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HomeMy WebLinkAboutItem 10 - Northwest Area UtilityioNONNOMMMONft MEMO TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: ROGER NELSON, CITY MANAGER MEETING DATE: APRIL 17, 2001 SUBJECT: NORTHWEST AREA UTILITY DEVELOPER CONTRACTS RECOMMENDATION: City Council consider approving Developer Contracts with four property owners in the Northwest Area of Grapevine for the construction of a water and wastewater system to serve the area, including Meadowmere Park, authorize the City Manager to execute said contracts, and take any necessary action. FUNDING SOURCE: Funds are available as follows: Funding_Source Account Amount Percent Private Development 9.3% $ 603,611.23 55.8% 97 Utility Bond Int 200-48930-534-3-000001 $ 415,481.52 38.4% Water Impact Fees 200-48930-534-6-000003 $ 63.436.00 5.8% TOTAL $1,082,528.75 100.0% Budget Amount Percent Design $ 100,366.25 9.3% GeoTech $ 6,000.00 .6% EA $ 40,000.00 3.7% Construction $ 814,054.35 75.2% Contingency $ 122.108.15 11.2° TOTAL BACKGROUND: $1,082,528.75 100.0% The City Staff has developed a proposed water and wastewater plan to serve the Northwest area of the City. This system will serve the two planned residential developments, the Ranch of Lonesome Dove, and the proposed golf course, as well as future development plans for Meadowmere Park. April 10, 2001 (3:01 PM) Staff is actively pursuing the design and construction of this project to make sure that the impending development of Cannon Homestead can be served by the time homes are completed. The Four Peaks development will likely follow closely on the heels of the Cannon Homestead development. These two developments cannot be completed until adequate water and wastewater facilities are available to serve them. The system includes: • a wastewater lift station located near Foxfire Lane, • a force main extending from the new lift station to the existing lift station at Kimball Road and Meadowmere Park Road # 4, and • a 12" and 8" water line to complete the water loop of the 8" line constructed in the mid 90's with CDBG funds. The cost distribution has been based upon projected water usage and wastewater generation from each of the four prospective developments and from the City's future development of Meadowmere Park. The project will be designed and constructed as a City project. A small portion of the planned cost of the proposed water system is included in the City's current 10 year Capital Improvements Plan and Water Impact Fee. The Water Impact Fees reflect an amount of $ 63,436.00 applicable to the current 10 year plan. These Water Impact Fees will be utilized in the funding of the construction of this project. Staff recommends approval. JLHJjsl 0:\agenda\04-17-01\NW Area_DevContract April 6, 2001 (3:26PM) STATE OF TEXAS § COUNTY OF TARRANT § DEVELOPER'S CONTRACT CITY OF GRAPEVINE § WHEREAS, We, Cannon Homestead Partnership, a partnership authorized to do business in the State of Texas, hereinafter referred to as "Developer', is the owner of a tract of land in the City of Grapevine, Tarrant County, Texas, a Texas home -rule City, hereinafter referred to as "City", which tract of land ("Subject Property") is located in the Northwest Grapevine Annexed Area shown in exhibit "A", which is attached hereto and incorporated herein for all purposes; and WHEREAS, Development of Subject Property in combination with surrounding properties, including Meadowmere Park, generates a demand for water and wastewater capacity which necessitates the improvements to the water and wastewater system in the Northwest Annexed Area of Grapevine; and WHEREAS, the construction of the Northwest Annexed Area Water and Wastewater Improvements ("the Project"), shall be undertaken by the "Developer" and the "City" with a cost share distribution based upon respective demands upon the system; and WHEREAS, the design and construction of the water and wastewater improvements shall be undertaken by the City; and WHEREAS, for the purposes of this Developer Contract, the City and the Developer agree that the "Total Cost" shall be defined as the final construction cost of the Project including: Engineering, Construction Phase Services, Construction, Material Testing, and ten percent (10%) contingencies; and WHEREAS, the Developer and City agree that the estimated Total Cost for the project is $ 1,019,092.75, and WHEREAS, the City agrees that its participation in the cost of the water and wastewater facilities shall be $ 335,856.18; and WHEREAS, the Developer agrees that its participation in the cost of the water and wastewater facilities shall be $ 198,732.82; and WHEREAS, the Developer agrees that the contracting for the construction of said project shall be by the City of Grapevine in compliance with State of Texas competitive bidding procedures required of Cities throughout the State; and 0:\contract\nw—annex —utilities —makus WHEREAS, the Developer and City agree the contract for the construction of the Project shall be exclusively between the City and the contractor and that the Developer vµ shall have no contractual relationship with the contractor within the scope of the City's contract for the construction of the Project, and WHEREAS, the Developer agrees that opening of the sealed bids for the construction of the Project shall be the responsibility of and conducted by City Officials; and WHEREAS, the Developer agrees that the construction contractor shall be required to provide a performance, payment and maintenance bonds. Said performance and payment bonds shall be issued by an approved surety company holding a permit from the State of Texas to act as surety (and acceptable according to the latest list of companies holding certificates of authority from the Secretary of the Treasury of the United States), shall be issued in the name of the City, and shall be issued in the full amount of the cost to construct said roadway; and Said maintenance bond shall be issued by a an approved surety company holding a permit from the State of Texas to act as surety (and acceptable according to the latest list of companies holding certificates of authority from the Secretary of the Treasury of the United States), shall be issued in the name of the City of Grapevine, shall be issued in an amount of twenty-five percent (25%) of the total construction cost of said roadway, and shall extend for a period of two years from the date of acceptance of said roadway improvements by the City; and WHEREAS, the City shall have the right, at its sole discretion to approve and execute any and all reasonable and necessary Change Orders to the construction contract that it deems appropriate and necessary for the completion of the Project; and WHEREAS, the Developer agrees to deposit with the City by certified check its proportionate share of the Total Cost, established in this Developer Contract, upon the execution of this Developer Contract by the Developer, and prior to the City entering into the construction contract for the Project; and WHEREAS, if the final construction cost for the Project exceeds the projected construction cost, the Developer agrees to increase its initial participation by their proportionate share of the amount the construction cost exceeds the projected cost by depositing with the City its proportionate share of the increased cost within ten (10) days of receipt of a detailed invoice from the City; and WHEREAS, if the actual Total Cost for the Project at completion is less than the Projected Total Cost, City agrees to refund the Developer its proportionate share of the balance of the surplus "including unspent contingencies', to the Developer with accrued interest based upon the City's average rate of return for investments within thirty (30) days of a final determination of the Total Cost and final acceptance of the Project by the City; and O:\contract\nw_an nex_uti I ities_makus NOW, THEREFORE, the parties to this Contract, the City and the Developer, do enter into this Developer's Contract, for good and valuable consideration, the receipt and sufficiency of such consideration being hereby acknowledged, and in the mutual promises and mutual benefits that flow to each party, do hereby contract, covenant, warrant, and agree as follows: Section 1. That all matters stated in the preamble above are found to be true and correct and are incorporated into the body of this Developers Contract as if copied verbatim in their entirety. Section 2. That the City hereby agrees to construct a water and wastewater improvements as herein described to provide adequate water and wastewater capacity to serve the proposed development of Subject Property. The water and wastewater improvements shall comply with City ordinances. Section 3. That the Developer and City agree to construct the Project and to share in the Total Cost of the Project, as established in this Developer Contract. The Developer shall deposit with the City by certified check their proportionate share of the Total Cost of the Project, established in this Developer Contract, upon the execution of this Developer Contract by the Developer, and prior to the City entering into the construction contract for the Project. Section 4. Approval of Plans The Developers and City agree that approval of plans and specifications by the City shall not be construed as representing or implying that improvements built in accordance therewith shall be free of defects. Any such approvals shall in no event be construed as representing or guaranteeing that any improvement built in accordance therewith will be designed or built in a good and workmanlike manner. Neither the City nor its elected officials, officers, employees, contractors and/or agents shall be responsible or liable in damages or otherwise to anyone submitting plans and specifications for approval by the City for any defects in any plans or specifications submitted, revised, or approved, in the loss or damages to any person arising out of approval or disapproval or failure to approve or disapprove any plans or specifications, for any loss or damage arising from the non-compliance of such plans or specifications with any governmental ordinance or regulation, nor any defects in construction undertaken pursuant to such plans and specifications. Section 5. Indemnity Provisions. The Developer shall waive all claims, fully release, indemnify, defend and hold harmless the City and all of its officials, officers, agents, consultants, employees and invitees in both their public and private capacities, from any and all liability, claims, suits, demands or causes of action, including all expenses of litigation and / or settlement which may arise by injury to property or person occasioned by error, omission, intentional or negligent act of Developer, its officers, agents, consultants, employees, invitees, or other person, arising out of or in connection with this Contract, or on or about the property, and 0:\contract\nw—annex —utilities —makus M Developer will, at its own cost and expense, defend and protect the City and all of its officials, officers, agents, consultants, employees and invitees in both their public and private capacities, from any and all such claims and demands. Also, Developer agrees to and shall indemnify, defend and hold harmless the City and all of its officials, officers, agents, consultants, employees and invitees in both their public and private capacities, from and against any and all claims, losses, damages, causes of action, suit and liability of every kind, including all expenses of litigation, court costs and attorneys' fees for injury to or death of any person or for any damage to any property arising out of or in connection with this Contract or any all activity or use pursuant to the Contract, or on or about the property. This indemnity shall apply whether the claims, suites, losses, damages, causes of action or liability arise in whole or in part from the intentional acts or negligence of develop or any of its officers, officials, agents, consultants employees or invitees, whether said negligence is contractual, comparative negligence, concurrent negligence, gross negligence or any other form of negligence. The City shall be responsible only for the City's sole negligence. Provided, however, that nothing contained in this Agreement shall waive the City's defenses or immunities under Section 101.001 et seq. of the Texas Civil Practice and Remedies Code or other applicable statutory or common law. Section 6. Indemnity Against Design Defects. Approval of the City Engineer or other City employee, official, consultant, employee, or officer of any plans, designs or specifications submitted by the Developer under this Contract shall not constitute or be deemed to be a release of the responsibility and liability of the Developer, its engineer, contractors, employees, officers, or agents for the accuracy and competency of their design and specifications. Such approval shall not be deemed to be an assumption of such responsibility or liability by the City for any defect in the design and specifications prepared by the consulting engineer, his officers, agents, servants, or employees, it being the intent of the parties that approval by the City Engineer or other City employee, official, consultant, or officer signifies the City's approval of only the general design concept of the improvements to be constructed. In this connection, the Developer shall indemnify and hold harmless the City, its officials, officers, agents, servants and employees, from any loss, damage, liability or expense on account of damage to property and injuries, including death, to any and all persons which may arise out of any defect, deficiency or negligence of the engineer's designs and specifications incorporated into any improvements constructed in accordance therewith, and the Developer shall defend at his own expense any suits or other proceedings brought against the City, its officials, officers, agents, servants or employees, or any of them, on account thereof, to pay all expenses and satisfy all judgements which may be incurred by or rendered against them, collectively or individually, personally or in their official capacity, in connection herewith. Section 7. No further certificates of occupancy shall be issued for Subject Property until the Developer has provided its share of the funds for the Project. O:\contract\nw annex utilities makus 4 Section 8. Upon completion of the construction of the Project, the Project and all appurtenances thereto shall become the property of the City. Section 9. This Contract shall not be assignable without the express written consent of City and Developer. Executed this Day of _, 2001. Kosse Maykus APPROVED: CITY OF GRAPEVINE, TEXAS City Attorney Roger Nelson, City Manager STATE OF 14161111! 1 rael a Before me, a notary public, on this day personally appeared , known to me to be the person whose name is subscribed to the foregoing document and acknowledged to me that he executed the same for the purposes and consideration therein expressed. 2001. Given under my hand and seal of office this day of I Notary Public Signature Notary Public Printed or Typed Name My commission expires: A 0:\contract\nw—annex —utilities —makus STATE OF COUNTY OF Before me, a notary public, on this day personally appeared known to me to be the person whose name is subscribed to the foregoing document and acknowledged to me that he executed the same for the purposes and consideration therein expressed. Q14 Given under my hand and seal of office this day of Notary Public Signature Notary Public Printed or Typed Name My commission expires: O:\contract\nw annex utilities makus STATE OF TEXAS § COUNTY OF TARRANT § DEVELOPER'S CONTRACT CITY OF GRAPEVINE § WHEREAS, We, Lonesome Dove Joint Venture, a partnership authorized to do business in the State of Texas, hereinafter referred to as "Developer', is the owner of a tract of land in the City of Grapevine, Tarrant County, Texas, a Texas home -rule City, hereinafter referred to as "City", which tract of land ("Subject Property") is located in the Northwest Grapevine Annexed Area shown in exhibit "A", which is attached hereto and incorporated herein for all purposes; and WHEREAS, Development of Subject Property in combination with surrounding properties, including Meadowmere Park, generates a demand for water and wastewater capacity which necessitates the improvements to the water and wastewater system in the Northwest Annexed Area of Grapevine; and WHEREAS, the construction of the Northwest Annexed Area Water and Wastewater Improvements ("the Project"), shall be undertaken by the "Developer" and the "City" with a cost share distribution based upon respective demands upon the system; and WHEREAS, the design and construction of the water and wastewater improvements shall be undertaken by the City; and WHEREAS, for the purposes of this Developer Contract, the City and the Developer agree that the "Total Cost" shall be defined as the final construction cost of the Project including: Engineering, Construction Phase Services, Construction, Material Testing, and ten percent (10%) contingencies; and WHEREAS, the Developer and City agree that the estimated Total Cost for the project is $ 1,019,092.75, and WHEREAS, the City agrees that its participation in the cost of the water and wastewater facilities shall be $ 335,856.18; and WHEREAS, the Developer agrees that its participation in the cost of the water and wastewater facilities shall be $ 19,624.38; and WHEREAS, the Developer agrees that the contracting for the construction of said project shall be by the City of Grapevine in compliance with State of Texas competitive bidding procedures required of Cities throughout the State; and 0:\contract\nw—annes_utilities_parker WHEREAS, the Developer and City agree the contract for the construction of the Project shall be exclusively between the City and the contractor and that the Developer shall have no contractual relationship with the contractor within the scope of the City's contract for the construction of the Project, and WHEREAS, the Developer agrees that opening of the sealed bids for the construction of the Project shall be the responsibility of and conducted by City Officials; and WHEREAS, the Developer agrees that the construction contractor shall be required to provide a performance, payment and maintenance bonds. Said performance and payment bonds shall be issued by an approved surety company holding a permit from the State of Texas to act as surety (and acceptable according to the latest list of companies holding certificates of authority from the Secretary of the Treasury of the United States), shall be issued in the name of the City, and shall be issued in the full amount of the cost to construct said roadway; and Said maintenance bond shall be issued by a an approved surety company holding a permit from the State of Texas to act as surety (and acceptable according to the latest list of companies holding certificates of authority from the Secretary of the Treasury of the United States), shall be issued in the name of the City of Grapevine, shall be issued in an amount of twenty-five percent (25%) of the total construction cost of said roadway, and shall extend for a period of two years from the date of acceptance of said roadway improvements by the City; and WHEREAS, the City shall have the right, at its sole discretion to approve and execute any and all reasonable and necessary Change Orders to the construction contract that it deems appropriate and necessary for the completion of the Project; and WHEREAS, the Developer agrees to deposit with the City by certified check its proportionate share of the Total Cost, established in this Developer Contract, upon the execution of this Developer Contract by the Developer, and prior to the City entering into the construction contract for the Project; and WHEREAS, if the final construction cost for the Project exceeds the projected construction cost, the Developer agrees to increase its initial participation by their proportionate share of the amount the construction cost exceeds the projected cost by depositing with the City its proportionate share of the increased cost within ten (10) days of receipt of a detailed invoice from the City; and WHEREAS, if the actual Total Cost for the Project at completion is less than the Projected Total Cost, City agrees to refund the Developer its proportionate share of the balance of the surplus to the Developer with accrued interest based upon the City's average rate of return for investments within thirty (30) days of a final determination of the Total Cost and final acceptance of the Project by the City; and O:\contract\nw_an nes_utilities_parker E NOW, THEREFORE, the parties to this Contract, the City and the Developer, do enter into this Developers Contract, for good and valuable consideration, the receipt and sufficiency of such consideration being hereby acknowledged, and in the mutual promises and mutual benefits that flow to each party, do hereby contract, covenant, warrant, and agree as follows: Section 1. That all matters stated in the preamble above are found to be true and correct and are incorporated into the body of this Developer's Contract as if copied verbatim in their entirety. Section 2. That the City hereby agrees to construct a water and wastewater improvements as herein described to provide adequate water and wastewater capacity to serve the proposed development of Subject Property. The water and wastewater improvements shall comply with City ordinances. Section 3. That the Developer and City agree to construct the Project and to share in the Total Cost of the Project, as established in this Developer Contract. The Developer shall deposit with the City by certified check their proportionate share of the Total Cost of the Project, established in this Developer Contract, upon the execution of this Developer Contract by the Developer, and prior to the City entering into the construction contract for the Project. Section 4. Approval of Plans The Developers and City agree that approval of plans and specifications by the City shall not be construed as representing or implying that improvements built in accordance therewith shall be free of defects. Any such approvals shall in no event be construed as representing or guaranteeing that any improvement built in accordance therewith will be designed or built in a good and workmanlike manner. Neither the City nor its elected officials, officers, employees, contractors and/or agents shall be responsible or liable in damages or otherwise to anyone submitting plans and specifications for approval by the City for any defects in any plans or specifications submitted, revised, or approved, in the loss or damages to any person arising out of approval or disapproval or failure to approve or disapprove any plans or specifications, for any loss or damage arising from the non-compliance of such plans or specifications with any governmental ordinance or regulation, nor any defects in construction undertaken pursuant to such plans and specifications. Section 5. Indemnity Provisions. The Developer shall waive all claims, fully release, indemnify, defend and hold harmless the City and all of its officials, officers, agents, consultants, employees and invitees in both their public and private capacities, from any and all liability, claims, suits, demands or causes of action, including all expenses of litigation and / or settlement which may arise by injury to property or person occasioned by error, omission, intentional or negligent act of Developer, its officers, agents, consultants, employees, invitees, or other person, arising out of or in connection with this Contract, or on or about the property, and Developer will, at its own cost and expense, defend and protect the City and all of its OAcontract\nw—annes—Utilities parker 3 officials, officers, agents, consultants, employees and invitees in both their public and private capacities, from any and all such claims and demands. Also, Developer agrees to and shall indemnify, defend and hold harmless the City and all of its officials, officers, agents, consultants, employees and invitees in both their public and private capacities, from and against any and all claims, losses, damages, causes of action, suit and liability of every kind, including all expenses of litigation, court costs and attorneys' fees for injury to or death of any person or for any damage to any property arising out of or in connection with this Contract or any all activity or use pursuant to the Contract, or on or about the property. This indemnity shall apply whether the claims, suites, losses, damages, causes of action or liability arise in whole or in part from the intentional acts or negligence of develop or any of its officers, officials, agents, consultants employees or invitees, whether said negligence is contractual, comparative negligence, concurrent negligence, gross negligence or any other form of negligence. The City shall be responsible only for the City's sole negligence. Provided, however, that nothing contained in this Agreement shall waive the City's defenses or immunities under Section 101.001 et seq. of the Texas Civil Practice and Remedies Code or other applicable statutory or common law. Section 6. Indemnity Against Design Defects. Approval of the City Engineer or other City employee, official, consultant, employee, or officer of any plans, designs or specifications submitted by the Developer under this Contract shall not constitute or be deemed to be a release of the responsibility and liability of the Developer, its engineer, contractors, employees, officers, or agents for the accuracy and competency of their design and specifications. Such approval shall not be deemed to be an assumption of such responsibility or liability by the City for any defect in the design and specifications prepared by the consulting engineer, his officers, agents, servants, or employees, it being the intent of'the parties that approval by the City Engineer or other City employee, official, consultant, or officer signifies the City's approval of only the general design concept of the improvements to be constructed. In this connection, the Developer shall indemnify and hold harmless the City, its officials, officers, agents, servants and employees, from any loss, damage, liability or expense on account of damage to property and injuries, including death, to any and all persons which may arise out of any defect, deficiency or negligence of the engineer's designs and specifications incorporated into any improvements constructed in accordance therewith, and the Developer shall defend at his own expense any suits or other proceedings brought against the City, its officials, officers, agents, servants or employees, or any of them, on account thereof, to pay all expenses and satisfy all judgements which may be incurred by or rendered against them, collectively or individually, personally or in their official capacity, in connection herewith. Section 7. No further certificates of occupancy shall be issued for Subject Property until the Developer has provided its share of the funds for the Project. Section 8. Upon completion of the construction of the Project, the Project and all appurtenances thereto shall become the property of the City. OAcontracAnw_annes_utilities Darker 4 Section 9. This Contract shall not be assignable without the express written consent of City and Developer. Executed this. Day of _, 2001. Phil Parker City Attorney STATE OF COUNTY OF CITY OF GRAPEVINE, TEXAS Roger Nelson, City Manager Before me, a notary public, on this day personally appeared , known to me to be the person whose name is subscribed to the foregoing document and acknowledged to me that he executed the same for the purposes and consideration therein expressed. 2001. Given under my hand and seal of office this day of Notary Public Signature Notary Public Printed or Typed Name My commission expires: 61 0:\contract\nw—annes_utilities_parker STATE OF COUNTY OF Before me, a notary public, on this day personally appeared , known to me to be the person whose name is subscribed to the foregoing document and acknowledged to me that he executed the same for the purposes and consideration therein expressed. 2001. Given under my hand and seal of office this day of Notary Public Signature Notary Public Printed or Typed Name My commission expires: H. OAcontracAnw—annes—utilities parker STATE OF TEXAS § COUNTY OF TARRANT § DEVELOPER'S CONTRACT CITY OF GRAPEVINE § WHEREAS, We, Four Peaks Development Corporation, a corporation authorized to do business in the State of Texas, hereinafter referred to as "Developer', is the owner of a tract of land in the City of Grapevine, Tarrant County, Texas, a Texas home -rule City, hereinafter referred to as "City", which tract of land ("Subject Property") is located in the Northwest Grapevine Annexed Area shown in exhibit "A", which is attached hereto and incorporated herein for all purposes; and WHEREAS, Development of Subject Property in combination with surrounding properties, including Meadowmere Park, generates a demand for water and wastewater capacity which necessitates the improvements to the water and wastewater system in the Northwest Annexed Area of Grapevine; and WHEREAS, the construction of the Northwest Annexed Area Water and Wastewater Improvements ("the Project"), shall be undertaken by the "Developer' and the "City" with a cost share distribution based upon respective demands upon the system; and WHEREAS, the Developer has requested that certain water and wastewater lines solely for the purpose of serving his planned development be included in the scope of the Project, and WHEREAS, the Developer acknowledges sole responsibility for the cost of the certain wastewater lines, estimated to be $ 57,750; and WHEREAS, the design and construction of the water and wastewater improvements shall be undertaken by the City; and WHEREAS, for the purposes of this Developer Contract, the City and the Developer agree that the "Total Cost" shall be defined as the final construction cost of the Project including: Engineering, Construction Phase Services, Construction, Material Testing, and ten percent (10%) contingencies; and WHEREAS, the Developer and City agree that the estimated Total Cost for the project is $ 1,019,092.75, and WHEREAS, the City agrees that its participation in the cost of the water and wastewater facilities shall be $ 335,856.18; and 0:\contract\nw—annex —utilities —MacMahan WHEREAS, the Developer agrees that its participation in the cost of the water and wastewater facilities shall be $ 376,406.78, including the water and wastewater lines solely for its planned development; and WHEREAS, the Developer agrees that the contracting for the construction of said project shall be by the City of Grapevine in compliance with State of Texas competitive bidding procedures required of Cities throughout the State; and WHEREAS, the Developer and City agree the contract for the construction of the Project shall be exclusively between the City and the contractor and that the Developer shall have no contractual relationship with the contractor within the scope of the City's contract for the construction of the Project, and WHEREAS, the Developer agrees that opening of the sealed bids for the construction of the Project shall be the responsibility of and conducted by City Officials; and WHEREAS, the Developer agrees that the construction contractor shall be required to provide a performance, payment and maintenance bonds. Said performance and payment bonds shall be issued by an approved surety company holding a permit from the State of Texas to act as surety (and acceptable according to the latest list of companies holding certificates of authority from the Secretary of the Treasury of the United States), shall be issued in the name of the City, and shall be issued in the full amount of the cost to construct said roadway; and Said maintenance bond shall be issued by a an approved surety company holding a permit from the State of Texas to act as surety (and acceptable according to the latest list of companies holding certificates of authority from the Secretary of the Treasury of the United States), shall be issued in the name of the City of Grapevine, shall be issued in an amount of twenty-five percent (25%) of the total construction cost of said roadway, and shall extend for a period of two years from the date of acceptance of said roadway improvements by the City; and WHEREAS, the City shall have the right, at its sole discretion to approve and execute any and all reasonable and necessary Change Orders to the construction contract that it deems appropriate and necessary for the completion of the Project; and WHEREAS, the Developer agrees to deposit with the City by certified check its proportionate share of the Total Cost, established in this Developer Contract, upon the execution of this Developer Contract by the Developer, and prior to the City entering into the construction contract for the Project; and WHEREAS, if the final construction cost for the Project exceeds the projected construction cost, the Developer agrees to increase its initial participation by their proportionate share of the amount the construction cost exceeds the projected cost by depositing with the City its proportionate share of the increased cost within ten (10) days O:\contract\nw annex utilities MacMahan of receipt of a detailed invoice from the City; and WHEREAS, if the actual Total Cost for the Project at completion is less than the Projected Total Cost, City agrees to refund the Developer its proportionate share of the balance of the surplus to the Developer with accrued interest based upon the City's average rate of return for investments within thirty (30) days of a final determination of the Total Cost and final acceptance of the Project by the City; and NOW, THEREFORE, the parties to this Contract, the City and the Developer, do enter into this Developer's Contract, for good and valuable consideration, the receipt and sufficiency of such consideration being hereby acknowledged, and in the mutual promises and mutual benefits that flow to each party, do hereby contract, covenant, warrant, and agree as follows: Section 1. That all matters stated in the preamble above are found to be true and correct and are incorporated into the body of this Developer's Contract as if copied verbatim in their entirety. Section 2. That the City hereby agrees to construct a water and wastewater improvements as herein described to provide adequate water and wastewater capacity to serve the proposed development of Subject Property. The water and wastewater improvements shall comply with City ordinances. Section 3. That the Developer and City agree to construct the Project and to share in the Total Cost of the Project, as established in this Developer Contract. The Developer shall deposit with the City by certified check their proportionate share of the Total Cost of the Project, established in this Developer Contract, upon the execution of this Developer Contract by the Developer, and prior to the City entering into the construction contract for the Project. Section 4. Approval of Plans The Developers and City agree that approval of plans and specifications by the City shall not be construed as representing or implying that improvements built in accordance therewith shall be free of defects. Any such approvals shall in no event be construed as representing or guaranteeing that any improvement built in accordance therewith will be designed or built in a good and workmanlike manner. Neither the City nor its elected officials, officers, employees, contractors and/or agents shall be responsible or liable in damages or otherwise to anyone submitting plans and specifications for approval by the City for any defects in any plans or specifications submitted, revised, or approved, in the loss or damages to any person arising out of approval or disapproval or failure to approve or disapprove any plans or specifications, for any loss or damage arising from the non-compliance of such plans or specifications with any governmental ordinance or regulation, nor any defects in construction undertaken pursuant to such plans and specifications. 0:\contract\nw—annex —utilities —MacMahan 3 Section 5. Indemnity Provisions. The Developer shall waive all claims, fully release, indemnify, defend and hold harmless the City and all of its officials, officers, agents, consultants, employees and invitees in both their public and private capacities, from any and all liability, claims, suits, demands or causes of action, including all expenses of litigation and / or settlement which may arise by injury to property or person occasioned by error, omission, intentional or negligent act of Developer, its officers, agents, consultants, employees, invitees, or other person, arising out of or in connection with this Contract, or on or about the property, and Developer will, at its own cost and expense, defend and protect the City and all of its officials, officers, agents, consultants, employees and invitees in both their public and private capacities, from any and all such claims and demands. Also, Developer agrees to and shall indemnify, defend and hold harmless the City and all of its officials, officers, agents, consultants, employees and invitees in both their public and private capacities, from and against any and all claims, losses, damages, causes of action, suit and liability of every kind, including all expenses of litigation, court costs and attorneys' fees for injury to or death of any person or for any damage to any property arising out of or in connection with this Contract or any all activity or use pursuant to the Contract, or on or about the property. This indemnity shall apply whether the claims, suites, losses, damages, causes of action or liability arise in whole or in part from the intentional acts or negligence of develop or any of its officers, officials, agents, consultants employees or invitees, whether said negligence is contractual, comparative negligence, concurrent negligence, gross negligence or any other form of negligence. The City shall be responsible only for the City's sole negligence. Provided, however, that nothing contained in this Agreement shall waive the City's defenses or immunities under Section 101.001 et seq. of the Texas Civil Practice and Remedies Code or other applicable statutory or common law. Section 6. Indemnity Against Design Defects. Approval of the City Engineer or other City employee, official, consultant, employee, or officer of any plans, designs or specifications submitted by the Developer under this Contract shall not constitute or be deemed to be a release of the responsibility and liability of the Developer, its engineer, contractors, employees, officers, or agents for the accuracy and competency of their design and specifications. Such approval shall not be deemed to be an assumption of such responsibility or liability by the City for any defect in the design and specifications prepared by the consulting engineer, his officers, agents, servants, or employees, it being the intent of the parties that approval by the City Engineer or other City employee, official, consultant, or officer signifies the City's approval of only the general design concept of the improvements to be constructed. in this connection, the Developer shall indemnify and hold harmless the City, its officials, officers, agents, servants and employees, from any loss, damage, liability or expense on account of damage to property and injuries, including death, to any and all persons which may arise out of any defect, deficiency or negligence of the engineer's designs and specifications incorporated into any improvements constructed in accordance therewith, and the Developer shall defend at his own expense any suits or other proceedings brought against the City, its officials, officers, agents, servants or O:\contract\nw annex utilities MacMahan 4 employees, or any of them, on account thereof, to pay all expenses and satisfy all judgements which may be incurred by or rendered against them, collectively or individually, personally or in their official capacity, in connection herewith. Section 7. No further certificates of occupancy shall be issued for Subject Property until the Developer has provided its share of the funds for the Project. Section 8. Upon completion of the construction of the Project, the Project and all appurtenances thereto shall become the property of the City. Section 9. This Contract shall not be assignable without the express written consent of City and Developer. Executed this. Day of _, 2001. David MacMahan City Attorney A CITY OF GRAPEVINE, TEXAS Roger Nelson, City Manager 0:\contract\nw—annex —utilities —MacMahan COUNTY OF Before me, a notary public, on this day personally appeared , known to me to be the person whose name is subscribed to the foregoing document and acknowledged to me that he executed the same for the purposes and consideration therein expressed. ZIM Given under my hand and seal of office this day of Notary Public Signature Notary Public Printed or Typed Name My commission expires: STATE OF COUNTY OF Before me, a notary public, on this day personally appeared , known to me to be the person whose name is subscribed to the foregoing document and acknowledged to me that he executed the same for the purposes and consideration therein expressed. Given under my hand and seal of office this day of Notary Public Signature Notary Public Printed or Typed Name My commission expires: 0 O:\contract\nw_an nex_utif ities_MacM ah an STATE OF TEXAS § COUNTY OF TARRANT § DEVELOPER'S CONTRACT CITY OF GRAPEVINE § WHEREAS, We, Ranch of Lonesome Dove, Incorporated, a corporation authorized to do business in the State of Texas, hereinafter referred to as "Developer', is the owner of a tract of land in the City of Grapevine, Tarrant County, Texas, a Texas home -rule City, hereinafter referred to as "City", which tract of land ("Subject Property") is located in the Northwest Grapevine Annexed Area shown in exhibit "A", which is attached hereto and incorporated herein for all purposes; and WHEREAS, Development of Subject Property in combination with surrounding properties, including Meadowmere Park, generates a demand for water and wastewater capacity which necessitates the improvements to the water and wastewater system in the Northwest Annexed Area of Grapevine; and WHEREAS, the construction of the Northwest Annexed Area Water and Wastewater Improvements ("the Project"), shall be undertaken by the "Developer" and the "City" with a cost share distribution based upon respective demands upon the system; and WHEREAS, the design and construction of the water and wastewater improvements shall be undertaken by the City; and WHEREAS, for the purposes of this Developer Contract, the City and the Developer agree that the "Total Cost" shall be defined as the final construction cost of the Project including: Engineering, Construction Phase Services, Construction, Material Testing, and ten percent (10%) contingencies; and WHEREAS, the Developer and City agree that the estimated Total Cost for the project is $ 1,019,092.75, and WHEREAS, the City agrees that its participation in the cost of the water and wastewater facilities shall be $ 335,856.18; and WHEREAS, the Developer agrees that its participation in the cost of the water and wastewater facilities shall be $ 88,472.60; and WHEREAS, the Developer agrees that the contracting for the construction of said project shall be by the City of Grapevine in compliance with State of Texas competitive bidding procedures required of Cities throughout the State; and 0:\contract\nw—annex —utilities —infeldt WHEREAS, the Developer and City agree the contract for the construction of the Project shall be exclusively between the City and the contractor and that the Developer shall have no contractual relationship with the contractor within the scope of the City's contract for the construction of the Project, and WHEREAS, the Developer agrees that opening of the sealed bids for the construction of the Project shall be the responsibility of and conducted by City Officials; and WHEREAS, the Developer agrees that the construction contractor shall be required to provide a performance, payment and maintenance bonds. Said performance and payment bonds shall be issued by an approved surety company holding a permit from the State of Texas to act as surety (and acceptable according to the latest list of companies holding certificates of authority from the Secretary of the Treasury of the United States), shall be issued in the name of the City, and shall be issued in the full amount of the cost to construct said roadway; and Said maintenance bond shall be issued by a an approved surety company holding a permit from the State of Texas to act as surety (and acceptable according to the latest list of companies holding certificates of authority from the Secretary of the Treasury of the United States), shall be issued in the name of the City of Grapevine, shall be issued in an amount of twenty-five percent (25%) of the total construction cost of said roadway, and shall extend for a period of two years from the date of acceptance of said roadway improvements by the City; and WHEREAS, the City shall have the right, at its sole discretion to approve and execute any and all reasonable and necessary Change Orders to the construction contract that it deems appropriate and necessary for the completion of the Project; and WHEREAS, the Developer and the City agree that the Developer shall deposit with the City by certified check 10% of its proportionate share of the Total Cost, established in this Developer Contract, upon the execution of this Developer Contract by the Developer, and prior to the City entering into the construction contract for the Project. WHEREAS, the City agrees to provide the initial funding for the remaining 90% of the Developers participation in this project; and WHEREAS, upon each anniversary of the initial 10% payment to the City for the following five years, the Developer agrees to pay 20% of the initial balance of the Developers cost share funded by the City, including interest established at 5.4 % per annum; and 0:\contract\nw—annex —utilities —infeldt W WHEREAS, the Developer agrees to a voluntary lien being placed against the Subject Property in an amount equal to the 90% of the cost participation of the Developer. Said 90% of the cost participation of the Developer being initially funded by the City, and that said lien shall be paid in full in accordance with the payment schedule described in this document or at the time of development or sale of Subject Property; and WHEREAS, if the final construction cost for the Project exceeds the projected construction cost, the Developer agrees to increase its initial participation by their proportionate share of the amount the construction cost exceeds the projected cost by depositing with the City its proportionate share of the increased cost within ten (10) days of receipt of a detailed invoice from the City; and WHEREAS, if the actual Total Cost for the Project at completion is less than the Projected Total Cost, City agrees to refund the Developer its proportionate share of the balance of the surplus to the Developer with accrued interest based upon the City's average rate of return for investments within thirty (30) days of a final determination of the Total Cost and final acceptance of the Project by the City; and NOW, THEREFORE, the parties to this Contract, the City and the Developer, do enter into this Developer's Contract, for good and valuable consideration, the receipt and sufficiency of such consideration being hereby acknowledged, and in the mutual promises and mutual benefits that flow to each party, do hereby contract, covenant, warrant, and agree as follows: Section 1. That all matters stated in the preamble above are found to be true and correct and are incorporated into the body of this Developers Contract as if copied verbatim in their entirety. Section 2. That the City hereby agrees to construct a water and wastewater improvements as herein described to provide adequate water and wastewater capacity to serve the proposed development of Subject Property. The water and wastewater improvements shall comply with City ordinances. Section 3. That the Developer and City agree to construct the Project and to share in the Total Cost of the Project, as established in this Developer Contract. The Developer shall deposit with the City by certified check their proportionate share of the Total Cost of the Project, established in this Developer Contract, upon the execution of this Developer Contract by the Developer, and prior to the City entering into the construction contract for the Project. Section 4. Approval of Plans The Developers and City agree that approval of plans and specifications by the City shall not be construed as representing or implying that improvements built in accordance therewith shall be free of defects. Any such approvals shall in no event be construed as representing or guaranteeing that any improvement built in accordance therewith will be designed or built in a good and 0:\r-ontract\nw—annex—ufilities—infeldt 3 workmanlike manner. Neither the City nor its elected officials, officers, employees, contractors and/or agents shall be responsible or liable in damages or otherwise to anyone submitting plans and specifications for approval by the City for any defects in any plans or specifications submitted, revised, or approved, in the loss or damages to any person arising out of approval or disapproval or failure to approve or disapprove any plans or specifications, for any loss or damage arising from the non-compliance of such plans or specifications with any governmental ordinance or regulation, nor any defects in construction undertaken pursuant to such plans and specifications. Section 5. Indemnity Provisions. The Developer shall waive all claims, fully release, indemnify, defend and hold harmless the City and all of its officials, officers, agents, consultants, employees and invitees in both their public and private capacities, from any and all liability, claims, suits, demands or causes of action, including all expenses of litigation and / or settlement which may arise by injury to property or person occasioned by error, omission, intentional or negligent act of Developer, its officers, agents, consultants, employees, invitees, or other person, arising out of or in connection with this Contract, or on or about the property, and Developer will, at its own cost and expense, defend and protect the City and all of its officials, officers, agents, consultants, employees and invitees in both their public and private capacities, from any and all such claims and demands. Also, Developer agrees to and shall indemnify, defend and hold harmless the City and all of its officials, officers, agents, consultants, employees and invitees in both their public and private capacities, from and against any and all claims, losses, damages, causes of action, suit and liability of every kind, including all expenses of litigation, court costs and attorneys' fees for injury to or death of any person or for any damage to any property arising out of or in connection with this Contract or any all activity or use pursuant to the Contract, or on or about the property. This indemnity shall apply whether the claims, suites, losses, damages, causes of action or liability arise in whole or in part from the intentional acts or negligence of develop or any of its officers, officials, agents, consultants employees or invitees, whether said negligence is contractual, comparative negligence, concurrent negligence, gross negligence or any other form of negligence. The City shall be responsible only for the City's sole negligence. Provided, however, that nothing contained in this Agreement shall waive the City's defenses or immunities under Section 101.001 et seq. of the Texas Civil Practice and Remedies Code or other applicable statutory or common law. Section 6. Indemnity Against Design Defects. Approval of the City Engineer or other City employee, official, consultant, employee, or officer of any plans, designs or specifications submitted by the Developer under this Contract shall not constitute or be deemed to be a release of the responsibility and liability of the Developer, its engineer, contractors, employees, officers, or agents for the accuracy and competency of their design and specifications. Such approval shall not be deemed to be an assumption of such responsibility or liability by the City for any defect in the design and specifications prepared by the consulting engineer, his officers, agents, servants, or employees, it being the intent of the parties that approval by the City O:\contract\nw annex utilities infeldt 4 Engineer or other City employee, official, consultant, or officer signifies the City's approval of only the general design concept of the improvements to be constructed. In this connection, the Developer shall indemnify and hold harmless the City, its officials, officers, agents, servants and employees, from any loss, damage, liability or expense on account of damage to property and injuries, including death, to any and all persons which may arise out of any defect, deficiency or negligence of the engineer's designs and specifications incorporated into any improvements constructed in accordance therewith, and the Developer shall defend at his own expense any suits or other proceedings brought against the City, its officials, officers, agents, servants or employees, or any of them, on account thereof, to pay all expenses and satisfy all judgements which may be incurred by or rendered against them, collectively or individually, personally or in their official capacity, in connection herewith. Section 7. No further certificates of occupancy shall be issued for Subject Property until the Developer has provided its share of the funds for the Project. Section 8. Upon completion of the construction of the Project, the Project and all appurtenances thereto shall become the property of the City. Section 9. This Contract shall not be assignable without the express written consent of City and Developer. Executed this. Day of _, 2001. DEVELOPER: Willie Infeldt City Attorney CITY OF GRAPEVINE, TEXAS Roger Nelson, City Manager 0:\contract\nw—annex —utilities —infeldt STATE OF COUNTY OF Before me, a notary public, on this day personally appeared , known to me to be the person whose name is subscribed to the foregoing document and acknowledged to me that he executed the same for the purposes and consideration therein expressed. 2001. Given under my hand and seal of office this day of Notary Public Signature Notary Public Printed or Typed Name My commission expires: STATE OF COUNTY OF Before me, a notary public, on this day personally appeared , known to me to be the person whose name is subscribed to the foregoing document and acknowledged to me that he executed the same for the purposes and consideration therein expressed. 2001. Given under my hand and seal of office this day of , Notary Public Signature Notary Public Printed or Typed Name My commission expires: 0 O:\contract\nw_an nex_uti lities_i nfeldt AGREED LIEN THE STATE OF TEXAS WHEREAS, , General Partner of Partnership, attests that he is the owner of record of the property described as from Abstract , the Survey, Grapevine, Tarrant County, Texas, (the "Property") and has greed to the placement and filing of this Lien on the Property as authorized by Section 51.001 of the Texas Property Code. WHEREAS, Mr. as a condition of the Developer Agreement that executed with the City of Grapevine, agrees to pay the City the amount of $ The amount secured by this agreed Lien is $ . This lien may be satisfied, and thereby released, upon the final payment of all amounts provided for herein. SIGNED on this the day of 2001. Jerry Hodge, Director of Public Works Developer 0: \forms \agreed-lieri-form STATE OF TEXAS COUNTY OF TARRANT BEFORE ME, the undersigned notary on this day personally appeared , of , known to me or proved to me on the oath of or through (description of identity card or other document) to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same for the purposes and consideration therein expressed. Mr. furthermore attested that he is signing this Lien in his individual capacity, and in his capacity as of , and that such capacity makes his signature valid to bind the and himself personally. GIVEN UNDER MY HAND AND SEAL OF OFFICE, this day of 2001. My Commission Expires: Notary Public, State of Texas STATE OF TEXAS COUNTY OF TARRANT BEFORE ME, the undersigned notary on this day personally appeared , known to me or proved to me on the oath of or through (description of identity card or other document) to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same for the purposes and consideration therein expressed. Mr. furthermore attested that he is signing this Contract in his capacity as of the City of Grapevine and that such capacity makes his signature valid to bind the City of Grapevine. GIVEN UNDER MY HAND AND SEAL OF OFFICE, this day of , 2001. My Commission Expires: Notary Public, State of Texas O: \forms\agreed_lien_form