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HomeMy WebLinkAboutDevelopment Contract DEVELOPMENT CONTRACT FOR SUBDIVISION PROPOSED FOR NON-STANDARD SERVICE BY WELLBORN SPECIAL UTILITY DISTRICT This contract is made on the Countersignature Date by and between CREEK MEADOWS DEVELOPMENT PARTNERS, L.P. (the "Developer"), a Texas limited partnership, and WELLBORN SPECIAL UTILITY DISTRICT (the "District"), a body politic duly organized under the constitution and laws of Texas. The initial addresses of the parties, which one party may change by giving written notice of its changed address to the other party, are as follows: District Developer Stephen Cast, General Manager Todd Carnes Wellborn Special Utility District Creek Meadows Partners, L. P. P. O. Box 250 230 Southwest Parkway East Wellborn, Texas 77881 College Station, Texas 77840 PREAMBLE WITNESSETH: WHEREAS, the Developer intends to develop a tract of land (the "Site") located within the certificated area of the District); and WHEREAS, the Developer has been provided a copy of the District's Subdivision Policy and Standard Specifications(the"Subdivision Policy"), adopted June 24, 1998, and a copy of District's Rules Governing Water Service (the "Rules"), adopted August 18, 1998; and as they may each have been amended. WHEREAS, in compliance with the provisions of the Rules, a contract is required between the District and the Developer to define the terms of service prior to construction of required service facilities and other terms and conditions to which the parties agree; and WHEREAS, the subdivision to be developed on the Site (the "Development") is located within the District where no main water line is currently available with adequate or un-committed capacity to service the Development's water requirement for both domestic use and fire flow protection without requiring the construction of an off-site water line. Page -1- WHEREAS, the District has agreed to cooperate with Developer to achieve the desired service of water to said Development subject to Developer's conformance with all requirements of the Subdivision Policy and Rules of the District. The District and Developer hereby agree to the terms and conditions of this Contract. This Contract consists of the following sections, which are hereby incorporated into this Contract by this reference for all purposes: TABLE OF CONTENTS Page No. PREAMBLE 1 TABLE OF CONTENTS 2. SIGNATURE PAGE 3. I. DEFINITIONS 4. II. DUTIES OF DEVELOPER 4. III. DUTIES OF DISTRICT 6. IV. TERM AND TERMINATION 7. V. SPECIAL NOTICES TO DEVELOPER 7. V. MISCELLANEOUS 8. Page -2- IN WITNESS HEREOF, the District and the Developer have made and executed this Contract in multiple copies, each of which is an original. CREEK MEADOWS PARTNERS, L.P. \ INt tr\. L By: O `Title: Managing Partner WE . BORN SPECIAL UTILITY DISTRICT , OP drB?. 'resident Y --zid4/ Title: neral Manager Page -3- I. DEFINITIONS Subdivision Policy. That policy adopted by the District on June 24, 1998, and its amendments, if any, entitled "Subdivision Policy and Standard Specifications for Wellborn Special Utility District" Rules. That set of rules adopted by the District on August 18, 1998, and amendments, if any, entitled "Rules Governing Water Service for Wellborn Special Utility District" Standard Service. Service on an existing pipeline or where service facility extensions are not required and special design or engineering considerations are not necessary. (Typically, Standard Service includes only 5/8" x 3.4" sized meter services set on existing pipelines.) See, Chapter 3 - Sections 3.2 and 3.3 and Chapter 4 of the "Rules". Plans Plans and specifications for the construction and installation of the off-site main water line from a location in District's current system to the entrance of the Development. Off-Site Main The off-site main water line to be constructed from a location in District's current system to the entrance of the Development. Ali other capitalized terms not defined in this Section I have those meanings ascribed to them elsewhere in the Contract. II. DUTIES OF DEVELOPER 2.1 Developer is responsible for all costs for the design and construction and installation of water distribution lines within the Development. Dedicated public utility right-of-way easements in the Development shall be provided for all water lines for distribution to lots within the Development. 2.2 All water lines laid by Developer within the Development shall be within dedicated public utility rights-of-way set out on the plat of the Development and after acceptance by District for its use in furnishing water for distribution through such lines shall thereafter be assigned to and become the property of District with no reserved nor residual claim of any right by Developer to the ownership or control of such line or lines. Page -4- 2.3 Developer shall furnish to District evidence of full payment of all contractors, sub- contractors, laborers and materialmen performing work related to the design, construction and installation of water distribution lines within the Development, and transfer of ownership of such installations shall be free and clear of any liens or encumbrances whatsoever. 2.4 Developer stipulates and agrees that the water to be supplied by District to the Development is for domestic household use and in adequate amounts for accepted fire protection. 2.5 DEVELOPER COVENANTS AND WARRANTS THAT IT WILL PROTECT, DEFEND, AND HOLD HARMLESS THE DISTRICT, ITS EMPLOYEES, OFFICERS, AND LEGAL REPRESENTATIVES (COLLECTIVELY,THE "DISTRICT") FROM ANY AND ALL THIRD PARTY CLAIMS, DEMAND, AND LIABILITY, INCLUDING DEFENSE COSTS, RELATING IN ANY WAY TO DAMAGES, CLAIMS, OR FINES ARISING BY REASON OF OR IN CONNECTION WITH DEVELOPER'S ACTUAL OR ALLEGED NEGLIGENCE OR OTHER ACTIONABLE PERFORMANCE OR OMISSION OF THE DEVELOPER IN CONNECTION WITH OR DURING THE PERFORMANCE OF THE DUTIES UNDER THIS CONTRACT. ALSO, DURING THE PERFORMANCE OF THE WORK AND UP TO A PERIOD OF ONE YEAR AFTER THE DATE OF FINAL ACCEPTANCE OF THE WORK, DEVELOPER FURTHER EXPRESSLY COVENANTS AND AGREES TO PROTECT, DEFEND, INDEMNIFY, AND HOLD HARMLESS THE DISTRICT FROM ALL CLAIMS, ALLEGATIONS, FINES, DEMANDS,AND DAMAGES RELATING IN ANY WAY TO THE ACTUAL OR ALLEGED JOINT AND/OR CONCURRENT NEGLIGENCE OF THE DISTRICT AND DEVELOPER, WHETHER DISTRICT IS IMMUNE FROM LIABILITY OR NOT. IT IS THE EXPRESS INTENTION OF THE PARTIES HERETO THAT THE INDEMNITY PROVIDED HEREIN IS AN AGREEMENT BY THE DEVELOPER TO INDEMNIFY AND PROTECT THE DISTRICT FROM THE DISTRICT'S OWN NEGLIGENCE WHERE SAID NEGLIGENCE IS AN ALLEGED OR ACTUAL CONCURRING PROXIMATE CAUSE OF ANY ALLEGED THIRD-PARTY HARM. THE INDEMNITY PROVISION PROVIDED HEREIN SHALL HAVE NO APPLICATION TO ANY CLAIM OR DEMAND WHERE BODILY INJURY, DEATH, OR DAMAGE RESULTS ONLY FROM THE SOLE NEGLIGENCE OF THE DISTRICT UNMIXED WITH ANY FAULT OF THE DEVELOPER. 2.6 Developer shall comply with all terms, conditions and requirements of the District's Subdivision Policy and its Rules and other specific notices given to sub-dividers of Page -5- land seeking service from Wellborn Special Utility District. Compliance shall specifically include, without limitation, the payment of all required fees for the installation of water meters and the payment of impact fees for each residential unit or lot for which water service is requested. A multi-family unit of construction, such as a duplex, fourplex, or apartment unit shall require such meter and impact fees to be paid for each residential unit (i.e. two for a duplex, four for a fourplex, etc.) to which water service is provided. All such fees shall be due at the time a slab foundation is poured on any lot that is not sold to a third party but is being utilized by the developer for his/her own construction project/venture. In the case of third party purchasers of lots, see paragraph 3.1 for collection of impact fees at closing. III. DUTIES OF DISTRICT 3.1 District shall supply water to the Development and retain and obligate the District's system capacity for a maximum of 935 meters to the Development. District agrees to hold such capacity for a period of seven (7) years from the date of this agreement during which period, Developer must have utilized at least 65% of the above number of meters or, failing to do so, the District will be relieved of any further capacity commitment. If 65% of the number of meters are utilized during such five year period, then Developer shall be granted three additional years to either utilize or purchase the remaining number of meters or lose them. In consideration for the District's commitment of meter connections and capacity, Developer agrees that upon the sale of each lot to a purchaser, the sale will require the lot purchaser to pay the cost of the District's impact fee (applicable at the time of the transaction), collected at closing as an item on the closing statement for such sale, or if not possible for inclusion on such closing statement, to be paid within 30 days from the date of closing. Failure to make such payments, as agreed, will release the District from its obligation to provide water to such lot. If the total number of maximum meters set forth above are to be allocated to a second, third, or subsequent phase or installment of the development, (in addition to the initial phase), then each phase or installment will establish an independent time line that begins when construction is complete or lots are availabke for sale for such phase or installment. The allocation of meters for each phase or installment shall be as follows: Initial Installment: 232 meters for the first year from the date of this agreement; Second Installment: 150 meters for the second year; Third Installment: 150 meters for the third year; Fourth Installment:150 meters for the fourth year; Fifth Installment: 150 meters for the fifth year; Sixth Installment: 103 meters for the sixth year. District's commitment and obligation for system capacity shall, however, expire and be no longer applicable to the Development after a total of ten (10) years from the sale of the first lot, or the term of years set forth in the above schedule, whichever Page -6- shall first occur. 3.2 Upon acceptance by District of all water lines constructed for the supply of water to the Site, including without limitation the Off-Site Main and distribution lines within the Development, District shall assume full operation and maintenance responsibility, including the enforcement of warranties. Provided such water lines substantially comply with the Plans, Rules and Subdivision Policy, District's acceptance of such water lines will not be unreasonably withheld, conditioned or delayed. IV. TERM AND TERMINATION Either party may terminate performance under this contract in the event of a default by the other party and a failure by that party to cure such default after receiving notice thereof, all as provided in this section. Default shall occur if a party fails to observe or perform any of its duties under this contract or the Subdivision Policy or Rules. Should such a default occur, the non-defaulting party may deliver a written notice to the defaulting party describing such default and the proposed date of termination. Such date may not be sooner than the 30th day following delivery of the notice. The non-defaulting party, at its sole option, may extend the proposed date of termination to a later date. If prior to the proposed date of termination, the defaulting party cures such default, then the proposed termination shall be ineffective. If the defaulting party fails to cure the default prior to the proposed date of termination, then the non-defaulting party may terminate its performance under this contract as of such date. V. SPECIAL NOTICES TO DEVELOPER 5.1 Notice is hereby given that if the subdivision being developed or to be developed by you as a developer is one that is subject to storm water permitting, evidence of such permit and compliance with the provisions of the Endangered Species Act will be required prior to initiation of service of water to such subdivision. The District will not, however involve itself in the regulation of location of new subdivisions nor the determination of whether or not any such storm water permit is required, for which it has neither the authority nor the staff expertise to determine or attempt to regulate. For subdivisions not subject to storm water permitting, an affidavit signed by the project owner and/or consulting engineer that such subdivision is not so subject will be accepted by the District as conclusive. 5.2 District is prohibited from extending water service to areas where wetlands exist without verification that the proper U.S. Army Corps of Engineers, Section 404 permits have been obtained. Page -7- 5.3 District is prohibited from extending water service to all structures, houses, buildings or other improvements not existing, established and completed on or before September 21, 2004, located within the 100-year flood plain, as identified by the Federal Emergency Management Administration (FEMA) without the following: 1. On-site sewage disposal facilities shall be approved by the health authority for Brazos County; comply with local requirements for development within the 100-year flood plain, and comply with TCEQ regulations. Evidence that all required permits have been obtained with respect to sewage disposal should be demonstrated. 2. The floor elevation of the structure shall be a minimum of 1.0 feet above the established 100 year flood plain and flood insurance is available. 3. The District shall obtain an agreement from the Brazos County Flood Management Administrator that any request for water service shall include a review by Brazos County Flood Management Administrator and insure the development complies with the flood management plan as approved by FEMA. VI. MISCELLANEOUS 6.1 Independent Contractor. Developer is engaged as an independent contractor, and all of the services provided for herein shall be accomplished by Developer in such capacity. District shall have no control or supervisory powers as to the detailed manner or method of the Developer's performance of the subject matter of this contract. All personnel supplied or used by Developer shall be deemed employees or subcontractors of Developer and will not be considered employees, agents or subcontractors of District for any purpose whatsoever. Developer shall be solely responsible for the compensation of all such personnel, for the withholding of income, social security and other payroll taxes and for the coverage of worker's compensation benefits, if any. 6.2. Force Majeure. "Force Majeure" includes, but is not limited to, acts of God, acts of the public enemy, acts or threats of terrorists , activity, war, blockades, insurrection, riots, epidemics, landslides, lightning, earthquakes, fires, storms, floods, washouts, tornadoes, hurricanes, strikes, labor disputes, arrests and restraints of government and people, explosions, and any other inabilities of either party to carry out its obligations under this contract, except strikes or labor disputes and breakage to machinery or equipment, whether similar to those enumerated or otherwise, and not Page -8- within the control of the party claiming such inability, and which by the exercise of due diligence and care such party could not have avoided. If due to an event of Force Majeure, any party hereto is rendered unable, wholly or in part, to carry out its obligations under this contract, then such party shall give to the other party prompt written notice of the event of Force Majeure with reasonable full details concerning it; thereupon the obligation of the party giving the notice, so far as they are affected by the event of Force Majeure, shall be suspended during, but no longer than, the continuance of the event of Force Majeure. The affected party shall use commercially reasonable efforts to remove the event of Force Majeure as quickly as possible, but this obligation shall not be deemed to require the settlement of any strike, lockout, or other labor difficulty contrary to the wishes of the party involved. 6.3 Severability. In the event any term, covenant or condition herein contained shall be held to be invalid by any court of competent jurisdiction, such invalidity shall not affect any other term, covenant or condition herein contained, provided that such invalidity does not materially prejudice either the Developer or District in their respective rights and obligations contained in the valid terms, covenants or conditions. 6.4 Entire Agreement. This contract merges the prior negotiations and understandings of the parties hereto and embodies the entire agreement of the parties, and there are no other agreements, assurances, conditions, covenants (expressed or implied) or other terms with respect to the subject matter hereof, whether written or verbal, antecedent or contemporaneous with the execution hereof. 6.5 Notices. All notices required or permitted hereunder shall be in writing and shall be deemed delivered when actually received or, if earlier, on the third day following deposit in a United States Postal Service post office or receptacle with proper postage affixed (certified mail-return receipt requested) addressed to the respective other party at the address prescribed in the preamble of this contract or at such other address as the receiving party may have thereafter prescribed by notice to the sending party. 6.6 Time. Time is of the essence as to this contract. Unless otherwise specified, all references to "days" shall mean and refer to calendar days. Business days shall exclude all Saturdays, Sundays and federal legal holidays. In the event the date for performance of any obligation hereunder shall fall on a Saturday, Sunday or federal legal holiday, then that obligation shall be performable the next following regular business day. 6.7 Binding Effect. All covenants, agreements, warranties, and provisions of this contract shall be binding upon and inure to the benefit of the parties hereto and their Page -9- respective heirs, executors, administrators, personal representatives, successors and permitted assigns. 6.8 Controlling Law. This contract shall be governed by, construed and enforced in accordance with the laws of the State of Texas. The obligations hereunder are performable in Brazos County, Texas. 6.9 Attorneys' Fees. Should either party employ an attorney or attorneys to enforce any of the terms and conditions hereof, or to protect any right, title or interest created or evidenced hereby, or to recover damages for the breach of the terms and conditions hereof, the non-prevailing party in any action pursued in a court of competent jurisdiction shall pay to the prevailing party all reasonable costs, damages, and expenses, including attorneys' fees, expended or incurred by the prevailing party. 6.10 Interpretation. This contract is not to be construed more or less favorably between the parties by reason of authorship or origin of language. NO FURTHER PROVISIONS APPLY Page -10-