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HomeMy WebLinkAboutItem 07 - Developer Contract - DrainageMEMO TO: FROM: MEETING DATE: SUBJECT: RECOMMENDATION: ITEM # 7 HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL ROGER NELSON, CITY MANAGER X11 JANUARY 20, 2004 DEVELOPER CONTRACT - DRAINAGE City Council consider approving a Developer Contract addressing Drainage Issues on the Property bordered by FM 2499, Grapevine Mills Boulevard North and SH 121, authorize staff to execute said contract and take any necessary action. BACKGROUND: To facilitate the development of the subject tract and address drainage issues through the subject tract, City Staff was requested to prepare a Developer Contract establishing drainage responsibilities for each of the three property owners. The proposed contract is the final version that has been approved by each of the three property owners, American Realty Trust, Inc., Crow -Billingsley Airport # 1 Ltd., and S. P. Airport Texas # 1, Ltd. The contract addresses downstream owners' and upstream owners' cost sharing of future improvement costs to convey fully developed flows through the site. Existing flows are the responsibility of each owner when they develop their property in accordance with City requirements. Detailed spreadsheets were developed to assign costs sharing to each of the owners by system line segment for the incremental increase in flows between existing flows and fully developed flows. Owners will be required to construct the system across their property to convey fully developed flows. The remaining owners who have developed or will develop in the future and flow to the owner constructing the drainage system will be required to participate in the cost for their share of the fully developed flows. Owners are required to provide their share of the fully developed oversizing cost to the City at the time they develop their property. O:\agenda\l-20-04\Developer Contract — Drainage Memo January 13, 2004 (8:21AM) The City's role in this Developer Contract is to serve as the depository for the funds paid by each owner at the time they develop for their share of downstream oversizing costs. The City will then reimburse each owner for the oversizing cost of the drainage system across their property from the funds deposited by the participating owners. No City funds are committed to these drainage improvements. Staff recommends approval. JLH/jsl O:\agenda\1-20-04\Developer Contract — Drainage Memo January 13, 2004 (8:21AM) STATE OF TEXAS § COUNTY OF TARRANT § DEVELOPER'S CONTRACT CITY OF GRAPEVINE § WHEREAS, American Realty Trust, Incorporated, a corporation authorized to do business in the State of Texas, Crow -Billingsley Airport # 1, Ltd., a limited partnership authorized to do business in the State of Texas, and S. P. Airport Texas # 1 Ltd., a limited partnership authorized to do business in the State of Texas, hereinafter referred to as "Developers", are the owners of certain tracts of land in the City of Grapevine, Tarrant County, Texas, a Texas home -rule City, hereinafter referred to as "City", which tracts of land ("Subject Properties") are described in Exhibit "A", which is attached hereto and incorporated herein for all purposes; and WHEREAS, Development of Subject Properties in combination with developed upstream properties generates increased storm water runoff which necessitates the construction of Storm Water Improvements ("the Project") across the Subject Properties and across Grapevine Mills Boulevard North sufficiently sized to convey Developed Flows; and WHEREAS, a Schematic of the Project is provided as Exhibit 1113", which is attached hereto and incorporated herein for all purposes; and WHEREAS, for the purposes of this Developers Contract, the Developers agree that ("Existing Flows") are flows generated from the developed upstream properties and from the Subject Properties in the existing undeveloped condition; and WHEREAS, for the purposes of this Developers Contract, the Developers agree that ("Developed Flows") are flows generated from the developed upstream properties and from the Subject Properties in a fully developed condition; and WHEREAS, for the purposes of this Developers Contract, the Developers agree that ("Delta Flows") are the Difference between the Existing Flows and the Developed Flows; and WHEREAS, the Developers agree that ("Design Points") have been established throughout the length of the Project to assist in identifying flow contributions from Subject Properties to individual ("Segments") of the Project between Design Points, reflected in Exhibit 13; and WHEREAS, the Developers agree that the construction of the Project shall be undertaken and funded solely by the Developers as they develop their respective Subject Properties; and WHEREAS, the Developers agree each Developer shall be responsible to collect 0:\contract\NE area storm drainage cost participation Rev 1 and convey Existing Flows through his respective Subject Property at his sole cost; and WHEREAS, the Developers agree that the responsibility for Delta Flows shall be assigned to the Subject Properties based upon each Subject Property's percentage contribution to the Delta Flows at each Design Point; and WHEREAS, for the purposes of this Developers' Contract, the Developers agree that the "Total Cost" shall be defined as the final construction cost of the Project; and WHEREAS, the Developers agree that they shall each be responsible for a portion of the Total Cost of the Project as they develop Subject Properties; and WHEREAS, the Developers agree that the Total Cost of the Project shall be distributed to the Developers on a percentage basis; and WHEREAS, the percentage of the Total Cost assigned to each Developer is derived by: Applying the Existing Flows across Subject Property as a percentage of the Developed Flows across Subject Property to the Total Cost of the Project Segments across Subject Property, plus • Applying the Subject Property's Delta Flow as a percentage of the Developed j Flow for each Project Segment downstream of Subject Property to the Total Cost of the Project Segments downstream of Subject Property; and WHEREAS, the Developers agree that their respective participation in the Total Cost of the Project are estimated in Exhibit "C", as may be amended from time to time to reflect up to date costs, which is attached hereto and incorporated herein for all purposes; and WHEREAS, the Developers acknowledge that development of Subject Properties may occur in multiple phases; and WHEREAS, the Developers agree that payment of their respective share of the Total Cost of the Project for their individual Subject Property shall be based upon the number of acres proposed for development in each phase; and WHEREAS, the Developers agree that the design and construction of the Project across each Developer's Subject Property shall be a requirement of development of Subject Property, shall be undertaken by each Developer in the normal course of developing his respective Subject Property and shall be in compliance with all applicable City Code requirements; and WHEREAS, the Developers agree that as a further requirement of development, each Developer will contribute funds to the City for his share of the Total Cost as established in Exhibit "C"; and O:\contract\NE area storm drainage cost participation Rev 1 WHEREAS, the Developers agree that each Developer's share of the Total Cost shall become due and payable upon submittal for the building permit on the Developer's Subject Property on a per acre basis; and WHEREAS, the Developers agree that, in exchange for participation in this contract by each of the Developers, the Developers accept the Developed Flows from Subject Properties; and WHEREAS, the Developers agree that as each segment of the Project is constructed, the Project Total Cost will be adjusted with up to date costs and the Total Cost distributed to each of the Developers shall be adjusted accordingly; and WHEREAS, the Developers agree that the City shall hold all funds from each of the four Developers and shall issue payment to each Developer as reimbursement for the Total Cost incurred by each Developer during the construction of the Project or any portion thereof, that exceed the Developers assigned share of the Total Cost established in Exhibit "C"; and WHEREAS, the Developers agree that the construction contractor or contractors shall be required to provide maintenance bonds in accordance with the City Code. WHEREAS, Said maintenance bond 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 of Grapevine, shall be issued in an amount of twenty-five percent (25%) of the total construction cost of the Project, and shall extend for a period of two years from the date of acceptance of said Project; and WHEREAS, if the final Total Cost for the Project at completion is less than the Projected Total Cost, City agrees to refund the Developers' proportionate share of the balance of the surplus to the Developers 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 Developers, 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 Developers' Contract by reference as if copied verbatim in their entirety. 0Acontract\NE area storm drainage cost participation Rev I 3 Section 2. That the Developers hereby agree to construct the Project as herein described to provide adequate storm drainage capacity to serve the proposed development of Subject Properties. The Project shall comply with City ordinances. Section 3. That the Developers agree to construct the Project and to share in the Total Cost of the Project, as established in this Developers' Contract. The Developers shall deposit with the City by certified check their proportionate share of the Total Cost of the Project, established in this Developers' Contract, upon the execution of this Developers' Contract by the Developers, and prior to the City issuing building permits for any construction on the Subject Properties. 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 Developers 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 Developers, their officers, agents, consultants, employees, invitees, or other person, arising out of or in connection with this Contract, or on or about the property, and Developers will, at their 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, Developers agree 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 O:\contract\NE area storm drainage cost participation Rev 1 4 responsible only for the City's sole negligence. Provided, however, that nothing contained in this Contract 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 Developers under this Contract shall not constitute or be deemed to be a release of the responsibility and liability of the Developers, their 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 Developers 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 Developers shall defend at their 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 certificates of occupancy shall be issued for Subject Properties until the Developers have provided their share of the funds for the Project in accordance with this Developers Contract and Exhibit "C". 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 Developers. Executed this. Day of _, 2003. City Attorney Date 5 CITY OF GRAPEVINE, TEXAS Roger Nelson, City Manager FOM 0:\contract\NE area storm drainage cost participation Rev I American Realty Trust, STATE OF COUNTY OF Before me, a notary public, on this day personally appeared L- 6�� )n!!-- 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. 2003. Given under my hand and seal of office this % `& day of --ems —.: Notary Public Sig ture l_.�''• K6�iPaY Pie `-° CHARLY BERRY Notary Public Printed or Typed Na NOTARYPUBuc - TEXAS dti . MY COr14MISSION EXPIRES My commission expires:/'� ®� < � ���r JULY 77, 2007 O:\contract\NE area storm drainage cost participation Rev 1 5-31-1999 3:27AM FROM P.8 ,3u/ 14 vi AMA I I - Av PAA. vzivvj4v*v Atuvz Auvv).r Jlzwr�m TTT VVIA v XVIIA.-ullm %W V V.L r) DEVELOPER STATE OF, COUNTY OF i r t- "I'll - * . - :;:# 7-77 rl., ul � i i OW Notary Pubbc Flnnfted or T+ Name , vski'll,kicAls 140. - u 0.11caftmeM am sfm Ormimp omd pwtk#m&m Itw i DEV 0 Hehry' Billingsley Date Crow -Billingsley Airport# 1, Ltd. STATE OF 7eJ(aS COUNTY OF D V7 Otl 12/2 3/0.3 Before me, a notary public, on this day personally appeared We, n f11 In 61e known to me to be the person whose name is subscribe& 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 2-3,4d, 2003, bL44" 671-�-- Notary Wlic Signature -& &We' Notary -A ota Pu is Printed or Typed Name My commission expires: aA*4 9 day of I BETSY M, ROWE My COMMISSION EXPIRES Jijrle 27,2 f 006 0:\contract\NE area storm drainage cost participation Rev 1 STATE OF COUNTY OF Before me, a notary public, on this day personally appeared Roger Nelson, 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. 2003. Given under my hand and seal of office this day of Notary Public Signature Notary Public Printed or Typed Name My commission expires: W 0:\contract\NE area storm drainage cost participation Rev 1 0 COO' ....... .... cjw OPUS ZVW:Po CO/O/l t '6-P'V-W-/0600C\6-lP\6001C()' U, illus i PHI 4 EXHIBIT C Owner Existing Delta Downstream Total Lemke 1 $48,179 $57,249 $22,584 $128,012 Lemke 2 $383,160 $267,127 $61,555 $711,842 Ashley $174,567 $53,296 $18,936 $246,7991 Nichols $313,339 $18,088 $38,590 $370,017 Billingsly l $25,250 $82,552 $26,491 $134,293 113illingsly 2 $115,595 $174,896 $59,155 $349,6461 Total $1,060,090 $653,208 $227,311 $1,940,609 Existing Cost derived from the existing flows across the subject property applied as a percentage of the developed flows across subject property toithe total cost of the project segments across subject property Delta - Is cost derived from the incremental increase in flow from subject property as a percent of developed flows through segments downstream of subject property applied to total cost of project segments downstream of subject property Downstream - Cost of project system downstream of point B5 to north side of Grapevine Mills Blvd. N.