Item 9BCity of Southlake, Texas
MEMORANDUM
June 17, 2008
To: Shana Yelverton, City Manager
From: Robert H. Price, P.E., Public Works Director
Subject: Approve a Commercial Developer's Agreement with Gateway Church
for Phase 1 construction of East Kirkwood Boulevard, Grace Lane
and Blessed Way and associated utility and drainage improvements.
Action
Requested: Approve a Commercial Developer's Agreement with Gateway Church for
Phase 1 construction of East Kirkwood Boulevard, Grace Lane and
Blessed Way and associated utility and drainage improvements.
Background
Information: The developer will construct approximately 6,500 LF of public street,
7,100 LF of on -site public water line, a permanent drainage control weir
and other drainage collection and conveyance structures. This developer's
agreement covers the construction of these public improvements.
Subsequent phases of construction will include site improvements, future
utility and pavement construction and associated drainage improvements.
Additional fees, including Critical drainage fees, will be assessed and
included in forthcoming developer's agreements which will cover above
mentioned future phases of construction.
Financial
Considerations: The construction of 3,286 LF of 12" public water line is in accordance
with the City's Water Master Plan. An 8" water line is required to serve
the proposed development; therefore, according to City policy, the City
should reimburse the developer the difference in the cost of an 8" line and
a 12" line (amount not to exceed $61,464.14).
The developer is requesting a waiver of the standard administrative and
construction inspection fees for public improvements constructed as part
of this project in the amount of $177,105.88 (5% of the construction cost
for the proposed phase 1 construction). These fees are used to pay for
plan review, construction inspection, testing and any required consulting
expenses incurred by the City during the design and construction of the
development and therefore, approval of this request is not recommended
by the City staff.
The developer will dedicate 3.64 acres of land to the City of Southlake.
The developer will construct an 8ft -1Oft wide multi -use concrete trail
along the north side of State Highway 114.
The developer will construct an 8ft wide multi -use concrete trail along the
west side of N. Kimball Ave adjacent to the Gateway Church eastern
property perimeter and an 8ft wide multi -use concrete pathway along the
proposed Kirkwood Blvd. Both of these trails will be constructed by the
earlier of December 31, 2013 or completion of the developer's Phase 11
plan.
The developer will provide 4.30 acres of joint use area for the
development of pedestrian pathways and an ecologically sensitive area
according to the attached joint use agreement. All public improvements
will be constructed to city specifications.
Citizen Input/
Board Review: None
Legal
Review: This is the City's standard residential developer's agreement, originally,
drafted by the City Attorney.
Alternatives: The City Council may approve it, deny it or modify it.
Supporting
Documents: Developer's request for fee waiver
Standard Residential Developer Agreement
Location Map
Staff
Recommendation: Approve a Commercial Developer's Agreement with Gateway Church for
Phase 1 construction of East Kirkwood Boulevard, Grace Lane and
Blessed Way and associated utility and drainage improvements. Staff
anticipates significant time and effort in the review and inspection of the
public improvements associated with this development; therefore, it does
not recommend waiver of the administrative and inspection fees as
requested by the developer.
Staff
Page 2 of 3
Contact: Robert H. Price, P.E., Director of Public Works
Gordon Mayer, P.E., Deputy Director of Public Works / City Engineer
Michael James, P.E., Civil Engineer
Page 3 of 3
N r!' e
ATEWAV
CHURCH
May 21, 2008
Mr. Michael James
Department of Public Works
1400 Main Street, Suite 320
Southlake, Texas 76092
RE: Developer's Agreement — Gateway Church Highway 114 Campus
Dear Mr. James:
GATEWAY CHURCH
2121 E Souchlake Blvd Souchlake, TX 76092
Phone:817.328.2000 Fax: 837.329.1897
gatewaypeople.com
Gateway Church respectfully requests that the City of Southlake waive the inspection and
administration fees identified in the developer's agreement paragraph E. 1.a. & b.
I understand that Gateway Church is not a typical development that would generate a tax
based benefit to the City of Southlake over a period of time. It would be easy to simply
dismiss any request for relief on that fact alone. However, it is also important to understand
that Gateway Church does not fit the model of a typical church.
Although the benefit to the City of Southlake cannot be directly related to property tax, I offer
the following indirect benefits to the City of Southlake for your consideration:
Weekend Services - Gateway Church currently draws average of 10,000 people to the
City of Southlake for our weekend services or 500,000+ per year. It is virtually
impossible to identify the number of Gateway Chuirch attendees who support Southlake
restaurants, shops, and retailers prior to or after services. A conservative estimate would
be 30 -40 %. We anticipate the attendance to grow to 20,000 per weekend, or 1,000,000+
per year when the Interim Worship Center is completed. Even though it is impossible to
quantify the exact economic impact on the City of Southlake, it is safe to say it is
significant and will increase upon completion of this project.
Events & Conferences - In addition to the weekend services, Gateway Church hosts
several events and conferences throughout the year, each drawing a significant number of
visitors into the City of Soutblake. Our annual Pink Impact Women's Conference hosts
1,800 — 2,000 women and their daughters. The Pastors and Church Leaders Conference
brings approximately 800 pastors and their families to the area. These events generate
sales in lodging, restaurants, cosmetic and spa services. In addition, Gateway hosts other
large events regularly throughout the weeks. Each of these events also has significant
economic impact on the City of Southlake.
we're all about people
�r
GAT
F
C H U R C H
X
GATEWAY CHURCH
2121 E 5outhlake Blvd Southlake, TX 76o92
Phone:817.328.10oo Fax: 817.329.1897
gatewaypeople.com
■ Retail Services — Passages, the bookstore at Gateway Church, is open to staff, attendees,
as well as the public throughout the week, and on weekends. Retail sales from the
bookstore generates approximately $50,000 sales tax paid annually. In addition, the new
campus will have a cafe which will generate additional sales tax revenue.
■ Gateway Church Employees — Gateway Church is one of the larger employers in the
Southlake community with approximately 225 employees who are also regular patrons at
Southlake retail and service outlets.
• Parks Dedication — As a part of the development, Gateway Church was required to
contribute 1 acre /50 acres of developed area to the City of Southlake Parks Department.
Working in conjunction with the City of Southlake Parks Department, Gateway Church
committed an additional 4{- acres, more than doubling the required amount, as a joint
use to enhance the park.
• Public Utilities Improvements and Streets — In response to the City of Southlake's 2025
Master Thorough -fare plan, Gateway Church dedicated 17+ acres for development of
Kirkwood, Grace Lane, and Blessed Way. In addition to the land dedication, Gateway
Church will spend $7,000,000.00 + /- to develop the first phase of Kirkwood, Grace Lane,
Blessed Way, utilities, and regional storm water management. Although Gateway Church
would need entry drives and utilities, the scope and magnitude of the work would be
considerably less than what is required for public streets and utilities.
Although no single item listed above would offset the tax revenue from a "for profit"
development, when all the items are considered together it translates into a considerable
benefit to the City of Southlake. Given the overall economic benefit, the significant amount
of land dedicated, and the cost of public utilities and street construction Gateway Church will
fund, we respectfully request that the City of Southlake waive fees for inspection and
administration of the public utilities and streets as required in paragraph E.La & b of the
Commercial Developer's Agreement.
Michael, I welcome the opportunity to meet with you to discuss this. If you need additional
information, please contact me at office (817 -552 -3757) or cell (817- 807 - 8692).
Since ly,
Douglas P. Sluiter
Executive Director Campus Development
cc: Robert Price, Gordon Mayer — City of Southlake
Todd Lane, file - Gateway Church
File: campusdeveWpmentA l4propenyl 11 4s8dCiiyof 5oothlel :doevclopersAgreemmtO52?06.doc
were all about people
GATEWAY CHURCH
COMMERCIAL DEVELOPER AGREEMENT
Phase 1 Construction — East Kirkwood Boulevard, Grace Lane, Blessed Way and
Associated Drainage and Utility Improvements
An agreement between the City of Southlake, Texas, hereinafter referred to as the
"City ", and the undersigned Developer, Gateway Church, hereinafter referred to as the
"Developer ", of Gateway Church — Phase 1 Construction — East Kirkwood Boulevard,
Grace Lane, Blessed Way and Associated Drainage and Utility Improvements,
hereinafter referred to as "Addition" to the City of Southlake, Tarrant County, Texas, for
the installation of certain community facilities located therein, and to provide city
services thereto. It is understood by and between the parties that this Agreement is
applicable to the Addition (a commercial development) and to the off -site improvements
necessary to support the Addition.
GENERAL REQUIREMENTS
A. It is agreed and understood by the parties hereto that the Developer shall
employ a civil engineer licensed to practice in the State of Texas for the
design and preparation of the plans and specifications for the construction
of all facilities covered by this Agreement.
B. The Developer will present to the City either a cash escrow, Letter of
Credit, performance bond and payment bond acceptable to the City
guaranteeing and agreeing to pay an amount equal to 100% of the value
of the construction cost of all the public facilities to be constructed by the
Developer, and providing for payment to the City of such amounts, up to
the total remaining amounts required for the completion of the public
facilities if the Developer fails to complete the work within two (2) years of
the signing of this Agreement between the City and Developer. All bonds
shall be issued by a Best -rated bonding company. All letters of credit
must meet the Requirements for Irrevocable Letter of Credit attached
hereto and incorporated herein.
The value of the performance bond, letter of credit or cash escrow will
reduce at a rate consistent with the amount of work that has been
completed by the Developer and accepted by the City. Performance and
payment bond, letter of credit or cash escrow from the prime contractor(s)
or other entity reasonably acceptable to the City, hereinafter referred to as
Contractor, will be acceptable in lieu of Developer's obligations specified
above.
C. The Developer agrees to furnish to the City either maintenance bonds,
letter of credit or cash escrow amounting to 100% of the cost of
construction of underground public utilities and 100% for the paving.
These maintenance bonds, letter of credit or cash escrow will be for a
Page 1 of 24
period of two (2) years and will be issued prior to the final City acceptance
of the Addition. The maintenance bonds, letter of credit or cash escrow
will be supplied to the City by the contractors performing the work, and the
City will be named as the beneficiary if the contractors fail to perform any
required maintenance.
D. It is further agreed and understood by the parties hereto that upon
acceptance by the City, title to all facilities and improvements mentioned
herein above which are intended to be public facilities shall be vested in
the City, and Developer hereby relinquishes any right, title, or interest in
and to said facilities or any part thereof. It is further understood and
agreed that until the City accepts such improvements, the City shall have
no liability or responsibility in connection with any such facilities.
Acceptance of the facilities for this provision and for the entire Agreement
shall occur at such time that the City, through its City Manager or his duly
appointed representative, provides Developer with a written
acknowledgement that all facilities are complete, have been inspected and
approved, and are being accepted by the City.
E. On all public facilities included in this Agreement for which the Developer
awards his own construction contract, Developer agrees to the following
procedure:
1. Developer agrees to pay the following:
a. Inspection fees equal to three percent (3 %) of the cost of the
water , street, drainage and sanitary sewer facilities, on all
facilities included in this agreement for which Developer
awards his or her own construction contract, to be paid prior
to construction of each phase and based on actual bid
construction cost;
b. Administrative Processing Fee equal to two percent (2 %) of
the cost of water, street, drainage and sanitary sewer
facilities, on all facilities included in this Agreement for which
Developer awards his or her own construction contract, to be
paid prior to construction of each phase and based on actual
bid construction cost;
C. Trench testing (95% Standard);
d. The additional charge for inspections during Saturday,
Sunday, holidays, and after normal working hours;
e. Any charges for retesting as a result of failed tests;
Page 2 of 24
f. All gradation tests required to insure proper cement and /or
lime stabilization.
2. The City agrees to bear the expense of:
a. All nuclear density tests on the roadway subgrade (95%
Standard);
b. Technicians time for preparing concrete cylinders; and
C. Concrete cylinder tests and concrete coring samples.
The City can delay connection of buildings to service lines or water
mains constructed under this Agreement until said water mains and
service lines have been completed to the satisfaction of and
acceptance by the City.
F. The Developer will be responsible for mowing all grass and weeds and
otherwise reasonably maintaining the aesthetics of all land and lots in said
Addition which have not been sold to third parties. After fifteen (15) days
written notice, should the Developer fail in this responsibility, the City may
contract for this service and bill the Developer for reasonable costs. Such
amount shall become a lien upon all real property of the Addition so
maintained by the City, and not previously conveyed to other third parties,
120 days after Developer has notice of costs.
G. Any guarantee of payment instrument (Performance Bond, Letter of
Credit, etc.) submitted by the Developer or Contractor on a form other
than the one which has been previously approved by the City as
"acceptable" shall be submitted to the City Attorney and this Agreement
shall not be considered in effect until such City Attorney has approved the
instrument. Approval by the City shall not be unreasonably withheld or
delayed.
H. Any surety company through which a bond is written shall be a surety
company duly authorized to do business in the State of Texas, provided
that the City, through the City Manager, shall retain the right to reject any
surety company as a surety for any work under this or any other
Developer's Agreement within the City regardless of such company's
authorization to do business in Texas. Approval by the City shall not be
unreasonably withheld or delayed.
The Developer agrees to fully comply with the terms and conditions of all
other applicable development regulations and ordinances of the City.
Page 3 of 24
J. The Developer agrees that the completed project will be constructed in
conformance with the Development Site Plan, Construction Plans and
other permits or regulatory authorizations granted by the City during the
development review process.
II. FACILITIES
A. ON -SITE WATER
The Developer hereby agrees to install water facilities to service lots as
shown on the final plat of the Addition. Water facilities will be installed in
accordance with plans and specifications to be prepared by the
Developer's engineer and released by the City. Further, the Developer
agrees to complete this installation in accordance with Ordinance No. 170
and shall be responsible for all construction costs, materials and
engineering. In the event that certain water lines are to be oversized
because of City requirements, the City will reimburse the Developer for the
oversize cost greater than the cost of an 8" line. Additionally, the City
agrees to provide temporary water service at Developer's request and
expense, for construction, testing and irrigation purposes only, to
individual lots during the construction of buildings, even though sanitary
sewer service may not be available to the buildings.
B. DRAINAGE
Developer hereby agrees to construct the necessary drainage facilities
within the Addition. These facilities shall be in accordance with the plans
and specifications to be prepared by Developer's engineers, released by
the Director of Public Works, the City, and made part of the final plat as
approved by the Planning and Zoning Commission. The Developer
hereby agrees to fully comply with all EPA and TNRCC requirements
relating to the planning, permitting and management of storm water which
may be in force at the time that development proposals are being
presented for approval by the City.
C. STREETS
The street construction in the Addition will be installed in accordance with
plans and specifications to be prepared by the Developer's engineer and
released by the Director of Public Works.
1. The Developer will be responsible for:
a) Installation and two year operation of street lights, which is
payable to the City prior to final acceptance of the Addition;
Page 4 of 24
or an agreement with utility provider stating that no charge
will be made for street lights for the two -year duration.
b) Installation of all street signs designating the names of the
streets inside the Addition, said signs to be of a type, size,
color and design standard generally employed by the
Developer and approved by the City in accordance with City
ordinances;
C) Installation of all regulatory signs recommended based upon
the Manual on Uniform Traffic Control Devices as prepared
by the Developer's engineer by an engineering study or
direction of the Director of Public Works. It is understood
that Developer may put in signage having unique
architectural features, however, should the signs be moved
or destroyed by any means, the City is only responsible for
replacement of standard signage.
2. All street improvements will be subject to inspection and approval
by the City. No work will begin on any street included herein prior
to complying with the requirements contained elsewhere in this
Agreement. All water, sanitary sewer, and storm drainage utilities
which are anticipated to be installed within the street or within the
street right -of -way will be completed prior to the commencement of
street construction on the specific section of street in which the
utility improvements have been placed or for which they are
programmed. It is understood by and between the Developer and
the City that this requirement is aimed at substantial compliance
with the majority of the pre - planned facilities.
It is understood that in every construction project a decision later
may be made to realign a line or service which may occur after
construction has commenced. The Developer has agreed to advise
the City Director of Public Works as quickly as possible when such
a need has been identified and to work cooperatively with the City
to make such utility change in a manner that will be least disruptive
to street construction or stability.
. , - . mi
Page 5 of 24
E. EROSION CONTROL
During construction of the Addition and after the streets have been
installed, the Developer agrees to keep the streets free from soil build -up.
The Developer agrees to use soil control measures, such as those
included in NCTCOG STANDARD SPECIFICATIONS FOR PUBLIC
WORKS CONSTRUCTION, DIVISION 1000 EROSION AND SEDIMENT
CONTROL, to prevent soil erosion. It will be the Developer's responsibility
to present to the Director of Public Works a soil control development plan
that will be implemented for this Addition. When in the opinion of the
Director of Public Works there is sufficient soil build -up on the streets or
other drainage areas and notification has been given to the Developer, the
Developer will have seventy -two (72) hours to clear the soil from the
affected areas. If the Developer does not remove the soil within 72 hours,
the City may cause the soil to be removed either by contract or City forces
and place the soil within the Addition at the contractor's expense. All fees
owed to the City will be collected prior to acceptance of the Addition.
After construction of the Addition and prior to acceptance by the City, the
Developer agrees to have a permanent erosion control plan prepared and
approved by the Director of Public Works and have the plan installed and
working, effectively, in the opinion of the Director of Public Works. This
erosion control will prevent soil erosion from the newly created lot /lots
from washing into street rights of way, drainage ways or other private
property.
F. AMENITIES
It is understood by and between the City and Developer that the Addition
may incorporate a number of unique amenities and aesthetic
improvements such as ponds, aesthetic lakes, unique landscaping, walls,
and may incorporate specialty signage and accessory facilities. The
Developer agrees to accept responsibility for the construction and
maintenance of all such aesthetic or specialty items such as walls,
vegetation, signage, landscaping, street furniture, pond and lake
improvements until such responsibility is turned over to a homeowners
association.
G. USE OF PUBLIC RIGHT -OF -WAY
Page 6 of 24
It is understood by and between the City and Developer that the
Developer may provide unique amenities within public right -of -way, such
as landscaping, irrigation, lighting, etc., for the enhancement of the
Addition. The Developer agrees to maintain these amenities until such
responsibility is turned over to a homeowners association. The Developer
understands that the City shall not be responsible for the replacement of
these amenities under any circumstances and further agrees to indemnify
and hold harmless the City from any and all damages, loss or liability of
any kind whatsoever by reason of injury to property or third person
occasioned by its use of the public right -of -way with regard to these
improvements and the Developer shall, at his own cost and expense,
defend and protect the City against all such claims and demands.
H. START OF CONSTRUCTION
Before the construction of the water, sewer, streets or drainage facilities
can begin, the following must take place:
1. Approved payment and performance bonds must be submitted to
the City in the name of the City prior to commencement of any
work.
2. At least six (6) sets of construction plans to be stamped "Released
for Construction" by the Director of Public Works must be
submitted.
3. All fees required to be paid to the City.
4. Developer Agreement must be executed by all parties.
5. The Developer, or Contractor, shall furnish to the City a policy of
general liability insurance, naming the City as co- insured, prior to
commencement of any work. All insurance must meet the
Requirements of Contractor's Insurance attached hereto and
incorporated herein.
6. A Pre - Construction Meeting to be held with all Contractors, major
Sub - Contractors, Utilities and appropriate Government Agencies.
III. GENERAL PROVISIONS
A. INDEMNIFICATION
DEVELOPER COVENANTS AND AGREES TO INDEMNIFY AND DOES
HEREBY INDEMNIFY, HOLD HARMLESS AND DEFEND CITY, ITS
OFFICERS, AGENTS, SERVANTS AND EMPLOYEES, FROM AND
Page 7 of 24
AGAINST ANY AND ALL CLAIMS OR SUITS FOR PROPERTY
DAMAGE OR LOSS AND /OR PERSONAL INJURY, INCLUDING
DEATH, TO ANY AND ALL PERSONS, OF WHATSOEVER KIND OR
CHARACTER, WHETHER REAL OR ASSERTED, (INCLUDING,
WITHOUT LIMITATION, REASONABLE FEES AND EXPENSES OF
ATTORNEYS, EXPERT WITNESSES AND OTHER CONSULTANTS),
ARISING OUT OF OR IN CONNECTION WITH, DIRECTLY OR
INDIRECTLY, THE CONSTRUCTION, MAINTENANCE, OCCUPANCY,
USE, EXISTENCE OR LOCATION OF SAID IMPROVEMENT OR
IMPROVEMENTS, AND SHALL FURTHER BE LIABLE FOR INJURY
OR DAMAGE TO CITY PROPERTY, ARISING OUT OF OR IN
CONNECTION WITH ANY AND ALL ACTS OR OMISSIONS OF
DEVELOPER, ITS OFFICERS, AGENTS, SERVANTS, EMPLOYEES,
CONTRACTORS, SUBCONTRACTORS, LICENSEES, INVITEES OR
TRESPASSERS.
DEVELOPER AGREES TO INDEMNIFY THE CITY, ITS OFFICERS AND
EMPLOYEES FOR ANY DAMAGES, CLAIMS OR LIABILITIES
ARISING FROM THE NEGLIGENT ACT OR OMISSION, OR OF THE
CONCURRENT NEGLIGENT ACT OR OMISSION, OF THE CITY, ITS
OFFICERS AND EMPLOYEES.
B. Venue of any action brought hereunder shall be in Fort Worth, Tarrant
County, Texas.
C. Approval by the Director of Public Works or other City employee of any
plans, designs or specifications submitted by the Developer pursuant to
this Agreement shall not constitute or be deemed to be a release of the
responsibility and liability of the Developer, his engineer, 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 and 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 Director of Public Works signifies the City's approval on only the
general design concept of the improvements to be constructed. In this
connection, the Developer shall for a period of two (2) years after the
acceptance by the City of the completed construction project, indemnify
and hold harmless the City, its 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 Developer shall defend at his own expense
any suits or other proceedings brought against the City, its officers,
agents, servants or employees, or any of them, on account thereof, to pay
Page 8 of 24
all expenses and satisfy all judgments which may be incurred by or
rendered against them or any of them in connection herewith.
D. This Agreement or any part herein, or any interest herein, shall not be
assigned by the Developer without the express written consent of the City
Manager, which shall not be unreasonably withheld or delayed.
E. On all facilities included in this Agreement for which the Developer awards
his or her own construction contract, the Developer agrees to employ a
construction contractor who is approved by the City, and whose approval
shall not be unreasonably withheld or delayed, said contractor to meet
City and statutory requirements for being insured, licensed and bonded to
do work in public projects and to be qualified in all respects to bid on
public projects and to be qualified in all respects to bid on public projects
of a similar nature.
In addition, the Developer, or Contractor shall furnish the payment and
performance bonds in the name of the City prior to the commencement of
any work hereunder and shall also furnish to the City a policy of general
liability insurance.
F. Work performed under the Agreement shall be completed within two (2)
years from the date thereof. In the event the work is not completed within
the two (2) year period, the City may, at its election, draw down on the
performance bond, letter of credit or other security provided by Developer
and complete such work at Developer's expense; provided, however, that
if the construction under this Agreement shall have started within the two
(2) year period, the City may agree to renew the Agreement with such
renewed Agreement to be in compliance with the City policies in effect at
that time.
G. Prior to final acceptance of the Addition, the Developer shall provide to the
City three (3) copies of Record Drawings of the Addition, showing the
facilities as actually constructed.
H. Such drawings will be stamped and signed by a registered professional
civil engineer. In addition, the Developer shall provide electronic files
showing the grading plan and drainage area map; the plan and profile of
the sanitary sewer, storm drain, roadway and waterline; all lot lines, and
tie in to the state Plane Coordinate System.
IV. OTHER ISSUES
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Page 9 of 24
1110% mqil. 19 a goal 2 L L 1 1
D. OFF -SITE WATER
The developer will extend approximately 3,286 LF of 12" water line along
E. Kirkwood Boulevard as required by the City's Water Master Plan. The
City will reimburse the developer an amount not to exceed $ 61,464.14 for
the difference in cost between an 8" water line and the 12" water line when
the water line has been constructed and accepted by the City.
E. PARK DEDICATION REQUIREMENTS
The developer will dedicate 3.64 acres of land to the City of
Southlake.
2. The developer will construct an 8ft -1 Oft wide multi -use concrete trail
along the north side of Highway 114: Northside Veloway.
3. The developer will construct an 8ft wide multi -use concrete trail
along the west side of N. Kimball Ave: Kimball Walkway and an 8ft
wide multi -use concrete pathway along the proposed Kirkwood
Blvd: Aventerra Hike & Bike Trail. Both of these trails will be
constructed by the earlier of December 31, 2013 or completion of
the developer's Phase II plan.
4. The developer will provide 4.30 acres of joint use area for the
development of pedestrian pathways and an ecologically sensitive
area according to the joint use agreement Attachment "A ".
F. TREE PRESERVATION ORDINANCE
All construction activities shall comply with the current Tree Preservation
Ordinance requirements and as may be amended by the City Council.
Such conditions include, but are not limited to, proper posting of tree
protection warning signs and tree protective fencing to be maintained
throughout the duration of the project.
Page 10 of 24
SIGNED AND EFFECTIVE on the date last set forth below.
DEVELOPER
By:
Title:
Address:
STATE OF
COUNTY OF
On , before me, , Notary
Public, personally appeared personally known to me
(or proved to me on the basis of satisfactory evidence) to be the person whose name is
subscribed to the within instrument and acknowledged to me that he executed the same
in his authorized capacity, and that by his signature on the instrument, the person, or
the entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public
My commission expires:
(SEAL)
Page 11 of 24
CITY OF SOUTHLAKE, TEXAS
la
Andy Wambsganss, Mayor
ATTEST:
Lori Payne, City Secretary
Date:
Page 12 of 24
REQUIREMENTS FOR IRREVOCABLE LETTER OF CREDIT
1. The Letter of Credit must have duration of at least one year.
2. The Letter of Credit may be substituted for utility security deposits exceeding
$10,000.00. The City reserves the right to specify the face amount of the letter of
credit.
3. The Letter of Credit must be issued by a FDIC insured bank in a form acceptable
to the City of Southlake. The City reserves the right to approve /disapprove the
bank issuing the Letter of Credit.
4. The Letter of Credit must be issued by a bank that has a minimum capital ratio of
six (6 %) percent, and has been profitable for each of the last two consecutive
years.
5. The customer must provide the City with supporting financial information on the
bank to allow the City to ascertain requirements are met. Suitable financial
information would be the previous two (2) years December 31 Call Reports
submitted to the FDIC and audited financial statements.
6. Partial drawings against Letters of Credit must be permitted.
7. The City must be able to draft on sight with proof of amount owed.
8. The customer pays any and all fees associated with obtaining Letter of Credit.
9. Expiring Letter of Credit must be replaced by substitute Letters of Credit at least
30 days prior to the expiration date on the Letter of Credit held by the City.
Page 13 of 24
REQUIREMENTS FOR CONTRACTOR'S INSURANCE
Contractor's Insurance
1. Without limiting any of the other obligations or liabilities of the CONTRACTOR, during the term of
the Contract, the CONTRACTOR shall purchase and maintain the following minimum insurance
coverages with companies duly approved to do business in the State of Texas and satisfactory to the
CITY. In this section "Project" shall mean the public facilities to be constructed by Developer or under
Developer's contract with a CONTRACTOR. Coverages shall be of the following types and not less than
the specified amounts:
Workers' compensation as required by Texas law, with the policy endorsed to
provide a waiver of subrogation as to the CITY; employer's liability insurance of
not less than the minimum statutory amounts.
b. Commercial general liability insurance, including premises- operations;
independent CONTRACTOR's liability, completed operations and
contractual liability covering, but not limited to, the liability assumed under
the indemnification provisions of this Contract, fully insuring
CONTRACTOR's (or Subcontractor's) liability for injury to or death of
CITY's employees and third parties, extended to include personal injury
liability coverage with damage to property of third parties, broad form
property damage, with minimum limits as set forth below:
General Aggregate . .....................$2,000,000
Bodily Injury $1,000,000 Each Occurrence
Property Damage $1,000,000 Each Occurrence
Products — Components /Operations Aggregate . $1,000,000
Personal and Advertising Injury ............ $ 1,000,000
(With Employment Exclusion deleted)
Each Occurrence ...................... $ 1,000,000
Contractual Liability:
Bodily Injury $1,000,000 Each occurrence
Property Damage $1,000,000 Each occurrence
The policy shall include coverage extended to apply to completed operations, asbestos
hazards (if this project involves work with asbestos) and ECU (explosion, collapse and
underground) hazards. The completed operations coverage must be maintained for a
minimum of one year after final completion and acceptance of the work, with evidence of
same filed with CITY.
C. Comprehensive automobile and truck liability insurance, covering owned, hired and non -
owned vehicles, with a combined bodily injury and property damage minimum limit of
$1,000,000 per occurrence; or separate limits of $500,000 for bodily injury (per person),
and $500,000 for property damage. Such insurance shall include coverage for loading
and unloading hazards.
d. Property Insurance (Builder's All Risk)
(i) CONTRACTOR shall purchase and maintain, at all times during the term of its
Contract with the Developer property insurance written on a builder's risk "all-
Page 14 of 24
risk" or equivalent policy form in the amount of the initial contract price, plus
value of subsequent contract modifications and cost of materials supplied or
installed by others, comprising total value for the entire Project at the site on a
replacement cost basis without optional deductibles. Such property insurance
shall be maintained, unless otherwise in writing by all persons and entities who
are beneficiaries of such insurance, until final payment has been made or until no
person or entity other than the CITY has an insurable interest in the property
required by this paragraph to be covered, whichever is later. This insurance shall
include interests of the CITY, the CONTRACTOR, Subcontractors and Sub -
Subcontractors in the Project.
(ii) Property insurance shall be on an "all- risk" or equivalent policy form and shall
include, without limitation, insurance against the perils of fire (with extended
coverage) and physical loss or damage including, without duplication of
coverage, theft, vandalism, malicious mischief, collapse, earthquake, flood,
windstorm, falsework, testing and startup, temporary buildings and debris
removal including demolition occasioned by enforcement of any applicable legal
requirements, and shall cover reasonable compensation for CONTRACTOR's
services and expenses required as a result of such insured loss.
(iii) If the insurance required by this paragraph requires deductibles, the
CONTRACTOR shall pay costs not covered because of such deductibles.
(iv) This property insurance shall cover portions of the Work stored off the site, and
also portions of the Work in transit.
d. OWNER's Protective Liability Insurance:
(i) CONTRACTOR shall obtain, pay for and maintain at all times
during the prosecution of the work under the contract between the
CONTRACTOR and the Developer, a CITY's protective liability
insurance policy naming the CITY as insured for property damage
and bodily injury, which may arise in the prosecution of the work or
CONTRACTOR's operations under the contract.
(ii) Coverage shall be on an "occurrence" basis, and the policy shall be
issued by the same insurance company that carries the
CONTRACTOR's liability insurance with a combined bodily injury
and property damage minimum limit of $1,000,000 per occurrence.
e. "Umbrella" Liability Insurance:
The CONTRACTOR shall obtain, pay for and maintain umbrella liability insurance during
the term of the Contract between the CONTRACTOR and the Developer, insuring
CONTRACTOR for an amount of not less than $5,000,000 per occurrence combined
limit for bodily injury and property damage that follows form and applies in excess of the
primary liability coverages required herein above. The policy shall provide "drop down"
coverage where underlying primary insurance coverage limits are insufficient or
exhausted.
Page 15 of 24
Policy Endorsements
Each insurance policy to be furnished by CONTRACTOR shall include the following
conditions by endorsement to the policy:
a. name the CITY as an additional insured as to all applicable policies;
b. each policy shall require that 30 days prior to cancellation, non - renewal or any
material change in coverage, a notice thereof shall be given to CITY by certified
mail. If the policy is canceled for nonpayment of premium, only 10 days written
notice to CITY is required;
C. the term "CITY" shall include all authorities, boards, bureaus, commissions,
divisions, departments and offices of the CITY and individual members,
employees and agents thereof in their official capacities, and /or while acting on
behalf of the CITY;
d. the policy phrase `other insurance" shall not apple to the CITY n-here the CITY is an
additional insured on the policy.
2. Special Conditions
a. Insurance furnished by the CONTRACTOR shall be in accordance with the following
requirements:
any policy submitted shall not be subject to limitations, conditions or restrictions
deemed inconsistent with the intent of the insurance requirements to be fulfilled
by CONTRACTOR. The CITY's decision thereon shall be final;
ii. all policies are to be written through companies duly licensed to transact that
class of insurance in the State of Texas; and
iii. all liability policies required herein shall be written with an "occurrence" basis
coverage trigger.
b. CONTRACTOR agrees to the following:
�. CONTRACTOR hereby waives subrogation rights for loss or damage to the extent saine
are covered by insurance. Insurers shall have no right of recovery or subrogation against
the CITY, it being the intention that the insurance policies shall protect all parties to the
contract and be primary coverage for all losses covered by the policies:
ii. companies issuing the insurance policies and CONTRACTOR shall have no
recourse against the CITY for payment of any premiums or assessments for any
deductibles, as all such premiums and deductibles are the sole responsibility and
risk of the CONTRACTOR;
iii. approval, disapproval or failure to act by the CITY regarding any insurance
supplied by the CONTRACTOR (or any Subcontractors) shall not relieve the
CONTRACTOR of full responsibility or liability for damages and accidents as set
forth in the Contract Documents or this Agreement. Neither shall be bankruptcy,
insolvency or denial of liability by the insurance company exonerate the
CONTRACTOR from liability;
Page 16 of 24
u
u
deductible limits on insurance policies exceeding $10,000 require approval of the
CITY;
any of such insurance policies required under this paragraph may be written in
combination with any of the others, where legally permitted, but none of the
specified limits may be lowered thereby;
vii. prior to commencement of operations pursuant to this Contract, the Developer or
the Developer's CONTRACTOR shall furnish the CITY with satisfactory proof
that he has provided adequate insurance coverage in amounts and by approved
carriers as required by this Agreement;
viii. CONTRACTOR shall provide notice of any actual or potential claim or litigation
that would affect required insurance coverages to the CITY in a timely manner;
ix. CONTRACTOR agrees to either require its Subcontractors to maintain the same
insurance coverage and limits as specified for the CONTRACTOR or coverage of
Subcontractors shall be provided by the Contract; and
X. Prior to the effective date of cancellation, CONTRACTOR shall deliver to the
CITY a replacement certificate of insurance or proof of reinstatement.
Page 17 of 24
Attachment "A" — Joint Use Agreement
AGREEMENT BETWEEN THE CITY OF SOUTHLAKE AND
GATEWAY CHURCH
This Agreement Between the City of Southlake and Gateway Church (the "Agreement")
is e ntered into as of the —_ day of _, 2008, by and between the City of Southlake. Texas,
a home -rule municipal corporation of the State of Texas, 1400 Main Street, SOLdhlake. Texas,
76092. (the "City ") and Gatev M, Church, a non - prof organization of the State of Texas. 5000
South Nolen, Suite 300, SOLIthlake, Texas 76092, Attention: Torn Lane (the 'Church").
FOR AND IN CONSIDERATION OF THE AGREEMENTS SET OUT BELOW, the
parties agree as follows:
I. LICENSE
Subject to the tan and conditions set forth in this �Agreamont, the Church agrees to
an does hereby give the City a non-eXr-ILIGiVG l icense to utilize the surface of the real property
which is particularly d escribed in Exhibit "A" which is attached hereto and incorporated herein
for all purposes ( the "Premises ") for the Permitted Purposes (defined below) for a period of
twenty (20) years from the effective date of this Agreement ('initial term"). for and in
consideration of one dollar 41.00), the covenants and agreements of the City set forth in this
Agreement and othervalUalole consideration.
PURPOSEOF LICENSEAND USE OF PREMISES
A. General Pure; Use Limitations. The use by the City and those employees.
representatives. officers and agents of the City and members of the public having
the ht of access and use of the Premises under the license herein granted
shall re limited to the an environmentally and ecologically Sensitive park with
walking paths and, if desired by the City. seatin -areas and other points of
interest for enjoyment of the natural environment. g_ The principal purpose of the
walking paths Would be to provide ingress and egress from the Premises from
the future street identified as Kirkwood Boulevard on page 2 of Exhibit "A7 to
the tract or parcel of land of approximately 3.6 acres (the "Park') that has been
de dicated by th Church to the City and is identified on page 2 of Exhibit "A" as
'Proposed Lot 3, Block 3. Gateway church — 11 4 Cai Among other uses
not permitted on the Promises by the City are any use involving a field (such as
but not limited to a softball field, soccer field and football field): or a court (such
as but not limited to a tennis court or badminton court), or the use or installation
of playground and other equipment other than benches, seating and viewing
facilities: or any uses that require or should have GLIPOrvision bl adulta referees,
judges or umpi or ether similar so-cal active park uses. All use by the City
of
th Promises shall be complementary to and related to the uses that are
permitted by the City on the Park. other than the walking paths. seating and
viewing uses described above and appurtenances. the City shall not construct or
install or cause to ba constructed or installed on the Premises any temporary or
permanent Structures without the prior written consent of the Ch urch.
B. The Church reserves and shall have the right to use the Premises for all
purposes that do not materially interfere with and are substantially the same as
the uses which the City has the license to engage in or permit under the terms of
this Agreement and shall not be required to pay any f ee or other amount to the
Joint Use Agreement Page 1 of 5
WW6j)502W.Docurn3rW-JcAnI Lb3 Agreemart - ScuiNaVa M29C&doc
Page 18 of 24
City in connection with such use by Church and its members.
C. The Church shall be pon to count and apply the area of Promises as park
land, open spac* and landscaped areas with res to al park land, open space
and landscaped area requirements and ordinances of the City that apply to or
affect the development of and construction of improvements on the adjoining
land of the Church, notwithstanding the existence of this Agreement and thojoint
use of the Promises by the City pursuant to this Ag reement.
Bath City and Church acknowledge an existing lake on portions of the Promises
and that Texas and United States laws, ordinances, regulations and rules
("ildetland Laws') may apply to regulate the use and improvement of the
wetlands existing on the Promises. City and Church agree to comply with all
Wetlands Laws with respect to the LIGG of the Premises by the City and its
invitees or Church and its invitees.
E. The Church shall have no duty to inspect the Premises for defects, maintain the
Premises or make any improvements to the Premises durin� term of this
ca
Agreement. other than to repair any damage used by t Church to the
improvements made to the Property by the City in accordance with this
Agreement.
111. CITY'S OBLIGATIONS
City agrees to the following:
A. City shall clear existing debris and perform necessary grading with respect to the
walking paths, seating and viewings areas on the Premises to be used by the
City.
B. City shall construct the walking paths on the Premises of such materials as may
be mutually acceptable to the City and the Church, con ;intent with applicable City
standards.
C. City shall remove of any waste or debris generated by the City's use Of the
Promises and shall maintain the walking paths, seating and viewing areas on
Premises in a manner, consistent with applicable City standards and ordinances,
similar to what is required f or the Park.
D City is responsible f or obtaining all pe n its and approvals require f or any work
performed in and improvements made to the Premises by or on behalf of the
City, including but not limited to Al applicable Wetlands Laws and other
environmental laws, regulations and rules.
IV. INSURANCE
A. City shal purchase an comi n UOUGly maintain at all times after the effective date
of this Agreement and prior to the tan or expiration of this A oorriont, at
its sole expense. Commerdal General Liability insurance for bocli� injury and
Joint Use Agreement Page 2 of 5
M06j)502W-Docurn3rW-JcAn] Lb3 .Agraernart ScdiiNaVa M29Mdoc
Pap 19 of 24
property damage (including Personal Liability and Blanket Contractual) for the
joint and several and separate protection of the City and the Church for use the
Premises by City and its invitees permitted by this Agreement. Such liability
insurance shall name Church as an additional insured, shall specifically mention
or otherwise expressly cover activities on the Premises, and shall be in a
minimUrn amount of $1,000,000.00 per occurrence and $2,000,000.00
wii v negate. The City shall provide the Church with evidence of such coverage
in 30 days after the commencement of each policy year or period. The
mverage tothe Church under such i[hsuranog policy shall be primary.
B. Church shall purchase and continuously maintain at all timer after the effective
data of this Agreement and prior to the termination or expiration of this
f groomont, at its sole expense, Commercial General Liability insurance for bodily
injury and property damage (including Personal Liability and Blanket Contractual)
for the joint and several and separate protection of the Church for use the
Premises by Church and its invitees penmitted by this A reemer�t. Such liability
insurance shall name City as an additional insured, shall specifically mention or
otherwise expressly cover activities on the Premises, and shall be in a minimum
amount of $1,000,000.00 per occurrence and $2,000,000.00 aggregate. Upon
the written request of the City, the Church shall provide the City with evidence of
such coverage within 30 days after the corn rn once rment of each policy year or
period.
V. TERMINATION
A. Either City or Church may tonminate this Agreement by giving the other party
written notice not less than sox morhths prior to the termination, at the addresses
set forth in the preamble to this Agreement, or at such other address as either
party may provide to the other in accordance with the provisions of this
Agreement.
The Church agrees to reimburse City the prorated cost (defined below) of any
improvements installed on the Premises by the City pursuant to Article III above
should the Church terminate this Agreement before the expiration of the initial
term of this Agreement. The 'prorated cost" means the out of pocket cost incurred
by the City (excluding salaries and overhead costs of City employees) in installing
such improvements, multiplied by a fraction, the numerator of which is the number
of months that have expired since the effective date of this Agreement and the
denominator of which is the total [lumber of months in the initial term of this
Agreemert. If this Agreernerht is extended beyond its initial term, the prorated cost
shall be equal to zero dollars ($0.00). The prorated cost shall not exceed $50,000,
regardless of the actual cost incurred by the City in construction thereof.
TO THE FULL EXTENT PERMITTED BY LAW, THE CHURCH AGREES TO AND
SHALL INDEMNIFY THE CITYAND HOLD THE CITY HARMLESS OF AND FROM ANYAND
ALL DEMANDS, CLAIMS, DAMAGES, ACTIONS. CAUSES OF ACTION, SUITS IN EQUITY.
COST AND EXPENSES (INCLUDING BUT NOT LIMITED T-3 REASONABLE ATTORNEYS
FEES, COURT COSTS AND EXPENSES), NOW OR HEREAFTER ACCRUING. NOW
KNOWN. NOT NOW KNOWN, NOW , - - )R HEREAFTER tOCCURRING. FOR OF BECAUSE OF
Joint Use Agreement Page s of 5
M06j)542 - Docum3rW -Jcdn1 Lb3 Agraemart- ucdiiNaVa ,] 23Mdoc
Page 20 of 24
ANYTHING DONE, OMITTED TO BE DONE OR PER1,11TTEE, Ti_:, BE 1x')1 BY THE
CHURCH ON OR TOTHE PREMISES.
TO THE FULL EXTENT PERMITTED BY LAW, THE CITY AGREES TO AND SHALL
INDEMNIFY AND HOLD HARMLESS THE CHURCH AND THE PREMISES OF AND FROM
ANY ALL DEMANDS, CLAIMS, DAMAGES. ACTIONS, CAUSES OF ACTION, SUITS IN
EQUITY. COST AND EXPENSES (INCLUDING BUT NOT LIl:1ITED TO REASONABLE
ATTORNEYS FEES. COURT COSTS AND EXPENSES:. NOW OR HEREAFTER ACCRUING,
NOW KNOWN. NOT NOW KNOWN. NOW OR HEREAFTER OCCURRING. FOR OF
BECAUSE OF ANYTHING DONE OMITTED TO BE DC:NE =:-R PERMIT TO BE DONE BY
THE CITY OR ITS INVITEES ON THE PREMISES,
VII. MISCELLANEOUS PROVISIONS
A. No portable toilets or concession stands, trucks or trailers are to be parked on site
at anytime.
B. The parties a ree that the fact that either the Church or the City has drafted all or
any portion erf this Agreement shall not mean that in the event of ambiguity, this
Agreement or arty provision shall be construed against the City or the Church.
C. This Ag roe ment may not be assigned by the City or the Church in whole or in part
without the express prior written consent of the norrassigning party..
D. Effective Date The Effective Date of this Contract shall be the date on which a
fully executed copy hereof has been executed on behalf both the City and the
Church.
E. Notice Ar7y notice. communication. request, reply or advice (collectively,
" Notic e ' provided for or perrrnitted by this Ag roe m ent to be made or accepted by
either party must be in writing. Notice may, Lrnless otherwise provided herein, be
given or served by depositing the same in the United Sues mail, postage paid,
registered or certified, and addressed to the party to be notified, with return receipt
requested or by delivering the same to such party, or an agent of such party.
Notice deposited in the mail in the manner hereinabove described shall be
effective three (3) business days following such deposit. Notice given in any other
manner shall be effective onh if and when received by the party to be notified
bet,veen the hours of 8:00 A.M. and 5:00 P.M. of any business day with delivery
made after such hour to be deemed received the following business day. For
purposes of notice, the addresses of the parties shall, until changed as hereinafter
provided, be as set forth on the first page of this Agreement. The parties hereto
shall have the right from time to time to change their respective addresses, and
each shall have the right to specify as its address any other address within the
United States of America by at least five (5) days written notice to the other party.
E. This Agreement may be executed in any number of counterparts, each of whirr
shall co nstitute an original but all of which, taken together, shall constitute but one
and the same instrument.
This Agreement contains the entire agreement of the parties hereto with respect
to the subject matter hereof. There are no other agreements, oral or written, with
Joint Use Agreement Page 4 of 5
ws05a5+024-taacj , marCEUarn L139 Agreernart- ScUrdale 05290&cbc
Page 21 of 24
respect to the transaction contemplated hereby. This Agreement can be
amenclod only by awritten agreement signed by both the parties hereto.
G. In the event either party hereto is required to employ an attorney because of the
other party's default, to the maximum extent permitted by applicable law including
but not limited to Texas Local Government Code -Section 271.154, the defaulting
party shall pay the nondefaulting party's reasonable attorney's fees incurred in the
enforcement of this Agreement. In the event that, for any reason, this provision
VII.G. requiring the payment of attorneys' fees is not mutually enforceable, that is
not enforceable by the Church against the City, then, in that event. this provision
V I I.G. shal autonnatically become u no rfforogable by the City against the Church.
EX ECUTED this _ day of — 1 2008, by the City and previous by the Ch urch.
City of SOI-Ithlako
By:
Name:
Title:
FAM111:1441
City Secretary
Gateway Church
By:
Name:
Title:
Joint Use Agreement
%V�Ogj35.O24.%Dcciin 1-139 Agreernart- ScUrdals 05290acloc
Page 5 of 5
Page 22 of 24
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EXHIBIT DRAMN
OUTHLAKE JOINT USE AREA
CITY OF SOUTHLAKE
TARRANT COUNTY, TEXA
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EXHIEIT A
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CITY OF SOLITHLAKE
TARRANT COUNTY, TEXA —�r s
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