indirect or punitive damages. Section 7. NO SERVANT, CONTRACTOR OR AGENCY RELATIONSHIP It is expressly understood and agreed that Owner shall not operate as a servant; contractor agent, representative or employee of the Town. Owner shall have the exclusive right to control all details and day -today 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. Owner acknowledges that the doctrine of respondeat superior will not apply as between the Town and Owner, or Town's officers, agents, servants, employees, contractors, subcontractors, licensees and invitees, Owner further agrees that nothing in this Agreement will be construed as the creation of a partnership or joint enterprise between the Town and Owner. Section 8. INDEMNIFICATION OWNER, 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 OWNER'S BUSINESS AND ANY RESULTING LOST PROFITS) AND/OR PERSONAL INJURY, INCLUDING DEATH, THAT RELATE TO, ARISE OUT OF OR ARE OCCASIONED BY (i) OWNERS'S BREACH OF ANY OF THE TERMS OR PROVISIONS OF THIS AGREEMENT; OR (ii) ANY GROSS NEGLIGENT ACT OR OMISSION OR INTENTIONAL MISCONDUCT OF OWNER, ITS OFFICERS, AGENTS, ASSOCIATES, EMPLOYEES, CONTRACTORS Resolution 23-58, Exhibit "A" Villaggio - Economic Development Agreement Page 5 of 10 (OTHER THAN THE TOWN, OR ITS EMPLOYEES, OFFICERS, AGENTS, ASSOCIATES, CONTRACTORS OR SUBCONONTRACTORS), OR SUBCONTRACTORS ARISING OUT OF OWNER'S PERFORMANCE OF, OR FAILURE TO PERFORM, OWNER'S OBLIGATIONS OF THIS AGREEMENT. NOTWITHSTANDING THE FOREGOING, NOTHING IN THIS SECTION 8 SHALL REQUIRE OWNER 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. Section 9. 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, either by certified mail, postage prepaid, reputable overnight delivery service, or by hand delivery: Town; Town of Westlake Attn: Town Manager 1500 Solana Blvd. Building 7, Suite 7200 Westlake, TX 76262 With Copies to: Boyle & Lowry, L.L.P. Attn: L. Stanton Lowry 4201 Wingren Drive, Suite 108 Irving, TX 75062 Owner: Westlake RE Development Partners Inc. Attn: Eason Maykus P.O. Box 92747 Southlake, TX 76092 With Copies to: Gunter Law Firm, PLLC Attn: Rob Gunter 250 Miron Drive, Suite 120 Southlake, TX 76092 Section 10. ASSIGNMENT AND SUCCESSORS Owner may at any time after 120 (one -hundred twenty) calendar days following the Effective Date transfer or otherwise convey all of its rights and obligations under this Agreement to any successor owner of the Development, provided that in the event that Owner transfers more than fifty percent (50%) of the Development prior to fulfillment of the public infrastructure improvements and Owner's responsibilities identified in the Development Agreement and intends for its successor to carry out or complete construction of the improvements, the Town's consent to such transfer may be conditioned on the Town's receipt of reasonable evidence that such successor has the financial capacity to complete Owner's requirements under Development Agreement for the Development. Subject to the foregoing limitations, any lawful successor and assignee of rights and obligations under this Agreement shall be deemed an "Owner" for all purposes under this Resolution 23-58, Exhibit "A" Villaggio - Economic Development Agreement Page 6 of 10 Agreement with respect to the portion of the Development conveyed to such successor. In the event of any conveyance and assignment by Owner of one or more, but not all, tracts contained in the Development, the parties acknowledge that the rights and obligations of Owner's successor shall apply only to the tracts transferred to such successor, and that such successor shall not be liable to the Town for the rights or obligations of the Owner or any other tract. Upon the request of anv such successor, the Town shall execute a recordable instrument evidencing such severance of the rights and obligations hereunder. Section 11. 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. Section 12. GOVERNMENTAL POWERS It is understood that by execution of this Agreement, the Town does not waive or surrender any of its governmental powers or immunities that are outside of the terms, obligations, and conditions of this Agreement. Section 13. 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. Section 14. 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. Section 15. NO THIRD -PARTY RIGHTS The provisions and conditions of this Agreement are solely for the benefit of the Town and Owner, and any lawful assign or successor of Owner, and are not intended to create any rights, contractual or otherwise, to any other person or entity. Section 16. FORCE MAJEURE Resolution 23-58, Exhibit "A" Villaggio - Economic Development Agreement Page 7 of 10 It is expressly understood and agreed by the Parties to this Agreement that if the performance of any obligation hereunder, other than those obligations contained in Section 5 of this Agreement, 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. Section 17. 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. Section 18. 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. Section 19. CAPTIONS Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. Section 20. ENTIRETY OF AGREEMENT This Agreement, including any exhibits attached hereto and any documents incorporated herein by reference and the Development Agreement contains the entire understanding and agreement between the Town and Owner, and any lawful assign and successor of Owner, as to the matters contained herein. Any prior or contemporaneous oral or written agreement is hereby declared 'null and void to the extent in conflict with any provision of this Agreement. Notwithstanding anything Resolution 23-58, Exhibit "A" Villaggio - Economic Development Agreement Page 8 of 10 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. Section 21. 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. Resolution 23-58, Exhibit "A" Villaggio - Economic Development Agreement Page 9 of 10 EXECUTED as of the last date indicated below: TOWN OF WESTLAKE M Wade Carroll Town Manager � Date:___________ WESIL AKE RE DEVELOPMENT PARTNERS INC. By: L Eason Maykus President Date: APPROVED AS TO FORM AND LEGALITY: ABy - ---- L Stanton Lorw.ry Town Attorney Resolution 23-58, Exhibit "A" Villaggio -Economic Development Agreement Page 10 of 10 Exhibit "B" DEVELOPMENT AGREEMENT FOR SUBDIVISION IMPROVEMENTS — VILLAGGIO This Agreement is entered into by and between the Town of Westlake, Texas, hereinafter referred to as the "Town", and the undersigned Developer, Westlake RE Development Partners, Inc., hereinafter referred to as the "Developer", as Developer of VILLAGGIO, 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 depicted in Ordinance 965, Exhibit A. NOW, THEREFORE, in consideration ofthe 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 Westlake RE Development Partners, Inc.. Developer shall mean the Developer and/or its Affiliates or assigns. Development shall _mean the single family detached residential development depicted on Ordinance 965, Exhibit A. 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 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 famishing 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. Resolution 23-58, Exhibit'B" Villaggio - Development Agreement for Subdivision Improvements Page I of 13 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. 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 thirty (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. 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. 9. Before the Town accepts the Improvements, Developer shall furnish to the Town reproducible "as constructed" drawings, certified accurate by the town engineer. Resolution 23-58, Exhibit B" Villaggio - Development Agreement for Subdivision Improvements Page 2 of 13 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 clear 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. Prior to the final acceptance of Development Improvements by the Town, the Developer shall submit the following for final approval by the Town Council: 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; homebuilder requirements and obligations; architectural design guidelines as described in Ordinance 965; and cluster mailbox designs and locations if applicable. Said items shall be approved by the Town Council prior the release of any building permits for the Development. 13. 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. 14. Construction, grading and/or clearing activities shall not commence until a notice to proceed is issued by the Town Manager or designee. 15. 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. 16. 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. 17. Regarding vehicle entry gates, the developer hereby agrees to install and maintain technology and/or remote monitoring services that can determine vehicle stacking Resolution 23-58, Exhibit "B" Villaggio - Development Agreement for Subdivision Improvements Page 3 of 13 onto Pearson Lane and quickly and automatically move traffic through the gates to minimize stacking onto Pearson Lane. Final installation shall be reviewed and approved by the town manager, or designee, for compliance prior to the final acceptance of public improvements. 18. The developer agrees to construct a pedestrian crosswalk across Pearson Lane linking the development to the existing trail on the east side of Pearson Lane. The crosswalk dimensions and specifications shall be approved and inspected by the town engineer prior to the final acceptance of public improvements. C. UTILITIES 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 platted lots within 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 platted lots within 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 platted lots within the Development in accordance with the plans and specifications to be 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. 5. Per the requirements of the Towm's Code of Ordinances, the developer agrees to bury all utilities serving the development. Furthermore, all existing overhead utilities within, and adjacent to, the development shall be buried per the provisions contained within the Town's Code of Ordinances prior to the final acceptance of public improvements. Resolution 23-58, Exhibit "B' Villaggio - Development Agreement for Subdivision Improvements Page 4 of 13 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; and 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 965 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 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. Resolution 23-58, Fxhibit "B" Villaggio - Development Agreement for Subdivision Improvements Page 5 of 13 1. Failure to Pay Town Taxes or Fees An event of default shall occur under this Agreement if during the term hereof and after the expiration of any applicable notice and cure period 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: (i) pay such taxes and any associated penalties within sixty (60) days of receipt of notification of such delinquency; or (ii) has not commenced the legal procedures for protest and/or contest of any such taxes within sixty (60) days of receipt of notification of such delinquency. If the default has not been cured by such time, the Town shall have the right to terminate this Agreement by providing ten (10) days 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 and after the expiration of any applicable notice and cure period 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: (i) paid before it is delinquent; or (ii) the recipient of such citation does not properly follow the legal procedures for protest and/or contest of any such citation within the deadlines set forth in said 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 as determined by both parties mutually and in good faith 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 with ten (10) days notice 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. 3. General Breach Unless stated elsewhere in this Agreement, the Developer shall be in default under this Agreement if the Developer breaches any material term or condition of this Resolution 23-58, Exhibit `B" Villaggio - Development Ageereemeni for Subdivision Improvements Page 6 of 13 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 with ten (10) days notice 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 ANYAND 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) ANYACT 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 OR RELATED TO, FROM, OR ARISING FROM THE OPERATION AND CONDUCT OF ITS OPERATIONS AND OBLIGATIONS OR OTHERWISE TO THE PERFORMANCE OF THISAGREEMENT. NOTWITHSTANDING THE FOREGOING, NOTHING IN THIS SECTION SHALL REQUIRE Resolution 23-58, Exhibit `B" Villaggio- Development Agreement for Subdivision Improvements Page 7 of 13 DEVELOPER TO INDEMNIFY OR DEFEND FOR ANY CLAIMS ARISING OUT OF THENEGLIGENCE 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 BEA RELEASE OF THE RESPONSIBILITY AND LLABILITY OF THE DEVELOPER, ITS EVGINEER, CONTRACTORS, EMPLOYEES, OFFICERS, OR AGENTS FOR THE ACCURACY AND COMPETENCY OF THEIR DESIGNAND SPECIFICATIONS. SUCHAPPROVAL 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 OFTHEPARTIES THATAPPROVAL BYTHE TOWNENGINEER 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 BROUGHTAGAINSTANYTOWNINDEMNIFIEDPERSON, ONACCOUNT 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. NOTWITHSTANDING THE FOREGOING, NOTHING IN THIS SECTION SHALL REQUIRE DEVELOPER TO INDEMNIFY OR DEFEND FOR ANY CLAIMS ARISING OUT OF THE NEGLIGENCE OR WILLFUL MISCONDUCT OF THE TOWN ENGINEER OR ANY TOWN Resolution 23-58, Exhibit `B" Villaggio - Development Agreement for Subdivision Improvements Page 8 of 13 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, reputable overnight delivery service, or by hand delivery: If to Developer: Westlake RE Development Partners, Inc. Attn: Eason Maykus P.O. Box 92747 Southlake, TX 76092 With a copy to: Gunter Law Firm, PLLC Attn: Rob Gunter 250 Miron Drive, Suite 120 Southlake, TX 76092 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 WingrenDr., Suite 108 Irving, Texas 75062 K. ASSIGNMENT AND SUCCESSORS 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. Any lawful assignee or successor in interest of Developer of all rights and obligations under this Agreement shall be deemed 'Developer' for all purposes under this Agreement. 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 Resolution 23-58, Exhibit `B" Villaggio - Development Agreement for Subdivision Improvements Page 9 of 13 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. h��i0>•t�i al\��1�17 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_ 1��C071Y:U ���T�II'�:�[e3MiF 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. 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 ofwhether 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. IL 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. Resolution 23-58, Exhibit `B" Villaggio - Development Agreement for Subdivision Improvements Page 10 of 13 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 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. SIGNED AND EFFECTIVE on the date last set forth below_ elopment Partners, Inc. Resolution 23-58, Exhibit `B" Villaggio - Development Agreement for Subdivision Improvements STATE OF TEXAS COUNTY OF TARRANT On SEA W2 22,E 2Z before me, S AL.Iafe-t5 , Notary Public, personally appeared Eason Maykus, President of Westlake RE Development Partners, Inc., who acknowledged to me that he executed this Agreement for the purposes and consideration therein expressed. CAMELLIASCHWARZE My Nofary ID # 12372M Egires Dewdw 5, 2025 WITNESS my hand and official seal. (SEAL) - Notary Public My commission expires:' L6C6 1 AT-,-Z S, 2d2S Resolution 23-58, Exhibit B Villaggio - Development Agreement for Subdivision Improvements Page 12 of I3 STATE OF TEXAS COUNTY OF TARRANT On 5EP t' Em 862 27,2.d2-& before me, ('A.,, a L-L.* Notary Public, personally appeared Eason Maykus, President of Westlake RE Development Partners, Inc., who acknowledged to me that he executed this Agreement for the purposes and consideration therein expressed. CAMELLIASCHWAM .�•. My Notary ID # i2372M Eores December 5, 2025 WITNESS my hand and offic 4 seal. (SEAL.) - Notary Public My commission expires: —C613 M 31---2 Resolution 23-58, Exhibit "B" Villaggio - Development Agreement for Subdivision improvements Page 12 of 13 TOWN OF WESTLAKE, TEXAS Wade Carroll, Town Manager ATTEST: at a%%I Amy Piukana, Town Secretary Stan owry, own Attorney 10/5/23 Date: Resolution 23-58, Exhibit B" Villaggio - Development Agreement for Subdivision Improvements Page B of B