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R-11-04-28-12C7 - 4/28/2011RESOLUTION NO. R -11-04-28-12C7 WHEREAS, the City of Round Rock ("City") is in the process of constructing Kenney Fort Boulevard, a six -lane major arterial running from Joe DiMaggio Boulevard north of US 79 southward to Forest Creek Boulevard ("Project"), and WHEREAS, Bison Tract 79, Ltd. ("Developer") is the owner of a 152.392 acre tract of land south of US 79, and WHEREAS, the City and Developer desire to enter into a Development Agreement to memorialize respective obligations regarding the construction associated with a 16 inch waterline, as well as the dedication of the right-of-way to the adjoining properties, Now Therefore BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK, TEXAS, That the Mayor is hereby authorized and directed to execute on behalf of the City the attached Development Agreement, a copy of same being attached hereto as Exhibit "A" and incorporated herein for all purposes. The City Council hereby finds and declares that written notice of the date, hour, place and subject of the meeting at which this Resolution was adopted was posted and that such meeting was open to the public as required by law at all times during which this Resolution and the subject matter hereof were discussed, considered and formally acted upon, all as required by the Open Meetings Act, Chapter 551, Texas Government Code, as amended. RESOLVED this 28th day of April, 2011. ALAN MCGRAW, Mayor City of Round Rock, Texas ATTEST: tAfkttiz SARA L. WHITE, City Secretary O:Awdox\SCClnts\0112V1 104MUNICIPALV00219975.DOC/rmc EXHIBIT „A„ DEVELOPMENT AGREEMENT This DEVELOPMENT AGREEMENT ("Agreement") is made by and between BISON TRACT 79, LTD.; hereinafter called the "Property Owner", and the CITY OF ROUND ROCK, TEXAS, (hereinafter called "City"), both acting by and through their duly authorized officials. WITNESSETH: WHEREAS, the Property Owner is the owner of a 157.385 acre tract of land south of US 79, at the location described in Exhibit "A", attached hereto (the "Property"); and WHEREAS, the City is in the process of constructing Kenney Fort Boulevard, a six -lane major arterial running from Joe DiMaggio Boulevard southward to Forest Creek Boulevard, as depicted on Exhibit "B", attached hereto and incorporated herein; ("the Project"); and WHEREAS, the Property Owner desires to construct, at his own expense, a 16" water line (the "Water Line") on the Property abutting Kenney Fort Boulevard; and WHEREAS, the Property Owner requests that the City include the construction of the Waterline as an alternate bid in conjunction with the Project; NOW, THEREFORE, in consideration of the mutual covenants and agreements of the parties hereto, to be by them respectively kept and performed as hereinafter set forth, Property Owner and City do agree as follows: AGREEMENT Article 1. City Participation 1.1 Project Schedule. The City has completed the engineering and design of the Project. It is the City's desire to award a contract for the Project in June, 2011, to commence construction in July, 2011 and to substantially complete the Project by 2013. 1.2 Water Line Construction. The City shall construct, or cause to be constructed, the Water Line within the Project right-of-way simultaneously with the construction of the Project. The City shall include the Water Line in its requests for bids related to the construction of the Project. The City shall pay all costs to design, engineer and construct the Waterline from and under SH 79 to the northern boundary of the Property. If a contract is not awarded to construct Kenney Fort Boulevard, this Agreement shall be void. Developer Agreement Page 1 of 6 219360.doc/jmr Article 2. Property Owner Participation 2.1 Water Line Costs. Within ten (10) days following the awarding of any successful bid for the construction of the Project (the "Bid"), the Property Owner shall pay to the City 105% all costs associated with the constriction of the Water Line within the Property, as stated in the alternate bid.. In the event that the Property Owner fails to pay such costs within the timeframe following the award of the Bid, the City will award the Bid without the Water Line. Any additional costs attributable to the construction of the Waterline within the Property over and above the 105% payment shall be the sole responsibility of the Property Owner. Any amounts remaining from the 105% payment shall be remitted to the Property Owner after the Project is complete. 2.2 East-West Connection Road. The Property Owner agrees to dedicate right-of-way eighty (80) feet in width for two east -west roads connecting Kenny Fort Boulevard to the Harris, Johnson and Krienke properties, at the approximate locations shown as Roadways A and B in Exhibit "B". The Property Owner, or its successors and assigns, agrees to execute any documentation necessary to evidence said dedication when so requested by the City. The Property Owner, and his successors and assigns, will not be obligated to construct any portion of the road unless said construction is for Property Owner's own development on the Property. Article 3. Miscellaneous 3.1 Mutual Assistance. The City and the Property Owner will do all things reasonably necessary or appropriate to carry out the terms and provisions of this Agreement, and to aid and assist each other in carrying out such terms and provisions of this Agreement. 3.2 Representations and Warranties. The City represents and warrants to the Property Owner that this Agreement is within its authority, and that it is duly authorized and empowered to enter into this Agreement, unless otherwise ordered by a court of competent jurisdiction. Property Owner represents and warrants to the City that it has the requisite authority to enter into this Agreement. 3.3 Default. If either the City or the Property Owner should default in the performance of any obligations of this Agreement, the other party shall provide such defaulting party written notice of the default, and a minimum period of thirty (30) days to cure such default, prior to instituting an action for breach or pursuing any other remedy for default. If the defaulting party remains in default after notice and opportunity to cure, the non -defaulting party shall have the right to pursue any remedy at law or in equity for the defaulting party's breach. 3.4 Attorney's Fees. In the event any legal action or proceeding is commenced between the City and the Property Owner to enforce provisions of this Agreement and recover damages for breach, the prevailing party in such legal action shall be entitled to recover its reasonable attorney's fees and expenses incurred by reason of such action, to the extent allowed by law. Developer Agreement Page 2 of 6 219360.doc/jmr 3.5 Entire Agreement. This Agreement contains the entire agreement between the parties. This Agreement may only be amended, altered or revoked by written instrument signed by the City and the Property Owner. 3.6 Binding Effect. This Agreement shall be binding on and inure to the benefit of the parties, their respective successors and assigns. 3.7 Assignment. Property Owner may not assign all or part of its rights and obligations to a third party without the written consent of the City; provided, however, the City shall not unreasonably withhold its consent to an assignment. 3.8 Amendment. This Agreement may be amended by the mutual written agreement of the parties. 3.9 Termination. The City may terminate this Agreement if, in its own determination, it is unable or unwilling to construct Kenney Fort Boulevard. If the Property Owner has made any payment to the City, the City shall remit said payment as soon as possible. 3.10 Notice. Any notice and or statement required and permitted to be delivered shall be deemed delivered by actual delivery, facsimile with receipt of confirmation, or by depositing the same in the United States mail, certified with return receipt requested, postage prepaid, addressed to the appropriate party at the following addresses: Property Owner: BISON TRACT 79, LTD 3555 Lost Creek Blvd. Austin, TX 78735 Ph: (512) 358-7480 City: with a copy to: Alan McGraw, Mayor City of Round Rock 221 East Main St. Round Rock, TX 78664 Ph: (512) 218-5400 Fx: (512) 218-7097 Steve Sheets, City Attorney 221 East Main St. Round Rock, TX 78664 Ph: (512) 255-8877 Fx: (512) 255-8986 Either party may designate a different address at any time upon written notice to the other party. Developer Agreement Page 3 of 6 219360.doc/jmr 3.11 Interpretation. Each of the parties has been represented by counsel of their choosing in the negotiation and preparation of this Agreement. Regardless of which party prepared the initial draft of this Agreement, this Agreement shall, in the event of any dispute, however its meaning or application, be interpreted fairly and reasonably and neither more strongly for or against any party. 3.12 Applicable Law. This Agreement is made, and shall be construed and interpreted, under the laws of the State of Texas and venue shall lie in Williamson County, Texas. 3.13 Severability. In the event any provisions of this Agreement are illegal, invalid or unenforceable under present or future laws, and in that event, it is the intention of the parties that the remainder of this Agreement shall not be affected. It is also the intention of the parties of this Agreement that in lieu of each clause and provision that is found to be illegal, invalid or unenforceable, a provision be added to this Agreement which is legal, valid or enforceable and is as similar in terms as possible to the provision found to be illegal, invalid or unenforceable. 3.14 Paragraph Headings. The paragraph headings contained in this Agreement are for convenience only and will in no way enlarge or limit the scope or meaning of the various and several paragraphs. 3.15 No Third Party Beneficiaries. This Agreement is not intended to confer any rights, privileges, or causes of action upon any third party. 3.16 Exhibits. The following Exhibits are attached and incorporated by reference for all purposes: Exhibit "A": Property Description Exhibit "B": Kenney Fort Boulevard Alignment and Harris, and Johnson and Krienke ROW dedications 3.17 No Joint Venture. It is acknowledged and agreed by the parties that the terms hereof are not intended to and shall not be deemed to create any partnership or joint venture among the parties. The City, its past, present and future officers, elected officials, employees and agents of the City, do not assume any responsibilities or liabilities to any third party in connection with the development of the Project or the design, construction or operation of any portion of the Project. 3.18 Effective Date. This Agreement becomes effective when signed by the last party whose signature makes this Agreement fully executed. IN WITNESS WHEREOF, PROPERTY OWNER AND THE CITY have executed duplicate counterparts to effectuate this Agreement to be effective as of the last date of due execution. [Signatures on the following page.] Developer Agreement Page 4 of 6 219360.doc/jmr BISON TRACT 79, LTD By: Printed Name, Title Date: THE CITY OF ROUND ROCK, TEXAS By: Alan McGraw, Mayor Date: Developer Agreement Page 5 of 6 219360.doc/jmr EXHIBIT A Approximately 157.385 acres of land, out of the P.A. Holder Survey, in Williamson County, Texas, being the same property described in a deed dated June 2, 2007 and recorded in Document No. 2007049657, Official Records, Williamson County, Texas. BALSAM TIMBERLINE GREEN 01 K$ Palm Valley Cemetery i t fl JOE ti 4 ! 1 ROUND ROCK SYCAMORE �1 MIMOS LOG AN BRUSHY CREEK FOREST CREEK OR REO CC GAITIS SCHOOL LEGEND = HARRIS TRACT = BISON TRACT = KELLER-JOHNSON TRACT = KRIENKE TRACT = ELROD TRACT = REID TRACT 1 = SERVICE AREA EXHIBIT tl B 11 PARCEL SHAPES ARE NOT TO SCALE ROUND ROCK, TEXAS PURPOSE. PASSION. PROSPERITY Agenda Item No. 12C7. Ci Council Agenda Summary Sheet Agenda Caption: Consider a resolution authorizing the Mayor to execute a Development Agreement with Bison Tract 79, Ltd. regarding the construction of a 16" water line abutting Kenney Fort Boulevard. Meeting Date: April 28, 2011 Department: Infrastructure Development and Construction Management Staff Person making presentation: Tom Word Chief of Public Works Operations Item Summary: Kenney Fort Boulevard (Arterial A) is a major arterial roadway shown on the current Transportation Master Plan which will eventually provide connectivity from SH 45 north into Georgetown by connecting to Williamson County Road 110. In addition to providing much needed connectivity and an alternate travel route to IH 35, the first phase of this roadway between Joe DiMaggio Boulevard and Forest Creek Drive will facilitate the development of several parcels which are currently landlocked just south of US 79 and the Union Pacific Railroad. The City's consultant on this project, HDR, Inc., is nearing completion of the plans for this roadway — the project is expected to be bid in this summer. While developing the plans for this roadway, Bison Tract 79, Ltd., owners of the Bison tract approached City Staff about constructing a 16 inch waterline concurrently with the construction of the roadway, thus reducing the costs and time to install the waterline. As a part of this agreement, City Staff contracted with Waeltz and Prete, Inc. Civil Engineers to design the waterline where it crosses under US 79 and the Union Pacific Railroad; the land owners also contracted with Waeltz and Prete to design the waterline along the frontage of their property with Kenney Fort Boulevard. These plans are being completed at this time for inclusion in the Kenney Fort Boulevard bid package. Another item which is included in this agreement is the dedication of an 80 foot right-of-way connecting Kenney Fort Boulevard to the adjoining properties to the east and west. This right-of-way is needed to secure access to these properties which will use Kenney Fort Boulevard as their only means of access when these properties eventually develop. The responsibility for the construction of this collector roadway is left up to the developers and their involvement will be determined based on the timing of their development plans. Execution of this agreement will secure the land owner's participation in the construction costs associated with their portion of the waterline, as well as the dedication of the right-of-way to the adjoining properties. It should be noted, should the City choose to not award a contract for Kenney Fort Boulevard for any reason, this agreement becomes null and void. Strategic Plan Relevance: 20.0 - Infrastructure attractive to target business - Build and maintain the facilities and infrastructure needed to make the City attractive to target businesses 27.0 - Water Supply - Ensure there is an adequate, affordable and safe water supply ROUND ROCK, TEXAS PURPOSE. PASSION. PROSPERITY Cost: Source of Funds: N/A N/A City Council A: enda Summar Sheet Date of Public Hearing (if required): N/A Recommended Action: Approval EXECUTED DOCUMENT FOLLOWS DEVELOPMENT AGREEMENT This DEVELOPMENT AGREEMENT ("Agreement") is made by and between BISON TRACT 79, LTD.; hereinafter called the "Property Owner", and the CITY OF ROUND ROCK, TEXAS, (hereinafter called "City"), both acting by and through their duly authorized officials. WITNESSETH: WHEREAS, the Property Owner is the owner of a 157.385 acre tract of land south of US 79, at the location described in Exhibit "A", attached hereto (the "Property"); and WHEREAS, the City is in the process of constructing Kenney Fort Boulevard, a six -lane major arterial running from Joe DiMaggio Boulevard southward to Forest Creek Boulevard, as depicted on Exhibit "B", attached hereto and incorporated herein; ("the Project"); and WHEREAS, the Property Owner desires to construct, at his own expense, a 16" water line (the "Water Line") on the Property within the Kenney Fort Boulevard right-of-way; and WHEREAS, the Property Owner requests that the City include the construction of the Waterline as an alternate bid in conjunction with the Project; NOW, THEREFORE, in consideration of the mutual covenants and agreements of the parties hereto, to be by them respectively kept and performed as hereinafter set forth, Property Owner and City do agree as follows: AGREEMENT Article 1. City Participation 1.1 Project Schedule. The City has completed the engineering and design of the Project. It is the City's desire to award a contract for the Project in June 2011, to commence construction in July 2011 and to substantially complete the Project by 2013. 1.2 Water Line Construction. The City shall construct, or cause to be constructed, the Water Line within the Project right-of-way simultaneously with the construction of the Project. The City shall include the Water Line in its requests for bids related to the construction of the Project. The City shall pay all costs to design, engineer and construct the Waterline from and under SH 79 to the northern boundary of the Property. If a contract is not awarded to construct Kenney Fort Boulevard, this Agreement shall be void. Developer Agreement Page 1 of 6 219360.doc/jmr SM Article 2. Property Owner Participation 2.1 Water Line Costs. Within ten (10) days following the awarding of any successful bid for the construction of the Project (the "Bid"), the Property Owner shall pay to the City 105% all costs associated with the construction of the Water Line within the Property, as stated in the alternate bid. In the event that the Property Owner fails to pay such costs within the timeframe following the award of the Bid, the City will award the Bid without the Water Line. Any additional costs attributable to the construction of the Waterline within the Property over and above the 105% payment shall be the sole responsibility of the Property Owner. Any amounts remaining from the 105% payment shall be remitted to the Property Owner within thirty (30) days after the Project is complete. 2.2 East-West Connection Road. The Property Owner agrees to dedicate right-of-way eighty (80) feet in width for two east -west roads connecting Kenny Fort Boulevard to the Harris, Johnson and Krienke properties, at the approximate locations shown as Roadways A and B in Exhibit "B". The Property Owner, or its successors and assigns, agrees to execute any documentation necessary to evidence said dedication when so requested by the City. The Property Owner, and his successors and assigns, will not be obligated to construct any portion of the road unless said construction is for Property Owner's own development on the Property. Article 3. Miscellaneous 3.1 Mutual Assistance. The City and the Property Owner will do all things reasonably necessary or appropriate to carry out the terms and provisions of this Agreement, and to aid and assist each other in carrying out such terms and provisions of this Agreement. 3.2 Representations and Warranties. The City represents and warrants to the Property Owner that this Agreement is within its authority, and that it is duly authorized and empowered to enter into this Agreement, unless otherwise ordered by a court of competent jurisdiction. Property Owner represents and warrants to the City that it has the requisite authority to enter into this Agreement. 3.3 Default. If either the City or the Property Owner should default in the performance of any obligations of this Agreement, the other party shall provide such defaulting party written notice of the default, and a minimum period of thirty (30) days to cure such default, prior to instituting an action for breach or pursuing any other remedy for default. If the defaulting party remains in default after notice and opportunity to cure, the non -defaulting party shall have the right to pursue any remedy at law or in equity for the defaulting party's breach. 3.4 Attorney's Fees. In the event any legal action or proceeding is commenced between the City and the Property Owner to enforce provisions of this Agreement and recover damages for Developer Agreement Page 2 of 6 219360.doc/jmr 5 M breach, the prevailing party in such legal action shall be entitled to recover its reasonable attorney's fees and expenses incurred by reason of such action, to the extent allowed by law. 3.5 Entire Agreement. This Agreement contains the entire agreement between the parties. This Agreement may only be amended, altered or revoked by written instrument signed by the City and the Property Owner. 3.6 Binding Effect. This Agreement shall be binding on and inure to the benefit of the parties, their respective successors and assigns. 3.7 Assignment. Property Owner may not assign all or part of its rights and obligations to a third party without the written consent of the City; provided, however, the City shall not unreasonably withhold its consent to an assignment. 3.8 Amendment. This Agreement may be amended by the mutual written agreement of the parties. 3.9 Termination. The City may terminate this Agreement if, in its own determination, it is unable or unwilling to construct Kenney Fort Boulevard. If the Property Owner has made any payment to the City, the City shall remit said payment as soon as possible. 3.10 Notice. Any notice and or statement required and permitted to be delivered shall be deemed delivered by actual delivery, facsimile with receipt of confirmation, or by depositing the same in the United States mail, certified with return receipt requested, postage prepaid, addressed to the appropriate party at the following addresses: Property Owner: BISON TRACT 79, LTD 3555 Lost Creek Blvd. Austin, TX 78735 Ph: (512) 358-7480 City: with a copy to: Alan McGraw, Mayor City of Round Rock 221 East Main St. Round Rock, TX 78664 Ph: (512) 218-5400 Fx: (512) 218-7097 Steve Sheets, City Attorney 221 East Main St. Round Rock, TX 78664 Ph: (512) 255-8877 Fx: (512) 255-8986 Developer Agreement Page 3 of 6 219360.doc/jmr Either party may designate a different address at any time upon written notice to the other party. 3.11 Interpretation. Each of the parties has been represented by counsel of their choosing in the negotiation and preparation of this Agreement. Regardless of which party prepared the initial draft of this Agreement, this Agreement shall, in the event of any dispute, however its meaning or application, be interpreted fairly and reasonably and neither more strongly for or against any party. 3.12 Applicable Law. This Agreement is made, and shall be construed and interpreted, under the laws of the State of Texas and venue shall lie in Williamson County, Texas. 3.13 Severability. In the event any provisions of this Agreement are illegal, invalid or unenforceable under present or future laws, and in that event, it is the intention of the parties that the remainder of this Agreement shall not be affected. It is also the intention of the parties of this Agreement that in lieu of each clause and provision that is found to be illegal, invalid or unenforceable, a provision be added to this Agreement which is legal, valid or enforceable and is as similar in terms as possible to the provision found to be illegal, invalid or unenforceable. 3.14 Paragraph Headings. The paragraph headings contained in this Agreement are for convenience only and will in no way enlarge or limit the scope or meaning of the various and several paragraphs. 3.15 No Third Party Beneficiaries. This Agreement is not intended to confer any rights, privileges, or causes of action upon any third party. 3.16 Exhibits. The following Exhibits are attached and incorporated by reference for all purposes: Exhibit "A": Property Description Exhibit "B": Kenney Fort Boulevard Alignment and Harris, and Johnson and Krienke ROW dedications 3.17 No Joint Venture. It is acknowledged and agreed by the parties that the terms hereof are not intended to and shall not be deemed to create any partnership or joint venture among the parties. The City, its past, present and future officers, elected officials, employees and agents of the City, do not assume any responsibilities or liabilities to any third party in connection with the development of the Project or the design, construction or operation of any portion of the Project. 3.18 Effective Date. This Agreement becomes effective when signed by the last party whose signature makes this Agreement fully executed. IN WITNESS WHEREOF, PROPERTY OWNER AND THE CITY have executed duplicate counterparts to effectuate this Agreement to be effective as of the last date of due execution. [Signatures on the following page.] Developer Agreement Page 4 of 6 219360.doc/jmr BISON TRAC 79, LTD By: Date: SI -14 v e /r ( to c� Printed Name, Title q/.2 - / THE CITY OF ROUND ROCK, TEXAS By: Date: Alan McGraw, Mayor --?�-� ( Developer Agreement 219360.doc/jmr Page 5 of 6 EXHIBIT A Approximately 157.385 acres of land, out of the P.A. Holder Survey, in Williamson County, Texas, being the same property described in a deed dated June 2, 2007 and recorded in Document No. 2007049657, Official Records, Williamson County, Texas. S itA I , 4ALG ITA . 1 4} 1"1 BALSAM f TIMBERLINE GREEN 4KS O ODEJOAKS Palm Valley Cemetery KENNEY FORT BLVD ROUND ROCK SYCAMORE S z z FOREST CREEK DR BRUSHY CREEK BOXWOOD ROSEMARY GATTIS PARCEL SHAPES ARE NOT TO SCALE LEGEND = HARRIS TRACT = BISON TRACT = KELLER-JOHNSON TRACT = KRIENKE TRACT = ELROD TRACT _ = REID TRACT 1 = SERVICE AREA EXHIBIT