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1995-160J:\WPDOCS\ORD\BID1788A.ORD ORDINANCE NO. AN ORDINANCE APPROVING AND AUTHORIZING THE MAYOR TO ENTER INTO WATER AND SEWER FACILITY COST PARTICIPATION AND WATER MAIN COST pARTICIPATION AGREEMENTS AND A DEVELOPMENT CONTRACT AGREEMENT BETWEEN THE DEVELOPER (WAL-MART STORES, INC.) AND THE CITY OF DENTON FOR THE CONSTRUCTION OF CERTAIN PUBLIC WORKS OR IMPROVE- MENTS; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City has solicited, received and tabulated competitive bids for the construction of public works or improve- ments in accordance with the procedures of State law and City ordinances; and utilized these prices to determine the cost of participation in the agreements; and WHEREAS, in accordance with subchapter C, sections 212.071- 212.074 of the Texas Local Government Code and Chapter 34 of the Denton City Code, the City desires to enter into certain Water and Sewer Facility Cost Participation and Water Main Cost Participation Agreements and a Development Contract with Wal-Mart Stores, Inc. to provide 16-inch, 12-inch, and 8-inch water lines and an 8-inch water main, as well as a 12-inch sewer line to improve various Wal- Mart Stores, Inc. facilities within property located in the City and to provide water and sewer services to said facilities, as well as providing over-sized lines to expand the City's utility system and to insure adequate utility services to other customers; and WHEREAS, the City Manager or a designated employee has received and recommended that the City's participation in the herein described agreements is based upon the lowest responsible bids for the construction of the public works or improvements described in the bid invitation, bid proposals and plans and specifications therein; and WHEREAS, the City deems that it is in the public interest to enter into these agreements which call for the City's cost parti- cipation not to exceed Thirty Four Thousand Three Hundred Seventy One Dollars and Sixteen Cents ($34,371.16) for the sewer lines, One Hundred Four Thousand Five Hundred Fifty One Dollars and Ninety Five Cents ($104,551.95) for the water lines, and Thirty-four Thousand Nine Hundred Five Dollars ($34,905.00) for the water main, which later amount is $17,566.86 based upon Bid Number 1788A for Wal-Mart Stores, Inc.; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. That the following total municipal participation in the developer participation agreements for the construction of public works and improvements, as described in the "Bid Invita- tions'', "Bid Proposals", plans and specifications or cost partici- pation agreements on file in the office the City's Purchasing Agent filed according to the bid number assigned thereto, is hereby accepted and approved as being based upon the lowest responsible bids: BID NI3MBER PARTICIPATION DEVELOPER PARTICIPATION AMOUNT 1788A WAL-MART STORES, INC. $156,489.97 SECTION II. That the acceptance and approval of the cost participation agreements shall not constitute a contract between the City and the person submitting the bid for construction of such public works or improvements. The developer (Wal-Mart Stores, Inc.) shall award a contract to comply with all requirements specified in the Notice to Bidders including the timely execution of a written contract and furnishing of performance and payment bonds, and insurance certificate after award of the bid. SECTION III. That the Mayor is hereby authorized to execute all necessary Water and Sewer Facility and Water Main Cost Partici- pation Agreements and a Development Contract between the City of Denton and Wal-Mart Stores, Inc. and all other contracts for the implementation of the cost participation agreements for construc- tion of the public works or improvements in accordance with the bids referenced and considered herein, provided that such contracts are made in accordance with the Notice to Bidders and Bid Propos- als, and Documents relating thereto specifying the terms, condi- tions, plans and specifications, standards, quantities and specified sums contained therein as part of the cost participation agreement. SECTION IV. That upon acceptance and approval of the cost participation agreements and the execution of contracts for the public works and improvements as authorized herein, the City Council hereby authorizes the expenditure of funds in the manner and in the amount as specified in such approved cost participation agreements and authorized contracts executed pursuant thereto. SECTION V. That this ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the~dday of ~~, 1995. PAGE 2 THE STATE OF TEXAS § WATER AND SEWER FACILITY COST PARTICIPATION A~REEMENTBETWEEN THE CITY OF DENTON ANDWAL-MART COUNTY OF DENTON § STORES, INC. WHEREAS, Wal-Mart Stores,Inc., hereafter referred to as "Developer, whether one or more, whose business address is 701 S. Walton Blvd., Bentonville, Arkansas, 72716, wishes to develop and improve certain real property located in the City of Denton, Texas, or its extraterritorial jurisdiction, and is required to provide such property with adequate water and sewer by designing, con- structing and installing 16", 12" and 8" water lines and a 12" sewer line to serve the subject property, hereafter referred to as "required facilities", and WHEREAS, the City of Denton, a municipal corporation located at 215 E. McKinney, Denton, Texas, 76201, hereafter referred to as "City", in accordance with its ordinances, wishes to participate in the cost of the construction and installation of said required facilities to expand its utility system and insure adequate utility service to other customers; NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, Developer and City agree as follows: 1. Developer shall design, install and construct: (A) A 12" inside diameter size sewer line of approxi- mately nine hundred ninety (990) feet in length. (B) A 16" inside diameter size water line of approxi- mately three hundred fifty (350) feet in length. (C) A 12" inside diameter size water line of approxi- mately six hundred forty (640) feet in length. (D) A 8" inside diameter size water line of approxi- mately eight hundred twenty (820) feet in length. and all necessary appurtenances thereto, located as shown on Exhibit "A", attached hereto and incorporated herein by reference. 2. Prior to beginning construction of the oversized facilities, Developer shall execute, as required by Chapter 34 of the Code of Ordinances of the City of Denton a Development Contract, substantially in the form of Exhibit "B" which is COST PARTICIPATION AGREEMENT / WAL-MART STORES,INC. PAGE 1 incorporated as if written word for word herein and shall obtain, at Developer's sole cost and expense, all necessary permits, license, and easements. The deeds therefore obtained by Developer shall be reviewed and approved as to form and substance by City prior to beginning of construction. Any easements for the required facilities obtained by the Developer shall be assigned to City, if not taken in City's name, prior to acceptance of the required facilities, and Developer warrants clear title to such easements and will defend City against any adverse claim made against such title. This Agreement is subject to and governed by the Develop- ment Contract and all applicable sections of the Code of Ordinances of the City of Denton. 3. (A) The City's share in the cost of the required facilities based upon Resolution No. R95-032 of the City Council dated June 20, 1995, shall be in an amount not to exceed: (1) Thirty four thousand three hundred seventy one dollars and sixteen cents ($34,371.16) for sewer lines. (2) One hundred four thousand five hundred fifty one dollars and ninety five cents ($104,551.95) for water lines. (B) The City may elect one of the following methods to determine the City's share of the cost: (1) In the event that the City's participation in the project is in excess of thirty percent (30%) of the total contract price, in accordance with §212.072 (b) and §212.071 of the Texas Local Government Code and §34-113 of the City Code, Developer shall pre- pare plans and specifications and furnish them to the City. City shall competitively bid the re- quired lines and oversized facilities in accordance with Chapter 252 of the Texas Local Government Code. The City's cost shall be a proportion of the lowest responsible bid, not to exceed the amounts maintained herein. (2) In the event that the City's participation in the project is thirty percent (30%) or less of the total contract price, Developer shall prepare plans and specifications and contract for the improve- ments with a qualified contractor who is acceptable to the City to construct the required line and oversized facilities. City shall pay the Developer the least amount of the following: (a) Thirty percent (30%) of the total contract price as provided for in §212.072 of the Texas COST PARTICIPATION AGREEMENT / WAL-MART STORES,INC. PAGE 2 Local Government Code; or (b) The not to exceed amounts set forth herein. (C) All amounts of the City's participation hereunder shall be paid by way of reimbursement to the Developer after the improvements have been constructed by Developer and accepted by the City in accordance with the procedures established in Chapter 34 of the City Code and in the Development Contract. City shall not, in any case, be liable for any additional cost because of delays in beginning, continuing or completing con- struction; changes in the price or cost of materials, supplies, or labor; unforeseen or unanticipated cost because of topography, soil, subsurface, or other site conditions; differences in the calculated and actual per linear feet of pipe or materials needed for the required facilities; Developer's decision as to the contractors or subcontractors used to perform the work; or any other reason or cause, specified or unspecified, relating to the construction of the required facilities. 4. Within thirty (30) days of the acceptance of the facil- ities by the City, Developer shall submit to the City's Executive Director of Utilities satisfactory documentation evidencing the expenditures for the completion of the required facilities. Should the actual cost of the required facilities be less than the cost on which the City's share was determined, the City's share of the cost shall be reduced proportionally, on a per linear foot basis, based upon the difference of the actual cost of the required facilities and the determined cost for required facilities. To determine the actual cost of the required facilities, City shall have the right to inspect any and all records of Developer, his agents, employees, contractors or subcontractors and shall have the right to require Developer to submit any necessary information, documents, invoices, receipts or other records to verify the actual cost of the required facilities. 5. Within thirty (30) days of the date the Developer has submitted satisfactory documentation of the actual cost of the required facilities, City shall pay the Developer such amount in full, a maximum of thirty four thousand three hundred seventy one dollars and no cents ($34,371,16) for sewer lines and one hundred four thousand five hundred fifty one dollars and ninety five cents ($104,551.95) for water lines for a total not to exceed one hundred thirty eight thousand nine hundred twenty three dollars and eleven cents ($138,923.11). 6. All notices, payments or communications to be given or made pursuant to this agreement by the parties hereto, shall be sent to Developer at the business address given above and to the Executive Director of Utilities for the City as the address given above. COST PARTICIPATION AGREEMENT / WAL-MART STORES, INC. PAGE 3 7. Developer shall indemnify and hold City, its officers and employees harmless from any and all claims, damages, loss or liability of any kind whatsoever, by reason of injury to property or person occasioned by any act or omission, neglect or wrongdoing of Developer, its officers, agents, employees, invitees, contractor or other persons with regard to the performance of this agreement, and Developer will, at its own cost and expense, defend and protect City against any and all such claims and demands. 8. If Developer does not begin substantial construction of the required facilities within twelve (12) months of the effective date of execution of this agreement, this agreement shall termi- nate. 9. This instrument and the attached exhibits embody the whole agreement of the parties hereto and there are no promises, terms, conditions or obligations other than those contained herein. This agreement shall supersede all previous communications, representations or agreements, either verbal or written, between the parties hereto. 10. This agreement shall not be assigned by Developer without the express written consent of City. 11. Any and all suits for any breach of this contract, or any other suit pertaining to or arising out of the contract, shall be brought and maintained in a court of competent jurisdiction in Denton County, Texas. Executed this the ~day ~, !~95. WAL-MAR~STORES, INC. BY: __ ~'~ ~-- . Y CITY OF DENTON, TEXAS BOB CASTLEBERRY ,~YO~ COST PARTICIPATION AGREEMENT / WAL-MART STORES,INC. PAGE 4 / ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY E: \WPDOCS\K\WATER&SE. WAL COST PARTICIPATION AGREEMENT / WAL-MART STORES, INC. PAGE 5 AAA00D97 FROJECT NO. CONTRACT NO. THE STATE OF TEXAS § DEVELOP3~ENT CONTRACT COUNTY OF DENTON S Wal-Mart Stores, Inc. Whereas, hereafter rmferred to am "Owner," who~e business address is _ 701 S. Walton Blvd', Bentonville, AR 7271'6 is the owner of real property located in the corporate limits the city of Denton, or its extraterritorial jurisdiction; and Whereas, Owner wishes to develop the property and such development must be performed in accordance with the applicable ordinances of the City of Denton, hereafter referred to as "city"; and Whereas, as a condition to the ~beginning of construction of said development, a development contr2ct is required to ensure that al! streets, water and sewer lines, drainage facilitiem and o-~her improvements which are to be dedicated to the public, hereafter referred to as ,,Improvements," are ¢~struoted in accordance with the city~ s ~pecifications, standards and ordinances; and [select applicable pr~vi~ion as f~llows] ~ W~ereas, the cs~n~r elects to construct %he improvemen%g without contracting with another party as prime contractor, in which cass the provisions of ~him contract which refer to "owner" or "Contractor" shall mean the Owner as named above; or EXHIBIT B ~W-nereas, the Owner elects to make such Improvements hereafter Del-Mac Construction Co. set forth by contracting with - , whose business address is P. 0. Box 830160, Richardson. Tx 75083.., hereafter referred to as "Contractor"; and Whereas, owner and Contractor recognize that the city has an interest in ensuring that the improvements subject to tkis agreement, which will, upon completion znd acceptance by the City, become public property, ar~ ~roperly constructed in accordance with the city's specification~ and that payment is made therefor; WITNESSETH As to the Improvements to be dedicated to the public, as specified in E~hibit A, attached hereto and incoz~porated by reference, to be installed and constructed at 1515 South Loop 288, Denton, Texas 76201' the owner, contractor and city, in consideration of their mutual promises and covenants contained herein, agree as follows: 1. Covenants Of Co~tract~E. Contractor agrees as follows: (a) Specifications. TO construct and install the Improvement~ in accordance with the procedures, specifications and standards contained in Division II and III of.the City's Standard ~pecifications for Publ.i~ work~ Construction, Norlt. h Central Texas, as amended, and all addendums thermto, and all other regulations, ordinances or specifications applicable to such ImproVements, such PAGE specifications, standards, regulations and ordinances being expressly incorporated herein by reference and being made a part of the agreement as though written herein. (b) Authority of City Enqineer; Inspections, Tests and Orders. That all work on the Improvements shall be performed in a good and workmanlike manner and to the satisfaction of the City Engineer or his representative. The City Engineer shall decide ell questions which arise as to the quality and acceptability of materials furnished, work performed, and the interpretation of specifications. The Contractor shall furnish the City Engineer or his representative with every reasonable facility for ascertaining whether or not the work performed was in accordance with the specifications applicable thereto. Any work done or materials used without suitable inspectionbythe City may be ordered removed and replaced at Contractor's expense. Upon failure of the Contractor to allow for inspection, to test materials furnished, to satisfactorily repair, remove or replace, if so directed, rejected, unauthorized or condemned work or materials, or to follow any other request or order of the city Engineer or his representative, the City Engineer shall notify the Owner of such failure and may suspend inspections of such work until such failure is remedied. If such failure is not remedied to the satisfaction of the City Engineer, the City shall have no obligation under this agreement to approve or accept the Improvements. PAGE 3 (c) Insurance. To provide for insurance in accordance with the insurance requirements applicable to contractors as provided for in Item 1.26 of Division' I of the Standard Specifications for Public Works Construction, North Central Texas, as amended, the provisions of which are expressly incorporated herein by reference; provided, however, for purpose of this provision only, "Owner," as used therein, shall mean the City of Denton. (d) Means and Methods of Construction. That the means and methods of construction shall be such as Contractor may choose; subject, however, to the City's right to reject any Improvements for which the means or method of construction does not, in the judgment of the City Engineer, assure that the Improvements were constructed in accordance with City specifications. 2. Mutual Covenants of Owner and Contractor. Owner and Contractor mutually agree as follows: (a) Performance Bonds; Escrow A~reement. That if building permits are to be issued for the development prior to completion and acceptance of all improvements that are to be dedicated to the public, the following security requirements shall apply, unless the development is a "one lot development," as defined by City's Development Code: (i) a performance bond in an amount not less than the amount necessary to complete the Improvements, as determined by the City Engineer, shall be submitted guaranteeing the full and faithful completion of the Improvements meeting the specifications of the City, shall be in favor of the City, and shall be executed by a surety company authorized to do business in the State of Texas; or, PAGE 4 (ii) if the cost of completing the Improvements, at the time building permits are requested, is in an amount of $50,000 or less, as determined by the City Engineer, cash money in the amount necessary to complete the Improvements, as determined by the City Engineer, may be deposited with a bank as escrow agent, pursuant to an escrow agreement ensuring completion of the Improvements. Without exception, the City's escrow agreement form shall be used. (b) Payment Bond; Assurance of Payment. That prior to acceptance of the Improvements: (i) a payment bond will be furnished in an amount not less than one hundred percent (100%) of the approximate total cost of the contract cost of the Improvements, guaranteeing the full and proper protection of all claimants supplying labor and material for the construction of the Improvements, shall be in favor of the City, and shall be executed by an approved surety company authorized to do business in the State of Texas; or, (ii) if the total contract amount of all Improvements is $50,000 or less, as determined by the City Engineer, or the Improvements, regardless of the contract amount, are for a "one lot development," as defined by City's Development Code, and a payment bond has not been submitted in accordance with (i) above, Owner and Contractor agree and guarantee that any and all debts due to any person, firm or corporation having furnished labor, material or both in the construction of the Improvements shall be fully paid and satisfied before acceptance of the Improvements by the City and that prior to acceptance of the Improvements, the Owner and Contractor shall furnish a written affidavit, in a form provided by the City Engineer, stating that all bids, charges, accounts or claims for labor performed and material furnished in connection with the construction of the Improvements have been paid in full and that there are no unreleased recorded liens filed against the Improvements, or land to which they are affixed, that are to be dedicated to the public. That, upon the request of the City Engineer, Owner or Contractor shall furnish a complete list of all subcontractors who performed labor on, or supplied PAGE 5 material for, the construction of the Improvements, and, when requested, written statement from any or each of such subcontractors or suppliers that they have been paid in full. (c) Retainage; Final Payments. [This provision (c) applies only where the Owner and Contractor are not he same party.] That as security for the faithful completion of the Improvements, Contractor and Owner agree that the Owner shall retain ten percent of the total dollar amount of the contract price until after final approval or acceptance of the improvements by the City. The Owner shall thereafter pay the Contractor the retainage, only after Contractor has furnished to the Owner satisfactory evidence that all indebtedness connected with the work and all sums of money due for labor, materials, apparatus, fixtures or machinery furnished for and used in the performance of the work have been paid or otherwise satisfied. (d) Encumbrances. That upon completion and approval or acceptance of the Improvements of the City, the Improvements shall become the property of the City free and clear of all liens, claims, charges or encumbrances of any kind. If, after acceptance of the Improvements, any claim, lien, charge or encumbrance is made, or found to exist, against the Improvements, or land dedicated to the City, to which they are affixed, the Owner and Contractor shall upon notice by the City promptly cause such claim lien, charge or encumbrance to be satisfied and released or promptly post a bond with the City in the amount of such claim, PAGE 6 lien, charge or encumbrance, in favor of the City, to ensure payment of such claim, lien, charge or encumbrance. (e) Maintenance Bond.' That prior to approval or acceptance of the Improvements by the City, to furnish a maintenance bond in form and substance acceptable to the City, in the amount of ten percent (10%) of the contract amount of the Improvements, insuring the repair and replacement of all defects due to faulty material and workmanship that appear within one year from the date of acceptance. The bond shall be in favor of the City and shall be executed by an approved surety company authorized to do business in the State of Texas. (f) Indemnification. To indemnify, defend and save harmless, the City, its officers, agents and employees from all suits, actions or claims of any character, name and description brought for or on account of any injuries or damages received as sustained by any person, persons or property on account of the operations of the Contractor, his agents, employees or subcontractors; or on account of any negligent act of fault of the Contractor, his agents, employees or subcontractors in construction of the improvements; and shall pay any judgment, with costs, which may be obtained against the City growing out of such injury or damage. (g) Aareement Controlling. That the provision of this agreement shall control over any conflicting provision of any contract between the Owner and Contractor as to the construction of the Improvements. PAGE 7 3. Occupancy; One Lot Developments. Owner further agrees as follows: (a) That Owner will not allow any purchasers, lessee, or other person to occupy any building within the development until all Improvements are completed and accepted by the City, and that upon violation thereof will pay the City $3,000.00 as liquidated damages, but such payment shall not be deemed approval of such occupancy and the City may take whatever action necessary to restrain such occupancy. (b) That if this contract applies to a "one lot development," as defined by City's Development Code, and no performance or payment bond was required or submitted for the improvements that are to be dedicated to the public, the Owner shall not be issued a Certificate of Occupancy for any building constructed or located therein until all required public improvements have been completed and accepted in accordance with this contract. 4. Covenants of City. That, upon proper completion of the Improvements in accordance with this agreement, the City agrees to accept the Improvements. 5. Venue a~d Governinq Law. The parties herein agree that this contract shall be enforceable in Denton County, Texas, and if legal action is necessary in connection therewith, exclusive venue shall lie in Benton County, Texas. The terms and provisions of this contract shall be construed in accordance with the laws and court decisions of the State of Texas. PAGE 8 6. _Successor and Assiqns. This contract shall be binding upon and inure to the benefit of the-'Parties hereto, their respective successors and assigns. Executed in triplicate this ~~y of 0ctober , 1995 OWNER CONTRACTOR WAL-MART STORES, INC. DAL-MAC CONSTRUCTION COM~ANY Bradford Mc Junkin, President ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: ~ APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY PAGE 9 EXHIBIT "A" PROPOSED BRINKER ROAD, SPENCER ROAD AND ONSITE DRAINAGE IMPROVEMENTS TO SERVE WAL-MART ADDITION 1515 SOUTH LOOP 255, DENTON, TEXAS BRINKER ROAD. SPENCER ROAD AND ONSITE DRAINAGE IMPROVEMENTS Brinker Road (paving and drainage improvements only; water/sewer in Brir~er Road right-of-way is included in Para. I above) A. Paving (asphalt or concrete) 6,000 SY $14.29 SY $85,740 B. Curb 3,545 LF S8.50 LF $30,133 C. Sidewalk 1,790 LF x 4' wide 795 SY $18.00 SY $14,310 D. Concrete Paving @ Median Noses 52 SY $18.00 SY $936 E. Storm Drain 18" RCP, Class III 355 LF $24.00 LF $8,520 21" RCP, Class III 207 LF $26.00 LF $5,382 24" RCP, Class III 54 LF $28.00 LF 51,512 30" RCP, Class II1 84 LF $42.00 LF $3,528 36" RCP, Class III 210 LF $55.00 LF $11,550 5' Curb Inlet 2 EA $1,600.00 EA $3,200 i0' Curb Inlet 3 EA $2,400.00 EA $7,200 5' Square Manhole 2 EA $2,600.00 EA $5,200 30" Type "B" Headwall 2 EA $1,200.00 EA $2,400 36" Type "B' Headwall 1 EA $1,400.00 EA $1,400 8"-12" Rook Riprap 80 SY $75.00 SY 56,000 Geotextile Fabric 80 SY S5.00 SY $400 F, Pavement Markings and Traffic Signage 1 LS $5,000.00 LS $5,000 G. "End of Road" Barricade 70 LF $25.00 LF $1,750 Spencer Road A. Paving Asphalt 2" Overlay 615 SY S6.61 SY S4,065 B. Storm Drain 24" RCP, Class IV 120 LF $28.00 LF S3,360 Double 24" Type "B" Headwall 2 EA $1,000.00 EA S2.000 Onsite Drainage Improvements (Brinker Road storm drain outfall headwalls and rock riprap included in "Brinker Road" break-out above. Excavation 20,000 CY S2.50 CY S50,000 Concrete Swale 6,200 SF S3.25 SF $20,150 Erosion Control 1 LS $5,000.00 LS $5,000 Outlet Structure 1 EA $2,600.00 EA $2,600 48" RCP, Class Ill (to outfall @ east property line) 261 LF $95.00 LF $24,795 48" Special Headwall and Baffled Outfall Apron 1 EA $2,600.00 EA S2,600 Riprap (10"-12" mortared rock) 165 SY S80.00 SY SI 3.200 Total Improvements S321,931 AAAO19DF BOND NO. 15-84-87 PERFORMANCE BOND THE STATE OF TEXAS § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF DENTON That DAL-MAC CONSTRUCTION COMPANY 111 West Spring Valley Road, P.O. Box 830160, Richardson, TX 75080-0160 of Dallas County, Texas, hereinafter called Principal and THE INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA 1999 Bryan Street, Suite 1700, Dallas, Texas 75201 a Corporation organized under the laws of the State-of Pennsylvania and authorized to do business in the State of Texas, hereinafter called "Surety", are held and firmly bound unto the City of Denton, Texas, a Municipal Corporation, in Denton County, Texas, hereinafter called "City" in the penal sum of Thraa hundred twenty one thousand nine hundred thirty one and no/100 ($921,931.00 Dollars, lawful money of the United States, for the payment of which sum well and truly to be made we bind ourselves, our heirs, executors, administrators, and successors, jointly and severally, and firmly by these presents: THE Condition of this Obligation-is such that: WHEREAS, the Principal entered into a certain contract with Owner, dated ~ the day of October , 19 95 , in the proper performance of which the City of Denton, Texas, has an interest, a copy of which is hereto attached and made a part hereof, for the construction of: PROPOSED PUBLIC IMPROVEMENTS TO SERVE WAL-MART ADDITION 1515 South Loop 288, Denton, TX NOW, THEREFORE, if the Principal 'shall 'well, truly, and faithfully cause to be performed and fulfilled all of the undertakings, covenants, terms, conditions, and agreements of said Contract in accordance with the Plans, Specifications, and Contract Documents during the original term thereof, and any extension thereof which may be granted, with or without notice to the surety, PAGE ONE and during the life of any guaranty required under the Contract, and shall also well and truly cause to be performed and fulfilled all the covenants, terms and conditions and agreements of any and all authorized modifications of said Contract that may hereafter bemade, notice of which modifications to the surety being hereby waived; then this obligation shall be void; otherwise to remain in full force and effect. PROVIDED, further, that if any legal action be filed on this bond, venue shall lie in Denton County. AND, that said Surety, for value received, hereby stipulates and agrees that no change, Rxtension of time, alteration or addition to the terms of the contract, or to the work performed thereunder, or the Plans, Specifications, Drawings, etc., accompanying the same shall in anywise affect its obligation on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the Contract, or to the work to be performed thereunder. IN WITNESS WHEREOF, this instrument is executed in triplicate, each one of which shall be deemed an original, this the q~ day of October , 19 95 PRINCIPAL SURETY DAL-MAC CONSTRUCTION COMPANY THE INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA Bradford Mc Junkin, President ~TORNEY-IN-FACT ATTEST: .~anice G. Cor~re~y SECR .T y / U NOTE: POWER OF ATTORNEY OF SURETY MUST BE ATTACHED. DATE OF BOND MUST NOT BE PRIOR TO DATE OFiCONTRACT. PAGE TWO ~OkA019DF BOND NO. 15-84-87 PROJECT NO. .~- ~ CONTRACT NO../~ PAYMENT BOND THE STATE OF TEXAS COUNTY OF DENTON THAT DAL-MAC CONSTRUCTION COMPANY 111 West Spring Valley Road, P.O. Box 830160, Richardson, TX 75080-0160 of Dallas County, Texas, hereinafter called principal and THE INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA 1999 Bryan Street, Suite '1700, Dallas, Texas 75201 a Corporation organized under the laws of the State of ?ennsylvania and authorized to do business in the State of Texas, hereinafter called "Surety", are held and firmly bound unto the City of Denton, Texas, a Municipal Corporation, in Denton County, Texas, hereinafter called "City", and unto all persons, firms and corporations who may furnish materials for or perform labor upon the buildings, structures or improvements referred to in the attached contract, in the .penal sum of Three hundred twent~ one thousand nine hundred thirty one and no/100 ($ 321,931.00' - ) Dollars, lawful money of the United States, to be paid in Denton, Denton County, Texas, for the payment of which sum well and truly to be made we bind ourselves, our heirs, executors, administrators, and successors, jointly and severally. THE Condition of this Obligation is such that: WHEREAS, the Principal entered into a certain contract with Owner, dated the ~4k day of October , 1995 , in the proper performance of which the City of Denton, Texas, has an interest, a copy of which is hereto attached and made a part hereof, for the construction of: PROPOSED PUBLIC IMPROVEMENTS TO SERVE WAL-MART ADDITION 1515 South Loop 288, Denton, TX PAGE NOW, THEREFORE, if the Principal shall well, truly, and faithfully cause to be performed its duties and make or cause Contractor to make prompt payment to all persons, firms, sub- contractors, corporations and claimants supplying labor and material in the prosecution of the work provided for in said contract and any and all duly authorized modification of said Contract that may hereafter be made, notice of which modification of the surety is hereby expressly waived, then this obligation shall be void: Otherwise to remain in full force and effect. Provided further, that if any legal action be filed upon this bond, venue shall lie in Denton County, Texas. AND THAT said Surety f~r value received hereby stipulates and agrees that no change, extensiOn of time, alteration or addition to the terms of the Contract, or to the work performed thereunder, or the Plans, Specifications, Drawings, etc., accompanying the same shall in anywise affect its obligation on this Bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the Contract, or to the work to be performed thereunder. IN WITNESS WHEREOF, this instrument is executed in triplicate, each one of which shall be deemedan original, this the ~%% day of October , 19 95 .. ' PRINCIPAL SURETY DAL-MAC CONSTRUCTION COMPANY THE INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA BY: ...- -" ,.~_, BY:, ~'~,'~c~ . ~'- ~ ~-~ ~.<., ~ Bradford Mc Junkin, President ~TORNEY-IN-FA~T ~ · Janice G. Correy ATTEST: NOTE: DATE OF PAYMENT BOND MUST NOT BE PRIOR TO DATE OF CONTRACT. PAGE TWO AAA019DF BOND NO. 15-84-87 PROJECT NO. fl--iS CONTRACT CONTRACTOR'S MAINTENANCE BOND (DEVELOPMENT CONTRACT) THE STATE OF TEXAS S KNOW ALL MEN BY THESE PRESENTS: COUNTY OF DENTON S That DAL-MAC CONSTRUCTION COMPANY 111 West Spring Valley Road, P.O. Box 830160, Richardson, TX 75080-0160 of Dallas County, Texas, hereinafter called Principal and THE INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA 1999 Bryan Street, Dallas, Texas 75201 a Corporation organized under the laws of the State of Pennsylvania and authorized to do business in the State of Texas, hereinafter called "Surety", are held and firmly bound unto the City of Denton, Texas, a Municipal Corporation, in Denton County, Texas, hereinafter called "City" in the penal sum of Three hundred twenty one thousand nine hundred thirty one and no/100 ($321,931.00 Dollars, lawful money of the United States, the said sum being ten percent (10%) of the total amount of the hereinafter mentioned contract, for the payment of which sum well and truly to be made we bind ourselves, our heirs, executors, administrators, and successors, jointly and severally. THE Condition of this Obligation is such that: WHEREAS, the Principal entered into a certain contract with Owner, dated the ~ day of October , 19 95 , in the proper performance of which the City of Denton, Texas, has an interest, a copy of which is hereto attached and made a part hereof, for the construction of: PROPOSED PUBLIC IMPROVEM]~NTS TO SERVE WAL-MART ADDITION 1515 South Loop 288, Denton, TX PAGE ONE NOW, THEREFORE, if the Principal .shall well, truly, and faithfully maintain and keep in good repair the work contracted to be done and performed for a period of one (1) year from the date of acceptance in writing by the City of Denton and do all necessary work and repair of any defective conditions growing out- of or arising from the improper work of the same, including, but not limited to, any settling, breaking, cracking or other defective condition of any of the work or part thereof arising from improper excavation, backfilling, compacting or any other cause or condition, known or unknown, at any time during the period of this bond, which the city engineer, whose judgment shall be final and conclusive, determines to be the result of defective work, materials or labor; then this obligation shall be void, otherwise to remain in full force and effect. In case the said Principal shall fail to maintain, repair or reconstruct any defective condition of the work as determined herein, it is agreed that the City may do said work and supply such materials as necessary and charge'~he sum against the said Principal and Surety on this obligation. It is further agreed that this obligation shall be continued one against the Principal and Surety and that successive recoveries may be had hereon for successive breaches of the conditions herein provided until the full amount of this bond shall have been exhausted, 'and it is further understood that the obligation to maintain said work shall continue throughout said maintenance period, and the same shall not be changed, diminished, or in any manner affected from any cause during said time. PROVIDED, further, 'that if any legal action be filed on this bond, venue shall lie in Denton County. IN WITNESS WHEREOF, this instrument is executed in triplicate, each one of which shall be deemed an original, this the ~ day of October , 19 95 PRINCIPAL SURETY DAL-MAC CONSTRUCTION CO~[PANY THE INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA Bradford Mc Junkin, President A~RNEY-IN-FACT ×/ Janice G. Correy PAGE TWO i'¢)x, VER ()F AT'I'()R~F '~ Pnnclpal Be, nd Offtcc '~ i"m¢ 5trc×q. qcv. , -'u -.. . : . KNOW AI,L MEN BY THESE PRESE~q 5 That The lnsur~.n,e C'ompan} of Ihe Slal¢ nl ?,', ?,, ~. :.,,, Pennsylvama ~ B~c¢. Janic¢ G. ('orre). Domth~ x ~tc},, ~ ~,:h~ccn Day, PamelJa Mc~mor~': ~erebv IN WITNESS WHEREOF, The lnsa~rance Om,pa:r, ,;I H~c State of Pennsylvama ha.~ cxc,4ncd these presents Wilham'D Smuh. STATE OF NEW YORK } COUNTY OF NEW YORK}ss. On th~s 21st of Scptem~r, 199~, ~fore me came the /j _. a~ve named officer of The Insurance Company of the State of Pen~'lvania to me ~rso~lly kno~ to ~ thc m&viduM ~Se~H ~. and officer de~n~ hcrcm, and acknoalcdg~l Ih,ti he ~*~ Public. St~e o~ ~., executed the foregoing instrument and affixed Ibc M'dl of m~d No. 01'NO1652751 ~hfled in We~tc,}e~e~ ~u~ co.ration Hlcrclo b~ author]tv :4 h:, a~cc ~mm ~i~ J*n. 3~, ,~. CERTIFICATE "RESOLVED, that ~e st~atur~ ~d a~ahomq ol such offi~e~ ~d ~e ~1 of~e C~y may ~ atfixed to ~lx such Po~ ~gdo by hc~mHe, md ~v such pow~ of ~t~e5 or c~flicale ~mng such l~m~le si~atur~ ~ hc~mnle seal shall ~ vahd ~d binding ,l,ts ,~I kA~.00D97 THE STATE OF TEXAS DEVELOPMENT CONTRACT COUNTY OF DENTON Wal-Mart Stores, Inc. Whereas, hereafter r~ferred to as "Owner~" whose business address is 701 S. Walton Blvd., Benton~ille, AR 72716 , is the owner of real property located in the corporate limits of the city of Denton, or its extraterritorial jurisdiction; and Whereas, Owner wishes to develop the property and such development must be perfonmed in accordance with the applicable ordinances of the city of Denton, hereafter referred to a~ "City"; and whereas, as a condition to the beginning of construction of said development, a development contract is required to enshLrethat all str~et~, water and sewer lines, drainage facilities and other ~mprovements which are to be dedicated to the public, hereafter refer~ed to as "Improvements," are constructed in accordance with %he city's specifications, standards and ordinances; and [select applicable provision as follows] ~ Whereas, the owner elects to construct the Improvements without contracting with another party as prime contractor, in which cas8 the provisions of thi~ contract which refer to or "Con~ractor" shall ~ga~ the Owner as named above; or ~7~ whereas, the Owner elects to make such Improvements hereafter Del-Mac Construction Co. set forth by contracting with _., whose business address is P. 0. Box 830160, Richardson, Tx 75083.., hereafter referred to as "Contractor"; and Whereag, owner and Contractor recognize that the city has an interest in ensuring that the improvements subject to this mgreement, which will, upon completion and acceptance by the City, beoome public property, ar~ properly constructed in accordance with the city's specifications and that pa~rment is made therefor; WITNESSETM As to the Improvements to be dmdicated to the public, as specified in Exhibit A, attached hereto and incoznporated by reference, to be installed and const~cted at 1515 South Loop 288, Denton, Texas 76201 the OWner, contractor and city, in consideration of their mutual promises and covenants contained herein, agree as follows: 1. Covenants Of contracton. Contractor ap~rees as follows: (a) Specific~tions. TO construct and install the Improvements in accordance with the procedures, specifications and standards contained in Division II and III of the City's standar~ ~pecifications for Publi~ works construction, NOrlt_h Central Texas., as =mended, and all addendums thereto, and all other regulations, ordinances or specifications applicable to such Improvements, such specifications, standards, regulations and ordinances being expressly incorporated herein by reference and being made a part of the agreement as though written herein. (b) Authority of City Enqineer; Inspections, Tests and Orders. That all work on the Improvements shall be performed in a good and workmanlike manner and to the satisfaction of the City Engineer or his representative. The City Engineer shall decide all questions which arise as to the quality and acceptability of materials furnished, work performed, and the interpretation of specifications. The Contractor shall furnish the City Engineer or his representative with every reasonable facility for ascertaining whether or not the work performed was in accordance with the specifications applicable thereto. Any work done or materials used without suitable inspection by the City may be ordered removed and replaced at Contractor's expense. Upon failure of the Contractor to allow for inspection, to test materials furnished, to satisfactorily repair, remove or replace, if so directed, rejected, unauthorized or condemned work or materials, or to follow any other request or order of the City Engineer or his representative, the City Engineer shall notify the Owner of such failure and may suspend inspections of such work until such failure is remedied. If such failure is not remedied to the satisfaction of the City Engineer, the City shall have no obligation under this agreement to approve or accept the Improvements. PAGE 3 (c) Insurance. To provide for insurance in accordance with the insurance requirements applicable to contractors as provided for in Item 1.26 of Division' I of the Standard Specifications for Public Works Construction, North Central Texas, as amended, the provisions of which are expressly incorporated herein by reference; provided, however, for purpose of this provision only, "Owner," as used therein, shall mean the City of Denton. (d) Means and Methods of Construction. That the means and methods of construction shall be such as Contractor may choose; subject, however, to the City's right to reject any Improvements for which the means or method of construction does not, in the judgment of the City Engineer, assure that the Improvements were constructed in accordance with City specifications. 2. Mutual Covenants of Owner and Contractor. Owner and Contractor mutually agree as follows: (a) performance Bonds; Escrow Agreement. That if building permits are to be issued for the development prior to completion and acceptance of all improvements that are to be dedicated to the public, the following security requirements shall apply, unless the development is a "one lot development," as defined by City's Development Code: (i) a performance bond in an amount not less than the amount necessary to complete the Improvements, as determined by the City Engineer, shall be submitted guaranteeing the full and faithful completion of the Improvements meeting the specifications of the City, shall be in favor of the City, and shall be executed by a surety company authorized to do business in the State of Texas; or, PAGE 4 (ii) if the cost of completing the Improvements, at the time building permits are requested, is in an amount of $50,000 or less, as determined by the City Engineer, cash money in the amount necessary to complete the Improvements, as determined by the City Engineer, may be deposited with a bank as escrow agent, pursuant to an escrow agreement ensuring completion of the Improvements. Without exception, the City's escrow agreement form shall be used. (b) Payment Bond; Assurance of Payment. That prior to acceptance of the Improvements: (i) a payment bond will be furnished in an amount not less than one hundred percent (100%) of the approximate total cost of the contract cost of the Improvements, guaranteeing the full and proper protection of all claimants supplying labor and material for the construction of the Improvements, shall be in favor of the City, and shall be executed by an approved surety company authorized to do business in the State of Texas; or, (ii) if the total contract amount of all Improvements is $50,000 or less, as determined by the City Engineer, or the Improvements, regardless of the contract amount, are for a "one lot development," as defined by City's Development Code, and a payment bond has not been submitted in accordance with (i) above, Owner and Contractor agree and guarantee that any and all debts due to any person, firm or corporation having furnished labor, material or both in the construction of the Improvements shall be fully paid and satisfied before acceptance of the Improvements by the City and that prior to acceptance of the Improvements, the Owner and Contractor shall furnish a written affidavit, in a form provided by the City Engineer, stating that all bids, charges, accounts or claims for labor performed and material furnished in connection with the construction of the Improvements have been paid in full and that there are no unreleased recorded liens filed against the Improvements, or land to which they are affixed, that are to be dedicated to the public. That, upon the request of the City Engineer, Owner or Contractor shall furnish a complete list of all subcontractors who performed labor on, or supplied PA~R K material for, the construction of the Improvements, and, when requested, written statement from any or each of such subcontractors or suppliers that they have been paid in full. (c) Retainaqe; Final Payments. [This provision (c) applies only where the Owner and Contractor are not he same party.] That as security for the faithful completion of the Improvements, Contractor and Owner agree that the Owner shall retain ten percent of the total dollar amount of the contract price until after final approval or acceptance of the improvements by the city. The Owner shall thereafter pay the Contractor the retainage, only after Contractor has furnished to the Owner satisfactory evidence that all indebtedness connected with the work and all sums of money due for labor, materials, apparatus, fixtures or machinery furnished for and used in the performance of the work have been paid or otherwise satisfied. (d) Encumbrances. That upon completion and approval or acceptance of the Improvements of the City, the Improvements shall become the property of the City free and clear of all liens, claims, charges or encumbrances of any kind. If, after acceptance of the Improvements, any claim, lien, charge or encumbrance is made, or found to exist, against the Improvements, or land dedicated to the City, to which they are affixed, the Owner and Contractor shall upon notice by the City promptly cause such claim lien, charge or encumbrance to be satisfied and released or promptly post a bond with the City in the amount of such claim, PAGE 6 lien, charge or encumbrance, in favor of the City, to ensure payment of such claim, lien, charge or encumbrance. (e) Maintenance Bond.' That prior to approval or acceptance of the Improvements by the City, to furnish a maintenance bond in form and substance acceptable to the City, in the amount of ten percent (10%) of the contract amount of the Improvements, insuring the repair and replacement of all defects due to faulty material and workmanship that appear within one year from the date of acceptance. The bond shall be in favor of the City and shall be executed by an approved surety company authorized to do business in the State of Texas. (f) Indemnification. To indemnify, defend and save harmless, the City, its officers, agents and employees from all suits, actions or claims of any character, name and description brought for or on account of any injuries or damages received as sustained by any person, persons or property on account of the operations of the Contractor, his agents, employees or subcontractors; or on account of any negligent act of fault of the Contractor, his agents, employees or subcontractors in construction of the improvements; and shall pay any judgment, with costs, which may be obtained against the City growing out of such injury or damage. (g) Aqreement Controlling. That the provision of this agreement shall control over any conflicting provision of any contract between the Owner and Contractor as to the construction of the Improvements. PAGE 7 3. Occupancy; One Lot Developments. Owner further agrees as follows: (a) That Owner will hot allow any purchasers, lessee, or other person to occupy any building within the development until all Improvements are completed and accepted by the City, and that upon violation thereof will pay the City $3,000.00 as liquidated damages, but such payment shall not be deemed approval of such occupancy and the City may take whatever action necessary to restrain such occupancy. (b) That if this contract applies to a "one lot development," as defined by City's Development Code, and no performance or payment bond was required or submitted for the improvements that are to be dedicated to the public, the Owner shall not be issued a Certificate of Occupancy for any building constructed or located therein until all required public improvements have been completed and accepted in accordance with this contract. 4. Covenants of City. That, upon proper completion of the Improvements in accordance with this agreement, the City agrees to accept the Improvements. 5. Venue and Governing Law. The parties herein agree that this contract shall be enforceable in Denton County, Texas, and if legal action is necessary in connection therewith, exclusive venue shall lie in Denton County, Texas. The terms and provisions of this contract shall be construed in accordance with the laws and court decisions of the State of Texas. PAGE 8 6. Successor and Assiqns. This contract shall be binding upon and inure to the benefit of the "parties hereto, their respective successors and assigns. Executed in triplicate this ay of October .. , 1995 OWNER~__~_~ CONTRACTOR WAL-MAR~ .~ DAL-MAC CONSTRUCTION COMPANY ~1 / / Bradford Mc Junkin, President CITY OF DENTON, TEXAS M/~NAGER - ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY PAGE 9 EXHIBIT "A" PROPOSED PUBLIC WATER AND SEWER UTILITIES IMPROVEMENTS TO SERVE WAL-MART ADDITION 1515 SOUTH LOOP 288, DENTON, TEXAS WATER AND SEWER UTILITIES A. Sanitary Sewer 12' PVC SDR35 2,620 LF $17.00 LF $44.540 8" PVC SDR35 345 LF $15.00 LF $5,175 Manhole 10 EA $2,600.00 EA $26,000 Manhole over Existing Line @ Spencer Road 1 EA $4,000.00 EA $4,000 B. Water (all of Lines A, B, C, D and E, excluding the domestic and irrigation service lines. 16" C-900 PVC 365 LF $36.00 LF $13,140 12" C-900 PVC 2,371 LF $21.00 LF $49,791 8" C-900 PVC 3,412 LF $15.00 LF $51,180 6" C-900 PVC 300 LF $14.00 LF $4,200 Fire Hydrant 14 EA $1,600.00 EA $22,400 16' Gate Valve 2 EA $4,000.00 EA $8,000 12" Gate Valve 5 EA $950.00 EA $4,750 8" Gate Valve 10 EA $600.00 EA $6,000 6n Gate Valve 14 EA $500.00 EA $7,000 3" Gate Valve 2 EA $400.00 EA $800 Cast Iron FiRings 3.5 TON $3,500.00 TON $12,250 20"x16' Gifford Hill Concrete Pipe Tap 1 EA $5,000.00 EA S5,000 24' Bore and Casing 85 LF $180.00 LF $15,300 Water Meter (3" Compound) I EA $8,500.00 EA $8,500 Water Meter (2" Turbo) 1 EA $1,000.00 EA S1,000 Backflow Preventer (2") 1 EA $1,000.00 EA SI.000 Thrust Bloelc I0 CY $200.00 CY S2.000 Total Improvements $292,026 AAAO19DF BOND NO. 15-84-85 PROJECT NO. ~2 PERFORMANCE BOND THE STATE OF TEXAS § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF DENTON That DAL-MAC CONSTRUCTION COMPANY 111 West Spring Valley Road, P.O. Box 830160, Richardson, TX 75080-0160 of Dallas County, Texas, hereinafter called Principal and THE INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA 1999 Bryan Street, Suite 1700, Dallas, Texas 75201 a Corporation organized under the laws of the State of Pennsylvania and authorized to do business in the State of Texas, hereinafter called "Surety", are held and firmly bound unto the City of. Denton, Texas, a Municipal Corporation, in Denton County, Texas, hereinafter called "City" in the penal sum of Two hundred ninety two thousand twenty six & 00/100 ($~292,026.00 ) Dollars, lawful money of the United States, for the payment of which sum. well and truly to be made we bind ourselves, our heirs, executors, administrators, and successors, jointly and severally, and firmly by these presents: THE Condition of this Obligation is such that: WHEREAS, the Principal entered into a certain contract with Owner, dated 9~ the day of October , 19 95 in the proper performance of which the City of Denton, Texas, has an interest, a copy of which is hereto attached and made a part hereof, for the construction of: PROPOSED PUBLIC IMPROVEMENTS TO SERVE WAL-MART ADDITION 1515 South Loop 288, Denton, TX NOW, THEREFORE, if the Principal shall well, truly, and faithfully cause to be performed and fulfilled all of the undertakings, covenants, terms, conditions, and agreement's of said Contract in accordance with the Plans, Specifications, and Contract Documents during the original term thereof, and any extension thereof which may be granted, with or without notice to the surety, PAGE ONE and during the life of any guaranty required under the Contract, and shall also well and truly cause to be performed and fulfilled all the covenantS, terms and conditions and agreements of any and all authorized modifications of said Contract that may hereafter bemade, notice of which modifications to the surety being hereby ~aived; then this obligation shall be void; otherwise to remain in full force and effect. PROVIDED, further, that if any legal action be filed on this bond, venue shall lie in Denton County. AND, that said Surety, for value received, hereby stipulates and agrees that no change, Rxtension of time, alteration oraddition to the terms of the contract, or to the work performed thereunder, or the Plans, Specifications, Drawings, etc., accompanying the same shall in anywise affect its obligation on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the'terms of the Contract, or to the work to be performed thereunder. IN WITNESS WHEREOF, this instrument is executed in triplicate, each one of which shall be deemed an original this the ~ day of October , 19 95 .. ' PRINCIPAL SURETY DAL-MAC CONSTRUCTION COMPANY THE INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA BY: .... BY: ~ .~_h~. ". C~ ).~ Bradford Mc Junkin, President ~T. ORNEY_IN_FACT / ATTEST: ~nice G. Correy ' NOTE: POWER OF ATTORNEY OF SURETY MUST BE ATTACHED. DATE OF BOND MUST NOT BE PRIOR TO DATE OF CONTRACT. PAGE TWO AAA019DF BOND NO. 15-84-85 PROJECT NO. CONT CT NO. PAYMENT BOND THE STATE OF TEXAS § COUNTY OF DENTON § THAT DAL-MAC CONSTRUCTION COMPANY 111 West. Spring Valley Road, P.O. Box 830160, Richardson, TX 75080-0160 of Dallas County, Texas, hereinafter called principal and THE INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA 1999 Bryan Street, Suite 1700, Dallas, Texas 75201 a Corporation organized under the laws of the State of Pennsylvania and authorized to do business in the State of Texas, hereinafter call'ed "Surety", are held and firmly bound unto the city of Denton, Texas, a Municipal Corporation, in Denton County, Texas, hereinafter called "City", and unto all persons, firms and corporations who may furnish materials for or perform labor upon the buildings, structures or improvements referred to in the attached contract, in the penal sum of Two hundred ninety two thousand twenty six and no/100 ($ 292,026.00 ) Dollars, lawful money of the United States, to be paid in Denton, Denton County, Texas, for the payment of which sum well and truly to be made we bind ourselves, our heirs, executors, administrators, and successors, jointly and severally. THE Condition of this Obligation is such that: WHEREAS, the Principal entered into a certain contract with Owner, dated %he ~{~ day of October , 1995 , in the proper performance of which the City of Denton, Texas, has an interest, a copy of which is hereto attached and made a part hereof, for the construction of: PROPOSED PUBLIC IMPROVEMENTS TO SERVE WAL-M~RT ADDITION 1515 South Loop 288, Denton, TX PAGE ONE NOW, THEREFORE, if the Principal shall well, truly, and faithfully cause to be performed its duties and make or cause Contractor to make prompt payment to all persons, firms, sub- contractors, corporations and claimants supplying labor and material in the prosecution of the work provided for in said contract and any and all duly authorized modification of said Contract that may hereafter be made, notice of which modification of the surety is hereby expressly waived, then this obligation shall be void: Otherwise to remain in full force and effect. Provided further, that if any legal action be filed upon this bond, venue shall lie in Denton County, Texas. AND THAT said Surety for value received hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Contract, or to the work performed thereunder, or the Plans, Specifications, Drawings, etc., accompanying the same shall in anywise affect its obligation on this Bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the Contract, or to the work to be performed thereunder. IN WITNESS WHEREOF, this instrument is executed in triplicate, each one of which shall be deemed.an original, this the ~ day of October , 19 95 .. PRINCIPAL SURETY DAL-MAC CONSTRUCTION COMPANY THE INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA Janice G. Correy ATTEST: / NOTE: DATE OF PAYMENT BOND MUST NOT BE PRIOR TO DATE OF CONTRACT. PAGE TWO NOW, THEREFORE, if the Principal -.shall well, truly, and faithfully maintain and keep in good repair the work contracted to be done and performed for a period of one (1) year from the date of acceptance in Writing by the City of Denton and do all necessary work and repair of any defective conditions growing out. of or arising from the improper work of the same, including, but not limited to, any settling, breaking, cracking or other defective condition of any of the work or part thereof arising from improper excavation, backfilling, compacting or any other cause or condition, known or unknown, at any time during the period of this bond, which the city engineer, whose judgment shall be final and conclusive, determines to be the result of defective work, materials or labor; then this obligation shall be void, otherwise to remain in full force and effect. In case the said Principal shall fail to maintain, repair or reconstruct any defective condition of the work as determined herein, it is agreed that the City may do said work and supply such materials as necessary and charge~.the sum against the said Principal and Surety on this obligation. It is further agreed that this obligation shall be continued one against the Principal and Surety and that successive recoveries may be had hereon for successive breaches of the conditions herein provided until the full amount of this bond shall have been exhausted, 'and it is further understood that the obligation to maintain said work shall continue throughout Said maintenance period, and the same shall not be changed, diminished, or in any manner affected from any ~se during said time. PROVIDED, further, 'that if any legal action be filed on this bond, venue shall lie in Denton County. IN WITNESS WHEREOF, this instrument is executed in triplicate, each one of which~shall be deemed an original, this the ~4~ day of October , 19 95 PRINCIPAL SURETY DAL-MAC CONSTRUCTION COMPANY THE INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA 'Bradford Ma 3unkin, President AT~. RNEY-IN-FACT / 3~nice G. Correy PAGE TWO AAA019DF BOND NO. 15-84-85 PRO:ECT NO. COHT CT HO. CONTRACTOR'S MAINTENANCE BOND (DEVELOPMENT CONTRACT) THE STATE OF TEXAS KNOW ALL MEN BY THESE PRESENTS: CODqqTY OF'DENTON That DAL-MAC CONSTRUCTION COMPANY 111 West Spring Valley Road, P.O. Box 830160, Richardson, TX 75080-01~60 of Dallas County, Texas, hereinafter called Principal and THE INSURANCE COMPAN~ OF THE STATE OF PENNSYLV~-NIA 1999 Bryan Street, Suite 1700, Dallas, Texas 75201 a Corporation organized under the laws of the State of Pennsylvania and authorized to do business in the State of Texas, hereinafter called "Surety", are held and firmly bound unto the City of Denton, Texas, a Municipal Corporation, in Denton County, Texas, hereinafter called "City" in the penal sum of Two hundred ninety two thousand twenty six and no/100 .... ($ 292,026.00 ) Dollars, lawful money of the United States, the said s%um being ten percent (10%) of the total amount of the hereinafter mentioned contract, for the payment of which sum well and truly to be made we bind ourselves, our heirs, executors, administrators, and successors, jointly and severally. THE condition of this Obligation is such that: W~ERF~S, the PrinciPal entered into a certain contract with Owner, dated the o~ day of October , 19 95, in the proper performance of which the City of Denton, Texas, has an interest, a copy of which is hereto attached and made a part hereof, for the construction of: · PROPOSED PUBLIC IMPROVEMENTS TO SERVE WAL-MART ADDITION 1515 South Loop 288, Denton, TX PAGE ONE POWER OF ATTORNEY The Insurance Company of the State of Pennsylvania Prinopal Bond Office: 70 Pine Street..',,lev, York. N Y Io270 '% q'?:~[~!!?_~/, KNOW ALL MEN BY THESE PRESENTS: That The Insurance Company of the Stale of Pcntks3jlvama. a Pennsylvania corporanon, docs hereby, appo.tl ---Joe Bruce, Janice G. Correy, Dorothy Valek, Kathleen Day, Pamelia McLemore: of Dallas, Texas-- its true and lawful Attorney(s)-in-Fact, w~th gull authority to execute on ~ts behalf bonds, undertak,ngs, rccogm,*.ances and other contracts of mdemmty and writings obhgatoD in ibc nature thereof, issued tn thc coursc of ils business, and to brad lhc cotnpan) thereby IN WITNESS WHEREOF, The Insurance Compan5 of the State of Pennsylvania has executed these presents O this 21 st day of September, 199~4 William D Smith, Prestdcn~ STATE OF NEW YORK } COUNTY OF NEW YORK}ss. On this 21st of September, 1994, before me came the above named officer of The Insurance Company of the State of Pennsylvania, to me personally known to be the individual *JOsE~,H t (J ~ ~ ~ - 0 0 and officer described herein, and acknowledged that he I~.v Public. StateNOZZOl'lOof ~lw ¥o~ executed the foregoing instrument and affixed the seal of said No. 01'NO~652754 ,~lified in W~stchester corporation thereto by authority or his omce. CERTIFICATE Excerpts of Resolutloo ~k~IRed by the Board of Dtr~ctors of Tbe Insurance Company of the State of Pennsylvania, on May 18, 1976. "RESOLVED, that thc Chairman of the Board, the President, or any Vice President be. and hereby ts, authorized to appoint Aaomeys-m-Facl to represem and aa llx aid on behalf of the Company to execute bonds, undertakings, recogniZances and other conl~ac~ of indenmity md writings obligatory in the nature therco£, and to attach thereto the coq~orate seal oftbe Company, in the transaction of its sureV¢ business; "RESOLVED, thai tl~ signatures and attestations of such officers and the seal of fha Con,any m~ty be affixed to may such Power of Attorney or to a.ny certtficate relating thereto by f~csimile, and any such Power of A.~orney or certificate bearing such facsimile signatures or facsimile seal shall be valid and binding upon the Company when so Mfixed with respect to any bond. undert~ing, recognizance o¢ other contrac't of in&,mainty or writing obligato,,¥ in the nature thereo£; 'RESOLVED, ttm any such Attorney-m-Fact delive~qng a secretarial ce'aification thai the foregoing resolutions still be in effect may inse~ m such cea~fication the da~e thereof, said date lo be not later than the date of delivery, thereof by such Atlornsy-in-Fact." i, Eltzabeth M Tuck Secretary of Tbe Insurance Company ot'the State of Pennsylvania. do hereby certify thai the foregoing exceq¢~ of Resolutaon adopted Fly the ~a~d of D~reclors of this corporation, mad the Power of Allocaey ~sxued [~tlyslla~l! theretO, ate [Fue and cl'wr~'~ and that both the Resolulton and the Po,.~'cr o£ .Mtocney are m and effeci IN WITN ESS WHEREOF, I have hereunto set mx h,md and allixed the t~cs~mfi¢ seal of the corp,)ration this day of .... , 19 _ EhT. abelh M Tuck. Secretary A~-00D97 PROJECT NO. ~ No. THE STATE OF TEXAS DEVELOPMENT CONTRACT COUNTY OF DENTON Wal-Mart Stores, Inc. Whereas, hereafter r~ferred to as "Owner," who~e business address is __ 701S. Walton Blvd., BenEon~ille, AR 72716 , is the owner of real property located in the corporate limits of the city of Denton, or its extraterritorial jurisdiction; and' Whereas, Owner wishes to develop the property and such development must be performed in accordance with the applicable ordinances of the City of Denton, hereafter referred to as "City"; and Whereas, as a condition to the Deginning of construction of said development, a development contract is required to ensure that all streets, water and sewer lines, drainage facilities and other improvements which ar~ to be dedicated to the public, hereafter referred to as "Improvements," are constructed in accordance with the city's specifications, standards and ordinances; and [select applicable provision as follows] ~ Whereas, the Owner elects to construct the Improvementm without contracting with another party as prize contractor, in which case the provisions of thi$ contract which refer to "owner" or "Contractor" shall mean the Owner as named above; or ~ Whereas, the O~ner elects to make such Improvements hereafter Del-Mac Construction Co. set forth by contracting with .., whose business address is P. 0. Box 830160, Richardson, Tx 75083 hereafter referred to as "Contractor"; and Whereas, owner and Contractor recognize that the city has an interest in ensuring that the Improvements subject to this agreement, which will, upon completion znd acceptance by the City, become public property, ar~ ~roDerly constructed in accordance with the city's specifications and that payment is made therefor; WITNESSETH As to the Improvements to be dedicated to the public, as specified in Exhibit A, attached hereto and incorporated by reference, to be installed and constructed at 1515 South Loop 288, Denton, Texas 76201 the Owner, contractor and city, in consideration of their mutual promises and cov~_nants contained herein, agree as follows: 1. Covenants Of contractor. Contractor a~rees as follows: (a) Specific~tions, To conmtruct and install the Improvements in accordance with the procedures, specifications and standards contained in Division II and III of.the Ci_~'s stand~ ~pecifiDations for PubliQ Works Construction, Nor2t_h central Te×a~, as amended, and all addendums thereto, and all other requlations, ordinances or specifications applicable to such Improvements, such PAGE specifications, standards, regulations and ordinances being expressly incorporated herein by reference and being made a part of the agreement as though written herein. (b) Authority of City Enqineer; Inspections, Tests and Orders. That all work on the Improvements shall be performed in a good and workmanlike manner and to the satisfaction of the City Engineer or his representative. The City Engineer shall decide all questions which arise as to the quality and acceptability of materials furnished, work performed, and the interpretation of specifications. The Contractor shall furnish the City Engineer or his representative with every reasonable facility for ascertaining whether or not the work performed was in accordance with the specifications applicable thereto. Any work done or materials used without suitable inspection by the City may be ordered removed and replaced at Contractor's expense. Upon failure of the Contractor to allow for inspection, to test materials furnished, to satisfactorily repair, remove or replace, if so directed, rejected, unauthorized or condemned work or materials, or to follow any other request or order of the City Engineer or his representative, the City Engineer shall notify the Owner of such failure and may suspend inspections of such work until such failure is remedied. If such failure is not remedied to the satisfaction of the City Engineer, the City shall have no obligation under this agreement to approve or accept the Improvements. PAGE 3 (c) Insurance. To provide for insurance in accordance with the insurance requirements applicable to contractors as provided for in Item 1.26 of Division' I of the Standard Specifications for Public Works Construction, North Central Texas, as amended, the provisions of which are expressly incorporated herein by reference; provided, however, for purpose of this provision only, "Owner," as used therein, shall mean the City of Denton. (d) Means and Methods of Construction. That the means and methods of construction shall be such as Contractor may choose; subject, however, to the City's right to reject any Improvements for which the means or method of construction does not, in the judgment of the city Engineer, assure that the Improvements were constructed in accordance with City specifications. 2. Mutual Covenants of Owner and Contractor. Owner and Contractor mutually agree as follows: (a) Performance Bonds; Escrow Aqreement. That if building permits are to be issued for the development prior to completion and acceptance of all improvements that are to be dedicated to the public, the following security requirements shall apply, unless the development is a "one lot development," as defined by City's Development Code: (i) a performance bond in an amount not less than the amount necessary to complete the Improvements, as determined by the City Engineer, shall be submitted guaranteeing the full and faithful completion of the Improvements meeting the specifications of the City, shall be in favor of the City, and shall be executed by a surety company authorized to do business in the State of Texas; or, PAGE 4 (ii) if the cost of completing the Improvements, at the time building permits are requested, is in an amount of $50,000 or less, as determined by the City Engineer, cash money in the amount necessary to complete the Improvements, as determined by the City Engineer, may be deposited with a bank as escrow agent, pursuant to an escrow agreement ensuring completion of the Improvements. Without exception, the City's escrow agreement form shall be used. (b) Payment Bond; Assurance of Payment. That prior to acceptance of the Improvements: (i) a payment bond will be furnished in an amount not less than one hundred percent (100%) of the approximate total cost of the contract cost of the Improvements, guaranteeing the full and proper protection of all claimants supplying labor and material for the construction of the Improvements, shall be in favor of the City, and shall be executed by an approved surety company authorized to do business in the State of Texas; or, (ii) if the total contract amount of all Improvements is $50,000 or less, as determined by the City Engineer, or the Improvements, regardless of the contract amount, are for a "one lot development," as defined by City's Development Code, and a payment bond has not been submitted in accordance with (i) above, Owner and Contractor agree and guarantee that any and all debts due to any person, firm or corporation having furnished labor, material or both in the construction of the Improvements shall be fully paid and satisfied before acceptance of the Improvements by the City and that prior to acceptance of the Improvements, the Owner and Contractor shall furnish a written affidavit, in a form provided by the City Engineer, stating that all bids, charges, accounts or claims for labor performed and material furnished in connection with the construction of the Improvements have been paid in full and that there are no unreleased recorded liens filed against the Improvements, or land to which they are affixed, that are to be dedicated to the public. That, upon the request of the City Engineer, Owner or Contractor shall furnish a complete list of all subcontractors who performed labor on, or supplied PAGE 5 material for, the construction of the Improvements, and, when requested, written statement from any or each of such subcontractors or suppliers that they have been paid in full. (c) Retainaqe; Final Payments. [This provision (c) applies only where the Owner and Contractor are not he same party.] That as security for the faithful completion of the Improvements, Contractor and Owner agree that the Owner shall retain ten percent of the total dollar amount of the contract price until after final approval or acceptance of the improvements by the City. The Owner shall thereafter pay the Contractor the retainage, only after Contractor has furnished to the Owner satisfactory evidence that all indebtedness connected with the work and all sums of money due for labor, materials, apparatus, fixtures or machinery furnished for and used in the performance of the work have been paid or otherwise satisfied. (d) ~nces. That upon completion and approval or acceptance of the Improvements of the City, the Improvements shall become the property of the City free and clear of all liens, claims, charges or encumbrances of any kind. If, after acceptance of the Improvements, any claim, lien, charge or encumbrance is made, ~or found to exist, against the Improvements, or land dedicated to the City, to which they are affixed, the Owner and Contractor shall upon notice by the City promptly cause such claim lien, charge or encumbrance to be satisfied and released or promptly post a bond with the City in the amount of such claim, PAGE 6 lien, charge or encumbrance, in favor of the City, to ensure payment of such claim, lien, charge or encumbrance. (e) Maintenance Bond.' That prior to approval or acceptance of the Improvements by the City, to furnish a maintenance bond in form and substance acceptable to the City, in the amount of ten percent (10%) of the contract amount of the Improvements, insuring the repair and replacement of all defects due to faulty material and workmanship that appear within one year from the date of acceptance. The bond shall be in favor of the City and shall be executed by an approved surety company authorized to do business in the State of Texas. (f) Indemnification. To indemnify, defend and save harmless, the City, its officers, agents and employees from all suits, actions or claims of any character, name and description brought for or on account of any injuries or damages received as sustained by any person, persons or property on account of the operations of the Contractor, his agents, employees or subcontractors; or on account of any negligent act of fault of the Contractor, his agents, employees or subcontractors in construction of the improvements; and shall pay any judgment, with costs, which may be obtained against the City growing out of such injury or damage. (g) Aareement Controllinq. That the provision of this agreement shall control over any conflicting provision of any contract between the Owner and Contractor as to the construction of the Improvements. PAGE 7 3. Occupancy; One Lot Developments. Owner further agrees as follows: (a) That Owner will not allow any purchasers, lessee, or other person to occupy any building within the development until all Improvements are completed and accepted by the city, and that upon violation thereof will pay the City $3,000.00 as liquidated damages, but such payment shall not be deemed approval of such occupancy and the City may take whatever action necessary to restrain such occupancy. (b) That if this contract applies to a "one lot development," as defined by City's Development Code, and no performance or payment bond was required or submitted for the improvements that are to be dedicated to the public, the Owner shall not be issued a Certificate of Occupancy for any building constructed or located therein until all required public improvements have been completed and accepted in accordance with this contract. 4. Covenants of city. That, upon proper completion of the Improvements in accordance with this agreement, the City agrees to accept the Improvements. 5. Venue and Governinq Law. The parties herein agree that this contract shall be enforceable in Denton County, Texas, and if legal action is necessary in connection therewith, exclusive venue shall lie in Denton County, Texas. The terms and provisions of this contract shall be construed in accordance with the laws and court decisions of the State of Texas. PAGE 8 6. Successor and Assiqns. This contract shall be binding upon and inure to the benefit of the parties hereto, their respective successors and assigns· Executed in triplicate this day of October , 1995 OWNER CONTRACTOR WAL-MART_~STO~_~ . DAL-MAC CONSTRUCTION COMPANY ~,,5~t~+~e pf~ Bradford Mc Junkin, President CITY ~ TEXAS . · · CITY ~MANAGER - y ATTEST: ~/~ JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM:' HERBERT L. PROUTY, CITY ATTORNEY PAGE 9 EXHIBIT "A" PROPOSED LOOP 285 IMPROVEMENTS TO SERVE WAL-MART ADDITION 1515 SOUTH LOOP 288, DENTON, TEXAS PROPOSED LOOP 2~g IMPROVEMENTS A. Paving Asphalt (including three driveway replacements) 1-1/2" Type "C" 3,950 SY $2.99 SY $11,811 7-1/2" Type "A" 7,160 SY $14.85 SY $106,326 Concrete Approaches for Brinker Road and Wal-Mart center drive 630 SY $21.15 SY $13,325 6" Lime Stabilization 4,800 SY $2.86 SY $13,728 Concrete Median 966 SY $18.00 SY $17,388 B. Sidewalk (adjacent to Loop 288 Wal-Mart frontage) 650 LF x 4' wide 290 SY $18.00 SY $5,220 C. Pavement Marking and Signs Remove Pavement Markings 1 LB $5,000,00 LB $5,000 D. Culverts 21" RCP, Class III 90 LF $26.00 LF $2,340 18" RCP, Class 111 99 LF $24.00 LF $2,376 24" RCP, Class III 23 LF $28.00 LF $644 18" Safety End Treatment 6 EA $1,200.00 EA $7,200 21" Safety End Treatment 2 EA $1.200.00 EA $2,400 Type ~H" Horizontal Inlet I EA $3,000.00 EA $3,000 E. Signalization (per signalization plans package) 1 LB $68,000.00 LB $68,000 for Loop288 at Spencer Road intersection F. ConstmctionTraffic Control 1 LS $3,825.00 LB $3,825 G. Hydromuleh Seeding (includes Wal-Mart side only, all disturbed non-paved right-of-way) 5,550 SY $0.36 SY $1,998 H. Roadway Excavation 1,850 CY $3.40 CY $6,475 I. Sawcut and Remove Existing Paving 450 SY $4.50 SY $2.02_5 Total Improvements $273,081 AAAO19DF BOND NO. 15-84-86 PRO ECT O. C0 T CT PERFORMANCE BOND THE STATE OF TEXAS § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF DENTON That DAL-MAC CONSTRUCTION COMPANY 111 West Spring Valley Road, P.O. Box 830160, Richardson, TX 75080-0160 of Dallas County, Texas, hereinafter called Principal and THE INSURANCE COMPANY OFT HE STATE OF PENNSYLVANIA 1999 Bryan Street, Suite 1700, Dallas, Texas 75201 a Corporation organized under the laws of the State of Pennsylvania and authorized to do business in the State of Texas, h~reinafter called "Surety", are held and firmly bound unto the City of Denton, Texas, a Municipal Corporation, in Denton County, Texas, hereinafter called "City" in the penal sum of Two hundred seventy three thousand eighty one and no/100 ($ 273,081.00 Dollars, lawful money of the United States, for the payment of which sum well and truly to be made we bind ourselves, our heirs, executors, administrators, and successors, jointly and severally, and firmly by these presents: THE Condition of this Obligation is such that: WHEREAS, the Principal entered into a certain contract with Owner, dated %~ the day of October , 19 95 , in the proper performance of which the'" City of Denton, Texas, has an interest, a copy of which is hereto attached and made a part hereof for the construction of: ' PROPOSED PUBLIC IMPROVEMENTS TO SERVE WAL-MART ADDITION 1515 South Loop 288, Denton, TX NOW, THEREFORE, if the Principal shall well, truly, and faithfully cause to be performed and fulfilled all of the undertakings, covenants, terms, conditions, and agreements of said Contract in accordance with the Plans, Specifications, and Contract Documents during the original term thereof, and any extension thereof which may be granted, with or without notice to the surety, PAGE ONE and during the life of any guaranty required under the Contract, and shall also well and truly cause to be performed and fulfilled all the covenants, terms and conditions and agreements of any and all authorized modifications of said Contract that may hereafter bemade, notice of which modifications to the surety being hereby waived; then this obligation, shall be void; otherwise to remain in full force and effect. PROVIDED, further, that if any legal action be filed on this bond, venue shall lie in Denton County. AND, that said Surety, for value received, hereby stipulates and agrees that no change, Rxtension of time, alteration or addition to the terms of the contract, or to the work performed thereunder, or the Plans, Specifications, Drawings, etc., accompanying the same shall in anywise affect its obligation on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the Contract, or to the work to be performed thereunder. IN WITNESS WHEREOF, this instrument is executed in triplicate, each one of which shall be deemed an original, this the..~% day of October , 19 95 . PRINCIPAL SURETY DAL-MAC CONSTRUCTION COMPANY THE INSURANCE COMPANYOF THE STATE OF PENNSYLVANIA Bradford Mc Junkin, President A~,~ORNEY--I~-FACT /~ ATTEST: J~nice G. Corre. y ' ' NOTE: POWER OF ATTORNEY OF SURETY MUST BE ATTACHED. DATE OF BOND MUST NOT BE PRIOR TO DATE OF CONTRACT. PAGE TWO AAA019DF BOND NO. 15-84-86 P OJECT NO. CONTACT NO., PAYMENT BOND THE STATE OF TEXAS § COUNTY OF DENTON § THAT DAL-MAC CONSTRUCTION COMPANY ill West Spring Valley Road, P.O. Box 830160, Richardson, TX 75080-0160 of Dallas County, Texas, hereinafter called principal and THE INSURA/~CE COMPANY OF THE STATE OF PENNSYLVANIA 1999 Bryan Street, Suite 1700LDallas, Texas 75201 a Corporation organized under the laws of the State of Pennsylvania and authorized to do business in the State of Texas, h~reinafter called "Surety", are held and firmly bound unto the City of Denton, Texas, a Municipal Corporation, in Denton County, Texas, hereinafter called "City", and unto all persons, firms and corporations who may furnish materials for or perform labor upon the buildings, structures or improvements referred to in the attached contract, in the penal sum of Two hundred seventy three thousand eighty one and no/100 ($..273.081.00 ) Dollars, lawful money of the United States, to be paid in Denton, Denton County, Texas, for the payment of which sum well and truly to be made we bind ourselves, our heirs, executors, administrators, and successors, jointly and severally. THE Condition of this Obligation is such that: W~EREAS, the Principal entered into a certain contract with Owner, dated the (%%k day of October , 1995 , in the proper performance of which th~ City of Denton, Texas, has an interest, a copy of which is hereto attached and made a part hereof, for the construction of: PROPOSED PUBLIC IMPROVEMENTS TO SERVE WAL-MART ADDITION 1515 South Loop 288, Denton, TX PAGE ONE NOW, THEREFORE, if the Principal shall well, truly, and faithfully cause to be performed its duties and make or cause Contractor to make prompt payment to all persons, firms, sub- contractors, corporations and claimants supplying labor and material in the prosecution of the work provided for in said contract and any and all duly authorized modification of said Contract that may hereafter be made, notice of which modification of the surety is hereby expressly waived, then this obligation shall be void: Otherwise to remain in full force and effect. Provided further, that if any legal action be filed upon this bond, venue shall lie in Denton County, Texas. AND THAT said Surety for value received hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Contract, or to the work performed thereunder, or the Plans, Specifications, Drawings, etc., accompanying the same shall in anywise affect its obligation on this Bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the Contract, or to the work to be performed thereunder. IN WITNESS WHEREOF, this instrument is executed in triplicate, each one of which shall be deemedan original, this the ~ day of October , 19 95 .. ' PRINCIPAL SURETY DAL-MAC CONSTRUCTION COMPANY THE INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA Bradford Mc Junkin, President ATTORNEY-IN-FACT ATTEST: .~3anice G. Correy SECRETARY NOTE: DATE OF PAYMENT BOND MUST NOT BE PRIOR TO DATE OF CONTRACT. AAA019DF BOND NO. 15-84-86 PROJECT NO. fy CONTRACTOR'S MAINTENANCE BOND (DEVELOPMENT CONTRACT) THE STATE OF TEXAS S KNOW ALL MEN BY THESE PRESENTS: COUNTY OF DENTON S That DAL-MAC CONSTRUCTION COMPANY 111 West Spring Valley Road, P.O..Box 830160, Richardson, TX 75080-0160 of Dallas County, Texas, hereinafter called Principal and THE INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA 1999 Bryan Street, Suite 1700, Dallas, Texas 75201 a Corporation organized under the laws of the State of and authorized to do business in the State of Texas, hereinafter called "Surety", are held and fizl~ly bound unto the City of Denton, Texas, a Municipal Corporation, in Denton County, Texas, hereinafter called "City" in the penal sum of Two hundred seventy three thousand eighty one and no/100 ($273~081.00 Dollars, lawful money of the United States, the said sum being ten percent (10%) of the total amount of the hereinafter mentioned contract, for the payment of which sum well and truly to be made we bind ourselves, our heirs, executors, administrators, and successors, jointly and severally. THE Condition of this Obligation is such that: WHEREAS, the Principal entered into a certain contract with Owner, dated the ~ day of October _, 19 95, in the proper performance of which the 'City of Denton, Texas, has an interest, a copy of which is hereto attached and made a part hereof, for the construction of: PROPOSED PUBLIC IMPROVEMENTS TO SERVE WAL-MART ADDITION 1515 South Loop 288, Denton, TX PAGE ONE NOW, THEREFORE, if the Principal ~shall well, truly, and faithfully maintain and keep in good repair the work contracted to be done and performed for a period of one (1) year from the date of acceptance in writing by the City of Denton and do all necessary work and repair of any defective conditions growing out. of or arising from the improper work of the same, including, but not limited to, any settling, breaking, cracking or other defective condition of any of the work or part thereof arising from improper excavation, backfilling, compacting or any other cause or condition, known or unknown, at any time during the period of this bond, which the city engineer, whose judgment shall be final and conclusive, determines to be the result of defective work, materials or labor; then this obligation shall be void, otherwise to remain in full force and effect. In case the said Principal shall fail to maintain, repair or reconstruct any defective condition of the work as determined herein, it is agreed that the City may do said work and supply such materials as necessary and charge~..the sum against the said Principal and Surety on this obligation. It is further agreed that this obligation shall be continued one against the Principal and Surety and that successive recoveries may be had hereon for successive breaches of the conditions herein provided until the full amount of this bond shall have been exhausted, 'and it is further understood that the obligation to maintain said work shall continue throughout said maintenance period, and the same shall not be changed, diminished, or in any manner affected from any cause during said time. PROVIDED, further, 'that if any legal action be filed on this bond, venue shall lie in Denton County. IN WITNESS WHEREOF, this instrument is executed in triplicate, each one of which shall be deemed an original this the ~ day of Octob~ , 19 95 ' PRINCIPAL SURETY DAL-MAC CONSTRUCTION COMPANY THE INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA Bradford Mc Junkin, President ~.0RNEY-IN-FACT/" 3~nice G. Correy PAGE TWO THE STATE OF TEXAS § WATER MAIN COST PARTICIPATION AGREEMENT BETWEEN THE CITY OF COUNTY OF DENTON § DENTON AND WAL-MART STORES, INC. WHEREAS, Wal-Mart Stores, Inc., hereafter referred to as "Developer," whose business address is 701 S. Walton Blvd., Bentonville, Arkansas 72716, wishes to develop and improve certain real property named Wal-Mart Addition (as shown in Exhibit I, attached hereto and incorporated herein by reference), located in the City of Denton, Texas or its extraterritorial jurisdiction, and is required to provide such property with adequate water capacity by designing, constructing and installing a water main of a minimum inside diameter of eight inches (8"), hereafter referred to as "required facilities"; and WHEREAS, the City of Denton, Texas, a municipal corporation located at 215 East McKinney, Denton, Texas 76201, hereafter referred to as "City," in accordance with its ordinances, wishes to participate in the cost of the construction and installation of said water main to provide for an "oversized" water main to expand its utility system and insure adequate utility service to other customers; NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, Developer and City agree as follows: 1. Developer shall design, install and construct a twelve in- ch (12") water main and all necessary appurtenances thereto, hereafter referred to as "oversized facilities,", located as shown on Exhibit I, attached hereto and incorporated herein by reference. 2. As required by Chapter 34 of the Code of Ordinances of City of Denton, Texas, Developer has entered into a Development Contract prior to beginning construction of the oversized facili- ties. This Development Contract is attached hereto as Exhibit II and incorporated herein by reference. This Agreement is subject to and governed by this Development Contract and any other applicable ordinances of City. 3. Prior to beginning construction of the oversized facili- ties, Developer shall obtain, at Developer's sole cost and expense, all necessary permits, licenses and easements. The easements, deeds and plats therefor obtained by Developer shall be reviewed and approved as to form and substance by City prior to the begin- ning of construction. If Developer is unable to acquire needed easements, Developer shall provide City with any requested documen- tation of efforts to obtain such easements, including evidence of negotiations and reasonable offers made to the affected property owners. Any easements for the oversized facilities obtained by the WATER MAIN PARTICIPATION AGREEMENT / WAL-MART STORES, INC. PAGE 1 Developer shall be assigned to City, if not taken in City's name, prior to acceptance of the oversized facilities, and Developer war- rants clear title to such easements and will defend City against any adverse claim made against such title. 4. City's share in the cost of the oversized facilities, based upon the difference in the cost of installing required facilities, as determined by City, and the cost of the oversized facilities, as determined by City, shall be in an amount not to exceed Seventeen Thousand Five Hundred Sixty-six Dollars and Eighty-six Cents ($17,566.86). City may elect one of the following methods to determine City's share of the cost: a). Developer shall prepare plans and specifications and furnish them to City. City shall competitively bid the required line and the oversized facilities in accordance with Chapter 252 of the Texas Local Government Code. The difference in the bids shall be used to determine City's share, subject to City's maximum participation in cost as specified in this Agreement; or b) Developer shall prepare plans and specifications and take bids on the required line and the over- sized facilities. City shall pay Developer the least amount of the following: (1) The difference in the bids for the required line and the oversized facilities; (2) Thirty percent of the bid on the oversized facilities, as provided for in §212.072 of the Texas Local Government Code; or (3) $17,566.86, the maximum participation cost al- lowed herein. City shall not, in any case, be liable for any additional cost because of delays in beginning, continuing or completing construc- tion; changes in the price or cost of materials, supplies, or labor; unforeseen or unanticipated cost because of topography, soil, subsurface, or other site conditions; differences in the calculated and actual per linear feet of pipe or materials needed for the oversized facilities; Developer's decision as to the contractors or subcontractors used to perform the work; or any other reason or cause, specified or unspecified, relating to the construction of the oversized facilities. 5. Within thirty (30) days of the acceptance of the facili- ties by City, Developer shall submit to City's Director of Utili- ties the actual cost of the oversized facilities. Should the actual cost of the oversized facilities be less than the cost upon which City's share was determined, City's share of the cost shall be reduced proportionally, on a per linear foot basis, based upon WATER ~4AIN PARTICIPATION AGREEMENT / WAL-MART STORES, INC. PAGE 2 the difference of the actual cost of the oversized facilities and the determined cost for required facilities. To determine the actual cost of the oversized facilities, City shall have the right to inspect any and all records of Developer, his agents, employees, contractors or subcontractors and shall have the right to require Developer to summit any necessary information, documents, invoices, receipts or other records to verify the actual cost of the over- sized facilities. 6. Within sixty (60) days of the date Developer submits sat isfactory documentation of the actual cost of the oversized facili- ties, as determined by City, City shall pay to Developer City's share of the cost thereof. 7. All notices, payments or communications to be given or made pursuant to this agreement by the parties hereto, shall be sent to Developer at the business address given above and to the Director of Utilities for City at the address given above. 8. Developer shall indemnify and hold City, its officers and employees, harmless from any and all claims, damages, loss or liability of any kind whatsoever, by reason of injury to property or person occasioned by any act or omission, neglect or wrongdoing of Developer, its officers, agents, employees, invitees, contrac- tors or other persons with regard to the performance of this agreement, and Developer will, at its own cost and expense, defend and protect City, its officers and employees, against any and all such claims and demands. 9. If Developer does not begin substantial construction of the oversized facilities within twelve (12) months of the effective date of execution of this agreement, this agreement shall termi- nate. 10. This instrument embodies the whole agreement of the par- ties hereto and there are no promises, terms, conditions or obliga- tions other than those contained or incorporated herein. This agreement shall supersede all previous communications, representa- tions or agreements, either verbal or written, between the parties hereto. 11. This agreement shall not be assigned by Developer without the express written consent of City. 12. Any and all suits for any breach of this contract, or any other suit pertaining to or arising out of this agreement, shall be brought and maintained in a court of competent jurisdiction in Denton County, Texas. WATER MAIN PARTICIPATION AGREEMENT / WAL-MART STORES, INC. PAGE 3 WAL-MART STORES, INC. CITY OF DENTON, TEXAS ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY E: \WPDOCS\K\WALMRT. ~ WATER F~AIN PARTICIPATION AGREEMENT / WAL-MART STORES, INC. PAGE 4 AAA00D97 THE STATE OF TEXAS § DEVELOPMENT CONTRACT COUNTY OF DENTON § Wal-Mart Stores, Inc. Whereas, hereafter r~ferred to as "Owner," whose business address is _ 701 s. Walton Blvdl, Bentonv~lle, AR 72716 , is the owner of real property located in the corporate limits of the city of Denton, or its extraterritorial jurisdiction; and Whereas, Owner wishes to develop the property and such development must be performed in a¢~ordance with the applicable ordinances of the city of Denton, hereafter referred to a~ "city"; and Whereas, as a condition to the .beginning of construction of said development, a development contract is required to ensure that all streets, water and sewer lines, drainage facilities and o-~her 4mprovements which are to be dedicated to the public, hereafter referred to as "Improvements," are co~stru~ted in accordance with the city's specifications, standard~ and ordinances; and [select applicable provision as follows] ~ W~ereas, the Qw~.er elect~ to construct the improvements without contracting with another party as prime contractor, in which cass the provisions ~f this contract which refer to "owner" or "Contractor" shall mean the Owner as named above; or EXHIBIT II ~Whereas, the Owner elects to make such Improvements hereafter Del-Mac Construction Co. set forth By contracting ~ith -- , ,, whose business address is P. 0. Box 830160, Richardson, Tx 75083.., hereafter referred to as "Contractor"; and Whereas, owner and Contractor recognize that the city has an interest in ensuring that the Improvements subject to this agreement, which will, upon completion and acceptance by t_he City, become public property, ar~ properly constructed in accordance with the city's specifications and t~at payment is made therefor; WITNESSETH As t= the Improvements to be dedicated to the public, as specified in Exhibit A, attached hereto and incol~porated by reference, to be installed and conatl~/cted at 1515 South Loop 288, Denton, Texas 76201' the Owner, contractor and City, in consideration of their mutual promises and covenants contained herein, agree as follows: 1. Covenants Of contracto.~. Contractor agrees as follows: (a) Specific~t~ons. TO construct and install th~ Improvements in accordance with the p~ocedures, specifications and standards contained in Division II and III of.the C_ity's Standar~ ~pecifications ~or Publ.io Work~ Con~t~/ction, Nor~c.h Central Te×a~, as amended, and all addendums thereto, and all other regulations, ordinances or specifications applicable to such ImprOVements, such PAG~ 2 specifications, standards, regulations and ordinances being expressly incorporated herein by reference and being made a part of the agreement as though written herein. (b) Authority of City Enqineer; Inspections, Tests and Orders. That all work on the Improvements shall be performed in a good and workmanlike manner and to the satisfaction of the city Engineer or his representative. The City Engineer shall decide all questions which arise as to the quality and acceptability of materials furnished, work performed, and the interpretation of specifications. The Contractor shall furnish the City Engineer or his representative with every reasonable facility for ascertaining whether or not the work performed was in accordance with the specifications applicable thereto. Any work done or materials Used without suitable inspection by the City may be ordered removed and replaced at Contractor's expense. Upon failure of the Contractor to allow for inspection, to test materials furnished, to satisfactorily repair, remove or replace, if so directed, rejected, unauthorized or condemned work or materials, or to follow any other request or order of the City Engineer or his representative, the City Engineer shall notify the Owner of such failure and may suspend inspections of such work until such failure is remedied. If such failure is not remedied to the satisfaction of the City Engineer, the City shall have no obligation under this agreement to approve or accept the Improvements. PAGE 3 (c) Insurance. To provide for insurance in accordance with the insurance requirements applicable to contractors as provided for in Item 1.26 of Division' I of the Standard Specifications for Public Works Construction, North Central Texas, as amended, the provisions of which are expressly incorporated herein by reference; provided, however, for purpose of this provision only, "Owner," as used therein, shall mean the City of Denton. (d) Means and Methods of Construction. That the means and methods of construction shall be such as Contractor may choose; subject, however, to the City's right to reject any Improvements for which the means or method of construction does not, in the judgment of the City Engineer, assure that the Improvements were constructed in accordance with City specifications. 2. Mutual Covenants of Owner and Contractor. Owner and Contractor mutually agree as follows: (a) Performance Bonds; Escrow Agreement. That if building permits are to be issued for the development prior to completion and acceptance of all improvements that are to be dedicated to the public, the following security requirements shall apply, unless the development is a "one lot development," as defined by City's Development Code: (i) a performance bond in an amount not less than the amount necessary to complete the Improvements, as determined bythe City Engineer, shall be submitted guaranteeing the full and faithful completion of the Improvements meeting the specifications of the City, shall be in favor of the City, and shall be executed by a surety company authorized to do business in the State of Texas; or, PAGE 4 (ii) if the cost of completing the Improvements, at the time building permits are requested, is in an amount of $50,000 or less, as determined by the City Engineer, cash money in the amount necessary to complete the Improvements, as determined by the City Engineer, may be deposited with a bank as escrow agent, pursuant to an escrow agreement ensuring completion of the Improvements. Without exception, the City's escrow agreement form shall be used. (b) Payment Bond; Assurance of Payment. That prior to acceptance of the Improvements: (i) a payment bond will be furnished in an amount not less than one hundred percent (100%) of the approximate total cost of the contract cost of the Improvements, guaranteeing the full and proper protection of all claimants supplying labor and material for the construction of the Improvements, shall be in favor of the City, and shall be executed by an approved surety company authorized to do business in the State of Texas; or, (ii) if the total contract amount of all Improvements is $50,000 or less, as determined by the City Engineer, or the Improvements, regardless of the contract amount, are for a "one lot development," as defined by City's Development Code, and a payment bond has not been submitted in accordance with (i) above, Owner and Contractor agree and guarantee that any and all debts due to any person, firm or corporation having furnished labor, material or both in the construction of the Improvements shall be fully paid and satisfied before acceptance of the Improvements by the City and that prior to acceptance of the Improvements, the Owner and Contractor shall furnish a written affidavit, in a form provided by the City Engineer, stating that all bids, charges, accounts or claims for labor performed and material furnished in connection with the construction of the Improvements have been paid in full and that there are no unreleased recorded liens filed against the Improvements, or land to which they are affixed, that are to be dedicated to the public. That, upon the request of the City Engineer, Owner or Contractor shall furnish a complete list of all subcontractors who performed labor on, or supplied PAGE 5 material for, the construction of the Improvements, and, when requested, written statement from any or each of such subcontractors or suppliers that they have been paid in full. (c) Retainage; Final Payments. [This provision (c) applies only where the Owner and Contractor are not he same party.] That as security for the faithful completion of the Improvements, Contractor and Owner agree that the Owner shall retain ten percent of the total dollar amount of the contract price until after final approval or acceptance of the improvements by the City. The Owner shall thereafter pay the Contractor the retainage, only after Contractor has furnished to the Owner satisfactory evidence that all indebtedness connected with the work and all sums of money due for labor, materials, apparatus, fixtures or machinery furnished for and used in the performance of the work have been paid or otherwise satisfied. (d) Encumbrances. That upon completion and approval or acceptance of the Improvements of the City, the Improvements shall become the property of ~the City free and clear of all liens, claims, charges or encumbrances of any kind. If, after acceptance of the Improvements, any claim, lien, charge or encumbrance is made, or found to exist, against the Improvements, or land dedicated to the City, to which they are affixed, the Owner and Contractor shall upon notice by the City promptly cause such claim lien, charge or encumbrance to be satisfied and released or promptly post a bond with the City in the amount of such claim, PAGE 6 lien, charge or encumbrance, in favor of the City, to ensure payment of such claim, lien, charge or encumbrance. (e) Maintenance Bond.' That prior to approval or acceptance of the Improvements by the City, to furnish a maintenance bond in form and substance acceptable to the City, in the amount of ten percent (10%) of the contract amount of the Improvements, insuring the repair and replacement of all defects due to faulty material and workmanship that appear within one year from the date of acceptance. The bond shall be in favor of the city and shall be executed by an approved surety company authorized to do business in the State of Texas. (f) Indemnification. To indemnify, defend and save harmless, the City, its officers, agents and employees from all suits, actions or claims of any character, name and description brought for or on account of any injuries or damages received as sustained by any person, persons or property on account of the operations of the contractor, his agents, employees or subcontractors; or on account of any negligent act of fault of the Contractor, his agents, employees or subcontractors in construction of the improvements; and shall pay any judgment, with costs, which may be obtained against the City growing out of such injury or damage. (g) Agreement Controlling. That the provision of this agreement shall control over any conflicting provision of any contract between the Owner and Contractor as to the construction of the Improvements. PAGE 7 3. Occupancy; One Lot Developments. Owner further agrees as follows: (a) That Owner will hot allow any purchasers, lessee, or other person to occupy any building within the development until all Improvements are completed and accepted by the City, and that upon violation thereof will pay the City $3,000.00 as liquidated damages, but such payment shall not be deemed approval of such occupancy and the City may take whatever action necessary to restrain such occupancy. (b) That if this contract applies to a "one lot development," as defined by City's Development Code, and no performance or payment bond was required or submitted for the improvements that are to be dedicated to the public, the Owner shall not be issued a Certificate of Occupancy for any building constructed or located therein until all required public improvements have been completed and accepted in accordance with this contract. 4. Covenants of City. That, upon proper completion of the Improvements in accordance with this agreement, the City agrees to accept the Improvements. 5. Venue and Governinq Law. The parties herein agree that this contract shall be enforceable in Denton County, Texas, and if legal action is necessary in connection therewith, exclusive venue shall lie in Denton County, Texas. The terms and provisions of this contract shall be construed in accordance with the laws and court decisions of the State of Texas. PAGE 8 6. Successor and Assiqns. This contract shall be binding upon and inure to the benefit of the"'parties hereto, their respective successors and assigns. Executed in triplicate this ~yay of October 1995 OWNER CONTRACTOR WAL-MART STORES, INC. DAL-MAC CONSTRUCTION COMPANY BY: er~~~ Bradford Mc Junkin, President ATTEST: JENNIFER WALTERS, CITY SECRETARY ~- APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY PAGE 9 EXHIBIT "A" PROPOSED BRINKER ROAD, SPENCER ROAD AND ONSITE DRAINAGE IMPROVEMENTS TO SERVE WAL-MART ADDITION 1515 SOUTH LOOP 288, DENTON, TEXAS BRINKER ROAD. SPENCER ROAD AND ONSITE DRAINAGE IMPROVEMENTS Brinker Road (paving and drainage improvements only; water/sewer in Brinker Road right-of-way is included in Para [ above) A. Paving (asphalt or concrete) 6,000 SY $14.29 SY $85,740 B. Curb 3,545 LF S8.50 LF $30,133 C. Sidewalk 1,790 LF x 4' wide 795 SY $t8.00 SY $14,310 D. Concrete Paving ~ Median Noses 52 SY $18.00 SY $936 E. Storm Drain 18" RCP, Class III 355 LF $24.00 LF S8,520 21" RCP, Class III 207 LF $26.00 LF $5,382 24" RCP, Class III 54 LF $28.00 LF $1,512 30" RCP, Class II1 84 LF $42.00 LF $3,528 36" RCP, Class III 210 LF $55.00 LF $11,550 5' Curb Inlet 2 EA $1,600.00 EA 53,200 10' Curb Inlet 3 EA $2,400.00 EA $7,200 5' Square Manhole 2 EA $2,600.00 EA $5,200 30" Type "B" Headwall 2 EA $1,200.00 EA $2,400 36" Type "B" Headwall 1 EA $1,400.00 EA $1,400 8"-12" Rock Riprap 80 SY S75.00 SY $6,000 Geotextile Fabric 80 SY S5.00 SY $400 F. Pavement Markings and Traffic Signage 1 LS $5,000.00 LS S5,000 G. "End of Road" Barricade 70 LF $25.00 LF $1,750 Spencer Road A. Paving Asphalt 2" Overlay 615 SY $6.61 SY S4,065 B. Storm Drain 24" RCP, Class IV 120 LF $28.00 LF S3,360 Double 24" Type "B" Headwall 2 EA $1,000.00 EA $2,000 Onsite Drainage Improvements (Brinker Road storm drain outfall headwalls and rock riprap included in "Brinker Road" break-out above. Excavation 20,000 CY S2.50 CY S50,000 Concrete Swale 6,200 SF S3.25 SF $20,150 Erosion Control 1 LS $5,000.00 LS $5,000 Outlet Structure 1 EA $2,600.00 EA $2,600 48" RCP, Class III (to outfall @ east property line) 261 LF $95.00 LF $24,795 48" Special Headwall and Baffled Outfall Apron 1 EA $2,600.00 EA S2,600 Riprap (10"-12" mortared rock) 165 SY S80.00 SY Sl3.200 Total Improvements S32 i ,931 AAA019DF BOND NO. 15-84-87 PRO ECT NO. '- CONTRACT NO. ~ PERFORMANCE BOND THE STATE OF TEXAS § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF DENTON That DAL-MAC CONSTRUCTION COMPANY 111 West Spring Valley Road, P.O. Box 830160, Richardson, TX 75080-0160 of Dallas County, Texas, hereinafter called Principal and THE INSURANCE COMPANY OF THE STATE OF PE}~SYLVANIA 1999 Bryan Street, Suite 1700, Dallas, Texas 75201 a Corporation organized under the laws of the State. of Pennsylvania and authorized to do business in the State of Texas, hereinafter called "Surety", are held and firmly bound unto the City of Denton, Texas, a Municipal Corporation, in Denton County, Texas, hereinafter called "City" in the penal sum of Thr~e hundred twenty one thousand nine hundred thirty one and no/100 ($921,931.00 Dollars, lawful money of the United States, for the payment of which sum well and truly to be made we bind ourselves, our heirs, executors, administrators, and successors, jointly and severally, and firmly by these presents: THE Condition of this Obligation is such that: WHEREAs, the Principal entered into a certain contract with Owner, dated ~ the day of October , 19 95 , in the proper performance of which the- City of Denton, ~exas, has an interest, a copy of which is hereto attached and made a part hereof, for the construction of: PROPOSED PUBLIC IMPROVEMENTS TO sERvE WAL-MART ADDITION 1515 South Loop 288, Denton, TX NOW, THEREFORE, if the Principal :shall 'well, truly, and faithfully cause to be performed and fulfilled all of the undertakings, covenants, terms, conditions, and agreements of said Contract in accordance with the Plans, Specifications, and Contract Documents during the original term thereof, and any extension thereof which may be granted, with or without notice to the surety, PAGE ONE and during the life of'any guaranty required under the Contract, and shall also well and truly cause to be performed and fulfilled all the covenants, terms and conditions and agreements of any and all authorized modifications of said Contract that may hereafter bemade, notice of which modifications to the surety being hereby waived; then this obligation shall be void; otherwise to remain in full force and effect. PROVIDED, further, that if any legal action be filed on this bond, venue shall lie in Denton County. AND, that said Surety, for value received, herebystipulates' and agrees that no change, Rxtension of time, alteration or addition to the terms of the contract, or to the work performed thereunder, or the Plans, Specifications, Drawings, etc., accompanying the same shall in anywise affect its obligation on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the Contract, or to the work to be performed thereunder. IN WITNESS WHEREOF, this instrument is executed in triplicate, each one of which shall be deemed an original, this the q~ day of October , 19 95 . .-. PRINCIPAL SURETY DAL-MAC CONSTRUCTION COMPANY THE INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA Bradford Mc Junkin, President ~TORNEY-IN-FACT // .~Janice G. Cor:re~ ATTEST: SECRETLY / NOTE: POWER OF ATTORNEY OF SURETY MUST BE ATTACHED. DATE OF BOND MUST NOT BE PRIOR TO DATE OF'CONTRACT. PAGE TWO AAA019DF BOND NO. 15-84-87 PROJECT NO. .~- ~ CONT OT NO. PAYMENT BOND THE STATE OF TEXAS COUNTY OF DENTON TPIAT DAL-MAC CONSTRUCTION COMPAI~Y 111 West- Spring Valley Road, P.O. Box 830160, Richardson, TX 75080-0160 of Dallas County, Texas, hereinafter called principal and THE INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA 1999 Bryan Street, Suite-'1700, Dallas, Texas 75201 a Corporation organized under the laws of the State of ?ennsylvania and authorized to do business in the State of Texas, hereinafter called "Surety", are held and firmly bound unto the City of Denton, Texas, a Municipal Corporation, in Denton County, Texas, hereinafter called "City", and unto all persons, firms and corporations who may furnish materials for or perform labor upon the buildings, structures or improvements referred to in the attached contract, in the penal sum of Three hundred twenty one thousand nine hundred thirty one and no/100 ($ 321,931.00' - ) Dollars, lawful money of the United States, to be paid in Denton, Denton County, Texas, for the payment of which sum well and truly to be made we bind ourselves, our heirs, executors, administrators, and successors, jointly and severally. THE Condition of this Obligation is such that: W~HEREAS, the Principal entered into a certain contract with Owner, dated the ~k day of October , 1995 , in the proper performance of which the City of Denton, Texas, has an interest, a copy of which is hereto attached and made a part hereof, for the construction of: PROPOSED PUBLIC IMPROVEMENTS TO SERVE WAL-MART ADDITION 1515 South Loop 288, Denton, TX NOW, THEREFORE, if the Principal shall well, truly, and faithfully cause to be performed its duties and make or cause Contractor to make prompt payment to all persons, firms, sub- contractors, corporations and claimants supplying labor and material in the prosecution of the work provided for in said contract and any and all duly authorized modification of said Contract that may hereafter be made, notice of which modification of the surety is hereby expressly waived, then this obligation shall be void: Otherwise to remain in full force and effect. Provided further, that if any legal action be filed upon this bond, venue shall lie in Denton County, Texas. AND THAT said Surety f~r value received hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Contract, or to the work performed thereunder, or the Plans, Specifications, Drawings, etc., accompanying the same shall in a~ywise affect its obligation on this Bond, and it does hereby walve notice of any such change, extension of time, alteration or addition to the terms of the contract, or to the work to be performed thereunder. IN WITNESS WHEREOF, this instrument is executed in triplicate, each one of which shall be deemedan original, this the ~%% day of October , 19 95 .. ' PRINCIPAL SURETY DAL-MAC CONSTRUCTION COMPANY THE INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA Bradford Mc Junkin, President /~TORNEY-IN-FA~T ~ . Janice G. Correy ATTEST: NOTE: DATE OF PAYMENT BOND MUST NOT BE PRIOR TO DATE OF CONTRACT. PAGE TWO AAA019DF BOND NO. 15-84-87 PROJECT CONTACT CONTRACTOR'S MAINTENANCE BOND (DEVELOPMENT CONTRACT) THE STATE OF TEXAS S KNOW ALL MEN BY THESE PRESENTS: COUNTY OF DENTON S That DAL-MAC CONSTRUCTION COMPANY 111 West Spring Valley Road, P.O. Box 830160, Richardson, TX 75080-0160 of Dallas County, Texas, hereinafter called Principal and THE INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA 1999 Bryan Street, Dallas, Texas 75201 a Corporation organized under the laws of the State of Pennsylvania and authorized to do business in the State of Texas, hereinafter called "Surety", are held and firmly bound unto the City of Denton, Texas, a Municipal Corporation, in Denton County, Texas, hereinafter called "City" in the penal sum of Three hundred twenty one thousand nine hundred thirty one and no/100 ($321,931.00 ) Dollars, lawful money of the United States, the said sum being ten percent (10%) of the total amount of the hereinafter mentioned contract, for the payment of which sum well and truly to be made we bind ourselves, our heirs, executors, administrators, and successors, jointly and severally. THE Condition of this Obligation is such that: WHEREAS, the Principal entered into a certain contract with Owner, dated the ~{~ day of October , 19 95 , in the proper performance of which the City of Denton, Texas, has an interest, a copy of which is hereto attached and made a part hereof, for the construction of: PROPOSED PUBLIC IMPROVEFiENTS TO SERVE WAL-MART ADDITION 1515 South Loop 288, Denton, TX PAGE ONE NOW, THEREFORE, if the Principal shall well, truly, and faithfully maintain and keep in good repair the work contracted to be done and performed for a period of one (1) year from the date of acceptance in writing by the City of Denton and do all necessary work and repair of any defective conditions growing out of or arising from the improper work of the same, including, but not limited to, any settling, breaking, cracking or other defective condition of any of the work or part thereof arising from improper excavation, backfilling, compacting or any other cause or condition, known or unknown, at any time during the period of this bond, which the city engineer, whose judgment shall be final and conclusive, determines to be the result of defective work, materials or labor; then this obligation shall be void, otherwise to remain in full force and effect. In case the said Principal shall fail to maintain, repair or reconstruct any defective condition of the work as determined herein, it is agreed that the City may do said work and supply such materials as necessary and charge'the sum against the said Principal and Surety on this obligation. It is further agreed that this obligation shall be continued one against the Principal and Surety and that successive recoveries may be had hereon for successive breaches of the conditions herein provided until the full amount of this bond shall have been exhausted, 'and it is further understood that the obligation to maintain said work shall continue throughout said maintenance period, and the same shall not be changed, diminished, or in any manner affected from any cause during said time. PROVIDED, further, 'that if any legal action be filed on this bond, venue shall lie in Denton County. IN WITNESS WHEREOF, this instrument is executed in triplicate, each one of which shall be deemed an original, this the ~ day of October , 19 95 PRINCIPAL SURETY DAL-MAC CONSTRUCTION COI~PANY THE INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA Bradford Mc Junkin, President A~ORNEY-IN-FACT J~nice G. Correy PAGE TWO P()WER OF A'Iq'()RN F3 The Insurance Companyofth¢Sla~, ,~, Pnnc~l Bond Ofl'~cc '~' I"mc ~lr~'i, Nc~ ' , ~?~'~; ~OW AI,L MEN BY THESE PRESEN3 5 ~t ~c Insurance ('om~ny of thc Slalc o ~. · ...... t a Penn~'lvama corl~rai~ ', ., ,~,.t,, 'i :"~'~' ~J~ Brace. Janic~ G. Corre~, Domth5 ~ ~lck. ~ ~lh~ccn Day, Pamelia Mc~m.rc: its tree alld I;t~ftiJ AIIOIIIC~[~)-In-FdC[. ~,[tl D~ ,,,,t[~, ,ilk Io Cxecule oil ItS contracts of mdcmml~ ~nd ~lltllgs ,.4)~tg~i, ~, . ~ ..... ( [hereof, issncd in Thc ..-. .: ~ b,[>~fic5~ 311d io [,~l,ti '[:~ .... ~ereby IN WITNESS WHEREOF, The Insurance Compa:?, ,:I lhc Stale of Pennsylvama has cxo.mcd O~cse presents  itus 21sl dab of~_eplc~nl.,~., .: WilliamD Si'nlttL P!~'~'c'.t STATE OF NEW YORK } COUNTY OF NEW YORK}ss. On tMs 21st of September, 199_~4, before me came the . t: -. above named officer of The Insurance Company of the State of Pennsylvania, to me personally known to be the individual lOS,q,/-/ 6. NozzoI.~O and officer described herein, and acknowledged that he Ncaar¥ Public. 5,,~le 'o~ N~ 'r'o~ executed the forcgmng instrument and affixed the s,e~d of said No. 01-NO~452751 .~lifi~d in W,~.tc',o~.to~ corporation thereto bx authority ,,f h:s office l'~rm Ex~ir~ J.n. ~L CERTIFICATE Exce~ of Resolul~,,n ~dopted hx the Board rd' Directors ,)f'lhc lllsttl i/I.c Company nfthe Stale of Ptmnsvl~an,a- on Max iR 1976 "RESOLVED. that the Chawma.n of the ['h)ard. the he~denl. ,,~ am '~ tee Pl-e~ldenl be. a.nd beTeby ~s. auth,~rl.~ed t~. q~l~qtlt \mw.flex .-m } .tO t,, {~T, rcsent al:ti *.-t ', , ~i.' the coq)orate seal .{'the Comps. ny. m the transaction ofil~ st~retx "RESOLVED, thai the a~gnalures and atle~latiort~ pi such ,,fficer~ aJid the seal of the Company may be :~t~'.:ed to aJl'~ such Po'.~er pi :\llorncx .r lo anx ~,.m~lit ale relal,ng thertqo by facs~mtl¢, and ~mv such Power of Attt~ney or cerldical¢ beanng such l~.'swmle s~gnature~ pc la. mule seal shall be vahd and binding upon the Compare ~hen .,, aPti×ed wtth mspec~ to any Nmd. undertaking, rec~gniz, ance ,~' ~ther omtracq of mdenmity o* writing obligatory m the nature thereoL "RESOLVED. that any such Allomeyqn-Fact dch~erlng a seoel.Jr~al ce~*ficahon that the foregoing rt~,qut~o~z~ mall be tn ¢ffm_'l max reset1 m quch .c:atfic~n,m thc thereof, sa~d date I,~ be n,a later than the date o£delive~x therc,,f~ ...h an,,mc..-m-Fact" IN ~,TI'N ESS 'd, I! ERF]I }F ; h.,,...,o.:~ ~ t ~ ......... :';,~..I ,~,c ta.'~,m.e .e.~l ,,lm ......... Ihl'- .l.t'. ,q ] h/;ttx'lh M Fuck kA~.00D97 THE STATE OF TEXAS § DEVELOPMENT CONTKACT COUNTY OF DENTON 5 Wal-Mart Stores, Inc. Whereas, hereafter r~ferred to as "owner," whose business address is _ 701 S. Walton Blvd., Ben.tonville, AR '72716 , is the owner of real property located in the corporate limits of the city of Denton, or its extraterritorial jurisdiction; and' Whereas, O-wner wishes to develop the property and such development must be u~rformed in a=¢ordance with the applicable ordinances of the city of Denton, hereafter referred to a-~ "City"; and Whereas, as a condition to the beginning of construction of said development, a development contract is required to ensure that all street~, water and sewer lines, drainage faciiitie~ and other ~provements which ~re to be dedicated to the public, her~.after refer~ed to as ,,Improvements," are =onstructed in accordance with the city's specifications, standard~ and ordinances; and [select applicable pro¥i~ion as follows] ~ Whereas, the Owner elects to construct the improvements without contracting with another party as prime contractor, in which cass the provisions of this contract which refer to "owner" or "Contractor" shall .~ga.q the Owner as named above; or ~ W~ereas, the Owner elects to make such Improvements hereafter Del-Mac Construction Co. set forth by contracting with ,,,, whose business addres~ is P o. Box 830160, Richardson, Tx 75083 -hereafter referred to as "Contractor"; and Whereas, owner and Contractor r~cognize that t~e City has an interest in ensuring that the improvements subject to this agreement, whian will, upon completion and acceptance by t/la City, beene public property, ar~ ~roperly constructed in accordance with the city's specifications and t/let payment is made therefor; WITNESSET~ As to the Improvamentm to be dedicated to the public, as specified in Exhibit A, attached hereto and incoz~orated By referenoe, to be installed and constructed at 1515 South Loop 288, Denton, Texas 76201 the OWner, contractor and city, in consideration of their mutual promises and cov~_nants contained herein, agree as follows: 1. Covenants of cmntracto~. Contractor a~rees as follows: (a) Specific~t~ons. To construct and install th~ Improvements in accordance with the procedures, specifications and stand,ds contained in Division II an~ III of the Ci_~'$ stand~ ~pecifications ~ Publ.i~ Work~ Construction, No~_h Central Texas., as amended, and all addendums thereto, and all ot~er regulations, ordinances or specifications applicable to such Improvements, such specifications, standards, regulations and ordinances being expressly incorporated herein by reference and being made a part of the agreement as though written herein. (b) Authority of city Enqineer; Inspections, Tests and Orders. That all work on the Improvements shall be performed in a good and workmanlike manner and to the satisfaction of the city Engineer or his representative. The City Engineer shall decide all questions which arise as to the quality and acceptability of materials furnished, work performed, and the interpretation of specifications. The Contractor shall furnish the City Engineer or his representative with every reasonable facility for ascertaining whether or not the work performed was in accordance with the specifications applicable thereto. Any work done or materials used without suitable inspection by the City may be ordered removed and replaced at Contractor's expense. Upon failure of the Contractor to allow for inspection, to test materials furnished, to satisfactorily repair, remove or replace, if so directed, rejected, unauthorized or condemned work or materials, or to follow any other request or order of the City Engineer or his representative, the City Engineer shall notify the Owner of such failure and may suspend inspections of such work until such failure is remedied. If such failure is not remedied to the satisfaction of the City Engineer, the City shall have no obligation under this agreement to approve or accept the Improvements. PAGE 3 (c) Insurance. To provide for insurance in accordance with the insurance requirements applicable to contractors as provided for in Item 1.26 of Division' I of the Standard Specifications for Public Works Construction, North Central Texas, as amended, the provisions of which are expressly incorporated herein by reference; provided, however, for purpose of this provision only, "Owner," as used therein, shall mean the City of Denton. (d) Means and Methods of Construction. That the means and methods of construction shall be such as Contractor may choose; subject, however, to the City's right to reject any Improvements for which the means or method of construction does not, in the judgment of the City Engineer, assure that the Improvements were constructed in accordance with City specifications. 2. Mutual Covenants of Owner and Contractor. Owner and Contractor mutually agree as follows: (a) performance Bonds; Escrow Aqreement. That if building permits are to be issued for the development prior to completion and acceptance of all improvements that are to be dedicated to the public, the following security requirements shall apply, unless the development is a "one lot development," as defined by City's Development Code: (i) a performance bond in an amount not less than the amount necessary to complete the Improvements, as determined by the City Engineer, shall be submitted guaranteeing the full and faithful completion of the improvements meeting the specifications of the City, shall be in favor of the City, and shall be executed by a surety company authorized to do business in the State of Texas; or, PAGE 4 (ii) if the cost of completing the Improvements, at the time building permits are requested, is in an amount of $50,000 or less, as determined by the city Engineer, cash money in the amount necessary to complete the Improvements, as determined by the City Engineer, may be deposited with a bank as escrow agent, pursuant to an escrow agreement ensuring completion of the Improvements. Without exception, the City's escrow agreement form shall be used. (b) Payment Bond; Assurance of Payment. That prior to acceptance of the Improvements: (i) a payment bond will be furnished in an amount not less than one hundred percent (100%) of the approximate total cost of the contract cost of the Improvements, guaranteeing the full and proper protection of all claimants supplying labor and material for the construction of the Improvements, shall be in favor of the City, and shall be executed by an approved surety company authorized to do business in the State of Texas; or, (ii) if the total contract amount of all Improvements is $50,000 or less, as determined by the City Engineer, or the Improvements, regardless of the contract amount, are for a "one lot development," as defined by City's Development Code, and a payment bond has not been submitted in accordance with (i) above, Owner and Contractor agree and guarantee that any and all debts due to any person, firm or corporation having furnished labor, material or both in the construction of the Improvements shall be fully paid and satisfied before acceptance of the Improvements by the City and that prior to acceptance of the Improvements, the Owner and Contractor shall furnish a written affidavit, in a form provided by the City Engineer, stating that all bids, charges, accounts or claims for labor performed and material furnished in connection with the construction of the Improvements have been paid in full and that there are no unreleased recorded liens filed against the Improvements, or land to which they are affixed, that are to be dedicated to the public. That, upon the request of the City Engineer, Owner or Contractor shall furnish a complete list of all subcontractors who performed labor on, or supplied material for, the construction of the Improvements, and, when requested, written statement from any or each of such subcontractors or suppliers that they have been paid in full. (c) Retainaqe; Final Payments. [This provision (c) applies only where the Owner and Contractor are not he same party.] That as security for the faithful completion of the Improvements, Contractor and Owner agree that the Owner shall retain ten percent of the total dollar amount of the contract price until after final approval or acceptance of the improvements by the City. The Owner shall thereafter pay the Contractor the retainage, only after Contractor has furnished to the Owner satisfactory evidence that all indebtedness connected with the work and all sums of money due for labor, materials, apparatus, fixtures or machinery furnished for and used in the performance of the work have been paid or otherwise satisfied. (d) Encumbrances. That upon completion and approval or acceptance of the Improvements of the City, the Improvements shall become the property of the City free and clear of all liens, claims, charges or encumbrances of any kind. If, after acceptance of the Improvements, any claim, lien, charge or encumbrance is made, or found to exist, against the Improvements, or land dedicated to the City, to which they are affixed, the Owner and Contractor shall upon notice by the City promptly cause such claim lien, charge or encumbrance to be satisfied and released or promptly post a bond with the City in the amount of such claim, PA~ ~ lien, charge or encumbrance, in favor of the city, to ensure payment of such claim, lien, charge or encumbrance. (e) Maintenance Bond.' That prior to approval or acceptance of the Improvements by the City, to furnish a maintenance bond in form and substance acceptable to the ~ity, in the amount of ten percent (10%) of the contract amount of the Improvements, insuring the repair and replacement of all defects due to faulty material and workmanship that appear within one year from the date of acceptance. The bond shall be in favor of the City and shall be executed by an approved surety company authorized to do business in the State of Texas. (f) Indemnification. To indemnify, defend and save harmless, the City, its officers, agents and employees from all suits, actions or claims of any character, name and description brought for or on account of any injuries or damages received as sustained by any person, persons or property on account of the operations of the Contractor, his agents, employees or subcontractors; or on account of any negligent act of fault of the Contractor, his agents, employees or subcontractors in construction of the improvements; and shall pay any judgment, with costs, which may be obtained against the City growing out of such injury or damage. (g) Aqreement Controllinq. That the provision of this agreement shall control over any conflicting provision of any contract between the Owner and Contractor as to the construction of the Improvements. PAGE 7 3. Occupancy; One Lot Developments. Owner further agrees as follows: (a) That Owner will not allow any purchasers, lessee, or other person to occupy any building within the development until all Improvements are completed and accepted by the City, and that upon violation thereof will pay the City $3,000.00 as liquidated damages, but such payment shall not be deemed approval of such occupancy and the City may take whatever action necessary to restrain such occupancy. (b) That if this contract applies to a "one lot development," as defined by City's Development Code, and no performance or payment bond was required' or submitted for the improvements that are to be dedicated to the public, the Owner shall not be issued a Certificate of Occupancy for any building constructed or located therein until all required public improvements have been completed and accepted in accordance with this contract. 4. Covenants of city. That, upon proper completion of the Improvements in accordance with this agreement, the City agrees to accept the Improvements. 5. Venue and Governinq Law. The parties herein agree that this contract shall be enforceable in Denton County, Texas, and if legal action is necessary in connection therewith, exclusive venue shall lie in Denton County, Texas. The terms and provisions of this contract shall be construed in accordance with the laws and court decisions of the State of Texas. PAGE 8 6. Successor and Assiqns. This contract shall be binding upon and inure to the benefit of the ~parties hereto, their respective successors and assigns. Executed in triplicate this .~day o~---~t°ber , 1995 OWNER ~~ . CONTRACTOR WAL-MART BY: BY.'. ~-. ' ~ Bradford Mc Junkin, President CITY OF DENTON, TEXAS MkNAGER - ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY PAGE 9 EXHmlT "A" PROPOSED PUBLIC WATER AND SEWER UTILITIES IMPROVEMENTS TO SERVE WAL-MART ADDITION 1515 SOUTH LOOP 288, DENTON, TEXAS WATER AND SEWER UTILITIES A. Sanitary Sewer 12" PVC SDR35 2,620 LF $17.00 LF $44,540 8" PVC SDR35 345 LF $15.00 LF $5,175 Manhole 10 EA $2,600.00 EA $26,000 Manhole over Existing Line @ Spencer Road 1 EA $4,000.00 EA $4,000 B. Water (all of Lines A, B, C, D and E, excluding the domestic and irrigation service lines. 16" C-900 PVC 365 LF $36.00 LF $13,140 12" C-900 PVC 2,371 LF $21.00 LF $49,791 8" C-900 PVC 3,412 LF $15.00 LF $51,180 6~ C-900 PVC 300 LF $14.00 LF $4,200 Fire Hydrant 14 EA $1,600.00 EA $22,400 16H Gate Valve 2 EA $4,000.00 EA $8,000 12" Gate Valve 5 EA $950.00 EA $4,750 8" Gate Valve 10 EA $600.00 EA $6,000 6H Gate Valve 14 EA $500.00 EA $7,000 3" Gate Valve 2 EA $400.00 EA $800 Cast Iron Fittings 3.5 TON $3,500.00 TON $12,250 20"x16" Gilford Hill Concrete Pipe Tap 1 EA $5,000.00 EA S5,000 24" Bore and Casing 85 LF $180.00 LF 515,300 Water Meter (3" Compound) 1 EA $8,500.00 EA $8,500 Water Meter (2~ Turbo) 1 EA $1,000.00 EA Sl,000 Baokflow Preventer (2") 1 EA $1,000.00 EA 51,000 Thanast Block 10 CY $200.00 CY 52.000 Total Improvements $292,026 AAAO19DF BOND NO. 15-84-85 P OJ CT No. co T cT THE STATE OF TEXAS KNOW ALL MEN BY THESE PRESENTS: COUNTY OF DENTON That DAL-MAC CONSTRUCTION COMPANY 111 West Spring Valley Road, P.O. Box 830160, Richardson, TX 75080-0160 of Dallas County, Texas, hereinafter called Principal and THE INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA 1999 Bryan Street, Suite 1700, Dallas, Texas 75201 a Corporation organized under the laws of the State of Pennsylvania and authorized to do business in the State of Texas, hereinafter called "Surety", are held and firmly bound unto the City o~.Denton, Texas, a Municipal Corporation, in Denton County, Texas, hereinafter called "City" in the penal sum of Two hundred ninety two thousand twenty six & 00/I00 ($.292,026.00 Dollars, lawful money of the United States, for the payment of which sum_ well and truly to be made we bind ourselves, our heirs, executors, administrators, and successors, jointly and severally, and firmly by these presents: THE Condition of this Obligation is such that: WHEREAS, the Principal entered into a certain contract with Owner, dated 9~ the day of October , 19 95 , in the proper performance of which the' City of Denton, Texas, has an interest, a cop~ of which is hereto attached and made a part hereof, for t~e construction of: PROPOSED PUBLIC IMPROVEM~ENTS TO SERVE WAL-MART ADDITION 1515 South Loop 288, Denton, TX NOW, THEREFORE, if the Principal shall 'well, truly, and faithfully cause to be performed and fulfilled all of the undertakings, covenants, terms, conditions, and agreement's of Said Contract in accordance with the Plans, Specifications, and Contract Documents during the original term thereof, and any extension thereof which may be granted, with or without notice to the surety, PAGE ONE and during the life of any guaranty required under the Contract, and shall also well and truly cause to be performed and fulfilled all the covenantS, terms and conditions and agreements of any and all authorized modifications of said Contract that may hereafter bemade, notice of which modifications to the surety being hereby waived; then this obligation shall be void; otherwise to remain in full force and effect. PROVIDED, further, that if any lega!~action be filed on this bond, venue shall lie in Denton County. AND, that said Surety, for value received, hereby stipulates and agrees that no change, Rxtension of time, alteration or-addition to the terms of the contract, or to the work performed thereunder, or the Plans, Specifications, Drawings, etc., accompanying the same shall in anywise affect its obligation on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the.terms of the Contract, or to the work to be performed thereunder. IN WITNESS WHEREOF, this instrument is executed in triplicate, each one of which shall be deemed an original this the _~ day of 0ctoSer , 19_95 . ' PRINCIPAL SURETY DAL-MAC CONSTRUCTION COMPANY THE INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA Bradford Mc Junkin, President ~.T. ORNEY-IN-FACT ATTEST: ~nice G. Correy NOTE: POWER OF ATTORNEY OF SURETY MUST BE ATTACHED. DATE OF BOND MUST NOT BE PRIOR TO DATE OF CONTRACT. PAGE TWO AAA019DF BOND NO. 15-84-85 PROJECT NO. CONTRACT NO. PAYMENT BOND THE STATE OF TEXAS COUNTY OF DENTON THAT DAL-MAC CONSTRUCTION COMPANY 111 West Spring Valley Road, P.O. Box 830160, Richardson, TX 75080-0160 of Dallas County, Texas, hereinafter called principal and THE INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA 1999 Bryan Street, Suite 1700, Dallas, Texas 75201 a Corporation organized under the laws of the State of Pennsylvania and .authorized to do business in the State of Texas, hereinafter called "Surety", are held and firmly bound unto the City of Denton, Texas, a Municipal Corporation, in Denton County, Texas, hereinafter called "City", and unto all persons, firms and corporations who may furnish materials for or perform labor upon the buildings, structures or improvements referred to in the attached contract, in the penal sum of Two hundred ninety two thousand twenty six and no/100 ($ 292,026.00 ) Dollars, lawful money of the United States, to be paid in Denton, Denton County, Texas, for the payment of which sum well and truly to be made we bind ourselves, our heirs, executors, administrators, and successors, jointly and severally. THE Condition of this Obligation is such that: WHEREAS, the Principal entered into a certain contract with Owner, dated the ~$~ day of October , 1995 , in the proper performance of which th~ City of Denton, Texas, has an interest, a copy of which is hereto attached and made a part hereof, for the construction of: PROPOSED PUBLIC IMPROVEMENTS TO SERVE WAL-MART ADDITION 15t5 South Loop 288, Denton, TX PAGE ONE NOW, THEREFORE, if the Principal shall well, truly, and faithfully cause to be performed its duties and make or cause Contractor to make prompt payment to all persons, firms, sub- contractors, corporations and claimants supplying labor and material in the prosecution of the work provided for in said contract and any and all duly authorized modification of said Contract that may hereafter be made, notice of which modification of the surety is hereby expressly waived, then this obligation shall be void: Otherwise to remain in full force and effect. Provided further, that if any legal action be filed upon this bond, venue shall lie in Denton County, Texas. AND THAT said Surety fur value received hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Contract, or to the work performed thereunder, or the Plans, Specifications, Drawings, etc., accompanying the same shall in anywise affect its obligation on this Bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the Contract, or to the work to be performed thereunder. IN WITNESS WHEREOF, this instrument is executed in triplicate, each one of which shall be deemed an original, this the ~ day of October 1995 ' PRINCIPAL SURETY DAL-MAC CONSTRUCTION COMPANY THE INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA BY: · '- BY: Bradford Mc Junkin, President A/TTORNEY-IN-FACT ATTEST: Janice G. Correy SECRETARY ' / NOTE: DATE OF PAYMENT BOND MUST NOT BE PRIOR TO DATE OF CONTRACT. PAGE TWO NOW, THEREFORE, if the Principal .shall well, truly, and faithfully maintain and keep in good repair the work contracted to be done and performed for a period of one (1) year from the date of acceptance in writing by the City of Denton and do all necessary work and repair of any defective conditions growing out- of or arising from the improper work of the same, including, but not limited to, any settling, breaking, cracking or other defective condition of any of the work or part thereof arising from improper excavation, backfilling, compacting or any other cause or condition, known or unknown, at any time during the period of this bond, which the city engineer, whose judgment shall be final and conclu[ive, determines to be the result of defective work, materials or labor; then this~ obligation shall be void, otherwise to remain in full force and effect. In case the said Principal shall fail to maintain, repair or reconstruct any defective condition of the work as determined herein, it is agreed that the City may do said work and supply such materials as necessary and charge.the sum against the said Principal and Surety on this obligation. It is further agreed that this obligation shall be continued one against the Principal and Surety and that successive recoveries may be had hereon for successive breaches of the conditions herein provided until the full amount of this bond shall have been exhausted, ~and it is further understood that the obligation to maintain said work shall continue throughout said maintenance period, and the same shall not be changed, diminished, or in any manner affected from any ~use during said time. PROVIDED, further, 'that if any legal action be filed on this bond, venue shall lie in Denton County. IN WITNESS WHEIAEOF, this instrument is executed in triplicate, each one of which shall be deemed an original, this the ~4~ day of OctoSer , 19 95 PRINCIPAL ~ SURETY DAL-MAC CONSTRUCTION CO~iPANY THE INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA 'Bradford Mc Junkin, President AT.~RNEY-IN-FACT / J~nice G. Correy PAGE TWO AAA019DF BOND NO. 15-84-85 PROJECT NO. CO TRACT NO. CONTRACTOR'S FOkINTENANCE BOND (DEVELOPMENT CONTRACT) THE STATE OF TEXAS S BOW ALL MEN BY THESE PRESENTS: COUNTY OF~DENTON S That DAL-MAC CONSTRUCTION COMPANY 111 West Spring Valley Road, P.O. Box 830160, Richardson, TX 75080-01'60 of Dallas County, Texas, hereinafter called Principal and THE INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA 1999 Bryan Street, Suite 1700, Dallas, Texas 75201 a Corporation organized under the laws of the State of Pennsylvania and authorized to do business in the State of Texas, hereinafter called "Surety", are held and firmly bound unto the City of Denton, Texas, a Municipal Corporation, in Denton County, Texas, hereinafter called "City" in the penal sum of Two hundred ninety two thousand twenty six and no/100 ($ 292~026.00 ) Dollars, lawful money of the United States, the said sum being ten percent (10%) of the total amount of the hereinafter mentioned contract, for the payment of which sum well and truly to be made we bind ourselves, our heirs, executors, administrators, and successors, jointly and severally. THE Condition of this Obligation is such that: W}{ERF~S, the PrinciPal entered into a certain contract with Owner, dated the o~ day of October , 19 95 , in the proper performance of which the City of Denton, Texas, has an interest, a copy of which is hereto attached and made a part hereof, for the construction of: PROPOSED PUBLIC IMPROVEMENTS TO SERVE WAL-MART ADDITION 1515 South Loop 288, Denton, TX PAGE ONE POWER OF ATTORNEY The Insurance Company of the State of Pennsylvania Principal Bond Office: 70 Pine Street, New York, N Y 10270 No O';-B~<,,I~, KNOW ALL MEN BY THESE PRESENTS: That The Insurance Company of the State of Pcntks-ylvama, a Pennsylvania corporation, docs hcreb.~ appoint --Joe Bruce, Janiee O. Correy, Dorothy Valek, Kathleen Day~ Pamelia McLemore: of Dallas, Texas-- its true and lawful Attorney(s)-m-Fact, with lull authortty to execute on Its behalf bonds, undertakings, recognlLances and other contracts of indemnity and writings obhgatoD in the nature thereof, tssuegl in thc coursc of its business, and to bind thc com[;an) thereby IN WITNESS WHEREOF, The Insurance Compan.,, of the State of Pennsylvania has executed these presents O this 21 st day of September, 199~4. William D. Smith, Presfdcm STATE OF NEW YORK } COUNTY OF NEW YORK}ss. On this 215t of September, 1994, before me came the above named officer of The Insurance Company of the State of Pennsylvania, to me personally known to be the individual and officer describegl herein, and acknowledged that he executed thc foregoing instrument and affixed the seal of said No. 01.NO4652754 corporation thereto by authority of his office. CERTIFICATE Excerpts of Resolutm~ adopted by the Board of Directors of Tl~ Insurance Company of the State of Pennsylvania' on May 18, 1976 "RESOLVED, that the Cluu'm~ of the Board, the President, or a.ny Vice Preside,at be, and hereby is, authorized to appoint Attorneys-m-Fact to represent and aa fi)r and otl behalf of the Company to execute bonds, undert~cings, recognizances and other co,a~act$ of indemnity and ~aqtings obligatory m the nature thereof, and to attach thet'eto the corporate seal of the Comlmny, in the U'ansaction of its sureW b~smeSs; 'RESOLVED, that the signatures and attestatmrts of such officers and the ~ of the Company may be affixed to any such Power of Altorney or to any cerhficate relahng thereto by facsimile, and any such Power of Attorney or certificate beanng such fac:simile signatures or facsimile seal shall be valid and binding upon the Company when so ~ixed with ~ to any bond, undertaking, recognizance or' other contract of inda~mnity ot writing obligatoey in the nature thereof; "R~SOLVED, that any such Attorney-m-Fact delivenng a secretarial certification that the foregoing resolutions still be in effect may insert m such cert~ficahon the date th~eof, said date to be no{ later than the date of delivery thereof by such Attorney-in-Fact.~ I, Ehzabeth M. Tuck, Secretary of The Insurance Company of the State of Pennsylvania, do hereby ceflify that the foregoing exceq~ts of Resohmon adopted hy the t~.~ard of Direclors ofth~s corporation, and the Power of Attorney tsxued puesuant thereto, are true and ccccrect, and that both the Resolution and the Po,,~,er of ,\ttc, nqey ~'e in fifil fi~rce and effect IN WITNESS WHEREOF. I have heretmlo ~t my h~md and affixed the {~cs~mile seal o£the corp~.)rahon this day of . 19 Ehzabelh M Tuck, Secretary No. THE STATE OF TEXAS DEVELOPMENT CONTRACT COUNTY OF DENTON Whersas, Wal-Mart Stores, Inc. hereafter referred to 701S. Walton Blvd., Ben~onv~l!e, AR 72716 is the owner of real proper~y located in the corporate limits of the city of Denton, or its extraterritorial jurisdiction; and' Whereas, Owner wishes to develop the property and such development must be perfor~ned in accordance with the applicable ordinances of the City of Denton, hereafter referred to as "City"; and Whereas, as a condition to the beginning of aonstruction of said development, a development contract is required to ensure that al! streets, water and sewer lines, draLnage facilities and other Lmprovements which are to' be dedicated to the public, hereafter refe~ed to as "Improvements," are constructed in accordance with the city's specifications, standards and ordinances; and [select applicable provision as follows] ~---~ Whereas, the Owner elects to construct the Improvements without contracting with another party as prime contractor, in which cas~ the provisions of this contract which refer to "Owner" or "Contractor" shall mean the Owner as named above; or ~7~ Whereas, the Owner elects to make such Improvements hereafter Del-Mac Construction Co. set forth by contracting with .., whose business address is P. 0. Box 830160, Richardson, Tx 75083.., hereafter referred to as "Contractor"; and Whereas, owner and Contractor recognize that the city has an interest in ensuring that the improvements subject to this agrm~ment, whian will, upon completion and mcceptance by the City, become public property, ar~ properly constructed in accordance with the city's specifications and that payment is made therefor; WITNESSETH As to the Improvements to be dedicated to the public, as specified in Exhibit A, attached hereto and incorporated by referenoe, to be installed and constructed at 1515 South Loop 288, Denton, Texas 76201 the owner, contractor and city, in consideration of their mutual promises and covenants contained herein, agree am follows: 1. Covenants of Contracto.~. Contractor a~ees as follows: (a) Specifications. TO construct and install the Improvements in accordance with the procedures, specifications and standards contained in Division II and III of.the Ci__~,y_'s stand~ ~pecifications for Publio Work~ Construction, NoZyc_h centrT~, as amended, and all addendums thereto, mhd all other regulations, ordinances or specifications applicable %0 suck Improvements, such PAGE 2 specifications, standards, regulations and ordinances being expressly incorporated herein by reference and being made a part of the agreement as though written herein. (b) Authority of City Enqineer; Inspections, Tests and Orders. That all work on the Improvements shall be performed in a good and workmanlike manner and to the satisfaction of the City Engineer or his representative. The City Engineer shall decide all questions which arise as to the quality and acceptability of materials furnished, work performed, and the interpretation of specifications. The Contractor shall furnish the City Engineer or his representative with every reasonable facility for ascertaining whether or not the work performed was in accordance with the specifications applicable thereto. Any work done or materials used without suitable inspection by the city may be ordered removed and replaced at Contractor's expense. Upon failure of the Contractor to allow for inspection, to test materials furnished, to satisfactorily repair, remove or replace, if so directed, rejected, unauthorized or condemned work or materials, or to follow any other request or order of the City Engineer or his representative, the City Engineer shall notify the Owner of such failure and may suspend inspections of such work until such failure is remedied. If such failure is not remedied to the satisfaction of the City Engineer, the City shall have no obligation under this agreement to approve or accept the Improvements. PAGE 3 (c) Insurance. To provide for insurance in accordance with the insurance requirements applicable to contractors as provided for in Item 1.26 of Division' I of the Standard Specifications for Public Works Construction, North Central Texas, as amended, the provisions of which are expressly incorporated herein by reference; provided, however, for purpose of this provision only, "Owner," as used therein, shall mean the City of Denton. (d) Means and Methods of Construction. That the means and methods of construction shall be such as Contractor may choose; subject, however, to the City's right to reject any Improvements for which the means or method of construction does not, in the judgment of the City Engineer, assure that the Improvements were constructed in accordance with City specifications. 2. Mutual Covenants of Owner and Contractor. Owner and Contractor mutually agree as follows: (a) Performance Bonds; Escrow Agreement. That if building permits are to be issued for the development prior to completion and acceptance of all improvements that are to be dedicated to the public, the following security requirements shall apply, unless the development is a "one lot development,- as defined by City's Development Code: (i) a performance bond in an amount not less than the amount necessary to complete the Improvements, as determined by the City Engineer, shall be submitted guaranteeing the full and faithful completion of the Improvements meeting the specifications of the City, shall be in favor of the City, and shall be executed by a surety company authorized to do business in the State of Texas; or, PAGE 4 (ii) if the cost of completing the Improvements, at the time building permits are requested, is in an amount of $50,000 or less, as determined by the City Engineer, cash money in the amount necessary to complete the Improvements, as determined by the City Engineer, may be deposited with a bank as escrow agent, pursuant to an escrow agreement ensuring completion of the Improvements. Without exception, the City's escrow agreement form shall be used. (b) Payment Bond; Assurance of Payment. That prior to acceptance of the Improvements: (i) a payment bond will be furnished in an amount not less than one hundred percent (100%) of the approximate total cost of the contract cost of the Improvements, guaranteeing the full and proper protection of all claimants supplying labor and material for the construction of the Improvements, shall be in favor of the City, and shall be executed by an approved surety company authorized to do business in the State of Texas; or, (ii) if the total contract amount of all Improvements is $50,000 or less, as determined by the City Engineer, or the Improvements, regardless of the contract amount, are for a "one lot development," as defined by City's Development Code, and a payment bond has not been submitted in accordance with (i) above, Owner and Contractor agree and guarantee that any and all debts due to any person, firm or corporation having furnished labor, material or both in the construction of the Improvements shall be fully paid and satisfied before acceptance of the Improvements by the City and that prior to acceptance of the Improvements, the Owner and Contractor shall furnish a written affidavit, in a form provided by the City Engineer, stating that all bids, charges, accounts or claims for labor performed and material furnished in connection with the construction of the Improvements have been paid in full and that there are no unreleased recorded liens filed against the Improvements, or land to which they are affixed, that are to be dedicated to the public. That, upon the request of the City Engineer, Owner or Contractor shall furnish a complete list of all subcontractors who performed labor on, or supplied PAGE 5 material for, the construction of the Improvements, and, when requested, written statement from any or each of such subcontractors or suppliers that they have been paid in full. (c) Retainaqe; Final Payments. [This provision (c) applies only where the Owner and Contractor are not he same party.] That as security for the faithful completion of the Improvements, Contractor and Owner agree that the Owner shall retain ten percent of the total dollar amount of the contract price until after final approval or acceptance of the improvements by the City. The Owner shall thereafter pay the Contractor the retainage, only after Contractor has furnished to the Owner satisfactory evidence that all indebtedness connected with the work and all sums of money due for labor, materials, apparatus, fixtures or machinery furnished for and used in the performance of the work have been paid or otherwise satisfied. (d) Encumbrances. That upon completion and approval or acceptance of the Improvements of the City, the Improvements shall become the property of the City free and clear of all liens, claims, charges or encumbrances of any kind. If, after acceptance of the Improvements, any claim, lien, charge or encumbrance is made, or found to exist, against the Improvements, or land dedicated to the City, to which they are affixed, the Owner and Contractor shall upon notice by the City promptly cause such claim lien, charge or encumbrance to be satisfied and released or promptly post a bond with the City in the amount of such claim, PAGE 6 lien, charge or encumbrance, in favor of the City, to ensure payment of such claim, lien, charge or encumbrance. (e) ~aintenance Bond.' That prior to approval or acceptance of the Improvements by the City, to furnish a maintenance bond in form and substance acceptable to the City, in the amount of ten percent (10%) of the contract amount of the Improvements, insuring the repair and replacement of all defects due to faulty material and workmanship that appear within one year from the date of acceptance. The bond shall be in favor of the City and shall be executed by an approved surety company authorized to do business in the State of Texas. (f) Indemnification. To indemnify, defend and save harmless, the City, its officers, agents and employees from all suits, actions or claims of any character, name and description brought for or on account of any injuries or damages received as sustained by any person, persons or property on account of the operations of the Contractor, his agents, employees or subcontractors; or on account of any negligent act of fault of the Contractor, his agents, employees or subcontractors in construction of the improvements; and shall pay any judgment, with costs, which may be obtained against the City growing out of such injury or damage. (g) A~reement Controlling. That the provision of this agreement shall control over any conflicting provision of any contract between the Owner and Contractor as to the construction of the Improvements. PAGE 7 3. Occupancy; One Lot Developments. Owner further agrees as follows: (a) That Owner will not allow any purchasers, lessee, or other person to occupy any building within the development until all Improvements are completed and accepted by the City, and that upon violation thereof will pay the City $3,000.00 as liquidated damages, but such payment shall not be deemed approval of such occupancy and the City may take whatever action necessary to restrain such occupancy. (b) That if this contract applies to a "one lot development,,, as defined by City's Development Code, and no performance or payment bond was required or submitted for the improvements that are to be dedicated to the public, the Owner shall not be issued a Certificate of Occupancy for any building constructed or located therein until all required public improvements have been completed and accepted in accordance with this contract. 4. Covenants of City. That, upon proper completion of the Improvements in accordance with this agreement, the City agrees to accept the Improvements. 5. Venue and Governinq Law. The parties herein agree that this contract shall be enforceable in Denton County, Texas, and if legal action is necessary in connection therewith, exclusive venue shall lie in Denton County, Texas. The terms and provisions of this contract shall be construed in accordance with the laws and court decisions of the State of Texas. PAGE 8 6. Successor and Assiqns. This contract shall be binding upon and inure to the benefit of the parties hereto, their respective successors and assigns. Executed in triplicate this day of October OWNER - , 1995 CONTRACTOR WAL-MART.~STO~~ DAL-MAC CONSTRUCTION COMPANY ~51~_ C~x~ pf~ Bradford Mc Junkin, President CITY OF DENT0~, TEXAS . · · ATTEST: ~~ JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY PAGE 9 EXIIIBIT "A" PROPOSED LOOP 2~$ IMPROVEMENTS TO SERVE WAL-MART ADDITION 1515 SOUTH LOOP 2~, DENTON, TEXAS PROPOSED LOOP 288 IMPROVEMENTS A. Paving Asphalt (including three driveway replacements) 1-1/2" Type "C" 3,950 SY $2.99 SY $11,811 7-112" Type "A' 7~160 SY $14.85 SY $106,326 Concrete Approaches for Brinlcer Road and Wal-Mart center drive 630 SY $21.15 SY $13,325 6" Lime Stabilization 4,800 SY $2.86 SY $13,728 Concrete Median 966 SY $18.00 SY $17,388 B. Sidewalk (adjacent to Loop 288 Wal-Mart frontage) 650 LF x 4' wide 290 SY $18.00 SY $5.220 C. Pavement Marking and Signs Remove Pavement Markings 1 LS $5,000.00 LS $5,000 D. Culverts 21' RCP, Class III 90 LF $26.00 LF $2.340 18" RCP, Class lli 99 LF $24.00 LF $2.376 24" RCP, Class III 23 LF $28.00 LF $644 18" Safety End Treatment 6 EA $1,200.00 EA $7,200 21" Safety End Treatment 2 EA $1.200.00 EA $2.400 Type "H" Horizontal Inlet 1 EA $3,000.00 EA $3,000 E. Signalization (per signalization phns package) ILS $68,000.00 LS $68,000 for Loop288 at Spencer Road intersection F. Construction Traffic Control 1 LS $3,825.00 LS $3,825 G. Hydromulch Seeding (includes Wal-Mart side only, all disturbed non-paved right-of-way) 5,550 SY $0.36 SY $1,998 H. Roadway Excavation 1,850 CY $3.40 CY $6,475 I. Saweut and Remove Existing Paving 450 SY $4.50 SY $2.02_5 Total Improvements $273,081 AAAO19DF BOND NO. 15-84-86 PROJECT NO. ~ CONTRACT NO. ~7~ PERFORMANCE BOND THE STATE OF TEXAS § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF DENTON That DAL-MAC CONSTRUCTION COMPANY 111 West Spring Valley Road, P.O. Box 830160, Richardson, TX 75080-0160 of Dallas County, Texas, hereinafter called Principal and THE INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA 1999 Bryan Street, Suite 1700, Dallas, Texas 75201 a Corporation organized under the laws of the State of Pennsylvania and authorized to do business in the State of Texas, h~reinafter called "Surety", are held and firmly bound unto the City of Denton, Texas, a Municipal Corporation, in Denton County, Texas, hereinafter called "City" in the penal sum of Two hundred seventy three thousand eighty one and no/100 ($ 273,081.00 ) Dollars, lawful money of the United States, for the payment of which sum well and truly to be made we bind ourselves, our heirs, executors, administrators, and successors, jointly and severally, and firmly by these presents: THE Condition of this Obligation is such that: WHEREAS, the Principal entered into a certain contract with Owner, dated ~9% the day of October , 19 95 , in the proper performance of which the' City of Denton, Texas, has an interest, a copy of which is hereto attached and made a part hereof, for the construction of: PROPOSED PUBLIC IMPROVEMENTS TO SERVE WAL-MART ADDITION 1515 South Loop 288, Denton, TX NOW, THEREFORE, if the Principal ' shall well, truly, and faithfully cause to be performed and fulfilled all of the undertakings, covenants, terms, conditions, and agreements of said Contract in accordance with the Plans, Specifications, and contract Documents during the original term thereof, and any extension thereof which may be granted, with or without notice to the surety, PAGE ONE and during the life of any guaranty required under the Contract, and shall also well and truly cause to be performed and fulfilled all the covenants, terms and conditions and agreements of any and all authorized modifications of said Contract that may hereafter bemade, notice of which modifications to the surety being hereby waived; then this obligation, shall be void; otherwise to remain in full force and effect. PROVIDED, further, that if any legal action be filed on this bond, venue shall lie in Denton County. AND, that said Surety, for value received, hereby tlpulates S ' and agrees that no change, Rxtension of time, alteration or addition to the terms of the contract, or to the work performed thereunder, or the Plans, Specifications, Drawings, etc., accompanying the same shall in anywise affect its obligation on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the Contract, or to the work to be performed thereunder. IN WITNESS WHEREOF, this instrument is executed in triplicate, each one of which shall be deemed an original, this the ~%% day of October , 19 95 PRINCIPAL SURETY DAL-MAC CONSTRUCTION COMPANY THE INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA Bradford Me Junkin, President A~.~ORNEY-I~-FACT ~" ATTEST: 5~nice G. Corre. y ' ' ECRET Y / // NOTE: POWER OF ATTORNEY OF SURETY MUST BE ATTACHED. DATE OF BOND MUST NOT BE PRIOR TO DATE OF CONTRACT. PAGE TWO AAA019DF BOND NO. 15-84-86 PROJECT NO. CONTACT NO. PAYMENT BOND THE STATE OF TEXAS COUNTY OF DENTON THAT DAL-MAC CONSTRUCTION COMPAN~f 111 West Spring Valley Road, P.O. Box 830160, Richardson, TX 75080-0160 of Dallas County, Texas, hereinafter called principal and THE INSUP~kNCE COMPANY OF THE STATE OF PENNSYLVANIA 1999 Bryan Street, Suite 1700f. Dallas, Texas 75201 a Corporation organized under the laws of the State of Pennsylvania and authorized to do business in the State of Texas, hereinafter called "Surety", are held and firmly bound unto the City of Denton, Texas, a Municipal Corporation, in Denton County, Texas, hereinafter called "City", and unto all persons, firms and corporations who may furnish materials for or perform labor upon the buildings, structures or im~rove~ attached contract, in the penal sum of ~Two hundred seventy three thousand e___iEhty one and no/100 ($373'081'00 ) Dollars, lawful money of the United States, to be paid in Denton, Denton County, Texas, for the payment of which sum well and truly to be made we bind ourselves, our heirs, executors, administrators, and successors, jointly and severally. THE Condition of this Obligation is such that: WHEREAS, the Principal entered into a certain contract with Owner, dated the %%~ day of _ October 1995 in the proper performance of which the City of Denton, Texas, has an interest, a copy of which is hereto attached and made a part hereof, for the construction of: PROPOSED PUBLIC I~fPROVEM_ENTS TO SERVE WAL-MART ADDITION 1515 South Loop 288, Denton, TX NOW, THEREFORE, if the Principal shall well, truly, and faithfully cause to be performed its duties and make or cause Contractor to make prompt payment to all persons, firms, sub- contractors, corporations and claimants supplying labor and material in the prosecution of the work provided for in said contract and any and all duly authorized modification of said Contract that may hereafter be made, notice of which modification of the surety is hereby expressly waived, then this obligation shall be void: Otherwise to remain in full force and effect. Provided further, that if any legal action be filed upon this bond, venue shall lie in Denton County, Texas. AND THAT said Surety far value received hereby tlpulates and S ' agrees that no change, extension of time, alteration or addition to the terms of the Contract, or to the work performed thereunder, or the Plans, Specifications, Drawings, etc., accompanying the same shall in anywise affect its obligation on this Bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the Contract, or to the work to be performed thereunder. IN WITNESS WHEREOF, this instrument is executed in triplicate, each one of which shall be deemed, an original, this the %{~ day of October , 19 95 .~ ' PRINCIPAL SURETY DAL-MAC CONSTRUCTION COMPANY THE .INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA Bradford Mc Junkin, President ~ORNEY-IN-FACT /- ATTEST: ,i~anice G. Correy '/" SECRETARY NOTE: DATE OF PAYMENT BOND MUST NOT BE PRIOR TO DATE OF CONTRACT. AAA019DF BOND NO. 15-84-86 PRO ECT NO. CONTACT NO. CONTRACTOR' $ MAINTENANCE BOND (DEVELOPMENT CONTRACT) THE STATE OF TEXAS S KNOW ALL MEN BY THESE PRESENTS: COUNTY OF DENTON S That DAL-MAC CONSTRUCTION COMPANY 111 West Spring Valley Road, P.O. Box 830160, Richardson, TX 75080-0160 of Dallas County, Texas, hereinafter called Principal and THE INSURANCE COMPANY OFT HE STATE OF PENNSYLVANIA 1999 Bryan Street, Suite 1700, Dallas, Texas 75201 a Corporation organized under the laws of the State of.~ and authorized to do business in the State of Texas, hereinafter called "Surety", are held and firmly bound unto the City of Denton, Texas, a Municipal Corporation, in Denton County, Texas, hereinafter called "City" in the penal sum of Two hundred seventy three thousand eighty one and no/100 f$273t081'O0 ) Dollars, lawful money of the United States, the said sum being ten percent (10%) of the total amount of the hereinafter mentioned contract, for the payment of which sum well and truly to be made we bind ourselves, our heirs, executors, dmlnlstrators, and successors, jointly and severally. THE Condition of this Obligation is such that: WHEREAS, the Principal entered into a certain Contract with Owner, dated the ~ day of October , 19.95 , in the proper performance of which the'City of Denton, Texas, has an interest, a copy of which is hereto attached and made a part hereof for the construction of: ' PROPOSED PUBLIC IMPROVEMENTS TO SERVE WAL-MA~TADDITION 1515 South Loop 288, Denton, TX PAGE ONE NOW, THEREFORE, if the Principal-shall well, truly, and faithfully maintain and keep in good repair the work contracted to be done and performed for a period of one (1) year from the date of acceptance in writing by the City of Denton and do all necessary work and repair of any defective conditions growing out· of or arising from the improper work of the same, including, but not limited to, any settling, breaking, cracking or other defective condition of any of the work or part thereof arising from improper excavation, backfilling, compacting or any other cause or condition, known or unknown, at any time during the period of this bond, which the city engineer, whose judgment shall be final and conclusive, determines to be the result of defective work, materials or labor; then this obligation shall be void, otherwise to remain in full force and effect. In case the said Principal shall fail to maintain, repair or reconstruct any defective condition of the work as determined herein, it is agreed that the City may do said work and supply such materials as necessary and charge..the sum against the said Principal and Surety on this obligation. It is further agreed that thisobligation shall be continued one against the Principal and Surety and that successive recoveries may be had hereon for successive breaches of the conditions herein provided until the full amount of this bond shall have been exhausted, 'and it is further understood that the obligation to maintain said work shall continue throughout said maintenance period, and the same shall not be changed, diminished, or in any manner affected from any cause during said time. PROVIDED, further, 'that if any legal action be filed on this bond, venue shall lie in Denton County. IN WITNESS WHEREOF, this instrument is executed in triplicate, each one of which shall be deemed an original this the .~ day of Octob~ , 19 95 ' PRINCIPAL SURETY DAL-MAC CONSTRUCTION COMPANY ' THE INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA Bradford Mc Junkin, President ~T~.0RNEY-IN-FACT/' ' Ja'nice G. Correy PAGE TWo