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R-06-09-14-11A1 - 9/14/2006RESOLUTION NO. R -06-09-14-11A1 WHEREAS, the City of Round Rock ("City") desires to enter into an agreement with Canteberry Development, Ltd., ("Developer"), to participate in the construction of a drainage channel associated with the Eagle Ridge Subdivision Development, and WHEREAS, Vernon's Texas Codes Annotated, Local Government Code, Subchapter C, §212.071 et. seq. authorizes municipalities with a population of 5,000 or more to enter into a contract with a developer for the developer to construct public improvements related to the development and for the municipality to participate in their cost, and WHEREAS, such agreement is embodied in the attached Developer Participation Agreement, 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 Developer Participation Agreement, a copy of same being attached herein for all purposes. The City Council hereby finds and declares that hereto as Exhibit "A" and incorporated 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. @PFDesktop\::ODMA/WORLDOX/O:/wdox/RESOLUTI/R60914A1.WPD/rmc RESOLVED this 14th day of September, 2006. R CHRISTINE R. MARTINEZ, City Secreary 2 L, Mayor ty of Round Rock, Texas THE STATE OF TEXAS § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF WILLIAMSON DEVELOPER PARTICIPATION AGREEMENT WHEREAS, the City of Round Rock (the "City") and Canteberry Development, Ltd., (the "Developer") desire to enter into this Developer Participation Agreement ("Agreement") for a public drainage channel associated with the Eagle Ridge Subdivision Development; and WHEREAS, Vernon's Texas Codes Annotated, Local Government Code, Subchapter C, §212.071 et. seq. authorizes municipalities with a population of 5,000 or more to make a contract with a developer for the developer to construct public improvements related to the development and for the municipality to participate in their cost; NOW THEREFORE, this Agreement is made by and between the City and the Developer. 1. The City and the Developer agree to participate in the construction of a drainage channel and related public improvements to serve approximately 675 acres (hereinafter referred to as the "Property"), as shown on Exhibit A, attached hereto and made a part of this Agreement for all purposes. 2. The project will involve the construction of an approximately one hundred twenty - foot (120') wide drainage channel beginning on the west side of Settlement Drive continuing in a westerly direction for approximately one thousand four hundred twenty-five feet (1,425'), and approximately one hundred fifty feet (150') of storm sewer on the north side of said channel to extend an existing storm sewer, as described in Exhibit B, (the "Project"). The Project includes all necessary demolition and ancillary items to properly construct the channel and the 150' storm sewer extension. 3. The Developer, at its sole cost and expense, shall prepare and submit all construction plans and specifications (the "Plans") for the Project to the City for review and acceptance prior to execution of a contract for the construction of the Project. Subject to prior approval of the City, the Plans may also include other public improvements which are not part of the Project. The date of signature by the City on the Plans shall be no earlier than six (6) months prior to the date that construction of the items shown in the Plans commences. 4. The Plans shall comply with all applicable city, state, and federal requirements, including the City's Design and Construction Standards described in §8.106 of the Round Rock Code of Ordinances. 5. The Developer, at its sole cost and expense, shall submit all construction cost bids to the City for review and acceptance prior to execution of a contract for the construction of the Project. Developer shall not execute any change orders that increase the cost of construction without the prior written approval of the City. 4 b a a • EXHIBIT nAII i 6. To ensure completion of the Project, prior to commencement of construction of any of the improvements shown in the Plans, the Developer, at its sole cost and expense, shall execute a performance bond for the construction of the improvements. The bond shall be in an amount equal to 125% of the construction costs of all improvements shown in the Plans, as estimated by the Developer's engineer, and the estimate and the bond shall be subject to the approval of the City. The bond shall be executed by a corporate surety in accordance with chapter 2253, Government Code. 7. The Developer, at its sole cost and expense, shall obtain all easements required by the City to contain the Project and all other public improvements shown in the Plans. The easements shall be subject to the approval of the City, and shall be conveyed to the City prior to commencement of construction. The Developer, at its sole cost and expense, shall pay for all costs associated with the design and construction of the Project and all other public improvements shown in the Plans including, but not limited to, all engineering, permits acquisition, regulatory approvals, surveying, and construction costs. 8. Upon substantial completion of the Project or sooner if appropriate, the Developer, at its sole cost and expense, shall initiate, process, and obtain, a Letter of Map Revision (LOMR) through the Federal Emergency Management Agency (FEMA) associated with the Conditional Letter of Map Revision (CLOMR) issued by FEMA on March 23, 2004 under FEMA Case Number 03-06-2057R. 9. Prior to commencing construction of any improvements shown in the Plans, the Developer shall conduct a preconstruction conference with the City, the Developer's engineer, the Developer's contractor, and any other affected party. The City shall inspect the construction of the improvements shown in the Plans. The Developer shall insure that the City and its agents have the right to enter upon the construction site for any purpose. Upon completion of the Project and acceptance thereof by the City, the City shall pay to the Developer, as provided below, the amount of thirty percent (30%) of the original contract price plus any approved change orders for construction of the Project. The aforesaid amount shall be paid as follows: 95% shall be paid at completion and the remaining 5% shall be paid when the LOMR has been received by the City . For purposes of this Agreement, completion of the Project shall occur when the Developer provides proof that the LOMR in Section 8 above has been properly requested through FEMA, including the payment of any fees required by FEMA, the Developer has provided a one-year warranty bond for the Project and all other public improvements shown in the Plans, and the City Engineer has issued an acceptance letter for the Project and all other public improvements shown in the Plans. The inspection and acceptance shall be in accordance with § 8.705 of the Round Rock Code of Ordinances and the warranty bond shall be in accordance with § 8.706 of the Round Rock Code of Ordinances. Upon completion of the Project, and within thirty (30) calendar days of receipt by the City of the Developer's written request for payment, the City shall pay to the Developer the 95% payment referred to above. Within thirty (30) calendar days of receipt by the City of the LOMR and the Developer's written request for payment, the City shall pay to the Developer the remaining 5% owed. 10. As additional consideration to the Developer to undertake the obligations set forth herein, the City hereby waives any obligation on the part of the Developer to pay any inspection fees provided for in § 8.116 of the Round Rock Code of Ordinances associated with the construction of 2 the Project. Inspection fees shall be paid by the Developer for any public improvements shown in the Plans that are not a part of the Project. 11. The maximum amount of reimbursement to the Developer by the City shall be thirty percent (30%) of the Project cost. 12. This Agreement is being executed and delivered, and is to be performed, under the laws of the State of Texas which shall govern the validity, construction, enforcement and interpretation of this Agreement, unless otherwise specified herein. 13. In the event that judicial action is necessary for the interpretation or enforcement of any of the covenants or conditions contained herein, the City and the Developer agree and consent to the jurisdiction of the District Courts and County Courts at Law of Williamson County, Texas, and of the United States District Court for the Western District of Texas (Austin Division), and acknowledge that such courts shall constitute proper and convenient forums for the resolution of any actions between the City and the Developer with respect to the subject matter hereof, and agree that such courts shall be the exclusive forums for the resolution of any actions between the City and the Developer with respect to the subject matter hereof. 14. If any provision in this Agreement is held to be illegal, invalid or unenforceable under present or future laws, other provisions shall not be affected by the illegal, invalid or unenforceable provision or by its severance from this Agreement. Furthermore, in lieu of such illegal, invalid or unenforceable provision, a provision as similar in terms to such illegal, invalid or unenforceable provision as may be possible and be legal, valid and enforceable shall govern. 15. This Agreement sets forth the entire understanding and agreement of the parties. All other oral agreements by the parties hereto are hereby merged into this Agreement, which shall not be amended or altered except by a written document signed by the parties hereto. This Agreement is separate and distinguishable from and shall not constitute an amendment of, or modification to any other Agreement between the parties. 16. If any action at law or in equity, including an action for declaratory relief, is brought to enforce or interpret any provision of this Agreement, the prevailing party shall be entitled to recover reasonable attorney's fees, costs of court and reasonable costs incurred to maintain such action, from the other party, which fees may be set by the Court in the trial of such an action or may be enforced in a separate action brought for that purpose, and which fees shall be in addition to any other relief which may be awarded. 17. This Agreement shall inure only to the benefit of the parties hereto. No other person or entity shall be considered as a beneficiary of this Agreement. The City shall have the right to terminate this Agreement and the City shall have no further obligation to reimburse Developer if the Developer either (i) fails to commence construction of the Project within twelve months of the effective date hereof, or (ii) fails to complete the Project within eighteen months of the effective date hereof. 18. Notices provided for hereunder shall be directed as follows: 3 (a) Notices to the City shall be directed to: City Manager City of Round Rock 221 East Main Street Round Rock, TX 78664 (b) With a photocopy to: Chief of Public Works Operations City of Round Rock 2008 Enterprise Drive Round Rock, TX 78664 Notices to the Developer shall be directed to: Canteberry Development, Ltd. PO Box 28398 Austin, TX 78755 19. This Agreement shall be effective upon proper execution by all parties hereto. ATTEST: Christine Martinez, City Secretary DEVELOPER: Canteberry Development, Ltd. By: GST Management, LLC, By:deth aril J. Ke11ye. , i .nager Dated: , 200 CITY OF ROUND ROCK, TEXAS By: Nyle Maxwell, Mayor Dated: 2006 Dev Participate Cont-Canteberry-EagleRidge 8-30-06 (00103969).doc/dh/lk 4 EXHIBIT A PROPERTY DESCRIPTION 5 EXHIBIT B DESCRIPTION OF PROJECT 6 Drainage Basin (The Property) Approx. 675 Acres Approx. 531 Acres of the Property outside of the Eagle Ridge Development Eagle Ridge Area within the Property Approx. 144 Acres Proposed Approx. 150' Storm Sewer Extension (The Project) EXHIBIT A to Accompany Developer Participation Agreement for Public Drainage Channel Improvements Associated with the Eagle Ridge Subdivision Development y ROUND ROCK. TEXAS PURPOSE. /ASSIGN. PROSPERS Y. 1 Approx. 150' 42" Storm Sewer Extension (The Project) _, c- -e•k Proposed Drainage Channel (The Project) EXHIBIT B to Accompany Developer Participation Agreement for Public Drainage Channel Improvements Associated with the Eagle Ridge Subdivision Development ROUND ROCK, TEXAS PORPOSC PA SIW/ PROSPERRY DATE: September 6, 2006 SUBJECT: City Council Meeting - September 14, 2006 ITEM: 11.A.1. Consider a resolution authorizing the Mayor to execute a Developer Participation Agreement with Canteberry Development, Ltd. for public drainage channel and storm sewer improvements associated with the Eagle Ridge Subdivision development. Department: Engineering and Development Service Staff Person: Danny Halden, City Engineer Justification: The proposed channel improvements will provide proper conveyance for a drainage basin of approximately 675 acres. The Eagle Ridge area benefiting from the channel improvements is approximately 144 acres or 21% of the entire drainage basin. The storm sewer improvements will extend an existing pipe, built with the abutting Meadow Lake subdivision, up to the new channel which will result in decreased maintenance for the City. In view of the magnitude of the improvements contemplated in conjunction with the culvert improvement along Eagles Nest Street that Canteberry Development, Ltd. previously performed, this participation by the City seems justified. Funding: Cost: Source of funds: Estimated amount - $120,000.00 Regional Detention Outside Resources: Canteberry Development, Ltd. Background Information: The Project will involve the construction of an approximately one hundred twenty -foot (120') wide drainage channel beginning on the west side of Settlement Drive continuing in a general westerly direction for approximately one thousand four hundred twenty-five feet (1,425'). The Project will also include approximately one hundred fifty feet (150') of 42" storm sewer to extend an existing pipe built with the abutting Meadow Lake subdivision. The Project includes all necessary demolition and ancillary items to properly construct the channel. The maximum amount of reimbursement to the Developer by the City is estimated to be $120,000.00 or thirty percent (30%) of the total Agreement cost, whichever amount is less. Public Comment: N/A EXECUTED DOCUMENT FOLLOWS THE STATE OF TEXAS § § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF WILLIAMSON DEVELOPER PARTICIPATION AGREEMENT WHEREAS, the City of Round Rock (the "City") and Canteberry Development, Ltd., (the "Developer") desire to enter into this Developer Participation Agreement ("Agreement") for a public drainage channel associated with the Eagle Ridge Subdivision Development; and WHEREAS, Vernon's Texas Codes Annotated, Local Government Code, Subchapter C, §212.071 et. seq. authorizes municipalities with a population of 5,000 or more to make a contract with a developer for the developer to construct public improvements related to the development and for the municipality to participate in their cost; NOW THEREFORE, this Agreement is made by and between the City and the Developer. 1. The City and the Developer agree to participate in the construction of a drainage channel and related public improvements to serve approximately 675 acres (hereinafter referred to as the "Property"), as shown on Exhibit A, attached hereto and made a part of this Agreement for all purposes. 2. The project will involve the construction of an approximately one hundred twenty - foot (120') wide drainage channel beginning on the west side of Settlement Drive continuing in a westerly direction for approximately one thousand four hundred twenty-five feet (1,425'), and approximately one hundred fifty feet (150') of storm sewer on the north side of said channel to extend an existing storm sewer, as described in Exhibit B, (the "Project"). The Project includes all necessary demolition and ancillary items to properly construct the channel and the 150' storm sewer extension. 3. The Developer, at its sole cost and expense, shall prepare and submit all construction plans and specifications (the "Plans") for the Project to the City for review and acceptance prior to execution of a contract for the construction of the Project. Subject to prior approval of the City, the Plans may also include other public improvements which are not part of the Project. The date of signature by the City on the Plans shall be no earlier than six (6) months prior to the date that construction of the items shown in the Plans commences. 4. The Plans shall comply with all applicable city, state, and federal requirements, including the City's Design and Construction Standards described in §8.106 of the Round Rock Code of Ordinances. 5. The Developer, at its sole cost and expense, shall submit all construction cost bids to the City for review and acceptance prior to execution of a contract for the construction of the Project. Developer shall not execute any change orders that increase the cost of construction without the prior written approval of the City. €-D(o-c9-ii/-liA/ 6. To ensure completion of the Project, prior to commencement of construction of any of the improvements shown in the Plans, the Developer, at its sole cost and expense, shall execute a performance bond for the construction of the improvements. The bond shall be in an amount equal to 125% of the construction costs of all improvements shown in the Plans, as estimated by the Developer's engineer, and the estimate and the bond shall be subject to the approval of the City. The bond shall be executed by a corporate surety in accordance with chapter 2253, Government Code. 7. The Developer, at its sole cost and expense, shall obtain all easements required by the City to contain the Project and all other public improvements shown in the Plans. The easements shall be subject to the approval of the City, and shall be conveyed to the City prior to commencement of construction. The Developer, at its sole cost and expense, shall pay for all costs associated with the design and construction of the Project and all other public improvements shown in the Plans including, but not limited to, all engineering, permits acquisition, regulatory approvals, surveying, and construction costs. 8. Upon substantial completion of the Project or sooner if appropriate, the Developer, at its sole cost and expense, shall initiate, process, and obtain, a Letter of Map Revision (LOMR) through the Federal Emergency Management Agency (FEMA) associated with the Conditional Letter of Map Revision (CLOMR) issued by FEMA on March 23, 2004 under FEMA Case Number 03-06-2057R. 9. Prior to commencing construction of any improvements shown in the Plans, the Developer shall conduct a preconstruction conference with the City, the Developer's engineer, the Developer's contractor, and any other affected party. The City shall inspect the construction of the improvements shown in the Plans. The Developer shall insure that the City and its agents have the right to enter upon the construction site for any purpose. Upon completion of the Project and acceptance thereof by the City, the City shall pay to the Developer, as provided below, the amount of thirty percent (30%) of the original contract price plus any approved change orders for construction of the Project. The aforesaid amount shall be paid as follows: 95% shall be paid at completion and the remaining 5% shall be paid when the LOMR has been received by the City . For purposes of this Agreement, completion of the Project shall occur when the Developer provides proof that the LOMR in Section 8 above has been properly requested through FEMA, including the payment of any fees required by FEMA, the Developer has provided a one-year warranty bond for the Project and all other public improvements shown in the Plans, and the City Engineer has issued an acceptance letter for the Project and all other public improvements shown in the Plans. The inspection and acceptance shall be in accordance with § 8.705 of the Round Rock Code of Ordinances and the warranty bond shall be in accordance with § 8.706 of the Round Rock Code of Ordinances. Upon completion of the Project, and within thirty (30) calendar days of receipt by the City of the Developer's written request for payment, the City shall pay to the Developer the 95% payment referred to above. Within thirty (30) calendar days of receipt by the City of the LOMR and the Developer's written request for payment, the City shall pay to the Developer the remaining 5% owed. 10. As additional consideration to the Developer to undertake the obligations set forth herein, the City hereby waives any obligation on the part of the Developer to pay any inspection fees provided for in § 8.116 of the Round Rock Code of Ordinances associated with the construction of 2 the Project. Inspection fees shall be paid by the Developer for any public improvements shown in the Plans that are not a part of the Project. 11. The maximum amount of reimbursement to the Developer by the City shall be thirty percent (30%) of the Project cost. 12. This Agreement is being executed and delivered, and is to be performed, under the laws of the State of Texas which shall govern the validity, construction, enforcement and interpretation of this Agreement, unless otherwise specified herein. 13. In the event that judicial action is necessary for the interpretation or enforcement of any of the covenants or conditions contained herein, the City and the Developer agree and consent to the jurisdiction of the District Courts and County Courts at Law of Williamson County, Texas, and of the United States District Court for the Western District of Texas (Austin Division), and acknowledge that such courts shall constitute proper and convenient forums for the resolution of any actions between the City and the Developer with respect to the subject matter hereof, and agree that such courts shall be the exclusive forums for the resolution of any actions between the City and the Developer with respect to the subject matter hereof. 14. If any provision in this Agreement is held to be illegal, invalid or unenforceable under present or future laws, other provisions shall not be affected by the illegal, invalid or unenforceable provision or by its severance from this Agreement. Furthermore, in lieu of such illegal, invalid or unenforceable provision, a provision as similar in terms to such illegal, invalid or unenforceable provision as may be possible and be legal, valid and enforceable shall govern. 15. This Agreement sets forth the entire understanding and agreement of the parties. All other oral agreements by the parties hereto are hereby merged into this Agreement, which shall not be amended or altered except by a written document signed by the parties hereto. This Agreement is separate and distinguishable from and shall not constitute an amendment of, or modification to any other Agreement between the parties. 16. If any action at law or in equity, including an action for declaratory relief, is brought to enforce or interpret any provision of this Agreement, the prevailing party shall be entitled to recover reasonable attorney's fees, costs of court and reasonable costs incurred to maintain such action, from the other party, which fees may be set by the Court in the trial of such an action or may be enforced in a separate action brought for that purpose, and which fees shall be in addition to any other relief which may be awarded. 17. This Agreement shall inure only to the benefit of the parties hereto. No other person or entity shall be considered as a beneficiary of this Agreement. The City shall have the right to terminate this Agreement and the City shall have no further obligation to reimburse Developer if the Developer either (i) fails to commence construction of the Project within twelve months of the effective date hereof, or (ii) fails to complete the Project within eighteen months of the effective date hereof. 18. Notices provided for hereunder shall be directed as follows: 3 (a) Notices to the City shall be directed to: City Manager City of Round Rock 221 East Main Street Round Rock, TX 78664 With a photocopy to: Chief of Public Works Operations City of Round Rock 2008 Enterprise Drive Round Rock, TX 78664 (b) Notices to the Developer shall be directed to: Canteberry Development, Ltd. PO Box 28398 Austin, TX 78755 19. This Agreement shall be effective upon proper execution by all parties hereto. DEVELOPER: Canteberry Development, Ltd. By: G5T Management, LLC, By: J. Kelly Dated: — , 200 nager CITY OF RO D ROCK, By: yl Dated: Christine Martinez, City Secretary Dev Participate Cont-Canteberry-EagleRidge 8-30-06 (00103969).doc/dh/Ik 4 axw , or 2006 EXHIBIT A PROPERTY DESCRIPTION 5 EXHIBIT B DESCRIPTION OF PROJECT 6 Drainage Basin (The Property) Approx. 675 Acres Approx. 531 Acres of the Property outside of the Eagle Ridge Development Eagle Ridge Area within the Property Approx. 144 Acres Proposed Approx. 150' Storm Sewer Extension (The Project) Proposed Channel (The Project) EXHIBIT A to Accompany Developer Participation Agreement for Public Drainage Channel Improvements Associated with the Eagle Ridge Subdivision Development \ _may \\\\ y _, \ \ \ \ \ /-- 'y \ \ �'\ %'" \ ` � kyr--'��� '\ r-'\\ � \ '\ -,"'S,\ \ \y ..--'• \ '�, �•-A --\\---rk Y� '-N , t `� � ..\-,'� 4 y. -`� r \ T \ \ \ `\ ,_.. - , '`, _ "� ,,,— " \ \ y \ \ \ \ k.\--",,,/ \ •\ \ \ ,,,c,--\-c--•\\ \ y; >, —_ \ ;1.- 1 t\ jS C'\\1\ �'• `\ jay" 1. /.' /i\ ',A, __\ � � , /- t - — - 72.\`\. C -1 ,'"" _- r.. y N --. ,�' Eagle Ridge Area -/\ K A__, \. �- \--- �.,.,'-• ' '�\\ \C--,� ,, ` - ( i••-----,� -../ \ti '---(� ; -,, --- -C Approx. 150' 42" Storm Sewer Extension (The Project) ice. " .,_•---'. r; \/ , c ;- , C;l �� ;a �_ 1 ,\ / y / \ i__ Proposed Drainage Channel (The Project) ..'-"- 1\ %\ \ \ \ .%' \, ,\ \ \ '�` \ ...\"""���\:,‘„,,,---_,.../,,,,.�- // N EXHIBIT B to Accompany Developer Participation Agreement for Public Drainage Channel Improvements Associated with the Eagle Ridge Subdivision Development ROUND , TEXAS PURPOSE ,,,,R,