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HomeMy WebLinkAbout2013-3473 - Ordinance - 01/24/2013 ORDINANCE NO. 20/3 " 3 7 3 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF COLLEGE STATION, TEXAS, APPROVING A PARTICIPATION AGREEMENT BY AND BETWEEN THE CITY AND DOS DORADO DEVELOPMENT, L.L.C. FOR THE DEVELOPMENT OF THE CASTLEGATE II SUBDIVISION, SECTION 100, WATER LINE PROJECT AND AUTHORIZING THE EXPENDITURE OF FUNDS. WHEREAS, Dos Dorado Development, L.L.C. is a developer developing the Castlegate II Subdivision, Section 100; and WHEREAS, as part of said development, the construction of certain public infrastructure is required; and WHEREAS, pursuant to Section 212.071 et seq. Texas Local Government Code the City of College Station and the developer have agreed to jointly participate in the construction of certain public infrastructure to wit: the Castlegate II Subdivision, Section 100 Water Line Project ( "Project ") as further set forth in a Participation Agreement; now, therefore, • BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF COLLEGE STATION, TEXAS: PART 1: That the City Council hereby finds it to be in the best interests of its citizens to enter into that one certain Participation Agreement with Dos Dorado Development, L.L.C. for the construction of the Castlegate II Subdivision, Section 100 Water Line Project. A copy of said Participation Agreement is attached as Exhibit "A" and incorporated herein by reference. PART 2: That the City Council hereby approves the contract with Dos Dorado Development, L.L.C. obligating the CITY to pay a maximum of $26,810.00 out of a total estimated amount of $108,656.00 for the labor, materials and equipment required for the improvements related to the Castlegate II Subdivision, Section 100 Water Line Project. PART 3: That the funding for this Contract shall be as budgeted from the Water Capital Improvement Project Fund, in the amount of $26,810.00. PART 4: That this ordinance shall take effect immediately from and after its passage. P: IAGEN -CALVn Review11- 24- 131Oversized Participation- Castlegate U Section 10017- Attachment 7- Ordinance.doc ORDINANCE NO. 2013-3473 Page 2 PASSED, ADOPTED and APPROVED this 211 day of Jcd.n tL.QJ[. , 2013. y APPROVED: NANCY�� BERRY, Mayor ATTEST: . . _ SHERRY ►,., SHBURN, City Secretary APPROVED: Cap 44)20 City Attorney P: IAGEN- CALIIn Review11- 24- 131Oversized Participation- Castlegate 11 Section 10017- Attachment 7- Ordinance.doc CITY PARTICIPATION AGREEMENT This Agreement is entered into this day of , 20_, by and between the City of College Station, a Texas home rule municipal corporation (hereinafter "CITY "), and Dos Dorado Development, a Texas Limited Liability company d/b /a 3 -D Development (hereinafter "DEVELOPER "). WHEREAS, DEVELOPER is developing property within the City of College Station, more particularly described as Castlegate II, Section 100, College Station, Brazos County, Texas (hereinafter "Property ") a description of which is attached hereto as Exhibit A; and WHEREAS, DEVELOPER is required to construct certain public infrastructure, such as roadways, utilities, sidewalks, drainage facilities, water and sewer facilities, etc. that relate to DEVELOPER'S proposed development; and WHEREAS, CITY is required or desirous of assuming some or all responsibility for construction of certain public infrastructure affecting DEVELOPER'S development; and WHEREAS, because of this and in order to comply with CITY's overall development scheme both DEVELOPER and CITY agree that it is in the best interests of the public to jointly construct certain identified public infrastructure; and WHEREAS, the City Engineer has reviewed the data, reports and analysis, including that provided by DEVELOPER's engineers, and determined that such public improvement qualifies for joint CITY - DEVELOPER participation; and WHEREAS, both parties agree as to the nature and proportion of joint participation as further recited herein and as may be required in accordance with section 212.071 et seq and Chapter 252 Texas Local Government Code; 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 A s • roved P1 ns means the .lans and s . ecifications that meet the re • uirements of this Participation Agreement, the City of College Station Codes and Ordinances and an other a..licable laws and that have been submitted to reviewed and as 'roved b the Cit of College Station relating to the Pro_ect. 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. P: IAGEN- -CALVn Review11- 24- 131Tanya17- Attachment 7- Ordinance.doc 1.3 DEVELOPER means Dos Dorado Development, a Texas Limited Liability Company d/b /a 3 -D Development whose principal office is located at 4490 Castlegate Drive, College Station, Texas 77845. 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 the CITY OF COLLEGE STATION UNIFIED DEVELOPMENT ORDINANCE. 1.7 Property means that one certain tract of land known as Castlegate II, Section 100 and as further described in Exhibit A attached hereto and incorporated herein made a part hereof. 1.8 Project means the construction of waterline improvements as detailed in Exhibit B attached hereto and incorporated herein by reference. II. CITY COST PARTICIATION 2.1 Agree to Participate. CITY agrees to cost participate in the Project in the maximum amount estimated as set forth in Exhibit C, which is attached hereto and incorporated herein by reference. CITY'S actual rate of participation will be based upon the final actual cost of the Project as reflected by the breakdown of costs required pursuant to this Agreement but in no event shall exceed the maximum amount estimated in Exhibit C. 2.2 Public Bidding. The total estimated cost of the Project is as set forth in Exhibit C. If CITY's cost participation exceeds 30% of the total cost of the Project or is located within the extraterritorial jurisdiction of the CITY, then the Project must be competitively bid pursuant to Chapter 252 Texas Local Government Code, as amended. If CITY participation exceeds 30% of the total cost of the Project, CITY shall be responsible for advertising and obtaining bids or negotiating proposals for the construction of the Project. P: IAGEN -CALVn Review11 -24 -131 Tanya17- Attachment 7- Ordinance.doc DEVELOPER shall pay for all costs associated with advertising, printing, and distributing plans and specifications for the Project. If CITY's cost participation is 30% or less of the total cost of the Project and is located within the boundaries of the CITY, the Project need not be competitively bid. 2.3 Cost of Project. DEVELOPER's engineer's detailed cost estimate of the Project is attached hereto and incorporated herein as Exhibit C. 2.4 Application for Payment. Application for payment by the DEVELOPER to the CITY for payment to the DEVELOPER pursuant to the terms of this Agreement must include the following in a form acceptable to CITY: (1) Final Completion of the Project 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, the Property and its subdivision and development; (4) dedication of the land for the right -of -way either by plat or by 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) Proof that all guarantees of performance and payment as set forth in this Agreement have been met, including all bond requirements when applicable; and (8) A breakdown of actual costs of the Project with supporting documentation, including all payment receipts. 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. 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. 2.6 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, including any supporting information, cancelled checks, copies of construction and engineering documents, as determined by the City Engineer in his sole P: IAGEN -CALVn Review11- 24- 131Tanya17- Attachment 7- Ordinance.doc 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. 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 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. P. IAGEN- CALIIn Review11- 24- 131Tanya17- Attachment 7- Ordinance.doc 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 liens 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. 4.4 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. Such affidavit shall be in a form as substantially set forth in Exhibit D which is attached hereto and incorporated by reference. 4.5 Requirements of Applicable rules remain. 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. P: IAGEN -CALVn Review11- 24- 131Tanya17- Attachment 7- Ordinance.doc V. GUARANTEE OF PERFORMANCE AND PAYMENT 5.1 Bonding Requirements of Developer. Where CITY participation is 30% or less of the total value of the Project, DEVELOPER shall execute a performance bond to ensure construction of the Project and shall ensure that its contractor performing the Project executes a payment bond to ensure payment to subcontractors, if any. The bonds must be executed by a corporate surety in accordance with CHAPTER 2253, TExAs GOVERNMENT CODE. The bonds shall be in the total amount of the contract price as approved by CITY. 5.2 Bonding Requirements of City. Where CITY participation is greater than 30% of the total value of the Project or when the Project is located within the extraterritorial jurisdiction of the CITY, the 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. 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. 6.3 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. Any notice sent under this Agreement (except as otherwise expressly required) shall be hand delivered, written and mailed, or sent by electronic or facsimile transmission confirmed by mailing written confirmation at substantially the same time as such electronic or facsimile transmission, or personally delivered to an officer of the receiving party at the following addresses: P: IACEN -CALVn Review11- 24- 131Tanya17- Attachment 7- Ordinance.doc Dos Dorado Development, LLC City of College Station d /b /a 3 -D Development City Engineer Wallace Phillips IV P.O. Box 9960 4490 Castlegate Drive College Station, TX 77842 College Station, Texas 77845 With copies to: City Attorney and City Manager 1101 Texas Avenue College Station, TX 77842 Each party may change its address by written notice in accordance with this section. Any communication addressed and mailed in accordance with this section shall be deemed to be given when so mailed, any notice so sent by electronic or facsimile transmission shall be deemed to be given when receipt of such transmission is acknowledged, and any communication so delivered in person shall be deemed to be given when receipted for by, or actually received by, the party. 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. P:IAGEN- CALIIn Review11- 24- 131Tanya17- Attachment 7- Ordinance.doc Executed this day of , 20 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 D Affidavit of All Bills Paid form DOS DORADO DEVELOPMENT, LLC CITY OF COLLEGE STATION D/B /A 3 -D DEVELOPMENT BY: BY: Printed Name: Mayor Title: ATTEST: City Secretary APPROVED: City Manager City Attorney Executive Director Business Services P: IAGEN -CALVn Review11- 24- 131Tanya17- Attachment 7- Ordinance.doc