development agreement with the city of san …...north east crossing developmen, agreement 08/08/02...

DEVELOPMENT AGREEMENT WITH THE CITY OF SAN ANTONIO, TEXAS and NEIGHBORHOOD REVITALIZATION INITIATIVE, LTD., and

BOARD OF DIRECTORS OF REINVESTMENT ZONE NUMBER FIFTEEN, CITY OF SAN ANTONIO, TEXAS

Au~~Si S ,2002

This Development Agreement, pursuant to Ordinance No. '\ t. \ '1 '1 , passed and approved on

August 8, 2002, is entered into by and between the CITY OF SAN ANTONIO, a Texas

municipal corporation of Bexar County, Texas (hereinafter called "CITY");

NEIGHBORHOOD REVITALIZATION INITIATIVE, LTD., a Texas limited partnership,

(hereinafter referred to as "DEVELOPER; and BOARD OF DIRECTORS OF

REINVESTMENT ZONE NUMBER FIFTEEN, CITY OF SAN ANTONIO, TEXAS, a tax

increment financing zone (hereinafter called "BOARD");

WITNESSETH:

WHEREAS, CITY recognizes the importance of its continued role in economic development; and

WHEREAS, by Ordinance Number 95930, dated June 13, 2002, pursuant to Chapter 311 of the Texas Tax Code (as amended), CITY created Reinvestment Zone Number Fifteen ("Zone") in accordance with the Tax Increment Financing Act, as amended (Chapter 311 of the Texas Tax Code, Vernon's Texas Codes Annotated, hereinafter called the "Act"), established a board of directors for Zone, to promote development and redevelopment of the Zone Property through the use of tax increment financing, which development and redevelopment would not otherwise occur solely through private investment in the reasonably foreseeable future; and

WHEREAS, Section 311.002 ( 1) of the Act authorizes the expenditure of funds derived within a reinvestment zone, whether from bond proceeds or other funds, for the payment of expenditures made or estimated to be made and monetary obligations incurred or estimated to be incurred by a municipality establishing a reinvestment zone, for costs of public works or public improvements in the zone, plus other costs incidental to those expenditures and obligations, consistent with the project plan of the reinvestment zone, which expenditures and monetary obligations constitute project costs, as defined in Section 311.002 (1) of the Act ("Project Costs"); and

WHEREAS, on July 1, 2002, by a Board Resolution, BOARD adopted and approved a final Project Plan and a final Financing Plan defined hereunder and referred to herein as "Project Plan" and "Financing Plan" providing for development of the Zone Property; and

WHEREAS, CITY approved the Project Plan and Financing Plan for the Zone by Ordinance

North East Crossing Development Agreement 08/08/02

Number ___ , on August 8, 2002; and

WHEREAS, pursuant to the Act (as amended) and City of San Antonio Ordinance Number 95930, dated June 13, 2002, BOARD has authority to enter into agreements as BOARD considers necessary or convenient to implement the Project Plan and Financing Plan and to achieve the purposes of developing the Zone Property; and

WHEREAS, pursuant to said authority above, BOARD hereby enters into a binding agreement with CITY and DEVELOPER for DEVELOPER to develop the Zone Property as specified in the Project Plan, Financing Plan and in this Agreement; and

WHEREAS, CITY, by Ordinance Number , dated August 8, 2002, authorized the City Manager of the City of San Antonio or her designated representative to execute this Agreement on behalf of CITY, to bind CITY to the terms and conditions of this Agreement;

NOW, THEREFORE, in consideration of the mutual promises, covenants, obligations, and benefits contained in this Agreement, CITY, BOARD, and DEVELOPER hereby agree as follows:

I. DEFINITIONS

1.1 "CITY", "BOARD", and "DEVELOPER" shall have the meanings specified above.

1.2 "Act" shall mean the Tax Increment Financing Act, as defined above and as may be amended from time to time.

1.3 "Agreement" shall mean this document by and between CITY, BOARD and DEVELOPER, which may be amended from time to time, pursuant to the provisions contained herein.

1.4 "Available Tax Increment Funds" shall mean the "Tax Increment" as defined in the Texas Tax Code, Section 311.012 (a), less the administrative costs of the Participating Taxing Entity for organizing and/or managing the Zone;

1.5 "Certificate of Completion" shall mean a written acknowledgement by CITY that public improvements were constructed as specified in the Project Plan, Financing Plan and this Agreement, and that said improvements comply with all CITY codes and published standards for the particular type of improvement in question.

1.6 "City Manager" shall mean the City Manager of CITY or her designee.

1. 7 "Completion" shall mean constructing a public improvement in the Zone substantially in accordance with the Project Plan, Financing Plan and this Agreement so that the particular improvement can be used and maintained for its intended purpose, as certified by an engineer or other official of CITY with responsibility for inspecting and certifying such improvements.

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1.8 "Contract Progress Payment Request" shall mean a request for payment due to DEVELOPER for successfully completed work on a specific improvement in the Zone, accompanied by customary documentation including the name and address of the entity that performed the work, a description of the contract pursuant to which the payment is made, the amount of such payment, the original contract amount, total payments made to date on such contract, an estimate of remaining work to be completed on the specific improvement, the cost of such work, and any customary lien and/or subcontractor releases.

1.9 "Construction Schedule" shall mean the timetable for constructing the improvements specified in the Project Plan, Financing Plan and in this Agreement as may be amended for the Zone, more particularly set forth in Exhibit C, attached hereto and incorporated herein for all purposes.

1.10 "Effective Date" shall mean the tenth (1oth) day after passage by City Council of the Ordinance authorizing the execution of this Agreement by CITY.

1.11 "Financing Plan" shall mean the final financing plan as defined in the Act, as approved and as may be amended from time to time by BOARD and CITY.

1.12 "Guidelines" shall have the meaning specified below.

1.13 "Phase" shall mean a portion of the Project that is being constructed by Developer normally being a set number of units and acres out of the Zone Property being constructed together during a specific timeline.

1.14 "Participating Taxing Entity" shall mean any governmental entity recognized as such by Texas law, participating in this Project.

1.15 "Project" shall have the meaning specified in Paragraph 3.1 of this Agreement, and as more specifically detailed in the Project Plan and Financing Plan as (either or both) may be amended from to time.

1.16 "Project Cost" shall have the meaning specified above.

1.17 "Project Plan" shall mean the final Project Plan as defined in the Act, as approved and as may be amended from time to time by BOARD and CITY.

1.18 "Public Infrastructure Improvements" shall have the meaning specified in Paragraph 3.2 of this Agreement, and as more specifically detailed in Exhibit B attached hereto and incorporated herein for all purposes, the Project Plan and Financing Plan as (either or both) may be amended from time to time.

1.19 "Zone" shall have the meaning specified above.

1.20 "Zone Property " shall mean the real property subject to the Project Plan and Financing Plan, which is more particularly described in Exhibit A, attached hereto and incorporated for all

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purposes.

Singular and Plural: Words used herein in the singular, where the context so permits, also includes the plural and vice versa, unless otherwise specified.

II. REPRESENTATIONS

2.1 NO INCREMENT REVENUE BONDS: CITY, BOARD and DEVELOPER represent that they understand and agree that neither CITY nor BOARD shall issue any tax increment revenue bonds to cover any costs directly or indirectly related to DEVELOPER's improvement of the Zone under this Agreement.

2.2 CITY represents to DEVELOPER that as of the date hereof CITY is a home rule municipality located in Bexar County, Texas and has authority to carry out the obligations contemplated by this Agreement.

2.3 BOARD represents to DEVELOPER that as of the date hereof that the Zone is a tax increment reinvestment zone established by CITY pursuant to Ordinance Number 95930, passed and approved on June 13, 2002, and that BOARD has authority to carry on the functions and operations contemplated by this Agreement.

2.4 DEVELOPER represents to CITY and to BOARD that DEVELOPER is a limited partnership duly formed in the State of Texas and is in good standing under the laws of the State of Texas; that DEVELOPER has the authority to enter into this Agreement and to perform the requirements of this Agreement; that DEVELOPER's performance under this Agreement shall not violate any applicable judgment, order, law or regulation; that DEVELOPER's performance under this Agreement shall not result in the creation of any claim against CITY for money or performance, any lien, charge, encumbrance or security interest upon any asset of CITY or BOARD; that DEVELOPER shall have sufficient capital to perform all of its obligations under this Agreement when it needs to have said capital; and that DEVELOPER owns the Zone Property.

2.5 CITY, BOARD, and DEVELOPER represent to each other that the execution, delivery, and performance of this Agreement on their part does not require consent or approval of any person that has not been obtained.

2.6 CITY, BOARD, and DEVELOPER represent to each other that to the extent that such funds are available, CITY and BOARD shall use only Available Tax Increment Funds to pay DEVELOPER up to a maximum payment of twenty-four million, seventy-three thousand, four hundred sixteen dollars ($24,073,416.00) for infrastructure improvements, plus applicable qualifying Project Costs, if any, not to exceed seven million, three hundred seventy-eight thousand, seven hundred forty-eight dollars ($7,378,748.00), up to a maximum total payment of thirty-one million, four hundred fifty-two thousand, one hundred sixty-five dollars ($31 ,452,165 .00) as full compensation for designing and constructing the Public Infrastructure Improvements required under the Project Plan, Financing Plan and this Agreement, pursuant to Article VI, Compensation to Developer.

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2.7 CITY, BOARD, and DEVELOPER represent to each other that each party shall make every reasonable effort to expedite the subject matters hereof and acknowledge that the successful performance of this Agreement requires their continued cooperation.

2.8 CITY, BOARD, and DEVELOPER represent that they understand and agree that even after the Zone terminates, DEVELOPER shall diligently work to successfully complete any and all required improvements that are not completed before Zone terminates. Such completion shall be at no additional cost to CITY, BOARD, or any other Participating Taxing Entity.

2.9 CITY, BOARD, and DEVELOPER represent that they understand and agree that this Agreement shall have no force or effect unless and until the applicable Interlocal Agreement for the Project is executed between CITY, the Participating Taxing Entity and BOARD.

2.10 DEVELOPER represents that it understands that any contributions made by DEVELOPER in anticipation of reimbursement from tax increments shall not be, nor construed to be, financial obligations of CITY, other Participating Taxing Entity, or BOARD. DEVELOPER shall bear all risks associated with reimbursement, including, but not limited to: incorrect estimates of tax increment, changes in tax rates or tax collections, changes in state law or interpretations thereof, changes in market or economic conditions impacting the project, changes in interest rates or capital markets, changes in development code requirements, default by tenants, unanticipated effects covered under the legal doctrine ofjorce majeure, and/or other unanticipated factors.

III. THE PROJECT

3.1 The Project. The Project shall constitute and include the design, construction, assembly, installation and implementation of an urban residential development with single-family homes, streets and approaches, drainage system, sewer system, water system, sidewalks, street lights, traffic signal devices and park improvements to be constructed by DEVELOPER on approximately 394.824 acres out of the Zone Property, also known as the Northeast Crossing Subdivision.

3.2 The Public Infrastructure Improvements. The Public Infrastructure Improvements shall consist of the following items: street excavation and installation, curbing, sidewalks, street lighting, traffic signal devices, storm sewers, drainage detention, utilities, landscaping and other public improvements. The Public Infrastructure Improvements are more particularly set forth in Exhibit B.

3.3 Construction of Public Infrastructure Improvements. Public Infrastructure Improvements financed through Available Tax Increment Funds shall be publicly bid in compliance with Chapter 252 of the Local Government Code, use prevailing wages, and be constructed by DEVELOPER, in compliance with all applicable law unless: (1) Available Tax Increment Funds go toward financing 30 percent or less of the cost for a specific public improvement, in compliance with Chapter 212 of the Local Government Code; and (2) such public improvement is not a building of any sort. The parties hereto acknowledge that

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DEVELOPER has started construction of Public Infrastructure Improvements in the initial Phases of the Project without publicly bidding the Public Infrastructure Improvements, and shall request reimbursement not to exceed thirty (30%) percent of the Project Costs associated with said non-publicly bidded Public Infrastructure Improvements. Should DEVELOPER not publicly bid additional Public Infrastructure Improvements, DEVELOPER must obtain written approval by CITY in order to be eligible for reimbursement of those Project Costs not publicly bid pursuant to the 30% regulations set forth in Chapters 252 and 212 of the Local Government Code.

3.4 Financing. The cost of the Public Infrastructure Improvements and all other improvement expenses associated with the Project shall be through the use of DEVELOPER's own capital or through commercial or private construction loans/lines of credit secured solely by DEVELOPER. DEVELOPER may use any or part of the Zone Property as collateral for the construction loan or loans as required for the financing of the Project, however, no property with a lien still attached may be offered to CITY for dedication. CITY and BOARD pledge to use Available Tax Increment Funds, up to the maximum amount provided herein to reimburse DEVELOPER for constructing the Project. THESE AVAILABLE TAX INCREMENT FUNDS PAYMENTS TO DEVELOPER ARE NOT INTENDED TO REIMBURSE DEVELOPER FOR ALL OF ITS COSTS INCURRED IN CONNECTION WITH PERFORMING ITS OBLIGATIONS UNDER THIS AGREEMENT.

3.5 Reimbursement. The parties hereto agree that neither CITY nor BOARD can guarantee that those Available Tax Increment Funds shall completely reimburse DEVELOPER, but that those Available Tax Increment Funds shall constitute the total reimbursement to DEVELOPER for the construction of the Public Infrastructure Improvements.

IV. DUTIES AND OBLIGATIONS OF DEVELOPER

4.1 DEVELOPER shall comply with all applicable provisions of the Tax Increment Financing (TIF) and Reinvestment Zone Guidelines and Criteria ("Guidelines") as passed and approved by City Council of the City of San Antonio, in effect at the time of the creation of the Zone. In the event of a conflict between the Guidelines and this Agreement, the terms of this Agreement shall control.

4.2 Subject to Article VI. Compensation to Developer, DEVELOPER agrees to complete, or cause to be completed, the improvements described in the Project Plan, Financing Plan and in this Agreement. DEVELOPER agrees to provide, or cause to be provided, all materials, labor, and services for completing the Project. DEVELOPER also agrees to obtain or cause to be obtained, all necessary permits and approvals from CITY and/or all other governmental agencies having jurisdiction over the construction of improvements to the Zone Property.

4.3 DEVELOPER shall prepare, or cause to be prepared plans and specifications for the Public Infrastructure Improvements in a Phase prior to starting any construction in said Phase. Furthermore, DEVELOPER shall not commence any construction on the Project until the plans and specifications for a Phase have been approved in writing by the appropriate department of

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CITY and BOARD.

4.4 DEVELOPER shall, prior to beginning construction on any Phase of the Project, cause its general contractor or general contractors to obtain a payment and performance bond in an amount sufficient to cover completion of the Public Infrastructure Improvements in their respective contracts. DEVELOPER shall obtain said bond in the event the general contractor or general contractors fail to procure said bond.

4.5 DEVELOPER agrees to supervise the construction of the Project and cause the construction to be performed substantially in accordance with the Project Plan, Financing Plan and the plans and specifications approved by the appropriate department of CITY and BOARD. DEVELOPER also agrees to provide periodic reports of such construction to CITY and to BOARD upon reasonable request.

4.6 DEVELOPER shall be responsible for paying, or causing to be paid, to CITY and all other governmental agencies the cost of all applicable permit fees and licenses required for construction of the Project.

4.7 DEVELOPER agrees to commence and complete the Project in accordance with the Construction Schedule.

4.8 If substantial completion of the Project is delayed by reason of war, civil commotion, acts of God, inclement weather, governmental restrictions, regulations, fire or other casualty, court injunction, necessary condemnation proceedings, interference by third parties, or any circumstances reasonably beyond DEVELOPER's control, then at CITY's reasonable discretion, the period of each such delay shall extend the deadlines set forth in the Construction Schedule.

4.9 With respect to Public Infrastructure Improvements, DEVELOPER shall make a good faith effort to comply with CITY's policy regarding the participation of businesses enterprises eligible as Small, Minority or Women-owned Business Enterprises in subcontracting any of the construction work required to be performed under the Project Plan, Financing Plan or this Agreement. Upon DEVELOPER's request, CITY shall provide DEVELOPER a list of those business enterprises certified by CITY as eligible Small, Minority or Women-owned Business Enterprises. DEVELOPER shall maintain records showing (i) its contracts, supply agreements, and services agreements with and to business enterprises that are Small, Minority or Womenowned Business Enterprises, (ii) specify its efforts to identify and award contracts to business enterprises that are Small, Minority or Women-owned Business Enterprises, and (iii) provide reports of its efforts under this paragraph to CITY, in a form and manner CITY may reasonably prescribe, at least annually during construction of the Project and upon completion of the Project.

4.10 DEVELOPER shall comply with the tree preservation ordinance, City of San Antonio Ordinance No. 85262, passed and approved by the City Council of CITY on December 5, 1996.

4.11 DEVELOPER shall render, or cause to be rendered, any and all residential buildings and commercial buildings to the Bexar County Appraisal District before December 31 of each year of

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this Agreement if the buildings were completed prior to said December 31.

4.12 DEVELOPER shall, at its own cost and expense, maintain or cause to be maintained, the Public Infrastructure Improvements and all the other public improvements until acceptance by CITY, as evidenced by written acceptance by the appropriate CITY administrator, if any. After such acceptance, maintenance of the Public Infrastructure Improvements shall be the responsibility of CITY. DEVELOPER shall ensure that all such Public Infrastructure Improvements are open for use by the general public except for drainage retention improvements. DEVELOPER shall dedicate the Public Infrastructure Improvements to the appropriate Participating Taxing Entity (as determined by CITY), at no additional cost or expense to CITY or the Participating Taxing Entity within sixty (60) days after completion and acceptance of the improvements.

4.13 DEVELOPER shall pay monthly rates and charges for all utilities (such as water, electricity, and sewer services) used by DEVELOPER in regard to the development of the Zone Property for all areas owned by DEVELOPER during construction of the Project, and for so long as DEVELOPER owns those areas.

4.14 DEVELOPER shall cooperate with CITY and BOARD in providing all necessary information to CITY and to BOARD in order to assist CITY and BOARD in complying with this Agreement.

4.15 DEVELOPER shall accept only Available Tax Increment Funds, up to a maximum total payment of twenty-four million, seventy-three thousand, four hundred sixteen dollars ($24,073,416.00) for infrastructure improvements, plus applicable qualifYing Project Costs, if any, not to exceed seven million, three hundred seventy-eight thousand, seven hundred fortyeight dollars ($7,378,748.00), up to a maximum total payment of thirty-one million, four hundred fifty-two thousand, one hundred sixty-five dollars ($31,452,165.00) as full reimbursement to DEVELOPER for designing and constructing the Public Infrastructure Improvements required under the Project Plan, Financing Plan and this Agreement.

4.16 DEVELOPER shall submit written annual reports, starting no later than thirty (30) days following the end of the fiscal year in which the Zone was created, and thereafter through the duration of the Project, on its construction progress and construction expenses to CITY and BOARD.

4.17 DEVELOPER shall diligently work to successfully complete any and all required improvements that are not completed before the Zone terminates. Such completion shall be at no additional cost to CITY, BOARD, or any other Participating Taxing Entity.

4.18 DEVELOPER shall comply with the Standards for Development, attached hereto as Exhibit D and incorporated herein for all purposes.

4.19 DEVELOPER shall comply with the Development Targets, attached hereto as Exhibit E and incorporated herein for all purposes.

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4.20 DEVELOPER shall comply with Chapter 35-504 and Appendix F of the City of San Antonio Unified Development Code regarding the development of the Project.

4.21 DEVELOPER understands that no Available Tax Increment Funds will be paid to Developer until a master drainage plan of the Project has been received and approved by CITY.

V. DUTIES AND OBLIGATIONS OF CITY AND BOARD.

5.1 Neither CITY nor BOARD shall sell or issue any bonds to pay or reimburse DEVELOPER or any third party for any improvements to the Zone Property performed under the Project Plan, Financing Plan or under this Agreement.

5.2 To the extent that such funds are available, CITY and BOARD shall use only Available Tax Increment Funds to pay DEVELOPER up to a maximum payment of twenty-four million, seventy-three thousand, four hundred sixteen dollars ($24,073,416.00) for infrastructure improvements, plus applicable qualifying Project Costs, if any, not to exceed seven million, three hundred seventy-eight thousand, seven hundred forty-eight dollars ($7,378,748.00), up to a maximum total payment of thirty-one million, four hundred fifty-two thousand, one hundred sixty-five dollars ($31 ,452,165 .00) as full reimbursement for designing and constructing the improvements required under the Project Plan, Financing Plan and this Agreement.

5.3 CITY and BOARD hereby pledge all Available Tax Increment Funds attributable to DEVELOPER's improving the Zone Property as full reimbursement to DEVELOPER, up to the maximum total amount specified in this Agreement.

5.4 CITY and BOARD shall use their respective best efforts to cause the Participating Taxing Entity that levies real property taxes in Zone to levy and collect their ad valorem taxes due on the Zone Property and to contribute the Available Tax Increment Funds towards reimbursing DEVELOPER for the construction of the Public Infrastructure Improvements required under the Project Plan, Financing Plan and this Agreement.

5.5 CITY and BOARD shall use their respective best efforts to issue, or cause to be issued a Certificate of Completion for items satisfactorily brought to Completion by DEVELOPER in constructing this Project.

5.6 CITY and BOARD shall not unreasonably withhold approval on requests from DEVELOPER on matters under this Agreement.

VI. COMPENSATION TO DEVELOPER

6.1 In exchange for DEVELOPER's satisfactory Completion of the Public Infrastructure Improvements required under the Project Plan, Financing Plan and this Agreement, as evidenced by a Certificate of Completion issued by CITY, DEVELOPER shall receive up to a maximum payment of twenty-four million, seventy-three thousand, four hundred sixteen dollars

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($24,073,416.00) for infrastructure improvements, plus applicable qualifying Project Costs, if any, not to exceed seven million, three hundred seventy-eight thousand, seven hundred fortyeight dollars ($7,378,748.00), up to a maximum total payment of thirty-one million, four hundred fifty-two thousand, one hundred sixty-five dollars ($31,452,165.00), as full reimbursement for designing and constructing the Public Infrastructure Improvements required under the Project Plan, Financing Plan and this Agreement.

6.2 The sole source of the funds to reimburse DEVELOPER for Project Costs shall be the Available Tax Increment Funds levied and collected on the Zone Property and contributed by the Participating Taxing Entity participating in the Zone.

6.3 If Available Tax Increment Funds do not exist in an amount sufficient to make such payments in full when the payments are due to DEVELOPER under this Agreement, partial payments shall be made to DEVELOPER, and the remainder shall be paid as Available Tax Increment Funds become available. No interest, fees, costs, expenses, or penalties shall be paid to DEVELOPER on any late payment.

6.4 If any payment to DEVELOPER is held invalid, ineligible, illegal or unenforceable under present or future federal, state or local laws, including but not limited to the charter, codes, or ordinances of the CITY, then and in that event it is the intention of the parties hereto that such invalid, ineligible, illegal or unenforceable payment shall be repaid in full by DEVELOPER to the BOARD and that the remainder of this Agreement shall be construed as if such invalid, illegal or unenforceable payment was never contained herein.

VII. INSURANCE

7.1 DEVELOPER's financial integrity is of interest to CITY, therefore, subject to DEVELOPER's right to maintain reasonable deductibles in such amounts as are approved by CITY, DEVELOPER, or DEVELOPER's contractor, shall obtain and maintain in full force and effect during all Public Infrastructure Improvements required by the Project Plan and Financing Plan, and any extension hereof, at DEVELOPER's sole expense, insurance coverage written on an occurrence basis, by companies authorized and admitted to do business in the State of Texas and rated A- or better by A.M. Best Company and/or otherwise acceptable to CITY, in the following types and amounts:

(1) Worker's Compensation & Employer's Liability

(2) Comprehensive General Liability (Including Broad Form Coverage, Contractual Liability, Bodily and Personal Injury, and Completed Operations

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Amount

Statutory $500,000/$500,000/$500,000

Combined limits of $1,000,000 per occurrence and $2,000,000 in the aggregate or its equivalent in umbrella or excess liability coverage


(3) Business Automobile Liability (any auto, including employer's nonowned and hired auto coverage)

$1,000,000 combined single limit per occurrence

7.2 CITY shall be entitled, upon request and without expense, to receive copies of the policies and all endorsements thereto as they apply to the limits required by CITY, and may make a reasonable request for deletion, revision, or modification of particular policy terms, conditions, limitations or exclusions (except where policy provisions are established by law or regulation binding upon either of the parties hereto or the underwriter of any such policies). Upon such request by CITY, DEVELOPER shall exercise reasonable efforts to accomplish such changes in policy coverage, and shall pay the cost thereof.

7.3 DEVELOPER agrees that with respect to the above-required insurance, all insurance contracts and Certificate( s) of Insurance shall contain the following required provisions:

7.3 .1 Name CITY and its officers, employees, and elected representatives as additional insured as respects operations and activities of, or on behalf of, the named insured performed under agreement with CITY, with the exception of the Workers' compensation policy;

7.3 .2 Provide for an endorsement that the "other insurance" clause shall not apply to CITY of San Antonio where CITY is an additional insured shown on the policy;

7.3 .3 Workers' compensation and employers' liability policy shall provide a waiver of subrogation in favor of CITY.

7.4 DEVELOPER shall notify CITY in the event of any notice of cancellation, non-renewal or material change in coverage and shall give such notices not less than thirty (30) days prior to the change, or ten (10) days notice for cancellation due to non-payment of premiums, which notice must be accompanied by a replacement Certificate of Insurance. All notices shall be given to CITY at the following address:

City of San Antonio Neighborhood Action Department P.O. Box 839966 San Antonio, Texas 78283-3966

City of San Antonio City Clerk's Office P.O. Box 839966 San Antonio, Texas 78283-3966

7.5 If DEVELOPER fails to maintain the aforementioned insurance, or fails to secure and maintain the aforementioned endorsements, CITY may obtain such insurance, and deduct and retain the amount of the premiums for such insurance from any sums due under this Agreement; however, procuring of said insurance by CITY is an alternative to other remedies CITY may have, and is not the exclusive remedy for failure of DEVELOPER to maintain said insurance or secure such endorsement. In addition to any other remedies CITY may have upon DEVELOPER's failure to provide and maintain any insurance or policy endorsements to the

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extent and within the time herein required, CITY shall have the right to order DEVELOPER to stop work hereunder, and/or withhold any payment(s) which become due to DEVELOPER hereunder until DEVELOPER demonstrates compliance with the requirements hereof.

7.6 Nothing herein contained shall be construed as limiting in any way the extent to which DEVELOPER may be held responsible for payments of damages to persons or property resulting from DEVELOPER's or its general contractor's or general contractors' performance of the work covered under this Agreement.

7.7 DEVELOPER shall also indemnify CITY, BOARD, AND ALL OTHER PARTICIPATINGTAXING ENTITIES and their respective officials and employees from and against any and all claims, losses, damages, causes of actions, suits and liabilities arising out of DEVELOPER's and DEVELOPER's general contractor's or general contractors' actions related to the construction of the Public Infrastructure Improvements.

7.8 DEVELOPER shall also require its general contractor or general contractors working on this Project to indemnify CITY, BOARD, and all other Participating Taxing Entities and their respective officials and employees from and against any and all claims, losses, damages, causes of actions, suits and liabilities arising out of their actions related to the performance of this Agreement, utilizing the same indemnification language contained herein, in its entirety.

7.9 WORKERS COMPENSATION INSURANCE COVERAGE

7.9.1 Definitions for this paragraph:

7.9.1.1 "Certificate of coverage" ("certificate")- A copy of a certificate of insurance, a certificate of authority to self-insure issued by the commission, or a coverage agreement (TWCC-81, TWCC-82, TWCC-83, or TWCC-84), showing statutory workers' compensation insurance coverage for the person's or entity's employees providing services on a Phase of the Project, for the duration of the Project.

7.9 .1.2 "Duration of the project" - includes the time from the beginning of the work on the project until the contractor's/person's work on the project has been completed and accepted by the governmental entity.

7.9.1.3 Persons providing services on the project" ("subcontractor" in §406.096 of the Texas Labor Code) - includes all persons or entities performing all or part of the services the contractor has undertaken to perform on the project, regardless of whether that person contracted directly with the contractor and regardless of whether that person has employees. This includes, without limitation, independent contractors, subcontractors, leasing companies, motor carriers, owner-operators, employees of any such entity, or employees of any entity which furnishes persons to provide services on the project. "Services" include, without limitation, providing, hauling, or delivering equipment or materials, or providing labor, transportation, or other service related to a project.

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"Services" does not include actlvttles unrelated to the project, such as food/beverage vendors, office supply deliveries, and delivery of portable toilets.

7. 9 .1.4 "Contractor" shall mean the general contractor or general contractors of Developer or their subcontractors.

7.9.2 The Contractor shall provide coverage, based on proper reporting of classification codes and payroll amounts and filing of any coverage agreements, which meets the statutory requirements of Texas Labor Code, Section 401.011(44) for all employees of the Contractor providing services on the project, for the duration of the project.

7.9.3 The Contractor must provide a certificate of coverage to the governmental entity prior to being awarded the contract.

7.9.4 If the coverage period shown on the Contractor's current certificate of coverage ends during the duration of the Phase of the Project, the Contractor must, prior to the end of the coverage period, file a new certificate of coverage with the governmental entity showing that coverage has been extended.

7.9.5 The Contractor shall obtain from each person providing services on a project, and provide to the governmental entity:

7. 9.5 .1 a certificate of coverage, prior to that person beginning work on the Phase of the Project, so the governmental entity will have on file certificates of coverage showing coverage for all persons providing services on the Project; and

7.9.5.2 no later than seven days after receipt by the Contractor, a new certificate of coverage showing extension of coverage, if the coverage period shown on the current certificate of coverage ends during the duration of the Phase ofthe Project.

7.9.6 The Contractor shall retain all required certificates of coverage for the duration of the project and for one year thereafter.

7.9.7 The Contractor shall notify the governmental entity in writing by certified mail or personal delivery, within 10 days after the Contractor knew or should have known, of any change that materially affects the provision of coverage of any person providing services on the project.

7.9.8 The Contractor shall post on the Zone Property a notice, in the text, form and manner prescribed by the Texas Workers' Compensation Commission, informing all persons providing services on the project that they are required to be covered, and stating how a person may verify coverage and report lack of coverage.

7.9.9 DEVELOPER shall contractually require each person with whom it contracts to provide services on the Project, to:

7.9.9.1 provide coverage, based on proper reporting of classification codes and payroll amounts and filing of any coverage agreements, which meets the

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statutory requirements of Texas Labor Code, Section 401.011(44) for all of its employees providing services on the Project, for the duration of the applicable Phase of the Project;

7.9.9.2 provide to the Contractor, prior to that person beginning work on the Project, a certificate of coverage showing that coverage is being provided for all employees of the person providing services on the Project, for the duration of the applicable Phase ofthe Project;

7.9.9.3 provide the Contractor, prior to the end of the coverage period, a new certificate of coverage showing extension of coverage, if the coverage period shown on the current certificate of coverage ends during the duration of the applicable Phase ofthe Project;

7.9.9.4 obtain from each other person with whom it contracts, and provide to the Contractor:

7.9.9.4.1 a certificate of coverage, prior to the other person beginning work on the Project; and

7.9.9.4.2 a new certificate of coverage showing extension of coverage, prior to the end of the coverage period, if the coverage period shown on the current certificate of coverage ends during the duration of the applicable Phase of the Project;

7.9.9.5 retain all required certificates of coverage on file for the duration of the applicable Phase of the Project and for one year thereafter;

7.9.9.6 notify the governmental entity in writing by certified mail or personal delivery, within 10 days after the person knew or should have known, of any change that materially affects the provision of coverage of any person providing services on the Project; and

7.9.9.7 contractually require each person with whom it contracts, to perform as required by paragraphs 7.9.9.1 - 7.9.9.7, with the certificates of coverage to be provided to the person for whom they are providing services.

7.9 .1 0 By signing this Agreement or providing or causing to be provided a certificate of coverage, the Contractor is representing to the governmental entity that all employees of the Contractor who will provide services on the Project will be covered by workers' compensation coverage for the duration of the applicable Phase of the Project, that the coverage will be based on proper reporting of classification codes and payroll amounts, and that all coverage agreements will be filed with the appropriate insurance carrier or, in the case of a self-insured, with the commission's Division of Self-Insurance Regulation. Providing false or misleading information may subject the Contractor to administrative penalties, criminal penalties, civil penalties, or other civil actions.

14

North East Crossing Developmen, Agreement 08/08/02

7.9.11 DEVELOPER's failure to comply with any of these provisions is a breach of contract by DEVELOPER which entitles CITY to terminate this Agreement if DEVELOPER does not remedy the breach within ten days after receipt of notice of breach from CITY.

VIII. DEFAULT AND TERMINATION

8.1 In the event that DEVELOPER fails to commence construction of the Project, fails to complete construction of the Project, or fails to perform any other obligation pursuant to the terms of this Agreement, CITY and BOARD may terminate this Agreement if DEVELOPER does not take adequate steps to cure its failure within ninety (90) calendar days after receiving written notice from CITY and/or BOARD, requesting the failure be cured. In the event of such default and as the exclusive remedy of City and Board, DEVELOPER shall return any payments under this Agreement for the construction of Public Infrastructure Improvements for any Phase under development at the time of the default within sixty (60) calendar days after receiving written notice from CITY and/or BOARD that DEVELOPER has defaulted on this Agreement; EXCEPT that no refund is due if DEVELOPER, with CITY's and BOARD's written consent, assigns its remaining obligations under this Agreement to a qualified party who is willing and capable of completing DEVELOPER's obligations under this Agreement, pursuant to Article XIII herein.

8.2 Notwithstanding paragraph 8.1 above, in the event the Board of Directors for Zone and/or DEVELOPER fails to furnish CITY any documentation required in Article XII herein within ten (1 0) days following the written request for same, then the Board of Directors for Zone and/or DEVELOPER shall be in default of this Agreement.

IX. INDEMNIFICATION

9.1 DEVELOPER covenants and agrees to FULLY INDEMNIFY and HOLD HARMLESS, CITY (and the elected officials, employees, officers, directors, and representatives of CITY), BOARD (and the officials, employees, officers, directors, and representatives of BOARD), and all other Participating Taxing Entities (and the elected officials, employees, officers, directors, and representatives of these Participating Taxing Entities), individually or collectively, from and against any and all costs, claims, liens, damages, losses, expenses, fees, fines, penalties, proceedings, actions, demands, causes of action, liability and suits of any kind and nature, including but not limited to, personal injury or death and property damage, made upon CITY, BOARD, and/or upon any of the other Participating Taxing Entities directly or indirectly arising out of, resulting from or related to DEVELOPER's negligence, willful misconduct or criminal conduct in its activities under this Agreement, including any such acts or omissions of DEVELOPER, any agent, officer, director, representative, employee, consultant or subconsultants of DEVELOPER, and their respective officers, agents, employees, directors and representatives while in the exercise or performance of the rights or duties under this Agreement, all without, however, waiving any governmental immunity available to CITY, BOARD, and/or the other Participating Taxing Entities under Texas Law and without waiving any defenses of the parties under Texas Law. The provisions of this

15


INDEMNIFICATION are solely for the benefit of the parties hereto and not intended to create or grant any rights, contractual or otherwise, to any other person or entity. DEVELOPER shall promptly advise CITY, BOARD, and the other Participating Taxing Entities in writing of any claim or demand against CITY, BOARD, and any other Participating Taxing Entity related to or arising out of DEVELOPER's activities under this Agreement and shall see to the investigation and defense of such claim or demand at DEVELOPER's cost to the extent required under the Indemnity in this paragraph. CITY, BOARD, and/or any other Participating Taxing Entity shall have the right, at their option and at their own expense, to participate in such defense without relieving DEVELOPER of any of its obligations under this paragraph.

9.2 It is the EXPRESS INTENT of the parties to this Agreement, that the INDEMNITY provided for in this paragraph, is an INDEMNITY extended by DEVELOPER to INDEMNIFY, PROTECT and HOLD HARMLESS CITY, BOARD, and the other Participating Taxing Entities from the consequences of the CITY's OWN NEGLIGENCE, BOARD'S OWN NEGLIGENCE, and/or NEGLIGENCE of the other Participating Taxing Entities provided however, that the INDEMNITY provided for in this paragraph SHALL APPLY only when the NEGLIGENT ACT of CITY, BOARD, or of any other Participating Taxing Entity is a CONTRIBUTORY CAUSE of the resultant injury, death, or damage, and shall have no application when the negligent act of CITY, BOARD, or of any other Participating Taxing Entity is the sole cause of the resultant injury, death, or damage. DEVELOPER further AGREES TO DEFEND, AT ITS OWN EXPENSE and ON BEHALF OF CITY (AND IN THE NAME OF CITY), BOARD (AND IN THE NAME OF BOARD), and any other Participating Taxing Entity (and in the name of any other Participating Taxing Entity) any claim or litigation brought against CITY (and its elected officials, employees, officers, directors and representatives), BOARD (and its officials, employees, officers, directors and representatives), and/or any Participating Taxing Entity (their officials, employees, officers, directors and representatives), in connection with any such injury, death, or damage for which this INDEMNITY shall apply, as set forth above.

X. SITE INSPECTION

10.1 DEVELOPER shall allow CITY and/or BOARD reasonable access to the Zone Property for inspections during and upon completion of construction of the Project, and to documents and records necessary for CITY and/or BOARD to assess DEVELOPER's compliance with this Agreement.

XI. LIABILITY

11.1 All personnel supplied or used by DEVELOPER in the performance of this Agreement shall be deemed employees or contractors of DEVELOPER and shall not be considered employees, agents or contractors of CITY, BOARD, or of any Participating Taxing Entity for any purpose whatsoever. DEVELOPER shall be solely responsible for the compensation of all such personnel.

11.2 To the extent permitted by Texas law, no director, officer employee or agent of CITY,

16

North East Crossing DevelopmeiJ• ngreement 08/08/02

BOARD, or of any other Participating Taxing Entity shall be personally responsible for any liability arising under or growing out of this Agreement.

XII. EXAMINATION OF RECORDS

12.1 CITY reserves the right to conduct examinations, during regular business hours and following notice to BOARD and DEVELOPER by CITY of the books and records related to this Agreement with CITY (including such items as contracts, paper, correspondence, copy, books, accounts, billings and other information related to the performance of BOARD and/or DEVELOPER's services hereunder) no matter where books and records are located. CITY also reserves the right to perform any and all additional audit tests relating to BOARD's and/or DEVELOPER's services, provided that such audit test are related to those services performed by BOARD and/or DEVELOPER for CITY. These examinations shall be conducted at the offices maintained by BOARD and/or DEVELOPER.

12.2 All applicable records and accounts of BOARD and/or DEVELOPER, together with all supporting documentation, shall be preserved in Bexar County, Texas by BOARD and/or DEVELOPER throughout the term of this Agreement and for twelve (12) months after the termination of this Agreement, then transferred, at no cost to CITY, to CITY for retention. During this time, CITY may require that any or all of such records and accounts be submitted for audit to CITY or to a Certified Public Accountant selected by CITY within ten (10) days following written request for same.

12.3 Should CITY discover errors in internal controls or in record keeping associated with the Project, BOARD and/or DEVELOPER shall correct such discrepancies either upon discovery or within a reasonable period of time, not to exceed sixty (60) days after discovery and notification by CITY to BOARD and/or DEVELOPER of such discrepancies. BOARD and/or DEVELOPER shall inform CITY in writing of the action taken to correct such audit discrepancies.

12.4 If it shall be determined as a result of such audit that BOARD and/or DEVELOPER has incorrectly stated the cost of the Public Infrastructure Improvements, then such incorrectly stated costs shall be immediately returned to CITY and become due and payable with interest at the maximum legal rate under applicable law from the date the CITY paid such overcharges. In addition, if the audit determined that there were overcharges of more than two percent (2%) of the actual Project Cost for the year in which the discrepancy occurred, and CITY is entitled to a refund as a result of such overcharges, then BOARD and/or DEVELOPER shall pay the cost of such audit.

XIII. NON-WAIVER

13.1 Any provision of this Agreement may be amended or waived if done in writing and signed by CITY, through an ordinance passed and approved by its City Council, BOARD, and DEVELOPER.

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13.2 No course of dealing on the part of CITY, BOARD, or DEVELOPER nor any failure or delay by CITY, BOARD, or DEVELOPER in exercising any right, power, or privilege under this Agreement shall operate as a waiver of any right, power or privilege owing under this Agreement.

XIV. ASSIGNMENT

14.1 All covenants and agreements contained herein by CITY and/or BOARD shall bind their successors and assigns and shall inure to the benefit of DEVELOPER and their successors and asstgns.

14.2 CITY and/or BOARD may assign their rights and obligations under this Agreement to any governmental entity without prior consent of DEVELOPER. If CITY and/or BOARD assigns their rights and obligations under this Agreement then CITY and/or BOARD will send DEVELOPER written notice of such assignment within fifteen (15) days of such assignment.

14.3 DEVELOPER may sell or transfer it rights and obligations under this Agreement only with the written consent of CITY, as evidenced by an ordinance passed and approved by its City Council, and BOARD (with such consent not being unreasonably withheld, conditioned, or delayed) when a qualified purchaser or assignee specifically agrees to assume all of the obligations of DEVELOPER under this Agreement.

14.4 Any work or services contracted herein shall be contracted only by written contract or agreement and, unless CITY grants specific waiver in writing, shall be subject by its terms, insofar as any obligation of CITY is concerned, to each and every provision of this Agreement. Compliance by DEVELOPER's general contractor or general contractors and their subcontractors with this Agreement shall be the responsibility of DEVELOPER.

14.5 CITY shall in no event be obligated to any third party, including any contractor or consultant of DEVELOPER, for performance of work or services under this Agreement except as set forth in Section 14.9 of this Agreement.

14.6 Any restrictions herein on the transfer or assignment of DEVELOPER's interest in this Agreement shall not apply to and shall not prevent the assignment of this Agreement to any corporation or other entity with which DEVELOPER may merge or consolidate or which may succeed to a controlling interest in the business of DEVELOPER; nor shall the foregoing apply to or prevent DEVELOPER from assigning the proceeds of this Agreement to a lending institution in order to obtain financing for the Project. In no event, however, shall CITY be obligated in any way to the aforementioned financial institution. This Article does not intend to require DEVELOPER to obtain consent of CITY for the sale of land to developers, or lots to builders for the construction of homes, apartments or commercial sites, pursuant to the Project Plan.

14.7 Each transfer or assignment to which there has been consent, pursuant to paragraph 14.3 above, shall be by instrument in writing, in form reasonably satisfactory to CITY, and shall be

18


executed by the transferee or assignee who shall agree in writing for the benefit of CITY and BOARD to be bound by and to perform the terms, covenants and conditions of this Agreement. Four (4) executed copies of such written instrument shall be delivered to CITY. Failure to first obtain, in writing, CITY's consent, or failure to comply with the provisions herein contained shall operate to prevent any such transfer or assignment from becoming effective.

14.8 Should CITY approve the assignment or transfer of this Agreement as provided m paragraph 14.6 above, DEVELOPER shall be released from such duties and obligations.

14.9 Except as set forth in paragraph 14.3, the receipt by CITY of services from an assignee of DEVELOPER shall not be deemed a waiver of the covenant in this Agreement against assignment or an acceptance of the assignee or a release of DEVELOPER from further observance or performance by DEVELOPER of the covenants contained in this Agreement. No provision of this Agreement shall be deemed to have been waived by CITY unless such waiver is in writing, and approved by City Council of the City of San Antonio in the form of a duly passed ordinance.

XV. CONFLICT OF INTEREST

15.1 BOARD and DEVELOPER each acknowledges that the Charter of CITY and its Ethics Code prohibit a CITY officer or employee, as those terms are defined in the Ethics Code, from having a financial interest in any contract with the CITY or any CITY agency such as CITYowned utilities. An officer or employee has a "prohibited financial interest" in a contract with CITY or in the sale to CITY of land, materials, supplies or service, if any of the following individual(s) or entities is a party to the contract or sale: a CITY officer or employee; his parent, child or spouse; a business entity in which the officer or employee, or his parent, child or spouse owns ten (1 0) percent or more of the fair market value of the business entity; or 10% or more of the voting stock or shares of the business entity; or a business entity in which any individual or entity above listed is a subcontractor on a CITY contract, a partner or a parent or subsidiary business entity.

15.2 BOARD and DEVELOPER each warrant and certify, and this Agreement is made in reliance thereon, that they, their officers, employees and agents are neither officers nor employees of CITY as prohibited above. BOARD and DEVELOPER each further warrant and certify that each has tendered to CITY a Discretionary Contracts Disclosure Statement in compliance with CITY's Ethics Code.

XVI. ENTIRE AGREEMENT

16.1 This written Agreement embodies the final and entire agreement between the parties hereto and may not be contradicted by evidence of prior, contemporaneous, or subsequent oral agreements of the parties.

16.2 The exhibits attached to this Agreement are incorporated herein and shall be considered a part of this Agreement for the purposes stated herein, except that if there is a conflict between an

19


exhibit and a provision of this Agreement, the provision of this Agreement shall prevail over the exhibit.

XVII. CHANGES AND AMENDMENTS

17.1 Except when the terms of this Agreement expressly provide otherwise, any alterations, additions, or deletions to the terms hereof shall be by amendment in writing executed by CITY, BOARD and DEVELOPER and evidenced by passage of a subsequent CITY ordinance, as to CITY's approval.

17.2 It is understood and agreed by the parties hereto that changes in local, state and federal rules, regulations or laws applicable to BOARD's and DEVELOPER's services hereunder may occur during the term of this Agreement and that any such changes shall be automatically incorporated into this Agreement without written amendment hereto, and shall become a part hereof as of the effective date of the rule, regulation or law.

XVIII. SEVERABILITY

18.1 If any clause or provision of this Agreement is held invalid, illegal or unenforceable under present or future federal, state or local laws, including but not limited to the charter, code, or ordinances of CITY, then and in that event it is the intent of the parties hereto that such invalidity, illegality or unenforceability shall not affect any other clause or provision hereof and that the remainder of this Agreement shall be construed as if such invalid, illegal or unenforceable clause or provision was never contained herein. It is also the intent of the parties hereto that in lieu of each clause or provision of this Agreement that is invalid, illegal, or unenforceable, there be added as a part of this Agreement a clause or provision as similar in terms to such invalid, illegal or unenforceable clause or provision as may be possible, legal, valid and enforceable.

XIX. INDEPENDENT CONTRACTORS

19.1 It is expressly understood and agreed by all parties hereto that in performing their services hereunder, BOARD and DEVELOPER at all times shall be acting as independent contractors and all consultants or contractors engaged by BOARD and/or DEVELOPER respectively shall be independent contractors of BOARD and/or DEVELOPER. The parties hereto understand and agree that CITY shall not be liable for any claims which may be asserted by any third party occurring in connection with services performed by BOARD and/or DEVELOPER respectively, under this Agreement unless any such claims are due to the fault of CITY.

19.2 The parties hereto further understand and agree that no party has authority to bind the others or to hold out to third parties that it has the authority to bind the others.

XX. LEGAL AUTHORITY

20.1 The person executing this Agreement on behalf of the CITY, BOARD and

20


DEVELOPER, represent, warrant, assure and guarantee that they have full legal authority to (i) execute this Agreement on behalf of CITY, BOARD and/or DEVELOPER, respectively and (ii) to bind CITY, BOARD and/or DEVELOPER to all of the terms, conditions, provisions and obligations herein contained.

XXI. VENUE AND GOVERNING LAW

21.1 THIS AGREEMENT SHALL BE CONSTRUED UNDER AND IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS.

21.2 Any legal action or proceeding brought or maintained, directly or indirectly, as a result of this Agreement shall be heard and determined in Bexar County, Texas.

XXII. TAXES

22.1 DEVELOPER shall pay, on or before their respective due dates to the appropriate collecting authority, all Federal, State, and local taxes and fees which are now or may hereafter be levied upon the Zone Property, or upon DEVELOPER or upon the business conducted on the Zone Property, or upon any of DEVELOPER's property used in connection therewith, including employment taxes; and shall maintain in current status all Federal, State, and local licenses and permits required for the operation of the business conducted by DEVELOPER.

XXIII. PARTIES' REPRESENTATIONS

23.1 This Agreement has been jointly negotiated by the CITY, BOARD and DEVELOPER and shall not be construed against a party because that party may have primarily assumed responsibility for the drafting of this Agreement.

XXIV. NOTICE

24.1 Any notice sent under this Agreement shall be written and mailed with sufficient postage, sent by certified mail, return receipt requested, or delivered personally to an officer of the receiving party at the following addresses:

CITY City of San Antonio City Clerk's Office P.O. Box 893366 San Antonio, Texas 78283-3966 FAX: (210) 207-7032

DEVELOPER Neighborhood Revitalization Initiative, Ltd. c/o Gordon Hartman Industries, Inc. 1175 West Bitters, Suite 200

21

BOARD Dr. James M. Dye 5131 Prince Valiant San Antonio, Texas 78216 FAX: (210) 297-0926


San Antonio, TX 78216 FAX: (210) 499-4635

24.2 Each party may change its address by written notice in accordance with this Article. Any communication delivered by facsimile transmission shall be deemed delivered when receipt of such transmission is acknowledged. Any communication so delivered in person shall be deemed received when receipted for by or actually received by an officer of the party to whom the communication is properly addressed.

XXV. CAPTIONS

25.1 All captions used herein are only for the convenience of reference and shall not be construed to have any effect or meaning as to the agreement between the parties hereto.

XXVI. COMPLIANCE WITH SBEDA AND EEO POLICIES

26.1 BOARD and DEVELOPER are each hereby advised that it is the policy of CITY that business enterprises eligible as Small, Minority or Woman-owned Business Enterprises shall have the maximum practical opportunity to participate in the performance of public contracts. Except for those Public Infrastructure Improvements commenced prior to the creation of the Zone, BOARD and DEVELOPER each agrees for itself that BOARD and DEVELOPER will not discriminate against any individual or group on account of race, color, sex, age, religion, national origin or disability and will not engage in employment practices which have the effect of discriminating against employees or prospective employees because of race, color, religion, national origin, sex, age or disability. BOARD and DEVELOPER each further agrees that with respect to the remaining Public Infrastructure Improvements BOARD and DEVELOPER will each make a good faith effort to comply with the applicable terms and provisions of CITY's Non-Discrimination Policy, CITY's Small, Minority or Woman-owned Business Advocacy Policy and CITY's Equal Opportunity Affirmative Action Policy, these policies being available in CITY's Department of Economic Development, Division of Internal Review and the CITY's Office of the City Clerk.

26.2 BOARD and DEVELOPER each agrees that if material deficiencies in any aspect of its Small Business Economic Development Advocacy utilization plan are found as a result of a review or investigation conducted by CITY's Department of Economic Development, BOARD and/or DEVELOPER will be required to submit a written report to CITY's Department of Economic Development. BOARD and/or DEVELOPER will also be required to submit a supplemental Good Faith Effort Plan (GFEP) indicating efforts to resolve any deficiencies. A denied GFEP, by CITY's Department of Economic Development, will constitute failure to satisfactorily resolve any deficiencies by BOARD and/or DEVELOPER. Failure to obtain an approved GFEP within ninety (90) days of initial denial shall constitute a default and result in a penalty on BOARD and/or DEVELOPER of $1,000 per day as liquidated damages for the default until all deficiencies are resolved. Failure to cure all deficiencies within another ninety (90) days of the date the penalty is initially assessed constitutes a further (additional) condition of default by BOARD and/or DEVELOPER and which can, at the option of the Director of the

22


Department of Economic Development, result in termination of this Agreement.

XXVII. WAGES

With respect to the Public Infrastructure Improvements commenced after the creation of the Zone:

27.1 BOARD and DEVELOPER shall pay wages that are not less than the minimum wages required by Federal and State statutes and CITY ordinances to persons employed in their operations hereunder, as set forth in Exhibit F, attached hereto and incorporated for all purposes.

27.2 DEVELOPER shall stipulate in all construction contracts with its general contractor or general contractors engaged by DEVELOPER in furtherance of the execution of this Agreement that said general contractor or general contractors pay not less than the prevailing wage rate for its workers, and shall attach as an exhibit to said contracts a copy of Exhibit F.

27.3 DEVELOPER or its general contractor or general contractors who pays less than the prevailing wage rate to its workers shall pay to CITY sixty dollars ($60.00) for each worker employed for each calendar day or part of the day that the worker is paid less than the wage rates stipulated in this Agreement. DEVELOPER shall stipulate in all contracts with its general contractor or general contractors engaged by DEVELOPER in furtherance of the execution of this Agreement that contractor is subject to this $60.00 penalty if contractor fails to pay said prevailing wage rates to its workers.

27.4 In accordance with Chapter 2258, Texas Gov't Code, CITY shall be entitled to withhold payment from DEVELOPER under this Agreement to satisfy this penalty, even if the party incurring the penalty is a general contractor of DEVELOPER. If CITY withholds payment from DEVELOPER as a result of a general contractor's violation, DEVELOPER may withhold payment from the general contractor in accordance with Chapter 2258. Further, release or disbursement of funds withheld as a penalty hereunder shall be governed by Chapter 2258.

XXVIII. TERM

28.1 The term of this Agreement shall commence on the Effective Date and end on the date which is the earlier to occur of the following (i) the date DEVELOPER receives the final payment for completing the Project; or (ii) the date this Agreement is terminated as provided in Article VIII; provided that all existing warranties on the Project shall survive termination of this Agreement; or (iii) the date the term of the Zone expires.

XXIX. LITIGATION EXPENSES

29.1 Under no circumstances will the Available Tax Increment Funds received under this Agreement be used, either directly or indirectly, to pay costs or attorney fees incurred in any adversarial proceeding regarding this Agreement against CITY or any other public entity.

23


29.2 During the term of this Agreement, if BOARD and/or DEVELOPER files and/or pursues an adversarial proceeding regarding this Agreement against CITY, then, at CITY's option, all access to the funding provided for hereunder may be withheld.

29.3 BOARD and/or DEVELOPER, at CITY's option, could be ineligible for consideration to receive any future funding while any adversarial proceedings regarding this Agreement against CITY remains unresolved.

29.4 For purposes of this Article, "adversarial proceedings" include any cause of action regarding this Agreement filed by BOARD and/or DEVELOPER in any state or federal court, as well as any state or federal administrative hearing, but does not include Alternate Dispute Resolution proceedings.

IN WITNESS THEREOF, the parties hereto have caused this instrument to be duly executed this 8th day of August, 2002.

CITY OF SAN ANTONIO

DEVELOPER NEIGHBORHOOD REVITALIZATION INITIATIVE, LTD., a Texas Limited Partnership

By: GORDON HARTMAN INDUSTRIES, INC.,

By: Its:

~~~~~~~ /' J'5R me: Dr. James M. Dye

//Title: Presiding Officer, Board of Directors

/1 Approved by City Attorney:( ~ (A.) ~u_...._a.,..... .

~r(

24


EXHIBIT A

Zone Property

EXHIBITB

Public Infrastructure Improvements

EXHIBIT C

Construction Schedule

EXHIBITD

Standards for Development

EXHIBITE

Development Targets

EXHIBIT F

Prevailing Wage Rate Chart

25

DEVELOPERo

GORDON V. HARTMAN ENTERPRISES, INC 1175 W. BITTERS, SUITE 200 SAN ANTONIO, TEXAS 78216-7808 PHONEo (210) 490-1798

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October 16, 2001 Job No. 46947.00

DESCRIPTION OF A 443.91 ACRE TRACT OF LAND

Being a 443.91 acre tract of land in New City Block (N.C.B.) 15826 and N.C.B. 17738, out of an 864.951 acre tract and being partially out of the William Winford Survey No. 326, Abstract No. 798, County Block 5051, the John H. Miller Survey No. 41, Abstract No. 487, County Block 5075, the Gertrude Rodriguez Survey No. 132, Abstract No. 610, County Block 5077, and the James P. Hector Survey No. 320, Abstract No. 963, County Block 5079, Bexar County, Texas, said tract is more particularly described as follows:

BEGINNING at a 1/2" rebar with a Castella & Assoc. plastic cap found at the south end of the return on the northwest right-of-way line of Gibbs Sprawl Road from the southwest right-of-way line of Woodlake ParkWay (86'-R.O.W.), shoWn. on the plat of Eisenhauer Road Subdivision, recorded in Volume 9524, Pages 1-8, Deed and Plat Records of Bexar County, Texas;

THENCE along the northwest right-of-way line of Gibbs Sprawl Road the following courses:.

S.37°34' 17"E., a distance of 22.36 feet to a 1/2" rebar with a Castella & Assoc. plastic cap found, for the most easterly comer of this tract;

S.51 °25'51 "W., a distance of 177.73 feet to a 112" rebar found, for an angle point;

S.52°05' 52"W., a distance of 718.11 feet to a 1/2" rebar found, for an angle point; and

S.51°58'57"W;, a distance of 1132.92 feet to a 1/2" rebar with a Castella & Assoc plastic cap found, for the most southerly comer of this tract;

THENCE N.42°55'13"W., departing said northwest right-of-way line, coincident with the northeast line of a 36.192 acre tract described in Volume 5978, Page 969, Official Public Records of Real Property, Bexar County, Texas, a distance of 503.92 feet to a 1/2" rebar with a Castella & Assoc. plastic cap found, for the most easterly comer of Lot 60, Block 22, East Village Subdivision Unit 22, recorded in Volume 6600, Page 45, Deed and Plat Records of Bexar County, Texas, at a radial bearing S.63°21 '39"W., also being the north comer of said 3 6.192 acre tract;

October 16, 2001 Job No. 46947.00

443.91 Acre Tract of Land

THENCE along the northwest line of said East Village Subdivision Unit 22, the following courses:

355.75 feet along the arc of a c.urve to the right, having a central angle of 26°55'35", a radius of 757.00 feet and a chord bearing and chord distance of N.l3°10'34"W., 352.49 feet to a 1/2" rebar found on the northeast line of Lot 65, said Block 22, for the point of tangent;

N.00°17' 13"E., a distance of 80.00 feet to a 1/2" rebar with a Castella & Assoc. plastic cap found on the n~rtheast line· of Lot· 20, Block 23, said East Village Subdivision Unit 22, for a point of curvature of a curve to the left;

851.90 feet along the arc of said curve, having a central angle of 37°43'08", a radius of 1294.05 feet and a chord bearing and chord distance ofN.18°34'21"W., 836.60 feet to a 112" rebar with a Castella & Assoc. plastic cap found on the northeast line of Lot 8, said Block 23, for the point of tangent; and

N.37°25'55"W., a distance of 490.65 feet to a point for the north comer of Lot 1, said Block 23, for a reentrant comer;

THENCE S.52°34'05"W., along the northwest line of srud Lot 1, a distance of 121.00 feet to a 112" rebarfound on the terminus line of Midcrown Drive (60'-R.O.W.), for a comer;

THENCE N.37°25'55"W., along said terminus .line of Midcrown Drive; a distance of 60.00 feet, to a 112" rebar with a Castella & Assoc. plastic cap found, on the northwest right-of-way line of saidMidcrown Drive, for a reentrant comer;

THENCE S.52°34'05"W., coincident with said northwest right-of-way line ofMidcrown Drive, a distance of 1230.97 feet to a point at the southeast comer of a 15.409 acre tract of land described in Volume 7651, Page 605, Official Public Records of Real Property, Bexar County, Texas, for a comer of this tract;

THENCE N.O 1°31 '40"E., departing said northwest right-of-way line, along the east line of said 15.409 acre tract, a distance of 563.53 feet to a 112" rebar with an OverbyDescamps plastic cap found, for the northeast comer of the 15.409 acre tract and a reentrant comer of this tract;

THENCE N.74°08'32"W., along the north line of said 15.409 acre tract, a distance of 762.82 feet to a 1/2" rebar with an Overby-Descamps plastic cap found, for the most northwesterly comer of the 15.409 acre tract and a reentrant comer of this tract;

October 16, 2001 Job No. 46947.00

443.91 Acre Tract of Land

THENCE S.00°14'28"W., along the west line of said 15.409 acre tract, a distance of 370.71 feet to a point, for the most northerly corner of Park Village Elementary School, recorded in Volume 9514, Page 66, Deed and Plat Records, Bexar County, Texas, for an angle point ofthis tract;

THENCE S.45°55'43"W., departing the 15.409 acre tract and along the northwest line of said Park Village Elementary School, a distance of 1155.11 feet to a 1/2" rebar found on the north right-of-way line of Midcrown Dr. (60'-R.O.W~), for the most westerly corner of a 0.555 acre tract ofland described in Volume 5977, Page 570, Official Public Records of Real Property, Bexar County, Texas, for an angle point ofthis tract;

THENCE along the north -and northeast right-of-way line of Midcrown Drive the following courses:

N.89°42'47"W., a distance of 523.92 feet to a 1/2" rebar found for the point oL curvature of a curve to the right;

, 1222.19 feet along the arc of said curve, having a central angle of 35°00'47", a radius of2000.00 feet and a chord bearing and chord distance ofN.72°12'23"W., 1203 .26 feet to a 1/2" rebar with a Castella & Assoc. plastic cap found, for the point of tangent;

N.54°42'00"W., a distance of 1197.32 feet to a point, for the point of curvature of a curve to the right; and

66.07 feet along the arc of said curve, having a central angle of 03°55'05", a radius of 966.19 feet and a chord bearing and chord distance ofN.52°44'28"W., 66~06 feet to a point, for the most southwesterly corner of this tract and the south comer of a 9.657 acre tract recorded in Volume 5279, Page 1472, Official Public Records of Real Property, Bexar County, Texas;

THENCE departing said northeast right-of-way line, along the east lines ofsaid 9.657 acre tract, the following courses:

N.39°10'27"E., a distance of 92.79 feet to a 1/2" rebar found, for the point of curvature of a curve to the left;

132.53 feet along the arc of said curve, having a central angle of 39°32'52", a radius of 192.00 feet and a chord bearing and chord distance ofN.19°28'39"E., 129.91 feet to a 112" rebar with a Castella & Assoc. plastic cap found, for the point of tangent; and

•. Page4

October 16, 2001 Job No. 46947.00

443.91 Acre Tract ofLand

N.00°19'47"W., a distance of 923.72 feet to a I/2" rebar with a Castella & Assoc. plastic cap found, on the south right-of-way line of Eisenhauer Road (120' R.O.W.), recorded in Volume 9524, Pages 1-8, Deed and Plat Records of Bexar County, Texas, for a northwesterly comer of this tract and the northeast comer of the 9.657 acre tract;

THENCE along the south and southeast right-of-way line of Eisenhauer Road, the following courses:

N.89°40'32"E., a distance of 34.94 feet to a 1/2" rebar with a Castella & Assoc. plastic cap found, for the point of curvature of a curve to the left;

1715.87 feet along the arc of said curve, having a central of 45°29'40", a radius of 2160.97 feet and a chord bearing and chord distance of N.66°55'23''E., 1671.15 feet to a 112" rebar found, for the point of tangent; and

N.44°10'33"E., a distance of 1502.85 feet to a 112" rebar with a Castella & Assoc .. plastic cap found, for the point of curvature of a non-tangent curve at the west comer of a 36.549 acre tract recorded in Volume 5279, Page 1472, Offici~! Public Records of Real PropertY of Bexar Colln.ty,Texas, for· a north comer of this tract;

THENCE departing said southeast right-of-way line, along the common line with the said 36.549 acre tract, the following courses: .

3 9.28 feet in a southerly direction with the arc of said curve to the left, having a central angle of 90°00'55", a radius of 25.00 feet and a chord bearing and chord. distance of S.00°49'27"E., 35.36 feet to a 112" rebar found, for the point of tangent;.

S.45°49'27"E., a distance of 670.00 feet to a 112" rebar with a Castella & Assoc. plastic cap found, for a reentrant comer of this tract;

N.44°10'33''E., a distance of 123.37 feet to a 1/2" rebar with a Castella & Assoc. plastic cap found, for a point of curvature of a curve to the right;

490.23 feet with the arc of said curve, having a central angle of 39°26'57", a radius of 712.00 feet and a chord bearing and chord distance of N.63°54'02"E., 480.60 feet to a 1/2" rebar with a Castella & Assoc. plastic cap found, for the point of tangent;

N.83°37'31 "E., a distance of 428.57 feet to a 1/2" rebar found, for a point of curvature of a curye to the left;

PageS October 16, 2001 Job No. 46947.00

443 .91 Acre Tract of Land

90.06 feet with the arc of said curve, having a central angle of 15°40' 11 ", a radius of 329.30 feet and a chord bearing and chord distance of N.75°47'25"E., 89.78. feet to a 112" rebar found~ for the point of tangent; and

N.67°57'19"E., a distance of 494.69 feet to a 1/2" rebar with a Castella & Assoc. plastic cap found, for the point of curvature on the curved southwest right-of-way line of the aforementioned Woodlake Parkway (86'-R.O.W.), for a north comer of this tract;

THENCE along the southwest right-of-way line of Woodlake Parkway the following courses:

927.60 feet in a southeasterly direction with the arc of the curve to the left, having a central angle of 35°46'15", a radius of 1485.78 feet, and a chord bearing and chord distance of S.28°34'51 "E., 912.61 feet to a 112" rebar with a Castella & Assoc. plastic cap found, for the point of tangent;

S.46°30'20"E., a distance of 422.25 feet to a 112" rebar found, for the point of curvature of a curve to the left;

431.93 feet with the arc of said curve, having a central angle of 16~9'54", a radius of 1500.00 feet and a chord bearing and chord distance of S.54°45'17"E., 430.44 feet to a 112" rebar with a Castella & Assoc. plastic cap found, for the point of tangent;

S.63°00' 14"E., a distance of 590.07 feet to a 1/2" rebar with a Castella & Assoc. plastic cap found, for the point of curvature of a curve to the right;

627.65 feet with the arc of said curve, having a central angle of 25°25'57", a · radius of 1414.00 feet and a chord bearing and chord distance of S.50°17'16"E., 622.51 feet to a 112" rebar with a Castella & Assoc. plastic cap found, for the point of tangent;

S.37°34' 19"E., a distance of 1887.92 feet to a 112" rebar with a Castella & Assoc. plastic cap found, for the point of curvature of the return curve to the right to the northwest right-of-way line of the aforementioned Gibbs Sprawl Road; and

39.27 feet with the arc of said curve, having a central angle of 90°00'00", a radius of 25.00 feet and a chord bearing and chord of S.07°25' 43"W., 35.36 feet to the POINT OF BEGINNING and containing 443.91 acres ofland, more or less. G:\word\descriptions\46947-{)0.des.doc

EXHIBIT B

North East Crossing Public Infrastructure Improvements

The proposed public infrastructure improvements for this project include: • site work • drainage • drainage detention • water I sewage impact and platting fees • storm water pollution prevention • utilities • street signs/traffic signal • street lights • sidewalks • street installation & approaches • pedestrian linkages • open space improvements • neighborhood park improvements • park to be dedicated to City • construction management • engmeenng expenses • right of way landscaping public improvement • construction site security • legal and formation fees

EXHIBIT C

North East Crossing Construction Timetable

Phase Year Number of Lots Type of Structure Units 1 and 2 2002 72 Lots Single Family

Unit 3A 2002 N/A Collector Street Unit 3 2003 105 Lots Single Family Unit4 2004 109 Lots Single Family Unit 5 2005 53 Lots Single Family Unit 6 2006 92 Lots Single Family Unit 7 2007 89 Lots Single Family Unit 8 2008 120 Lots Single Family Unit 9 2009 99 Lots Single Family

Unit 10 2010 88 Lots Single Family Unit 11 2011 122 Lots Single Family Unit 12 2012 91 Lots Single Family Unit 13 2013 88 Lots Single Family Unit 14 2014 84 Lots Single Family Unit 15 2015 104 Lots Single Family Unit 16 2016 48 Lots Single Family

Total 1,364 Lots

Exhibit D North East Crossing

Standards For Development

Deed Restrictions and Home Owner's Association. All development phases identified in the Project Plan will be subject to deed restrictions and establishment and governance by one or more home owner's association agreements that contain provisions consistent with the requirements set forth in this Exhibit.

Construction Standard. All single-family homes in the Zone property shall be constructed on permanent foundations using materials and uniform building industry standards of the day. No manufactured homes, as defined in the City of San Antonio Unified Development Code as amended, previously constructed elsewhere may be moved on any lot in the Zone property. This prohibition specifically includes the use of a manufactured home in which the axle and wheels have been removed and placed upon a concrete slab, which said manufactured home is hereby specifically prohibited as a residence, either temporarily or permanently; and further, specifically includes a manufactured home upon which the wheels have been left attached.

Design and Materials. The design and materials may vary to meet current consumer demand and evolving construction technology, provided, however, that at least twentyfive percent (25%) of the surface of the exterior wall area (excluding windows and doors) of all single family homes shall be constructed of masonry, Hardie Plank™ siding material, rock, stucco or brick, and any other siding material with qualities similar to masonry or Hardie Plank TM siding material.

Single Family Houses. Single family houses, as described in the Plan, shall have a total floor area of not less than 965 square feet in gross living area. However, if required to meet customer requests/qualifications or market demands, then up to five percent (5%) of the total homes may be a minimum of 850 square feet.

Outbuilding Requirements. Every outbuilding, inclusive of such structures as a storage building, greenhouse or children's playhouse, shall be compatible with the dwelling to which it is appurtenant in terms of its design and material composition.

Temporary Structures. No structure of a temporary character (e.g., trailer, tent, shack, garage, bam or other outbuildings) shall be used on any lot at any time as a residence, either temporarily or permanently. No trailer, camper or similar vehicle shall at any time be connected to utilities situated within a lot. No manufactured home, as defined in the City of San Antonio Unified Development Code as amended, previously constructed elsewhere may be moved onto any lot in the Zone. This prohibition specifically includes the use of a manufactured home in which the axle and wheels have been removed and placed upon a concrete slab, which said manufactured home is hereby specifically prohibited as a residence, either temporarily or permanently; and further, specifically includes a manufactured home upon which the wheels have been left attached.

Notwithstanding the prior paragraph, during the construction and sales period of the initial dwelling units, the builder may erect and maintain such temporary structures as are customary in connection with such construction and sale of such property, including but not limited to, a business office, storage areas, construction yards, signs, model units, and sales office.

Maintenance. Grass, weeds, and vegetation on each lot sold shall be kept mowed at regular intervals. Trees, shrubs, vines, and plants which die, shall be promptly removed from the property. Lawns must be properly maintained, fences must be repaired and maintained and no objectionable or unsightly usage of lots will be permitted which is visible to the public view. Building materials shall not be stored on any lot except when being employed in construction upon such lot, and any excess materials not needed for construction and any building refuse shall promptly be removed from such lot.

Vehicles. No stripped down, wrecked, junked, or wholly inoperable vehicle shall be kept, parked, stored, or maintained on the street fronting any lot in the subdivision, or on any portion of the front yard or driveway of the permanent structure, and such vehicles shall be kept, parked, stored, or maintained on other portions of a lot only within an enclosed structure or a screened area which prevents the view thereof from adjacent lots or streets. No dismantling or assembling of motor vehicles, boats, trailers or other machinery or equipment shall be permitted in any driveway or yard adjacent to a street.

Nuisances. No noxious or offensive activity shall be carried on upon any lot, nor shall anything be done thereon which may be or may become an annoyance or nuisance to the neighborhood. No Owner shall commit an act or conduct work that will impair the structural soundness or integrity of another residence or impair any casement or hereditament, nor do any act nor allow any condition to exist which will adversely affect the other residences or their owners.

Garbage and Refuse Disposal. No lot shall be used or maintained as a dumping ground for rubbish. Trash, garbage and other waste shall be kept in sanitary containers, whether arranged for alley pickup or street pickup. No trash, ashes or other refuse may be thrown or dumped on any vacant lot, park or drainage area.

Pets. No animals, livestock or poultry of any kind shall be raised, bred or kept on any lot, except for cats, dogs, or other generally recognized household pets of a reasonable number, provided that they are not kept, bred or maintained for any commercial purposes.

2

EXHIBITE

Development Targets

The City of San Antonio has designated the North East Crossing Development as a Tax Increment Reinvestment Zone. This project includes the construction of approximately 1364 single-family affordable and market-rate homes with the current estimated sales prices ranging in value from $77,000 to $110,000. The sizes of the single-family homes are expected to be between approximately 965 to 2,334 square feet. Construction is expected to be carried out in sixteen phases, subject to demand and market conditions. The Developer intends to begin housing development no later than August 1, 2002.

The Developer will exercise reasonable efforts to cause the Public Infrastructure Improvements to be constructed, operated, and maintained in accordance with the terms of this Development Agreement, the Project Plan, Financing Plan and all local, state and federal laws and regulations, as amended (including, but not limited to, environmental, zoning, energy conservation, building code and public health laws) except for variances approved by the City, necessary to construct the Public Infrastructure Improvements contemplated in the Project Plan and Financing Plan. The Developer agrees to the following terms regarding Public Infrastructure Improvements as set forth below.

(A). The Developer agrees that the scope and scale of the site improvements to be constructed shall not be significantly less than the scope and scale of the improvements as detailed and outlined in the Project Plan and Financing Plan. The proposed improvements and related capital costs include: site work; drainage; sidewalks; drainage detention; utilities; storm water pollution prevention; streets and approaches; water and sewer improvements; street lights; street signs and traffic signals; right-of-way landscaping; drainage study; platting and related governmental land development fees wholly or proportionally attributable to eligible public improvements; engineering; and pedestrian linkages.

(B). The Developer shall submit a construction progress report and a construction expense report on a annual basis to the City, Participating Governmental Entities and Administrator, or within thirty (30) days of any such request.

(C). Further, the Developer shall be required to diligently construct Public Infrastructure Improvements and homes in the Zone Property and substantially complete each item of the Public Infrastructure Improvements and housing in accordance with the Project Plan. Per Section 311.013 (d) the Developer shall be deemed to have abandoned the Project, and the City may terminate its participation in this Agreement, if the Developer fails for a period of three (3) years from the date of the Development Agreement, to (i) commence construction activities on any homes in the Project; or (ii) commence construction of Public Infrastructure Improvements pursuant to the Project Plan.

Below is a description of the development targets that the Developer has submitted and used as a basis for the formation of the Project Plan and Financing Plan. These development targets are proposed to be met by the Developer during the term of the Agreement. The City acknowledges that the Developer's ability to construct the homes and Public Infrastructure Improvements are subject to the then-current market conditions, including but not limited to the availability of purchasers, owners, financing, or winter conditions.

Construction Timetable

Phase Year Number of Lots Type of Structure Units 1 and 2 2002 72 Lots Single Family

Unit 3A 2002 N/A Collector Street Unit 3 2003 105 Lots Single Family Unit 4 2004 109 Lots Single Family Unit 5 2005 53 Lots Single Family Unit 6 2006 92 Lots Single Family Unit 7 2007 89 Lots Single Family Unit 8 2008 120 Lots Single Family Unit 9 2009 99 Lots Single Family Unit 10 2010 88 Lots Single Family Unit 11 2011 122 Lots Single Family Unit 12 2012 91 Lots Single Family Unit 13 2013 88 Lots Single Family Unit 14 2014 84 Lots Single Family Unit 15 2015 104 Lots Single Family Unit 16 2016 48 Lots Single Family

Total1,364 Lots

EXHIBIT F

AN ORDINANCE 7 1 3 I 2 N!ENDING ORDINANCE NO. 60110 I DATEE> JANUARY 17 I 1985, SO A.S TO ADOPT 'A NEW "GENERAL' CONDITIONS'' SECTION IN 100% LOCAL FUNDED CITY PUBLIC HORKS CONSTRUCTION CONTRACTS AS SET OUT IN THE REVISED CITY HAGE AND LABOR STANDARD PROVISIONS.

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WHtREAS, the ~ity £ouncil wishes to establish the general prevailing rat~f "per diem wages in the form of a sum certain for each of two 'destinct categories of wages described as "minimum hourly bas~','\. pay" and "minimum hourly fringe benefit contribution" for all~ 100% Locally Funded city construction contracts; and

WHEREAS, there is a new United States Department of Labor wage Determination· Decision for Bexar County, Texas 1 published in the Federal Register, that applies to such 100% Locally Funded contracts; and

WHEREAS, any 100% Locally Funded City Public Works Construction Contractor/Subcontractor is st~ictly prohibited from paying ~1e various classification of laborers, ·workmen, and mechanics any amount less than the "minimum hourly base pay 11 by the accounting process of adding the reduction in "minimum hourly base pay" · to the "minimum hourly fringe benefit contribution" so as to net a combined total of the two categories of the wage; and

WHEREAS, it is the intent of the City Council to allow various classification of laborers, workmen, and mechanics the minimum hourly "cash equivalent" of the appropriate "minimum hourly fringe benefit contribution 11 listed in a '-'age determination decision in 1 ieu of benefits cont'r ibuted to 2. permissible fringe benefit plan; and

1·/HEREAS, t.he city s\-.c.ff has prepared new "General Conditions", governing wages and labor standards and piactices, which are set forth in Attachment I and incorporated herein by reference for all purposes, and which are to be made part of all future 100% Locally funded City· Public WaLks construction Contracts; NOW THEREFORE

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.BE IT ORDAINED BY TH~ CITY COUNCIL OF THE CITY ~~ SAN ANTONIO:

tSECTION 1. Ordinance No. 60110, pass on January 17, 1985, is hereby amended to replace the 100 % Locally Funded City Public Harks Construction Contract "General Conditions" ·· document attached thereto with the new updated "General Conditions" document attached heretp and labled "Attachment I 11

•

PASSED AND APPROVED THIS 1990.

Y 0 R

ATTES

A-PPROVED AS TO FORN: City Attorney I

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REPEJ\LlliG CRDINANCE NJ, 49318 ()_":' APRIL 27 I 1978 AND REPI...ACIN3. SA!·IE \-ITTH 'THIS amoc....t-:CE I t-~m A!JI'H:JRlZIN:; 'IHE CITY ~ 'ID lliSI'Rl.A.""T TI-;:: D:ffiEx:'roR 0: PJBLIC rDRKS 'IO INSERI' NEW ca..._~ o:::tiDI T leNS GJVERNI.N:3 W\GE 1-ND I.AEOR ST A.."'D.ll..R.DS k. ).,'1)

PAACTICES lN N..L roiURE 100% ILX:AILY Fl.NDED CITY PUOLIC 'WORKS <.X:NSTR!JCTICN cx::N1'RACI'S •

* * * * *

BE IT OR.DAJNED BY THE CITY CXXJN::IL C2 THE CI'IY 0? S.h...~ .N-.'TCNIO ~

S'OCTICN l. Ordinance No. 49318 of April 27, 1978 is hereby for:mllly repealed.

SECI'Irn 2. In accordance with Article 5l59a, Revised Civil Statutes of Texas, as arrended, the City Cb..lncil hereby cdopts the rrost current United States Depatt.rre.nt of Labor Wage Determination Decisicns for Bexar O:::xmty, Texas (wage determination decision in effect ten (10) days priot" to bid q>mi.ng) as periodically p.lblis'hed in the Federal Register as the loc.c.l general prevailing rate of per diem wages· to 1::.e paid to various classifications of lal::orers, waz:'}oren, and rrechanics employed in either 1::uilding construction trades or 'heavy{higrway construction trades in constructing 100% LD:::ally F\J.nded City PW?lic Works Constructicn projects .

. / Furthernore, it is hereby the expressed intent of the City O:Juncil of the City of San Mt.cxUo to clearly establish the go_neral prevailing rate of per diem wages to 1::.e a sum certain, in Cbllars and cents, for each of t:J...'O distinct catesories of wage b=ing, "minim..Im h::xl.rly t:ese pay" and "min.i.m.1m 1-o..lrly fringe benefit contribution. " The contractor f sub:::ontractor is strictly prchibi ted frcrn paying the various classifications of J..atorers I 'M:l.t'Krren I and rrechanics any arrount less than the "rnini.m..Jm 'h:::>urly base pay" and then adcii.ng the reduction in "mi.n.i.trum h:Jur l y ·tase pay" to the ''mini.rrum h:xlrl y fringe 1::en e fit contr i b.rt.ion" so as to "net" a cc:nbined total of the two intended distinct cat.eg:>des of the wage m. 100% L£:x:all y Funded City Public oorks Ccns truct.icn con t.r c.cts .

It is reccgnize:i bj the City <h.lncil t.ha t ce rta.in :)ob class if ica. ti.cns are rot en ti. tle<:1 . to receive any "mininum 1-ou rl y fringe rene fits " by virtue of adcpting the United States ~t of J...aOOr Hage Dete.rmi.nation Decisicns for Bexar Co..m.ty, Texas a.rd that result is t.h2 express intent of the City Co..mcil.

It is also the intent of the City O:x .. 1.ncil to allo.-~ the o::mtractor / sulx::ontractor to pay various classifications o: laborers, ...,0:~' and rrechanics the mininum h::xrrly ''cash e::rui valent" of the c.p?ropria t.e '~1

hourly fringe ~efit rontri.Drt..ion" listed in a \f3-9e determi.nation d...."'Cision 1I1

liru of 'benefits contri.b.J.t.ed to a permissible fringe l.:P....nefit plan.

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SECI'IOO 3. 'Ihe City Manager is rereby directed to instruct the Directoc of Public Works to insert into all future ~0?% Lo:::ally Funded City .Public W::xks cons t.ructiCX1 o::x1 tracts , II.'2W "General Ccoli t1.cns " ( c.s set forth in t\t tachrre.n t I which is inoorporated recein bf reference for- all IJ-irposes) g:>vem.ing v;age andlab:x s t.an::lards a.rrl practices .

The City Hanager, in ~ultatioo with the Director of Public \'brks, is hereby authorized by City G::uncil to :pericdically c.Te.n::l s..1c:h ''General Ccnditicns" cdministratively to reflect needed inproverrents in the O::x::urrent as required, . except that cnly the City <hlncil shall 1::e c.uthorized to CUTend legislative rre.tters specifically addressing the prevailing rete of mini..m.Im per diem wages, holiday pay, etc.

/• 7 d ()~A .... . PASSED 1-ND APProVED this --~'----- c3.2.y of --~-n-~-'-'-~-r-----' 1985.

AT!Wr:~--c/({~ City Clerk \ ll ~

APProVED PS 'IO FORM: r-· ity At omey (/

I I .. _,

ss- o~

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~~~,-----'--~~--- ____ _ -. _________ .,_ --------- .

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\-&>.GE AND I.ABJR SfA..~-~ PROVISIONS-100% LOCALLY fUNDED CO..'~STR~CfiO:l

Contents

1. GENER.llli STATENENT

2. WAGE & HOUR OFF::fcE, PUBLIC \\DRKS DEPT. RESFONSIBILITIES

3. CLAIMS & DISPUTES PERTAINit-"'G TO \%GE RATES

4. BREACH OF tXAGE & I.AEOR SfANDARDS PROIJISIO~S

5. El-fl?ID':fr!Et'rr OF I.ABJRERS/.NECH.~ICS 1\0I LISTED IN \-&>.GE D2TER'UN.1\TIO."l DECISION

7. OVERTD-lE C0.'1PENSATIO.'Il O.'ll 1\0t'll-FEOER~Y FUNDED PROJECTS

8. PAY1'1ENI' OF CASH EQUIV~ FRIN:;E BENEFITS

9. W:::>RK CDNDUCI'ED ON HOLIDAYS-1\0..'Il-FEDERr.J:..LY FUNDED PROJECTS

/

/ 10 • UNDERPAYMEr,iT OF \i'\GES OR SAlARIES

11. rosrn."'G WAGE DETER!-UN.~TION DECISIO~VsrATENENT AND "l\Ol'ICE 'fO E-fl?IDYEES" -

12. PAYROLLS & BASIC PAYROLL RECORDS

13 . I.AOOR DISPUTES

14. c:a1PIAINTS, PROCEEDit-."'GS, OR TESTH-DNY BY ENPI.DYEES

15. EMPLOYEE INTERVI&/S 'ID ASSURE HZ\GE & I..AroR STANDARD c:n-l?LIANCE

16. "ANTI -KICKBACK" PROVISIO:J

17. "FAlSE INfORMATION" PROIJISIO.~

18. EMPID'fl-1ENT OF APPRENTICES/TR"'Il\'EES

19 ; JOBSITE CD~ITIONS

20: D1PIDYMENT OF CERTAIN PER.SO-~S PROHIBITED

21. PROVISIONS TO BE INCLUDED IN SUBCO[JI'R~CTS

/

/

1 • . GENERAL STATENEl\11

This is a 100% locally funded P"ublic b'orks Contract and At:t.icle 5l59a, Revised Civil Statutes of Texas, as arrended, requires that ·not less than the general prevailing \.:age rates {minimJm hourly base pay and minimum hourly fringe benefit contribution) for h'Ork of sir.Ular character be paid to contractor and subcontractor ewployees. These wage rates are derived from the most current applicable federal prevailing wage rates as p.lblished by the United States Depart.ment of I..abor, Dallas, Texas and authority of Ordinance No. 60110 as a.rrended and passed by the City Council of the City of San J>.ntonio. Copies of both the current Ordinance as amended and the wage rates are contained in the Special Conditions, _ and are included instruments of this contract and full compliance _\-tith same shall be required.

l>uly deviation from t'lage and L<:.l:::or Standard Provisions cornpliaJ1ce may be cause for City's withholding either periodic inter~ or final pa)~nt to the contractor until such deviations are properly corrected.

2. \'[r>.GE & HOUR OFFICE, PUBLIC ~<DR!\S, RESPO:JSIBILITIES

The \'lage & Hour Office, Public t\'orks Depart:.ment, City of san l>ultonio, is primarily responsible for all \·/age and Laoor Standard Provisions investigation and enforcerrent and ,,•ill rronitor contractor/sub::=ontractor practices to assure the Director of Public \'K>rks th~t:

a. APf>ropriate t,•eekly c()('['f)liance statements and payroll records are submitted to the City by the contractor/subco~tractors and that such are reviewed for CO!'rq?liance ,,·ith the wage and Labor Standard Provisions.

b. Apprentices/trainees ,,'Orking on the project are properly identified by the contractor/subcontractor on payroll records and documented as being included in programs currently sanctioned by appropriate federal or state regulatory agencies.

c. AfJPlicable \·/age Oeter:mination Decisions, including any applicable m:x:iifications, and related statements are I;Osted at the \.JOrk-site by the contractor and that proper job classifications and commensurate minimum hourly base and fringe wage rates are paid.

d. Employees are periodically intervie-,.,.ed (at rard:xu) on each project as required.

e. That no p.:=rson errployed by contractor I sub:::ontractor is against his \-lill, by any r.e.ans, to give up any pa.rt compensation to \.Jhich he is othen~ise entitle.i.

induced of the

f. That any and all pet·iooic ad.rffi.nistrative directives to the ~·)age &

Hour Office from the Director of Public \·nt·ks are being .irnr_r:>lerrentc--d ·

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3. . CIA INS t< DISPlJfES PERTAINII\"G TO \-IAGE AA'i't,S

4.

Claims and dispJ.tes not prorrptly and routinely settle<l by the contractor/sub::ontractor and enployee peruining to wage rates,·· or to job classifications of Jal::or enployed UfOn the V.'Ork covered by this contract, shall be rep::>rted by the employee in writing, v:ithin sixty (60) calendar days of employee's receipt;. of. any allegedly incorrect classification, \,•age or benefit rep::>rt, to th'e \~ge & Hour Office, City of San Antonio for further investigation. Claims and disp.Ites not refX)rted by the errployee to the City's ~~ge & Hour Office in writing within the sixty (60) calendar day period shall be deerred \,·aived by the employee for the purposes of the City administering and enforcing the City's contract rights against the contractor on behalf of the employee. \·/diver by .:the employee of this City inten .. ention shall not constitute waiver by -the City to inde,~?endently p.u-sue contractual rights it has against the contractor/subcontractor for breach of contract ?nd other sanctions available to enforce the Hage and Labor Standard Provisions.

BREACH OF WAGE A.t>ID IAEOR srMTOA..t{f) PROVISIO;;lS

The City of San Antonio reserves the right to terminate this contract for cause if the contractor/sul:contt:'actors shall kno~,·ingly and continuously breach, t·:ithout tirrel~· restitution or cure, any of these govet:'ning t'lage and Labor Standard Provisions. A kno~.ring and unrerredied proven violation of these \~ge and I..a.bor Standard Provisions 1\'aY also be grounds for debament of the contractor/subcontractor from future City of San Antonio contracts for lack of responsibility, as deterroQned by the City of San Antonio. Recurrent violations, \,·hether remedied or not, will be considered by the Director of Public \\arks \.:hen assessing the responsibility history of a potential contractor/subcontractor prior to competitive a~.rard of future Public v:Orks projects. The general remedies stated in this paragraph 4. arove, are not exhaustive and not curocdative for the City reserves legal and contractual rights to other specific rerredies outlined herein belo'' and in other parts of this contract and as are all~ed by applicable City of San Antonio ordinances, state and federal statutes.

5. ENPIDYMENT OF IAOORERS/MECHANICS 1:\QT LISTED IN \il\GE D8TERl'1IN.l\TIO:\ DECISION

In the event that a contractor/~)ntractor discovers that construction of a particular work elerrent requires a certain e;r<?loyee classification and skill that is not listed .in the \·:age determination decision contained in the original contract docun'€nts, contractor/sul:x::ontractors \vill ma.ke prompt inquiry (before bidding, if rossible) to the ~'iage 2..1'16

Hour Office identifying that class of laborers/r-echanics not listed in the v.·age determination decision h'ho are intended to be err.ployed, or ,,•ho are being employed., under the contract. Using his best judgrrent ar,:l infomation resources available to him at the ti.rle, and any si.milcr prior decisions, the Director of Public ~·:Orks, City of San Antonio srell classify said laJ:::orers/mechanics by issuing a special local \,•age determination decision to th~· contractor/sulx::ontractor Hhich shall ~ enforced by the ~·/age and Hour Off ice.

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6. t-UNit-IU\'1 t-&\GE

All lal:x:>rers/rrechanics errployed to construct the ,,'\Jrk governed by this contract shall be paid not less than weekly the full amount. of wages due (minimum hourly base pay and nlinliuum hourly fringe benefit contribution for all hours \-.'Orked, including overtime) for the inm__~iately preceding pay period computed at wage and fringe rates not less than those contained in the wage determination decision i~cluded in this contract. Only payroll deductions as are mandated by state or federal law and those legal deductions previously afProved in Hriting by the employee, or as are otherwise p:rmitted by state or federal la\,', rray be Hithheld by the contractor/subcontractor.

-Should the~ntractor/subcontractor subscribe to fringe benefit programs for employees, such programs shall be fu~ly approved by the City in adopting a previous U.S. Depart.ment of Labor decision on svch fringe benefit progra.I:\S or by awlying t:DL criteria in rendering a local decision on the adequacy of the fringe benefit programs. The aH?roved programs shall be in place at the time of City contract execution and provisions thereof disclosed to the t~age and Hour Office, City of San Antonio, for legal reviev.• prior to project corrme.ncement.

Regular contractor/subcontractor contributions made to, or costs incurred for, afProved fringe benefit plans, funds or other benefit programs that cover periods of time greater than the one \.:eek payroll period (e.g. oonthly or quarterly, etc.) shall be prorated by the contractor/sub-contractor on \-."eekly payroll records to reflect the equivalent value of the hourly and '"eekly s\lit'rnary of fringe benefits per

/ employee. /

7. OVERTIME CCX1PENS.h.TIOJ.'J ON N::JN-FEDER.ru...LY FI.Jl\TOEO PROJECTS

No contractor/subcontractor contracting for any part of the non-federally funded contract work (except for \,•orksite related security guard services) Hhich 11BY require or involve the er.-ployrrent of laborers/ mechanics shall require or p2rmit any laborer/mechanic in any seven { 7)

calendar day \-.'Ork perioo in "'-hich he, she is er.ployed on such \..rork to \-K>rk in excess of 40 hours in such \,'Ork perioo unless said laborer I mechanic receives compensation at a rate not less than one and one-half ti.rrles the basic hourly rate of pay for all hours \-.'Orked in excess of 40 hours in a seven ( 7} calendar day \''Ork period. Fringe benefits must ~ paid for straight ti.rre and overti.rre; hO'~:ever, fringe benefits are no::: included ~hen c~~ting the overt~ rate.

8 . PA Y!1ENT OF CASH EQU IV A.LE?.i FRI.N:;:E BENEfl TS

The contractor/sub:::ontractor is allO\,·ed to p3.y a rru.n:unLITn hourly ccs'n equivalent of mini..mu:m hourly fringe benclits listed in the v:age determination decision in lieu of the contribution of benefits to 2·

permissible fringe benefit plan for all hours \,'.Jrked including overtir.e: as described in.· paragraph 6. alx)Ve. An ert9loyee is not allowed tr: receive less tron the mi.nirru.Jm h:Jurly basic rate of pay specified in th' wage determination decision. ·

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9. hDRK ffi'IDUCfED Q.'J HOLIOtWS-NJ~-FEDEIU\LLY tuNDEO PROIECTS

If a la.torer /rrechanic is errployed in the norw.l course arid sco~ of his or her \,ork on the jobsite on NB" Year's CBy, t·~rial fuy, Fourth of July, Labor Day, Thanksgiving Day, christ:Ii\3.s n:-y, and H~rtin Luther I<ing Day or the calendar days observed as such .1n any g1ven year, \,'Orl-: perfonred shall be paid for at no less than one and one half (l :1./:2)

tirres the regular minimum hourly base pay regardless of the total number of hours the laborer/m::chanic has accumulated during the pay pericx3..

10. UNDERPAYNENT OF ~·lAGES OR S.l>J.ARIES

a. \'/hen a- "full investigation" (as called for in 2nd as construed under Articl-e 5159a, Sec. 2 .and as further gene:rally described in an adminh;trative directive to the City's t-.:age & Hour Office from the City's Director of Public ~'iorks entitled ''Conducting \~age and Labor Standards Investigations on 100% IJ:x:ally Fu.'lded City Construction Projects 1 " as rr.ay be arrendedl evidences unde:rpayrrent of v.·ages by contractor/sub-contractor to la.lx>rers/rrech2.nics employed up:m the v.ork covered by this contract, the City of San Antonio, in addition to such other rights as ooy be afforded it under state and/or federal la\.z and/or this contract, shall \.Jith.hold from the contractor, out of any payments (interim progress and/or final) due the contractor, so rruch thereof as the City of San Antonio rr.ay consider necessary to secure ultir.B.te payment by the aFPropriate part~r to such laborers/rrechanics, of full \.;ages required by this contract plus r:ossible penalty (See b. below). The arrount so \,·ithheld I excluding any p:>ssible penalty to be retained by City, rr.ay be disbursed at an aP5?ropriate ti.rre after "full investigation" by the City of San Antonio, for and on behalf of the contractor/sulx:ontractor (as rr.ay be aJ?i?ropriate), to the respective la.bor~rs/ mechanics to whom the sarre is due or on their behalf to fringe benefit plans, funds, or programs for any ty~ of mini.rnu::"\\ fringe benefits prescribed in the aPi?licahle wage determination decision.

b. Article 5159a, Revised Civil Statutes of Texas, as a.rrended, states that the contractor shall forfeit as a p2n.al ty to the City of S2.n Antonio the sum of sixty dollars ($60.00) for each calenda-r day, o;: p::>rtion thereof, for each laborer, c,.,'OrkrrBn, or rrechanic I v.·ho is pa. ici less than the said stip.rlated rate for any \-'Ork done under this contract I whether by the contractor himself or by any sulx:::ontrac"""wr V.'Orking under him. Pursuant to and supfll e;-;-ental to this st.atutorl· authority 1 the City of San Antonio and the contractor/sul:x:ontractor CQntractually acknO\.:ledge and agree that sa.i.d sixty dollar ($60.0Cl) statutory penalty shall be construed by a.rld bet\-1een the City of ~': Antonio and the contractor/sub::::ontractor- as liquidated da.r<Bges an'J will awly to any violations of paragraphs 6, 7 t or 9 herein, resulting fro~ contractor/subcontractor underp2yrrent violctions.

c. H Wlpaid or und.erp3.id \''Orkers e2nnot D-.::: lccated by the Cont~·~cto: or the city' after diligent e.ff01ts to acco.19lish sarre, unpaJ.0 0

underp3id wages sh..:=tll be teserved by the City in a spxial ''unfo:x> v.'Or}::er' s accoWlt" established by the City of San ,z._ .. tonio, for s:~

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errployees. If after one (ll year frCXi\ the final acceptance of the project by the City, V.Drkers still cannot be located, in order that the City can r.Bke effective inter.iJU re-use of the rroney, such Hages and any associated liquidated damages rrBY 1::-2 used to aeft-ay actual costs incurred by the City in attffipting to locc.t.c said \,Drkers and any remaining monies roay then revert back to the City's original funding source for the project. HO'.,'e.ver, un)?-.".id or undel:"fBid v.Drkers for which money was originally reserved are eligible to claim recovery from the City for a ~riod of not-to-exceed three ( 3) years from the final acceptance of the project by the City. Recovery after expiration of the three year perioo is prohibited.

11. DISPLAYING \-&GE DETERHIN.Z>.TIO~ DECISIO~S/1>1'-.TO l\"OTICE: TO I.AEDRERSI!-!ECH_l\NICS STATEMENT _-

The awlicable \.,rage determination decision as descr~:3 in th~ "General Staterrent" (and as specifically included in each project contract), outlining the various V.'Orker classifications and li\3ndatory minimum wages and minimum hourly fringe benefit deductions, if any, of lalx>rers/ mechanics errployed and to be erPployed up::m the \,Drk covered by this contract, shall be displayed by the contractor/subcontractor at the site of Y-'Ork in a conspicuous and prominent p..lbl ic place readily and routinely accessible to v.'Orkmen for the duration of the project. In addition, the contractor/sub::ontractor agrees v.·ith the contents of the follo\·ring staterrent, and shall display same, in English and Spanish, near the display of the wage determination decision:

l\"OTICE 'IO IJ:>.OORERS/~1ECH.~.NICS

Both the City of San Antonio and the contractor/sub::ontractor agree that you must be corrq;::.ensated with not less than the r.Unimum hourly base pay and minimum hourly fringe benefit contribution in accordance \-iith the wage rates publicly posted at this jobsite and as are applicable to the classification of v.'Ork you perform.

Additionally, you must be paid not less than one and one-half times your basic hourly rate of pay for any hours Y.'Orked over 40 in any seven (7) calendar day v.'Ork perioo, and for any \,'Ork conducted on Nev1 Year • s Day, t-ierrorial Day, Fourth of July, Lal:.or Day, Thanksgiving Day, Christ..r.Bs Day and Martin Luther King Day or the calendar days observed as such in any given year.

1-..pprentice and trainee hourly yage rates and ratios at7;>ly only to apprentices and trainees recognized W1der af?!-o·,:ed Federal, or State' apprenticeship training projrams registet·ed ,,·ith tb~ Bureau of Ar,:prenticeship and Training, U.S. Dept. of L3l"D!.

If you believe t'na.t your employer is not p3.ying the PJS'L0-i minimum \·Iag"' for the t::rrpe of \o.Drk you do, you must I\\:L\.:e direct ir.:::ruiry to th~ employer and irquire in \-lriting, \..:ithin si>:ty ( 60) calendar days of your receipt of any aUegedly incorrect wage or benefit check or report, to the City of San Antonio ~'0ge &·Hour Office, Public \\:Orks Division, P.O.

Box 839966, San Antonio, Texas 78283-396G. ll is m..=mdatory that Y0 '~·

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promptly file Hritten inquiry of any allegedly incorrect \·:age or benefit checks or rep:Jrts with the City of San Antonio, 1-;age & Hour Office Hithin the sixty (60) calendar day p3riod so that you do -not \-:aive your potential right of recovery under the provisions of the· City of san Antonio Public \\arks contract that governs this project.

Both the City of San Antonio and the contract;.or/sulx:ontt·actor agree that no laborer/mechanic ,.;ho files a co:nplaint or inquiry concerning alleged underp3yrrent of \<ages or benefits shall be discharged by the employer or in any other rrBnner be discriminated against by the employer for filing such complaint or inquiry.

12. PAYROLLS & B.l\SIC PAYROLL REC'ORDS

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a. The contractor and each sulx:ontractor shall prepare payroll reports in accordance Hith the ''General Guideline" instructions furnished bv the \~age & Hour Office of the City of San Antonio. Su~h payroli submittals shall contain the name and address of each such employee, his correct labor classification, rate of pay, daily and Heekly number of hours v:orked, any deductions rrBde, and actual basic hourly and fringe benefits paid. The contractor shall subnit payroll records each Heek, and no later than seven ( 7) \o.'orking days follor,.:ing completion of the \,'Ork"Week being processed, to the \~age &

Hour Office, City of San Antonio. These payroll records shall include certified copies of all payrolls of the contractor and of his subcontractors, it being understood that the contractor shall be responsible for the sul:xnission and general T:\3.thematical accuracy of payrolls from all his sulx:ontractors. Each such payroll suhnittal shall be on forms deesred satisfactory to the City's \~age & Hour Office and shall contain a "\\eekly Statement of Compliance", as called for by the contract dcx::urrents. Such payrolls \·lill be fono~arded to Public \\arks, Hage & Hour Office, City of San Anton'to, P. 0. Box 839966, San Antonio, Texas 78283-3966.

b. Copies of payroll subnittals and basic suw:>rting payroll records of the contractor/subcontractors accounting for all laborers/mechanics ernrloyed under the \o.'Ork covered by this contract shall be 1'1'B.intained during the course of the \-.'Ork and preserved for a period of three (3) years after completion of the project. The contractors/subcontractors shall rraintain records which derronstrate: any contractor ccxrmitrrent to provide fringe benefits to errployees as roay ~ rrandated by the awlicable wage detenn.i.nation decision, that the plan or program is adjudged financially resp::msi.ble by the appropriate aP?roving authority, (i.e. U. S. Department of Labor, U. S. Dep3.rtrrent of Treasury, etc. ) , and t:.h3t the provisions' policies, certificates, and description of benefits of the plan o~ program as may b:: J?€ricx3.ically a.rrendecl, have been clearly corrmunicatecl in 2 tinely m3.nner and in \.Jriting, to the laborers/mechanics affected prior to their ~rforming -..:od-: on the project.

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c. The contractor/sulx:ontractor shall mke the alx:lve records available for insP=Ction, copJing, or transcribing by authorized representatives of the c'ity of San Antonio at reasonable times and locations for p..u-poses of r.onitoring C<::X'rpliance with this contract.

13. LABOR DISPUTES

The contractor/subcontractor shall ~iately notify the Director of Public \\arks or his designated representative of any actual or :i.rt'-f.ending contractor /subcontractor lab::>r di5IX1te h'hich (";\3.y affect, or is affecting, the schedule of the contractor's, or any other contractor' s/ subcontractor's ~ork. In addition, the contractor/subcontractor shall consider all afPrOpriate measures to eliminate or minimize the effect of such labor: disp.1tes on the schedule, including but not limited to such measures as: promptly seeking injunctive relief if afPropriate; seeking ar:propriate legal or eguitable actions or rer.edies; taking such measures as establishing a reserved gate, as appropriate; if reasonably feasible, seeking other sources of suwly or service; and any other measures that may be awropriately utilized to mitigate or eliminate the jobsite and scheduling effects of the labor dispute.

14 • cn--IPI..Ait'--l"'TS I PROCEEDit--"GS I OR TESTD-0.\JY BY ENPLOYEES

No laoorers/rrechanics to whom the wage, salary, or other labor standard provisions of this contract are awlicable shall be discharged or in any other manner discriminated against by the contractor/subcontractors because such employee has filed any formal inquiry or complaint or instituted, or caused to be instituted, any legal or equitable

.' prcx::eeding or has testified, or is arout to testify, in any such prcx::eeding under or relating to the wage and lal::or standards awl ica.ble under this contract.

15. El--IPLD':x."EE INTERVIEWS TO ASSURE \'l?>.GE AND LABJR STA.~U.:uill CO:·ll'LIA.NCE

Contractor/subcontractors shall allow expeditious jobsite entry of City of San Antonio \'lage & Hour representatives displaying and presenting proper identification credentials to the jobsite superintendent or his representative. \mile on the jobs~te, the wage & Hour representatives shall observe all jobsite rules and regulations concerning safety, internal security and fire prevention. Contractor/subcontractors shall allet..: project errployees to be separately and confidentially interviB-Jed at random for a reasonable duration by the Wage f, Hour representatives to facilitate compliance determinations regarding adherence by the contractor/sulx:ontractor to these \'iage and Lal:or Standard Provisions·

16. "ANfi-l<ICKBZ\CK" PROVISIO.'l

No person employed in the construction or repair of any City of Sen Antonio p.ililic \,"Ork shall be induced, by any r.can.s, to give up to any contractor/sub:::ontractor or PJblic official or er.1ployee any p3rl of ~he hourly and/or fringe bo_nefit co..'1p2ns.a.tion to \·.'hich h~ is othennse entitled.

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17. "FALSE OR DECEPTIVE INFORH.i\TION'' PROVISIOt'J

Any person employed by the contractor/subcontractor in th~ construction or repair of any City of San Antonio p.illlic Y.'Ork, y.·ho is .proven to have kr\O<,.;ingly and Hillfully falsified, concealed or covered up by any deceptive trick/ scherre1 or device a ooterial fact, or rode any false fictitious or fra·udulent stater.ent or representation/ or made or used any false Hriting or document kno\.:ing the ~ to contain any false 1 fictitious or fl:'audulent statement or entry 1 shall be permanently rerroved from the jobsite by contl:'actor/subcontractor. The City of San Antonio reserves the right to terminate this contract for cause as a result of serious and uncured violations of this provision.

18. DIPLOYMENT QF APPRENTICES/TRI\It-."EES

a. Apprentices Hill be permitted to Y.'Ork at less than the pt"edetennined rate fol:" the Y-'Ork they perfonn when they are employed and individually registered in a bona fide apprenticeship pro:~rarn registel:"ed \,•ith the U. S. Department of I..a.OOr, ErnploJ"li'€nt and Training Administration/ Bureau of AFf>l:"enticeship & Training/ or with a State Ap£:>renticeship Agency recognized by the Bureau I or if a person is employed in his first 90 days of probationary e"!?loyment as an ar:prentice in such an awrenticeship program/ \,•ho is not individually registered in the progl:"arn, but \<.'ho has been certified by the Bureau of Apprenticeship & Training or a State Apprenticeship Agency <where awropriate) to be eligible for probationary employment as an awrentice. The allO<,.rable ratio of apprentices to journeyr.en in any craft classification shall not be greater than the ratio permitted to the contractor/subcontractor as to his entire Y.'Ork force under the registered program. Any errployee listed on a payroll at an apprentice wage rate1 who is not a trainee as defined in (b) belc:f,: or is not registered or otherwise employed as stated above, shall J?e paid the wage rate for the classification of Y-'Ork .he actually pet"forms . The contractor I subcontractor is required to furnish to the Wage & Hour Office of the City of San Antonio, a copy of the certification, along Hith the payroll record that the eroployee is first listed on. The wage rate paid apprentices shall be not less than the specified rate in the registered program for the awrentice' s level of progress expressed as the awropriate percentage of the jou.meyrran' s rate contained in the applicable wage determination decision.

b. Trainees Hill be permitted to Y-'Ork at less than the pred.etermineci rate for the Y.'Ork pedomed when they are errployed p..1rsuant to an individually registered program which has received prior al?i?roval, evidenced by fornBl certification by the U. S. Depart.rrent of Labor, Emplo1~nt and Training Administration. The ratio of trainees to journeymen shall not be greater than that p2rmitte.-l. under the plan aptJroved. by the t:J:\Iployr.ent and Training f>.dministration. Every trainee must be paid at not less than the: rate SJ:?ecified in the awroved program for his/he1· level of progress. Tilly employee listed on the payroll at a trainee \,·age rate \·:ho is not re-gistered and p3.rticipa.ting in a training plan al?i?roved

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by the Employment and Training Administration shall l~ paid not less than the Hage rate deterr.Uned by the classification of hurk he actualiy I_::>erforms. The contractor/sub::ontractor is ·required to furnish a copy of the trainee program certification, registration of employee-trainees, ratios and \-:age rates prescribed in the program, along Hith the payroll record that the employee is first listed on, to the \-Jage E, Hour Office of the City of San Antonio. In the event . the Employrrent and Training Administration withd.rat.Js ar;proval of a training program, the contractor/sul::contractor \.:ill no longer be permitted to utilize trainees at less than the applicable predetermined rate for the v;ork performed until an acceptable program is awroved by the J:Jiployment and Training Ad,.U.nistration.

c. Paragraphs 15.a. and b. al::ove shall not operate to exclude training programs awroved by the OFCCP I United States Oepart:.rrent of Laoor and as adopted by the Associated General Contractors !AGC) of Texas, Highway, Heavy, Utilities and Industrial Branch. Guidelines for these training programs shall be the same as those established for federally funded projects. This sub-paragraph 15 .c. shall not awly to those portions of a project deerred to be building construction.

d. RATIOS, APPRENI'ICE TO JOURN'E':xJ-tl\N:

The Ratio of Apprentice to Journeyman for this project shall be the same as the Ratio permitted under the plan awroved by the Employment and Training Administration, Bureau of Apprenticeship and Training, u.s. Department of Lal:x:lr, by Craft. A copy of the allO\.,rable Ratios is included \<:ith the applicable t'la.ge Determination Decision in the specifications for this project.

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~'hen a ''full investigation" (as called for in, and as construedunder, Article 5159a, Sec. 2, and as further generally described in an administrative directive to the City's \~age & Hour Office from the City's Director of Public \)Orks entitled "Conducting \~age and Laoor standards Investigations on 100% Locally Funded City Construction Projects", as may be amended) evidences a violation of the A~rentice or Trainee to Journeyman ratios effective for contractor/ sub-contractor employees h~rking on this contract, the City of San Antonio, in addition to such other rights as ITBY be afforded it under state and/or federal law and/or other sections of this contract (especially paragraph 10 underpajT.ent of wages), shall Hithhold from the contractor, out of any p?.)T.ents (interim progress and/or final) due the contractor, the liquidated da.rrages surn of seventy-five dollars ($75. 00) for each calendar day, or pxtion thereof, for each certified ~.-prentice or Trainee employee assigned to a Journe)'fl\3J1 that exceed~ the JCax:i.rnum alla.-1able l\pj?rentice/ Trainee to Journeyrron ratio stip--1lated for any \,'Ork done under this contract, whether by the contractor himself or by any subcontractor \,Drking Wider him.

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19. JOBSITE CO..'IDITIO.~S

Contractors/sub:::ontractors \.Jill not all0\4 any person employed for the project to \,'Ork in surroundings or under cortStruction conditions Hhich are unsanitary, unhealthy, hazardous, or dangerous as governed by indL1Stry standards and awropriate local1 state and federal statutes, ordinances 1 and regulatory guidelines.

20. EMPI.DYHB~"T OF CERTAIN PERSONS PROHIBITED

a. The contractor/sulx::ontractor shall knowingly only employ persons of aFPropriate ages comnensurate with the degree of required skill, strength, rraturity and judgment associated ,,·ith the activity to be engaged- in, but not less than the age of fourteen (14) years, as governed by Vernon's Annotated Texas Statutes/ especially Article 5181.1 · "Child Labor" (as rray be an-ended}, and Texas Dep3.,rtrrent of Labor and Standards rulings and interpretations associated \o~ith that statute. It is hereby noted that in sorre circumstances generally governed by this section, a federal statute (see: Fair Labor Standards Act, 29 uses Section 212; Vol~ 6A of the Bureau of National Affairs '-age Hour t-lanual at Paragraph 96:1; "Child I.abor Requirerrents in Nonagricultural O::cupations" l'lH Publication 1330 1 July 1978 as rray be arrended), could pre-empt the Texas Statute and therefore be the controlling law on this subject. The contractor/subcontractor should seek clarification from state and federal agencies and legal counsel "ben hiring adolescent employees for particular job classifications. ·

b. Prohibited persons not to be errployed are also those persons \-iho, at the time of employment for this contract, are serving sentence in a penal or correctional institution except that prior awroval by the Director of Public l\orks is required to employ any person participating in a supervised v.'Ork release or furlough program that is sanctioned by appropriate state or federal correctional agencies.

c. The Contractor/sulx:ontractors shall be responsible for CO.IIflliance vrith the provisions of the "Irrmi.gration Reform and Control Act of 1986" Public Law 99-603, and any related State enabling or implementing statutes, especially as they in combination aFPlY to the unlawful employment of aliens and unfair immigration-related employment practices affecting this contract.

21. PROVISIO.''lS 'ID BE INCLUDED IN SUBCD:ITRACTS

The contrac+-1..0r shall cause these \~ge and L.:l.OOr standard Provisions, or reasonably similar contextual adaptations hereofr and any othet· appropriate state and federal labor provisions, to be inserted in all subcontracts relative to the \,'Ork to bind sub:::ontractors to the sarre \·/age and Labor Stc.ndards as contained in these terms of the Genercl Cor~itions and other contract documents insofar as applicable to the \,'Orl\: of subcontractors or sub-sulx::ontractors and to give the contracto: similar 1 if not greater 1 general contractual authority over ~he sulx:ontractor or 51.l.lxDntt·actors ·as the City of San l'~tonio rn:1y exercts:" over· the contr·aclor.

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-----·--····-··------------ ----GeneL~l Decioion ~umber TXOOOO~~

Superseded General Dccioion ~o. TX990043

State: TEXAS

Construction Type: }{f.AVY HIGKWAY

County ( ies) : BELL BEX...t...R BRAZOS CO MAL

CORYELL GU.I\DALUPE HAYS MCLE~'NAN

TRAVIS HILLIW.SON

Heavy (excluding tunnels and dams) and High ... ·o.y Construction Projects (does not include building structures in rest area projects). ~NOT TO BE USED FOR WORK ON SEWAGE OR HATER TREATHEtry PI...b.NTS OR LIFT/PUMP STATIONS IN BELL, CORYELL, McLEtmAH AHD WILLIAMSON COUNTIES.

Modification Number 0

Publication Date 02/11/2000

'l'l(()()()()t_' - , tY)/,,t'Jnno

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COUNTY(ies): BELL BEXAR BRAZOS COXAL

CORYELL GUAO~UPE

HAYS t1CLENNhli

SUTX2042A 03/26/1998

AIR TOOL OPERATOR ASPAALT HEATER OPERATOR AS P H.A.L T RAKER ASPHALT SHOVELER BJ\TCIUNG PLNIT WEIGHER CARPENTER CONCRETE FINISHER-PAVING CONCRETE FINISHER-STRUCTURES CONCRETE RUBBER ELEC'I'R!CIJ\N FU\.OOER FORH BUILDER-STRUCTURES FORM Lih~R~PAVING ~ CURB FORM SETTER-PAVING & CURB FORM SETT&R-STROCTURES LA.BORER-COH.KON LABORER-UTILITY MECliA.NIC-OILER SERVICBR PAINTER-STRUCTORES PIPE LAYER ASPHALT DISTRIBUTOR OPERATOR ASPHALT PAVING MACHINE BROOM OR SWEEPER OPERATOR BULLDOZER CONCRETE CURING MACHINE CO~CRSTE FINISHING ~~CHI~~ CONCRETE PAVING SAW SLIPFORM MACHINE OPERATOR C~~~~ CLAHSHELL 1 BACKHOE 1

DSRRICK 1 DRAGLINE 1 SHOVEL FOUNDATION DRILL OPERATOR

TRUCK MOUNTED FRONT EJfD WADER HOlST - DOUBLE DRUM & LESS

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TRAVIS \-.:ILL I A,V.S ON

Rates 8.08

11.00 8.00 7.97

11.00 10.80

9.57 8.83 8.52

J.6.2S 6_. 86 8.77 8.00 8.68 8.'13 7.12 7.99

12.15 11.4 0

8.4.4. 10.00

8.27 9.70 9.26 7 .12 9.28

. 7. 7 9 11.00

9.79 ll .1 5

10.12

15.00 8.86

10.81

-·~-----...... _

Fringes

..... ,..., J .. - 1-.1"\1"'\ft

I'~ IXER KIXER - CONCRETE PAv~~G MOTOR GRADER f'It-:E GRJ\DE MOTOR GRI\DBR PAVEK£~7 HARKI~G-MACHl~~ PLJ\..\{ER OPERATOR ROLLER, STEEL WHEEL PLANT-MIX

PAV£t.ffit--.'1'S ROLLER, STEEL HHEEL OTHER

F4~Th~EEL OR TAMPING ROLLER, PNB~~TIC, SELF PROPELLED SCRAPERS TRA~q-C~WLER TYPE TRAVELING MIXER TRENCHrtW MACHINE, HEAVY hAGON-DRILL/BORING MACHINE REINFORCING STEEkSEtiER PAVING REINFORCING ST£E~ SETTER

STRUCTURES STEEL WORKER-STRUCTURAL SPR£ADER BOX OPERATOR WORK ZONE R~RICADE SIGN INSTALLER TRUCK DRIVER-SINGLE AXLE LIGHT TRUCK DRIVER-SINGLE .AXLE HEAVY TRUCK DRIVER-TANDB.H .AXLB SEKI-

TRAILER TRUCK DRIVER-LOh~OY/FLO~T WELDER

7.12 11.00 12.37 ll.H

8. )l 15.75

7.73

., . ) 3

7.17 8.38 9. 4 0 7.92 9.92 8. 00

1~.50

10.61 11.7 3

6.55 8. 2 9 7. 9 7 6.)2 7.954

8.02 10.12 11.02·

----------------------------------------------------------------Unlisted classifications needed for work not included within the sco~e of the· classifications listed may be added after award only as provided in the labor standards contract clauses (29 CFR!S.S(a) l(iiJ

WAGE DETERMINATION APPEALS PROCESS

1.) Haa there been an initial decision in the m~Lter? This can be:

• an existing published ~age determinatio~ * a survey underlying a ~age determinatio~ ~ a Wage and Hour Division letter settin9 forth a

position on a wage determination matter * a conformance (additionc.l classificatic:: and rate)

ruling

On survey related matters, initial contact, including requests for sun:n0aries of surveys, should be ~,o,·ith the Wase c.nd Hour Region;,.l Office for the area in which the survey .,_-c.s conducted because those Regional o.ffices have responsibility for the Davis-Bacon survey p:cogr~m. If the.response from this initial contact is not satisfactory, then the process described in 2.)

7\'()000~<, - l 02/ll/2000

c;o.nd 3.) ohould be fo· )Wed.

With regard to any other r;\atter not yet ripe for the formal . process described here, inltinl contact ohould be with the Branch of Construction Wage DetermLnationG. ~rite to:

Branch of Construction P.2ge Determinations Wage and Hour Division U. S. Department of L2.bor 200 Constitution Avenue, H. n. Washington, D. C. 20210

2.) If the answer to the question in 1.) is yes, then an interested party (those affected by the action) can request review and reconsideration from the Wage and Kou~ Administrator {See 29 CFR Part 1.8 and 29 CfR Part 7). Write to:

-wage and Hour Ad~inLstrator -u.s. Department of Labor 200 Constitution Avenue, N. W. Washington, D. c. 20210

The request should be acco(ilpanied by a full statement of. the interested party's position and by any in(ormation (wage payment data, project description, area practice ~terial, etc.) that the requestor considers relevant to the issue.

3.) If the decision of the AdmLnistrator is not favorable, an interested party may appeal-directly to the Administrative Review Board {formerly the Wage Appeals Board). Write to:

/

/

Administrative Revie~ Board U. S. De~art~ent of Labor 200 Constitution Avenue, N. W. Washington, D. C. 20210

~.) All decisions by the Admintstrative Revie~ Board are final. DID OF GENERAL DECISION

development agreement with the city of san …...north east crossing developmen, agreement 08/08/02...

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