HomeMy WebLinkAboutParticipation Agreement December 13, 2007
Consent Agenda
Developer Participation Agreement with Kyle View Estates
To: Glenn Brown, City Manager
From: David Coleman, Director of Water Services
Agenda Caption: Presentation, possible action and discussion regarding
approving a Developer Participation Agreement for sewer collection infrastructure
with Kyle View Estates, L.P. at a cost not to exceed $85,690.
Recommendation: Staff recommends approval of this agreement.
Summary: Kyle View Estates, L.P. is developing a 46-acre tract of land at
Capstone Drive and Wellborn Road in the ETJ. The development will require a small
sewage lift station and pipeline to serve the homes in Kyle View. This provides an
opportunity for the City to participate with the developer for construction of a vital
link in the City's sewage collection system. Under this Participation Agreement, the
City will pay the cost increase to move the lift station to the east side of Wellborn
Road and increase its capacity, so that the lift station will then serve areas west of
W.D. Fitch Parkway and north of Barron Cut-off including the Westminster
Subdivision.
The City has for some time been looking for a way to provide sewer service to this
area. The Westminster Subdivision is composed of large acreage lots which are
currently served by on-site sewer systems. Therefore, a new sewer system
constructed to serve the area would only get new customers as homes switched from
on-site to City service. By partnering with this development in this endeavor, a
greater area of the City is provided a valuable City service at a greatly reduced
overall cost.
Kyle View Estates, L.P. will pay the cost of their original design, $224,125 and since
the larger lift station in the new location is estimated to cost $309,815 the City will
pay the difference, a maximum of $85,690. If actual construction costs are less than
estimated, the City's share will be reduced proportionally.
Please note: This development is outside the City's certificated area for sewer
service. A separate Council action item has been submitted for consideration,
requesting an exception to policy to allow City sewer service to this development.
Also, the development is outside the City limits, but the developer has reauested
annexation in writing.
Budget & Financial Summary: Funding is budgeted in the Wastewater Service
Fund under Oversize Participation.
Attachment:
Participation Agreement
Letter
100
EU PARTICIPATION AGREEMENT
This Agreement is entered into this day of , 200_, by and
between the City of College Station, a Texas home rule municipal corporation (hereinafter
"CITY"), and KyleView Estates, L.P., a Texas Limited Partnership (hereinafter
"DEVELOPER").
WHEREAS, DEVELOPER owned, subdivided, platted and is developing property within the
extraterritorial jurisdiction (ETJ) of the City of College Station, more particularly described as
Kyle View Estates Subdivision, Brazos County, Texas (hereinafter -Property") a description of
which is attached hereto as Exhibit A;and
WHEREAS, CHAPTER 9 of the CITY OF COLLEGE STATION CODE OF ORDINANCES requires that
DEVELOPER conform to CITY's standards and master plans for streets and utilities and to pay
for all costs of materials and installation of streetsalleys, sidewalks, drainage, and utilities
relating to DEVELOPER's development;and
WHEREAS, DEVELOPER may request City participation or CITY may require joint
participation in the construction of certain public facilities to conform with CITY's plans for its
utilities and long term development; and
WHEREAS, CITY requests a lift station of increased capacity, four-inch (4") force main and
eight-inch(8")gravity sewer line; as depicted in Exhibit B (hereinafter"Project"); and
WHEREAS, CITY will benefit from the installation of said sewer line by its expanding the
service area and capacity of the CITY sewer system, and
WHEREAS, DEVELOPER has requested that CITY cost participate in said sewer line
improvements; and
WHEREAS, DEVELOPER agrees to design and construct a stormwater system in accordance
with B/CS Unified Stormwater Design Guidelines,Details and Specifications;and
WHEREAS, the City Engineer has reviewed the data, reports and analysis provided by
DEVELOPER's engineers and determined that DEVELOPER's proposal is a benefit to the
CITY; and
WHEREAS, both parties agree as to the nature and proportion of joint participation as further
recited herein;and
WHEREAS, Developer agrees to petition the CITY for annexation into the corporate limits of
the above-referenced subdivision that will benefit from the joint construction of said public
improvements;
101
NOW, THEREFORE, for and in consideration of the recitations above and the promises and
covenants herein expressed,the parties hereby agree as follows:
I.
DEFINITIONS
1.1 Approved Plans means the plans and specifications that meet the requirements of this
Participation Agreement, the City of College Station Codes and Ordinances and any other
applicable laws and that have been submitted to, reviewed and approved by the City of College
Station Development Services Department,the City Engineer.
1.2 CITY or College Station means the City of College Station, a Texas home rule
municipal corporation located at 1101 Texas Avenue,College Station, Texas 77840.
13 DEVELOPER means KyleView Estates, L.P., a Texas Limited Partnership whose
principal office is located at 1722 Broadmoor, Ste 212,Bryan, Texas 77802.
1.4 Effective Date. The date on which this Agreement is signed by the last party whose
signing makes the Agreement fully executed.
1.5 Final Completion. The term "Final Completion" means that all the work on the Project
has been completed, a written guarantee of performance for a one year maintenance period has
been provided, all final punch list items have been inspected and satisfactorily completed, all
payments to materialmen and subcontractors have been made, all documentation, and all
closeout documents have been executed and approved by the DEVELOPER as required, all
Letters of Completion and other CITY documentation have been issued for the Project, all
reports have been submitted and reporting requirements have been met, and DEVELOPER has
fully performed any other requirements contained herein.
1.6 Letter of Completion: A letter issued by the City Engineer stating that the construction
of public improvements conforms to the plans, specifications and standards contained in or
referred to in CHAPTER 9 of the CITY OF COLLEGE STATION CODE OF ORDINANCES.
1.7 Property means that one certain tract of land known as Kyle View Estates Subdivision
and as further described in Exhibit A attached hereto and incorporated herein made a part
hereof.
1.8 Project means the construction of sewer improvements as detailed in Exhibit B attached
hereto and incorporated herein by reference.
II.
CITY COST PARTICIATION
2.1 CITY agrees to cost participate in the following improvements as follows:
102
1. The difference between the construction of(i) a small lift station with four-inch
(4") force main and (ii) a relocated lift station of larger capacity, four-inch (4")
force main and eight-inch(8")gravity sewer line.
21 The total cost of the project is $309,815. CITY agrees to cost participate with
DEVELOPER in an amount not to exceed the lesser of$85,690 or 27.7%of the actual amount of
the contract awarded under this paragraph The Project must be competitively bid under
SECTION 252.002 et seq. of the TEXAS LOCAL GOVERNMENT CODE as amended. The CITY shall
be responsible for advertising and obtaining bids for the construction of the Project.
DEVELOPER shall pay for all costs associated with advertising, printing, and distributing plans
and specifications for the Project.
2.3 DEVELOPER's engineer's detailed cost estimate of the Project is attached hereto and
incorporated herein as Exhibit C.
2.4 This Agreement and payments made hereunder are contingent upon but not limited to
each of following terms and conditions:
(1) the Final Completion of the improvements in accordance with the
Approved Plans;
(2) issuance of all Letters of Completion relating to the Project;
(3) DEVELOPER's compliance with all CITY Codes, Ordinances and
standards relating to the Project;
(4) dedication of the land for the right-of-way either by plat or by general
warranty deed relating to the Project;
(5) a current title report as of the date of such land dedication and updated
within sixty(60)days of the date of this Agreement;
(6) lien releases or subordinations from all lenders as required by CITY.
(7) A breakdown of actual costs of the Project with supporting
documentation, including all payment receipts; and
(8) Receipt of a petition by all of the owners of the Property requesting
annexation.
2.5 City Participation Payment. DEVELOPER shall submit the written application for
CITY participation payment within thirty (30) days after issuance of all Letters of Completion
relating to the Project or DEVELOPER shall be ineligible to receive the CITY participation
payment specified in this Agreement and CITY's obligation to cost participate shall terminate
without any liability. Applications may not be submitted prior to Final Completion.
2.6 CITY will pay its participation funds in one payment within thirty(30) days after receipt
of a complete written application for participation payment from DEVELOPER.
2.7 Reports, books and other records. DEVELOPER shall make its books and other
records related to the project available for inspection by CITY. DEVELOPER shall submit to
CITY any and all information or reports requested to verify the expenditures submitted for CITY
participation eligibility including but not limited to bid documents, payment applications,
103
including any supporting information, cancelled checks, copies of construction and engineering
documents, as determined by the City Engineer in his sole discretion, for the verification of the
cost of the Project detailed in Exhibit B and C of this Agreement. The submission of these
reports and information shall be the responsibility of DEVELOPER and shall be certified by
DEVELOPER's Licensed Professional Engineer at DEVELOPER's expense and signed by an
authorized official of the entity.
IlL
GOVERNMENTAL IMMUNITY, INDEMNIFICATION AND RELEASE
CITY is a political subdivision of the state and enjoys governmental immunity. By entering
into this Agreement, CITY does not consent to suit, waive its governmental immunity, or
the limitations as to damages under the Texas Tort Claims Act.
DEVELOPER agrees to and shall indemnify, hold harmless, and defend CITY and its
officers,agents, and employees from and against any and all claims, losses,damages,causes
of action, suits, and liability of every kind, including all expenses of litigation, court costs,
expert fees and attorney's fees, for injury to or death of any person, or for damage to any
property, or for breach of contract, arising out of or in connection with the work done by
DEVELOPER under this Agreement, regardless of whether such injuries, death, damages
or breach are caused in whole or in part by the negligence of CITY, any other party
indemnified hereunder, or the DEVELOPER.
DEVELOPER shall indemnify and hold CITY harmless from any claims of suppliers or
subcontractors of DEVELOPER for improvements constructed or caused to be constructed
by DEVELOPER.
DEVELOPER shall indemnify and hold CITY harmless from any and all injuries to or
claims of adjacent property developers resulting from or relating to their performance
under this Agreement.
DEVELOPER assumes full responsibility for the work to be performed hereunder, and
releases, relinquishes and discharges CITY, its officers, agents and employees, from all
claims, demands, and causes of action of every kind and character, including the cost of
defense therefore, for any injury to or death of any persons and any loss of or damage to
any property that is caused by, alleged to be caused by, arising out of, or in connection
with,DEVELOPER's work to be performed hereunder.This release shall apply whether or
not said claims,demands,and causes or action are covered in whole or in part by insurance
and regardless of whether or not said claims, demands, and causes of action were caused in
whole or in part by the negligence of CITY, any other party released hereunder, or
DEVELOPER.
104
IV.
PROJECT AND CONSTRUCTION
4.1 Right to Inspect the Work. CITY may inspect the improvements for compliance with
the Approved Plans during construction. In the event that it is determined by CITY that any of
the work or materials furnished is not in strict accordance with the Approved Plans, CITY may
withhold funds until the nonconforming work conforms to the Approved Plans or terminate this
Agreement at CITY's election without any further liability.
4.2 Independent Contractor. DEVELOPER shall be solely responsible for selecting,
supervising, and paying the construction contractor(s) or subcontractors and for complying with
all applicable laws, including but not limited to all requirements concerning workers
compensation and construction retainage.
The parties to this Agreement agree and understand that all employees, volunteers, personnel and
materials furnished or used by DEVELOPER in the installation of the specified improvements
shall be the responsibility of DEVELOPER and shall not be deemed employees or agents of
CITY for any purpose.
4.3 Payment for materials and labor. DEVELOPER shall be solely and exclusively
responsible for compensating any of its contractors, employees, subcontractors, materialmen
and/or suppliers of any type or nature whatsoever and insuring that no claims or hens of any type
will be filed against any property owned by CITY arising out of or incidental to the performance
of any service performed pursuant to this Agreement. In the event a statutory lien notice is sent
to CITY, DEVELOPER shall, where no payment bond covers the work, upon written notice
from the CITY, immediately obtain a bond at its expense and hold CITY harmless from any
losses that may result from the filing or enforcement of any said lien notice.
4A Affidavit of bills paid. Prior to the issuance of a Letter of Completion of the
improvements, DEVELOPER shall provide CITY a notarized affidavit stating that all bills for
labor, materials, and incidentals incurred have been paid in full, that any claims from
manufacturers, materialmen, and subcontractors have been released, and that there are no claims
pending of which DEVELOPER has been notified.
4.5 This Agreement does not alter, amend modify or replace any other requirements
contained in the Code of Ordinances, Unified Development Code,or other applicable law.
V.
GUARANTEE OF PERFORMANCE AND PAYMENT
Alternative 1- City part is 30%or less
5.1 DEVELOPER shall execute a performance bond for the construction of the
improvements to ensure completion of the project and payment of subcontractors. The
bonds must be executed by a corporate surety in accordance with CHAPTER 2253,TEXAS
105
GOVERNMENT CODE. The bonds shall be in the total amount of the contract price as
approved by CITY.
5.2 Valid payment and performance bonds that conform to the requirements of this section
must be presented to CITY as a condition precedent before this agreement goes into
effect.
Alternative 2-City part exceeds 30%participation or is in ETJ
5.1 CITY shall ensure that the prime contractor of the Project execute to the CITY a
performance bond and/or a payment bond as may be required pursuant to chapter 2253 Texas
Government Code. (This project is in the ED, therefore Alternative 2 is selected)
VI.
GENERAL PROVISIONS
6.1 Amendments. No amendment to this Agreement shall be effective and binding unless
and until it is reduced to writing and signed by duly authorized representatives of both parties.
6.2 Choice of law and Venue. This Agreement has been made under and shall be governed
by the laws of the State of Texas. Performance and all matters related thereto shall be in Brazos
County,Texas, United States of America.
63 Authority to enter into Agreement. Each party represents that it has the full power and
authority to enter into and perform this Agreement. The person executing this Agreement on
behalf of each party has been properly authorized and empowered to enter into this Agreement.
The person executing this Agreement on behalf of DEVELOPER represents that he or she is
authorized to sign on behalf of DEVELOPER and agrees to provide proof of such authorization
to the CITY upon request.
6.4 Agreement read. The parties acknowledge that they have read,understand and intend to
be bound by the terms and conditions of this Agreement.
6.5 Notice. All notices and documents required herein shall be sent and provided to the
parties at the addresses and telephone numbers listed below:
KyleView Estates, L.P.. City of College Station
Paul Leventis City Engineer
President, Brazos Trace, L.L.C. P.O. Box 9960
1722 Broadmoor, Suite 212
Bryan, Texas 77802 College Station, TX 77842
With copies to:
City Attorney and City Manager
1101 Texas Avenue
College Station, TX 77842
106
All notices and documents shall be deemed received when mailed with sufficient postage and
deposited in a regular mailbox of the United States Post Office. The parties may change
addresses upon thirty(30)days' written notice sent certified mail, return receipt requested.
6.6 Assignment. This Agreement and the rights and obligations contained herein may not be
assigned by DEVELOPER without the prior written approval of the CITY.
6.7 Default. In the event of a breach of this Agreement by DEVELOPER, CITY may
terminate this Agreement and exercise any and all legal remedies available to it.
Executed this day of , 200_.
List of Exhibits:
A A description of the Property
B A description of the Project
C Engineer's estimate of the costs of the Project
KYLEVIEW ESTATES,L,*
CAvirCITY OF COLLEGE STATION
BRAZ• .v.4 E,L.L.0/
BY:
4Miw BY:
Printed Name: aul 3 Leventis Mayor
Title: President of the General Partner
ATTEST:
City Secretary
APPROVED:
City Manager r,
el. til,
/kitty Attorney (I)'
Chief Financial Officer
107
THE STATE OF TEXAS )
) ACKNOWLEDGMENT
COUNTY OF BRAZOS )
CY??Before me, the unde si ti-d authority, on this dali, perspplly alto pd
2,441„ as '
a Texas limited liability company, known to me 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.
A 144"
Given under my hand and seal of office on this the ...7(1 day of - J€iti ,200/
( / „.19Y: A . ' "
• — " ...... Notary Public in and for th,Atate of l'exas
" ... — .•
„csi DONNA L SPELCE
, 7 Notary Niko,State of Texas
4 id My Carruneskan Expires
.*".41#1, June 14,20Q9
THE STATE OF TEXAS )
) ACKNOWLEDGMENT
COUNTY OF BRAZOS )
Before me, the undersigned authority,on this day personally appeared
as Mayor of the City of College Station, a Texas home-rule municipal corporation, known to me
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.
Given under my hand and seal of office on this the day of . 200_.
Notary Public in and for the State of Texas
108
0 0
City Of College Station
ETA Development Agreement
{ rq' a
-,,,,a
{
rig o c „.,:r4 4, ,aw ,..1,;.;:;;;
, ;•
,e ,,,,, ,,..71,,,::,,,, ,a,c,,,,,,,,,./, ,, ito,,, ,_„,„.,... 4.,,:,
,,„„ ..,..,.
� ire' �1 s d �
i ' i
Tti r„,„ ,.,...,-4,,,,,„„,,,,.....t..`...*.'tf
•
ee:.. , ;_t anon Rd
;
Capstone Or
r
,` V%Ilborn Rd
ff f9
p`�Wp.�. �z$• Y ysIR
S
7
asr
tet :Ili!
8 k ,
.Mi n} a Sae �„ 3-.
yy4
1 ` z- k..? c & ''''r''''' ". a �° Lift Station
' r,a, w:4' ' ,„ R k x ae °F' 4 a. '"
,,, ". n bs w
:` ' "1'v; 'V'-'-'' ' ilit-Obt ' :":'4.- ''''' ' 'l' ':;iff.t.e-.ft.* ',,e''
''',4r4,<*
______Jca _ rnrts Kyle View Estates
Parcels Subdivision
Exhibit A
109
EXHIBIT B
PROPERTY DESCRIPTION
110
Engineers Estimate of Construction Cost
Kyle View Development
Offsite Sewer Improvements
10/23/2007
Alignment A
item Description Quantity Units Unit Price Amount
Mobilization 1 LS $5,000 $5,000
Erosion Control 1 LS $2,500 $2,500
Lift Station 1 LS $100,000 $100,000
4"Force Main 4500 LF $12 $54,000
12"Encasement by Dry Bore 225 LF $150 $33,750
Air Release Valve 1 EA $3,500 $3,500
Connection to Exist Manhole 1 EA $500 $500
Driveway Repair 9 EA $500 $4,500
Subtotal $203,7501
Contingency 10% $20,375
Total $224,125
Alignment B
item Description Quantity Units Unit Price Amount
Mobilization 1 LS $5,000 $5,000
Erosion Control 1 LS $7,500 $7,500
8"PVC Sewer Line 804 LF $25 $20,100
18"Encasement by Dry Bore 225 LF $250 $56,250
12"Encasement by Wet Bore 100 LF $150 $15,000
Lift Station 1 LS $125,500 $125,500
4"Force Main 3650 LF $12 $43,800
Air Release Valve 1 EA $3,500 $3,500
Connection to Exist Manhole 1 EA $500 $500
Driveway Repair 9 EA $500 $4,500
Subtotal $281,650
Contingency 10% $28,165
Total $309,815
Estimated increase in Cost from Alignment A to Alignment S $85,690
Flag"6 6 AIN I,&
IPr*cseoff',
ed A `1,, A ,.,:�esw/aeeeesoseci floe t
BRErrA.MCCULLY r
EN Participation Agreement ';% .. 82553
•-�
+ "
Ilk'VC:1/4%0 Alr ISih-',1
EXHIBIT C- ',
111