HomeMy WebLinkAboutMisc. OVERSIZE PARTICIPATION AGREEMENT
This Agreement is entered into this day of September, 2004, by and between the
City of College Station, a Texas home rule municipal corporation (the "CITY ") and DB
Autumn Chase, LP, a Texas Limited Partnership. (the "OWNER ").
WHEREAS, DB Autumn Chase, LP is the OWNER of the property more particularly
described as the Autumn Chase Subdivision as shown on the Final Plat of the Autumn
Chase Subdivision, a copy of which is attached hereto as Exhibit A; and,
WHEREAS, the OWNER is proposing to construct the Cornell Drive Extension with
associated drainage and utilities to serve this property, a copy of the construction
documents are attached hereto as Exhibit B; and,
WHEREAS, the City's Thoroughfare Plan shows Cornell Drive as a Major Collector
street extending through the property connecting Brentwood Street to Manuel Street; and,
WHEREAS, a Major Collector is defined in the City of College Station Subdivision
Regulations as a forty -eight foot (48') wide street cross section contained within a
seventy foot (70') wide right -of -way as amended by Ordinance No. 2269 of October 9,
1997; and,
WHEREAS, a Traffic Impact Study completed by Jeff Milburn, P.E., has indicated that
the development proposed by the OWNER, nor the current or future traffic patterns
warrant the construction of a Major Collector; and,
WHEREAS, the Traffic Impact Study indicates that a Minor Collector consisting of a
thirty -nine foot (39') wide street cross section contained within a sixty foot (60') right -of-
way is the largest street cross section warranted at this location; and,
WHEREAS, the Manuel Street and Cornell intersection currently floods with depths well
in excess of that allowed by the current City of College Station Drainage Policy and
Design Guidelines; and,
WHEREAS, the construction of Manuel Street did not provide for a proper drainage
outfall for the concentrated flow nor is there a drainage easement on the adjoining
downstream property to accommodate this concentrated flow; and,
WHEREAS, this drainage from Manuel Street has adversely affected the adjoining
downstream property; and,
WHEREAS, the OWNER was required to remedy the Manuel Street flooding and
improper outfall situation; and,
WHEREAS, the City of College Station Subdivision Ordinance provides for City
participation in streets and drainage facilities if they are in excess of that required by the
development; and,
1 of 7
P: \GROUP\AGEN- CAL \Council agendas \In - review\Planning and Development\Autumn Chase OP Req \3 Revised OVERSIZE
PARTICIPATION AGREEMENT_1.doc
WHEREAS, the City Engineer has determined that this request for street and drainage
participation is appropriate, and meets the intent of Section 9 of the Subdivision
Ordinance; and,
WHEREAS, the costs of the oversize participation for the street and drainage systems are
$40,586.00 and $51,457.00, respectively; and,
WHEREAS, the City Council considered and approved this Development Agreement on
September 23, 2004;
NOW, THEREFORE, for and in consideration of the recitations above and in
consideration of the promises and covenants herein expressed, the parties hereby agree
and covenant as follows:
I.
DETERMINATION OF RESPONSIBILITY
AND USE OF FUNDS
OWNER shall be responsible for the cost of a thirty -eight foot (38') wide Minor
Collector roadway, the extent of which is shown on the Autumn Chase Subdivision Final
Plat. CITY shall be responsible for the construction cost to oversize the above street
from a thirty -eight foot (38') wide Minor Collector to a forty-eight foot (48') wide Major
Collector.
CITY shall also be responsible for the actual value of the undeveloped land in excess of
that required for the Minor Collector. This constitutes the difference between a right -of-
way width of sixty feet (60') for a Minor Collector and seventy feet (70') for a Major
Collector for a distance of five hundred fifty feet (550').
OWNER shall be responsible for the cost of a combination twenty -four inch (24 ") and
thirty inch (30 ") storm sewer for the overall drainage system which is contained in the
Cornell right -of -way. CITY shall be responsible for the construction of two additional
ten foot (10') inlets and junction box as well as the size increase in the storm sewer
system to a combination thirty inch (30 "), thirty -six inch (36 ") and forty -two inch (42 ")
storm sewer system.
EXHIBIT C outlines cost participation of both the OWNER and the CITY.
The word "funds" as used in the Agreement shall mean any and all oversize participation
money that is received by OWNER from the CITY pursuant to this Agreement.
OWNER shall only use the funds for the sole purpose of constructing and installing the
improvements specified in this request and approved by the Director of Development
Services or his delegate.
This Agreement and payments made hereunder are contingent upon:
2 of 7
P: \GROUP \AGEN - CAL \Council agendas \In - review \Planning and Development\Autumn Chase OP Req \3 Revised OVERSIZE
PARTICIPATION AGREEMENT_1.doc
(1) the use of the funds as specified herein; and,
(2) the completion of the project in accordance with the plans and specifications
submitted to and approved by the Director of Development Services or his
delegate and the City Engineer (hereinafter "plans ").
II.
OVERSIZE PARTICIPATION AMOUNT
The total estimated cost of the project is FOUR HUNDRED TWENTY -EIGHT
THOUSAND FOUR HUNDRED THIRTY -SEVEN AND 75/100 DOLLARS
($428,437.75), of which the CITY may pay no more than thirty percent (30 %) or ONE
HUNDRED TWENTY -EIGHT THOUSAND FIVE HUNDRED THIRTY -ONE
AND 33/100 DOLLARS ($128,531.33), without the project being publicly bid. The
total oversize participation obligation of the CITY under this agreement is for NINETY -
TWO THOUSAND FORTY -THREE AND NO /100 DOLLARS ($92,043.00).
Payment shall be made in accordance with Section V herein.
III.
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 waive its governmental immunity, the
limitations as to damages under the Texas Tort Claims Act or give its consent to suit.
OWNER agrees to and shall indemnify, hold harmless, and defend the 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 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
OWNER under this Oversize Participation Agreement, regardless of whether such
injuries, death, damages or breach are caused in whole or in part by the negligence of the
CITY, any other party indemnified hereunder, or the OWNER.
OWNER shall indemnify and hold the CITY harmless from any claims of suppliers or
subcontractors of OWNER for improvements constructed or caused to be constructed by
OWNER.
OWNER shall indemnify and hold the CITY harmless from any and all injuries to or
claims of adjacent property owners resulting from or relating to their performance under
this Agreement.
OWNER assumes full responsibility for the work to be performed hereunder, and
releases, relinquishes and discharges the 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
3 of 7
P: \GROUP\AGEN- CAL \Council agendas \In - review \Planning and Development\Autumn Chase OP Req \3 Revised OVERSIZE
PARTICIPATION AGREEMENT_1.doc
to any property that is caused by, alleged to be caused by, arising out of, or in connection
with, OWNER'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 the CITY, any other party released hereunder, or
OWNER.
IV.
PLANS, SPECIFICATIONS, INSPECTION, AND CONSTRUCTION
The CITY may inspect the improvements for compliance with the Plans during
construction. In the event that it is determined by the CITY that any of the work or
materials furnished is not in strict accordance with the approved plans, the CITY may
stop work on the project and withhold funds until the nonconforming work conforms
with the Plans.
OWNER 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.
OWNER 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 liens of any type will be filed against
any property owned by the 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 the CITY, OWNER shall, where no payment bond covers the work, upon written
notice from the CITY, immediately obtain a bond at its expense and hold the CITY
harmless from any losses that may result from the filing or enforcement of any said lien
notice.
The parties to this Agreement agree and understand that all employees, volunteers,
personnel and materials furnished or used by OWNER in the installation of the specified
improvements shall be the responsibility of OWNER and shall not be deemed employees
or agents of the CITY for any purpose.
Prior to final acceptance of the project, OWNER shall provide the 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 the OWNER has been notified.
V.
OVERSIZE PARTICIPATION PAYMENT
The oversize participation funds will be paid to the OWNER in one payment within thirty
(30) days of final completion, the issuance of a certificate of completion, and/or
acceptance by the City Engineer and submittal of an application for payment by the
4 of 7
P: \GROUP\AGEN- CAL \Council agendas \In - review \Planning and Development\Autumn Chase OP Req \3 Revised OVERSIZE
PARTICIPATION AGREEMENT_1.doc
OWNER. To apply for payment, OWNER shall submit a written request to the City
Engineer. Payment will be contingent upon:
1. The City's receipt of a deed for the land; and,
2. An updated title report; and,
3. Lien subordinations from all lenders.
VI.
GUARANTEE OF PERFORMANCE
The OWNER must execute a performance bond for the construction of the improvements
to ensure completion of the project. The bond must be executed by a corporate surety in
accordance with Chapter 2253, Government Code. The bond shall be in the amount of
the improvements as estimated by the City Engineer and reduced by the amount of
Oversize Participation approved by the City of College Station City Council.
VII.
GENERAL PROVISIONS
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.
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.
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 OWNER represents that
he or she is authorized to sign on behalf of OWNER and agrees to provide proof of such
authorization to the CITY upon request.
Agreement read. The parties acknowledge that they have read, understand and intend to
be bound by the terms and conditions of this Agreement.
All notices and documents required herein shall be sent and provided to the parties at the
addresses and telephone numbers listed below:
DB Autumn Chase, LP City of College Station
5810 Tom Wooten Drive City Engineer
Austin, TX 78731 P.O. Box 9960
College Station, Texas 77842
5 of 7
P: \GROUP\AGEN- CAL \Council agendas\In- review \Planning and Development\Autumn Chase OP Req \3 Revised OVERSIZE
PARTICIPATION AGREEMENT_l.doc
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.
Assignment. This Agreement and the rights and obligations contained herein may not be
assigned by OWNER without the prior written approval of the CITY.
Default. In the event of a material breach of this Agreement by OWNER, the CITY may
terminate this Agreement and exercise any and all legal remedies available to it.
Executed this the day of September, 2004.
DB AUTUMN CHASE, LP CITY OF COLLEGE STATION
BY: BY:
Printed Name: Ron Silvia, Mayor
Title:
ATTEST:
Connie Hooks, City Secretary
APPROVED:
Thomas E. Brymer, City Manager
Signed by Iae4 Cargill t
.�'J1�f� � aut�ticiiy- �atth-f�ppr�Ct�t
City Attorney
Jeff Kersten, Finance and Strategic
Planning Director
6 of 7
P: \GROUP\AGEN- CAL \Council agendas \In - review \Planning and Development\Autumn Chase OP Req \3 Revised OVERSIZE
PARTICIPATION AGREEMENT_1.doc
THE STATE OF TEXAS )
ACKNOWLEDGMENT
COUNTY OF BRAZOS )
Before me, the undersigned authority, on this day personally appeared
as of
DB AUTUMN CHASE, LP, a Texas limited partnership, 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
2004.
Notary Public in and for the State of Texas
THE STATE OF TEXAS )
ACKNOWLEDGMENT
COUNTY OF BRAZOS )
Before me, the undersigned authority, on this day personally appeared RON
SILVIA 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
2004.
Notary Public in and for the State of Texas
7 of 7
P: \GROUP\AGEN- CAL \Council agendas \In- review\Planning and Development\Autumn Chase OP Req \3 Revised OVERSIZE
PARTICIPATION AGREEMENT_1.doc