R-07-09-13-11B1 - 9/13/2007 RESOLUTION NO. R-07-09-13-11 B 1
WHEREAS, the City of Round Rock ( "City" ) desires to enter into
an agreement with Colonial Realty Limited Partnership, ( "Developer" ) ,
to participate in the construction of a trail north of Lake Creek on
A.W. Grimes Boulevard associated with the Colonial Grand at Ashton Oaks
proposed multifamily 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 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.
0:\wdox\RESOLUTI\R70913B1.WPD/Tmc
RESOLVED this 13th day of September, 2007 .
NY W LL, Mayor
Cit of Round Rock, Texas
ATE T:
CHRISTINE R. MARTINEZ, City Secr tary
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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 Colonial Realty Limited Partnership,
(the "Developer") desire to enter into this Developer Participation Agreement ("Agreement") for
certain public improvements associated with the Colonial Grand at Ashton Oaks proposed
multifamily development; and
WHEREAS, Vernon's Texas Codes Annotated, Local Government Code, Subchapter C,
§212.071 et. seq. authorizes municipalities with a population of 4,000 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 concrete trail
to serve approximately 33.92 acres along the A. W. Grimes Boulevard between Lake Creek and
Union Pacific Railroad(hereinafter referred to as the"Property"), as shown on Exhibit A, attached
hereto and made a part of this Agreement for all purposes(hereinafter referred to as the"Project").
2. The Project will involve the construction of an approximately 8-foot wide City-
approved concrete trail, approximately 3,100 linear feet along the length of the south property line
along Lake Creek as described in Exhibit B, attached hereto and made a part of this Agreement for
all purposes.The Project includes all necessary demolition and ancillary items to properly construct
the trail The Developer shall propose a trail pavement section based on geotechnical
recommendations for the City's approval.
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. The Plans shall include certain public
improvements which are not part of the Project,namely, approximately one thousand five hundred
linear feet of twenty to twenty-six foot wide asphalt road from the existing park building to the
western property line of Colonial Grand at Ashton Oaks along the south right-of-way of the railroad,
as required by the City fire department. The Plans shall also include certain other public
improvements which are not part of the Project, namely approximately one thousand five hundred
linear feet(1,500)of eight-inch waterline extending from the existing park to the western Property
line along the proposed roadway alignment with two (2) two-inch irrigation service stubs for the
City's use, and including appropriate filling and grading of the area along the extension, subject to
review and acceptance of the City. Other than the aforementioned public improvements, and all
necessary demolition and ancillary items to properly construct said improvements, the Plans shall
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contain no other public improvements. 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, nor shall the date of signature by the City on the Plans be earlier than six (6) months
prior to the date construction resumes, if construction ceases for a continuous period of one (1)
month or longer.
4. Construction plans for the Project 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. 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 to ensure completion of the Project. 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.
6. 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 dedicated 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.
7. 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.
8. Prior to construction of any public 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 Project and all
other public improvements shown in the Plans. The Developer shall insure that the City and its
agents have the right to enter upon the construction site of the Project and all other public
improvements shown in the Plans, for any purpose.Upon completion of the Project and acceptance
thereof by the City,the City shall pay to the Developer a single lump sum payment in the amount of
$89,000.00 or thirty percent(30%)of the total contract price for construction of all items related to
the Project, whichever amount is less. For purposes of this Agreement, completion of the Project
shall occur when FEMA has issued a LOMR associated with the Project,the Developer has provided
a one-year warranty bond for the Project and all other public improvements shown in the Plans,and
the City's 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 §
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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. After the completion date of the Project, the
Developer shall submit a written request to the City for payment of the lump sum referred to above.
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 lump sum payment
referred to above.
9. 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
the Project or other public improvements shown in the Plans.
10. The maximum amount of reimbursement to the Developer by the City shall be
$52,500.00 or thirty percent (30%) of the Project cost, whichever amount is less.
11. 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.
12. 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.
13. 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.
14. 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.
15. 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
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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.
16. 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.
17. If the Developer commences construction of the Project, but fails to achieve
completion of the Project as described in Section 8 above within one year after the effective date
hereof, the City may utilize the bond provided for in Section 5 above:
a) to complete the Project and any other public improvements shown in the
Plans and/or,
b) to restore or stabilize the construction area.
If the Developer fails to commence construction ofthe Project within months after the effective
date of hereof, the City shall have the right to terminate this Agreement and the City shall have no
further obligation to reimburse Developer.
18. Notices provided for hereunder shall be directed as follows:
(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:
Kimley-Horn and Associates, Inc.
Building I, Suite 300
10415 Morado Circle
Austin, TX 78759
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19. This Agreement shall be effective upon proper execution by all parties hereto.
DEVELOPER:
Colonial realty Limited Partnership
a Delaware Limited Partnership
By: Colonial Properties Trust
an Alabama real estate trust
General Partner
By:
Edward T. Wright
Senior Vice President
Dated: ' 2007
CITY OF ROUND ROCK, TEXAS
By.
Nyle Maxwell, Mayor
Dated: 2007
ATTEST:
Christine Martinez, City Secretary
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DATE: September 6, 2007
SUBJECT: City Council Meeting - September 13, 2007
ITEM: 1181. Consider a resolution authorizing the Mayor to execute a Developer
Participation Agreement for the Lake Creek Trail Project.
Department: Parks and Recreation
Staff Person: Rick Atkins, Parks and Recreation Director
David Buzzell, Park Development Manager
Justification:
Colonial Properties Trust is building a multi-family development, Colonial Grand at Ashton
Oaks, north of Lake Creek on A.W. Grimes Blvd. The City will grant Colonial a waterline and
fire access easement through Lake Creek Park and in turn Colonial will build approximately
3,000 feet of the Lake Creek Trail. The City is participating in the construction of this trail
by paying 30% of the total construction cost ($175,000) or $52,500. This development
agreement saves the City $122,500 in construction cost that we would have incurred in the
construction of this important segment of trail.
Funding: $250,000.00
Cost: $52,500.00
Source of funds: 2001 GO Bonds - Citywide Trail System
Outside Resources: Colonial Properties Trust
Background Information: N/A
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 Colonial Realty Limited Partnership
(the"Developer")desire to enter into this Developer Participation Agreement("Agreement")for the
construction of a concrete trail associated with the Colonial Grand at Ashton Oaks proposed
multifamily development; and
WHEREAS, Vernons 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 the cost of such public improvements;
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 concrete trail
(the"Project") to serve a 33.92 acre multifamily development along the A. W. Grimes Boulevard
between Lake Creek and Union Pacific Railroad and related public improvements, 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 8-foot wide concrete
trail,approximately 3,100 linear feet along the length of the south property line along Lake Creek as
described in Exhibit A. The Project includes all necessary grading and ancillary items to properly
construct the concrete trail and related improvements.
3. The Developer shall prepare and submit all construction plans and specifications(the
"Plans") for the Project to the City for review and approval prior to execution of a contract for the
construction of the Project.
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 approval 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.
6. 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 ensure that the City and its agents have the
000a0000000
11131 1
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 total contract price, which includes the fees for design, original
contract price plus any approved change orders for construction of the Project. For purposes of this
Agreement, completion of the Project shall occur when the trail is open for use by the public, the
Developer has provided a one-year warranty bond for the Project and all other public improvements
shown in the Plans, and the City's Park Development Manager 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 payment referred to above.
7. The maximum amount of reimbursement to the Developer by the City shall be thirty
percent (30%) of the Project cost, or Fifty-Two Thousand and No/100 Dollars ($52,000.00),
whichever is less.
8. 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.
9. 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 Developers 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 Developers 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
Developers with respect to the subject matter hereof.
10. 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.
11. 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.
12. 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
00000000000
2
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.
13. 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.
14. 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 six(6)months of the effective date hereof,or(ii)fails to complete the Project
within twelve(12)months of the effective date hereof.
15. Notices provided for hereunder shall be directed as follows:
(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:
Edward T. Wright
Senior Vice President
Colonial Properties Trust
2101 6`h Avenue North, Suite 750
Birmingham, AL 35203
16. This Agreement shall be effective upon proper execution by all parties hereto.
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DEVELOPER:
Colonial Realty Limited Partnership
a Delaware Limited Partnership
By: Colonial Properties Trust
an Alabama real estate trust
General Partner
By:. a�� —
Edward T. Wrig t
Senior Vice President
Dated: 0 7 n , 2007
CITY OF UND O T
By:
Ny axwe/ , ayor
Dated: 2007
FO C TY,AP RO D AS TO FORM
Steph . Sheets, City Attorney
TTEST:
Christine Martinez, City ecretary
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EXHIBIT
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COLONIAL GRAND AT
"A" ASHTON OAKS