Item 4LItem 4L
CITY OF
SOUTHLAKE
MEMORANDUM
(June 17, 2014)
To: Shana Yelverton, City Manager
From: Robert H. Price, P.E., Director of Public Works
Subject: Approve a Residential Developer Agreement with
Brownstones at Town Square L.P. for the Garden District and
Phase C Brownstones
Action
Requested: Approve a Residential Developer Agreement with Brownstones at
Town Square L.P. for the Garden District and Phase C
Brownstones
Background
Information: The developer of the Garden District and Phase C Brownstones is
requesting the approval of a developer agreement to cover the
construction of public improvements associated with the
development of 33 residential lots. The developer will construct
approximately 1,200 LF of public street paving, 150 LF of public
storm drain, 1,165 LF of public waterline and 600 LF of public
sanitary sewer.
Release of Lots
The City's standard developer agreement allows for the release of
10% of the lots at the time certain fire codes are met. For this case
that would allow for the release of 3 lots. This agreement requires
City Council approval as the developer is requesting the release of
5 lots at the time these fire codes are met which is approximately
15% of the total lots.
While each residential unit is on its own lot, there is common wall
construction for the units. The first building "pod" consists of 2 units
sharing a common foundation and a common wall. The developer
is intending to build these two units as a model home and a spec
home. The second building "pod" consists of 3 units sharing a
common foundation and a common wall. The request for the
release of 5 lots is to accommodate the shared foundation/shared
wall construction of this product. This allowance has been made in
previous phases of the Brownstones as well as on other single
family developments.
Park Credits
The developer had a credit of 3.854 acres after Phase B to be
carried over to future Phases, the use of park credits for the
Garden District and Phase C Brownstones gives the developer a
recalculated park credit of 3.704 acres for future Brownstone
phases.
Right of Way Landscaping and Irrigation
The Addition has aesthetic amenities located in the public right of
way, specifically, street trees, shrubs and other landscaping, and
related infrastructure, including, sprinklers and water supply lines
providing irrigation.
In keeping with the character of previously approved developer
agreements regarding which party had responsibility for
maintenance and replacement of the street trees, shrubs and other
landscaping and related infrastructure the developer agreement is
now proposed to clarify the ambiguous clauses and allow the
orderly and consistent maintenance and replacement of the street
trees, shrubs and other landscaping, and related infrastructure in
the Addition.
Included in the Residential Developer Agreement are the following
provisions:
A. ASSIGNMENT AND OWNERSHIP OF STREET TREES
AND LANDSCAPING
The City shall be the owner of all trees, shrubs and other
landscaping, and sprinkler and water supply lines constructed to
service such trees, shrubs and other landscaping located in the
City right of way, and shall be authorized and responsible to
maintain all items located in the City right of way, in a manner
and at a level to be determined in the City's sole discretion.
B. REPLACEMENT AND MAINTENANCE OF STREET TREES
LANDSCAPING, AND ASSOCIATED INFRASTRUCTURE.
1. The City shall be authorized to replace any tree, shrub,
or other landscaping located in the City right of way, if, in the
City's sole discretion, such replacement is warranted.
C. IRRIGATION OF STREET TREES AND LANDSCAPING
Irrigation for the trees, shrubs and other landscaping located in
the City right of way shall be connected to water meters on the
City's account, and shall be the City responsibility after the City's
acceptance of the right of way
Completion Milestones
The developer has also requested language regarding completion
milestones for the public improvements in an effort to expedite
construction due to requirements and deadlines set forth in the
SUP, lessen construction time impacts to the existing Brownstone
residents and Town Square and put a "face" on the alley that
currently has existing Brownstone rears visible from Central
Avenue and SH114.
Financial
Considerations: This development drains into Critical Drainage Structure #13 and
will require a fee of $2,773.61 to be paid prior to beginning
construction.
Strategic Link: The Garden District and Brownstones Phase C development links
to the city's strategy map relative to the focus area of Quality
Development. The specific corporate objective that is met by the
construction of the development is: Invest to provide and maintain
high quality public assets.
Citizen Input/
Board Review: N/A
Legal Review: These modifications to the standard residential developer
agreement have been reviewed by the City Attorney.
Alternatives: The City Council may approve the residential developer agreement
or deny it.
Supporting
Documents: Location Map
Residential Developer Agreement
Staff
Recommendation: Approve a Residential Developer Agreement with Brownstones at
Town Square L.P. for the Garden District and Phase C
Brownstones
Staff Contact: Robert H. Price, P.E., Public Works Director
Cheryl Taylor, P.E., Deputy Director of Public Works/City Engineer
Steven D. Anderson, P.E., CFM, Civil Engineer
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BROWNSTONES AT TOWN SQUARE, PHASE C
THE GARDEN DISTRICT
RESIDENTIAL DEVELOPER AGREEMENT
An Agreement between the City of Southlake, Texas, hereinafter referred to as the
"City", and the undersigned Developer, BROWNSTONES AT TOWN SQUARE, L.P.,
hereinafter referred to as the "Developer", of THE GARDEN DISTIRCT and PHASE C
BROWNSTONES, hereinafter referred to as the "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 33 lots contained within the Addition 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 hereby agrees to comply with all federal, state, and local laws that
are applicable to development of this Addition.
C. 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
process.
D. Since the Developer is prepared to develop the Addition as rapidly as possible
and is desirous of selling lots to builders and having residential building activity
begin as quickly as possible and the City is desirous of having the Addition
completed as rapidly as possible, the City agrees to release 15% of the lots (up
to 5) after installation of public facilities as provided in Exhibit A. Building permits
shall not be issued until all Public Works infrastructure is deemed substantially
complete by the City as provided in Exhibit A, all appropriate Fire Code
requirements are satisfied and street signs with street names are in place as
provided in Exhibit A. Temporary, all-weather signs as specified in the Manual of
Uniform Traffic Control Devices (MUTCD) securely fastened in the ground are
acceptable until permanent street signs are installed. The Developer recognizes
that the remaining building permits or Certificates of Occupancy for residential
dwellings will not be issued until the supporting public works infrastructure
including permanent street signs with block numbers and regulatory signs within
the Addition have been accepted by the City per Exhibit A. This will serve as an
incentive to the Developer to see that all remaining items are completed.
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E. The Developer will present to the City, in form acceptable to the City, either (1) a
cash escrow, (2) Letters of Credit, or (3) performance bond and payment bond,
guaranteeing and agreeing to pay an amount equal to 100% of the value of the
construction cost of all public facilities (streets, sidewalks, water, sewer,
drainage, and any other public infrastructure improvements) to be constructed by
the Developer, and providing for payment to the City of 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 bonding company
licensed to do business in the State of Texas . All Letters of Credit must meet
the Requirements for Irrevocable Letters of Credit which have been incorporated
herein.
The value of the performance bond, letters 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 bonds, Letters
of Credit or cash escrow from the prime contractor(s), hereinafter referred to as
Contractor, or other entity acceptable to the City, may be accepted in lieu of
Developer's obligations specified above, at the discretion of the City.
F. Any guarantee of payment instrument (Performance Bond, Letters 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.
G. 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.
H. The Developer agrees to furnish to the City a 2-year maintenance bond, letters of
credit or cash escrow in an amount equal to 100% of the cost of construction of
all public facilities (streets, sidewalks, water, sewer, drainage, and any other
public infrastructure improvements). This 2-year maintenance bond, letters of
credit or cash escrow will take effect on the date of final acceptance of all of the
public facilities in the Addition, and shall secure all costs of maintenance of such
public facilities for a period of two (2) years. The 2-year maintenance bond,
letters 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.
I. No work shall be initiated on or in said Addition by Developer, save and except
as provided above; until the payment, performance and 2-year maintenance
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bond, letters of credit or cash escrow required in Paragraphs E and H have been
provided to the City.
J. It is further agreed and understood by the parties hereto that upon final
acceptance by the City, title to all public 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 for
any such facilities. Acceptance of the facilities must be in writing, signed by the
City, through its City Manager or his/her duly appointed representative,
acknowledging that all facilities are complete, have been inspected and
approved, and are being accepted by the City.
K. On all public facilities included in this Agreement for which Developer awards his
own construction contract, Developer agrees to the following procedures:
1. Developer shall pay all applicable fees and costs prior to scheduling a pre -
construction meeting, including the following:
a. Administrative fees equal to two percent (2%) of the cost of all public
facilities (streets, sidewalks, water, sewer, drainage, and any other public
infrastructure improvements) included in said agreement, based on actual
bid or contract construction costs;
b. Inspection fees equal to three percent (3%) of the cost of all public
facilities (streets, sidewalks, water, sewer, drainage, and any other public
infrastructure improvements) included in said Addition, based on actual
bid or contract construction costs.
2. Developer shall also be responsible for the following fees and costs:
a. Cost of trench backfill density testing (95% Standard);
b. Any charges for re -testing as a result of failed tests;
c. Actual charges for inspections during Saturday, Sunday, holidays, and
after normal working hours will be assessed to the project and payment by
the Developer will be required prior to final acceptance.
3. 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;
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c. Concrete cylinder tests and concrete coring samples;
d. All gradation tests required to insure proper cement and/or lime
stabilization;
e. Soil series for cement or lime.
4. The City can delay connection of private services to public utility mains
constructed under this Agreement until water mains, sanitary sewer mains
and storm drain lines have been tested and deemed substantially complete
by the City.
L. Both the Developer and any third party, independent entity engaged in the
construction of houses, hereinafter referred to as "Builder", will be responsible for
mowing all grassed areas 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 or Builder fail
in this responsibility, the City may contract for this service and bill the Developer
and Builder 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.
II. FACILITIES
A. STREETS
Street construction in the Addition shall be installed in conformance with the
requirements and 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 the following:
a. Installation and two-year operational cost of street lights, which is payable
to the City prior to final acceptance of the Addition; or an executed
agreement with utility provider stating that no charge will be made for
street lights for the two-year duration. The executed agreement must be
presented to the City prior to final acceptance;
b. Installation of all street signs based on the Manual on Uniform Traffic
Control Devices (MUTCD) as prepared by the Developer's engineer
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 based on the MUTCD as prepared by
the Developer's engineer by an engineering study or direction by the
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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 the standard signage and poles. Developer or Home
Owners Association will be responsible for any additional cost for
replacement of custom or unique signs.
2. All street construction will be subject to inspection and acceptance by the
City. No work will begin on any street in said Addition prior to complying with
all the requirements contained elsewhere in this Agreement. All streets,
water, sewer, drainage, and any other public infrastructure improvements
which are anticipated to be installed within the street or within the street right-
of-way will be completed per Exhibit A 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 proposed.
The Developer hereby agrees to advise the Director of Public Works as soon
as possible when any physical modifications to the alignment of public
infrastructure is required after construction has been completed. The
Developer agrees to cooperatively work with and assist in the coordination of
such modifications in a manner that will be least disruptive to street
construction and/or the integrity of surrounding public infrastructure.
B. ON -SITE WATER
The Developer hereby agrees to install water facilities to serve all lots shown on
the final plat of the Addition in accordance with plans and specifications to be
prepared by the Developer's engineer and released by the City for construction
and in accordance with Ordinance No. 170, as amended, and any other local,
state and federal regulations. The Developer shall be responsible for all
construction costs, materials and engineering. In the event that certain public
water lines are to be oversized to comply with the City's Water Master Plan, the
City will reimburse the Developer for the oversize cost greater than the cost of an
8" line.
C. ON -SITE SANITARY SEWER FACILITIES
The Developer hereby agrees to install sanitary sewer collection facilities to
service all lots as shown on the final plat of the Addition. Sanitary sewer facilities
will be installed in accordance with the 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. 440, as
amended, and any other local, state and federal regulations. The Developer
shall be responsible for all construction costs, materials, engineering, permits
and impact fees. In the event that certain public sanitary sewer lines are to be
oversized to comply with the City's Wastewater Master Plan, the City will
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reimburse the Developer for the oversize cost greater than the cost of an 8-inch
line. Additionally, the contractor may utilize, for construction purposes only,
water from City after obtaining a fire hydrant meter.
D. DRAINAGE
The Developer hereby agrees to install drainage facilities to service all lots as
shown on the final plat of the Addition in accordance with the plans and
specifications to be prepared by Developer's engineer and released by the City
for construction. The Developer also agrees to adhere to Ordinance No. 605, as
amended. The Developer hereby agrees to fully comply with all EPA, TCEQ and
FEMA 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 to the City. The Developer hereby agrees to
comply with all provisions of the Texas Water Code.
E. EROSION CONTROL
The Developer agrees to comply with Ordinance No. 946, as amended,
regarding erosion and sediment control during construction of the Addition. The
Developer also agrees to comply with the Texas Commission on Environmental
Quality TPDES General Permit No. TXR150000, and all other applicable local,
state and federal ordinances, regulations and laws.
The Developer agrees to keep the streets and storm drain systems (MS4) free
from soil build-up by using soil control measures, such as those included in the
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 Storm Water Pollution Prevention Plan (SWPPP)
and/or erosion control 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 from the affected areas within
72 hours, the City may remove the soil build-up either by contract or by City
forces and place the soil within the Addition at the Developer's expense. All
expenses must be paid to the City prior to acceptance of the Addition.
Developer or its contractors must commence final stabilization of any disturbed
areas immediately after completion of all soil disturbing activities. The TDPDES
General Permit No. TXR150000 defines final stabilization as when all soil -
disturbing activities at the site have been completed and a uniform (i.e., evenly
distributed, without large bare areas) perennial vegetative cover with a density of
at least 70% of the native background vegetative cover for the area has been
ESTABLISHED on ALL unpaved areas and areas not covered by permanent
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structures, or equivalent permanent stabilization measures (such as the use of
riprap, gabions, or geotextiles) have been employed.
Where construction activity on a portion of the site has temporarily ceased, and
earth disturbing activities will be resumed within 21 days, temporary erosion
control and stabilization measures are not required on that portion of the site,
except as provided below. Erosion control and stabilization measures must be
initiated as soon as practicable in semi -arid areas and areas experiencing
droughts by the 14th day after construction activity.
After final stabilization has been established on all disturbed areas of the Addition
and all permanent erosion control measures have been installed and working
effectively, the Developer shall request final acceptance of the project to the
Director of Public Works. Inspection of the site will be required to ensure that the
erosion control plan has been properly installed and the permanent erosion
control measures will prevent soil erosion from the newly created lots from
washing into the street right-of-way, drainage -way or other private property.
F. USE OF PUBLIC RIGHT OF WAY
It is agreed by and between the City and Developer that the Developer may
provide unique amenities within public right-of-way, such as landscaping,
irrigation, lighting, patterned concrete, 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 and his successors
and assigns understand 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 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.
G. AMENITIES
It is agreed by and between the City and Developer that the Addition may
incorporate a number of unique amenities and aesthetic improvements in
common areas of the Addition such as ponds, aesthetic lakes, unique
landscaping, walls, patterned concrete, specialty signage and accessory
facilities. The Developer shall be responsible 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.
H. START OF CONSTRUCTION
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Before the construction of the streets, water, sewer, or drainage facilities can
begin, the Developer must do the following:
1. Execute a Developer Agreement by all parties;
2. Schedule and attend a pre -construction meeting between Developer and City
and including all Contractors, major Sub -Contractors, Utilities and appropriate
Government Agencies;
3. Furnish to the City a list of all subcontractors and suppliers which will be
providing greater than $1,000 of work in the Addition;
4. Submit for approval by the City the payment and performance bonds and 2-
year maintenance bond or acceptable alternate security naming the City as
beneficiary;
5. Submit at least 2- 22"x34" (full size) sets and 5-11"x17" (half size) scalable
sets of construction plans to be stamped "Released for Construction" by the
Director of Public Works plus any additional sets needed for the developer
and contractor;
6. Pay all fees required to be paid to the City;
7. 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.
III. GENERAL PROVISIONS
A. IDEMNIFICATION
DEVELOPER COVENANTS AND AGREES TO INDEMNIFY AND DOES
HEREBY INDEMNIFY, HOLD HARMLESS AND DEFEND CITY, ITS
OFFICERS, AGENTS, SERVANTS AND EMPLOYEES, FROM AND
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 BY DEVELOPER,
DEVELOPER'S AGENTS, CONTRACTORS AND SUBCONTRACTORS,
AND SHALL FURTHER BE LIABLE FOR INJURY OR DAMAGE TO CITY
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PROPERTY, ARISING OUT OF OR IN CONNECTION WITH ANY AND ALL
ACTS OR OMISSIONS OF DEVELOPER, ITS OFFICERS, AGENTS,
EMPLOYEES, CONTRACTORS, AND SUBCONTRACTORS. THIS
OBLIGATION TO INDEMNIFY SHALL APPLY TO ALL CLAIMS THAT
ARISE FROM EVENTS THAT OCCUR PRIOR TO THE TIME THE CITY
ACCEPTS THE ADDITION, REGARDLESS OF WHETHER ANY SUCH
DAMAGES, CLAIMS OR LIABILITIES ARE CAUSED, IN WHOLE OR IN
PART, BY THE NEGLIGENT ACT OR OMISSION, OR OF THE
CONCURRENT NEGLIGENT ACT OR OMISSION, OF THE CITY, ITS
OFFICERS AND EMPLOYEES, AND SHALL CONTINUE FOR TWO
YEARS AFTER THE CITY ACCEPTS THE ADDITION.
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 Developer's 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 all expenses and satisfy any judgment 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
own construction contract, the Developer agrees to employ a construction
contractor who is approved by the City, and whose approval shall not be
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unreasonably withheld or delayed, said contractor to meet City and statutory
requirements for being insured, licensed and bonded to do work in public
streets and to be qualified in all respects to bid on public streets and to be
qualified in all respects to bid on public projects of a similar nature.
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 on the performance bond,
Letters 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. The City is an exempt organization under Section 151.309, Tax Code, and
the facilities constructed under this Agreement will be dedicated to public use
and accepted by the City upon acknowledgement by the City of completion
under Paragraph 1.F.
1. The purchase of tangible personal property, other than machinery or
equipment and its accessories, repair, and replacement parts, for use in
the performance of this Agreement is, therefore, exempt from taxation
under Chapter 151, Tax Code, if the tangible property is:
a. necessary and essential for the performance of the Agreement; and
b. completely consumed at the job site.
2. The purchase of a taxable service for use in the performance of this
Agreement is exempt if the service is performed at the job site and if:
a. this Agreement expressly requires the specific service to be provided
or purchased by the person performing the Agreement; or
b. the service is integral to the performance of the Agreement.
H. Prior to final acceptance of the Addition, the Developer shall provide to the
City two (2) copies of Record Drawings of the Addition, showing the facilities
as actually constructed.
Such drawings shall be stamped and signed by the registered professional
engineer of record. In addition, the Developer shall provide electronic files of
the drawings in a format acceptable to the City. The project coordinate
system must tie to the State Plane Coordinate System.
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IV. OTHER ISSUES
A. DOWN STREAM CRITICAL STRUCTURE FEE
This development drains into Critical Drainage Structures #13 and
requires a fee to be paid prior to beginning construction = $2,773.61.
7.472 acres in #13 * $371.20/ac = $2,773.61
B. PARK DEDICATION
Park dedication requirements applicable to Brownstones at Town Square
Phase B were documented under the Phase B Developer Agreement at 1.00
acres, based upon the development of forty (40) residential units. As
provided in the Phase B Developer Agreement, if the number of units
increased or decreased, the requirements and credits would be recalculated
based upon the revised number of units.
Developer had a credit of 3.854 acres after Phase B to be carried over to
future Phases, assuming the development of 40 lots. Only 13 lots were
developed in Phase B (one of which has not had a home built yet). 27 lots
have been replatted for incorporation into the Garden District. The Phase B
park dedication requirement is recalculated based on 13 lots, or 0.325 acres,
a difference of (0.675 acres). This increases the carry forward credit from
3.854 to 4.529 acres prior to commencement of Phase C.
Park dedication requirements applicable to Brownstones at Town Square
Phase C (the Garden District), Phase 1, are 0.825 acres, based upon the
development of thirty-three (33) residential units. The 0.825 acre
requirement will reduce the credit going forward for future Brownstone
phases to 3.704 acres. If the number of units increases or decreases the
requirements and credits shall be recalculated based upon the revised
number of units.
C. OPTIONAL AMENITIES LANGUAGE RELATING TO ROW LANDSCAPING
From 3rd Amendment to Brownstone Phase A and Phase B Developer Agreements
A. ASSIGNMENT AND OWNERSHIP OF STREET TREES AND
LANDSCAPING
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The City shall be the owner of all trees, shrubs and other landscaping, and
sprinkler and water supply lines constructed to service such trees, shrubs
and other landscaping located in the City right-of-way, and shall be
authorized and responsible to maintain all items located in the City right-of-
way, in a manner and at a level to be determined in the City's sole
discretion. To the extent, if any, that any assignment of such items is
necessary, the Developer, the Association, and Cooper and Stebbins hereby
assign all right, title and interest they may have in and to such items to the
City.
B. REPLACEMENT AND MAINTENANCE OF STREET TREES
LANDSCAPING, AND ASSOCIATED INFRASTRUCTURE.
1. The City shall be authorized to replace any tree, shrub, or other
landscaping located in the City right-of-way, if, in the City's sole discretion,
such replacement is warranted. The City will not be obligated to replace
any plant with a plant of the same size or species, if the City, in its sole
discretion, determines that replacement of a tree of a different size
and/or species is in the City's best interests and consistent with the
general character of the Addition.
2. The City may, at the City's option, permanently remove (and not replace)
any dead or dying tree, shrub or other landscaping located in the City right-
of-way if the City, in the City's sole discretion, determines that removal of
such plant(s) is in the City's best interests.
3. Developer, Cooper & Stebbins, and the Association shall have no
ownership or right of control or authority over the trees, shrubs and
landscaping located in the City right-of-way.
4. Notwithstanding the foregoing, The City will maintain and replace all trees,
shrubs and other landscaping located in the public right-of-way to a level
equal to or better than that which it does elsewhere in the Town Square
area. For trees that area is defined as that bounded by Civic Place, Grand
Avenue, Fountain Place and State Street. For shrubs, seasonal color and
other landscaping that area is defined as the blocks occupied by Town Hall
and by Summit Park.
5. The Association may enhance the landscape plantings in the public right-
of-way only after receiving approval in writing from the City.
C. IRRIGATION OF STREET TREES AND LANDSCAPING
Irrigation for the trees, shrubs and other landscaping located in the
City right-of-way shall be connected to water meters on the City's account,
and shall be the City responsibility after the City's acceptance of the right -
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of -way. Neither Developer nor Cooper & Stebbins shall have any
authority over nor responsibility for irrigation of the trees, shrubs and
landscaping located in the City right-of-way once accepted.
D. TREE PRESERVATION
All construction activities shall comply with Ordinance No. 585-D, as
amended, and Ordinance No. 585-B, as amended, which pertain to Tree
Preservation 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 protection measures to be maintained
throughout the duration of the project.
E. Exhibit A - Required Completion Milestones for Public Works
Since the Developer is prepared to develop the Addition as rapidly as
possible and is desirous of selling lots to builders and having residential
building activity begin as quickly as possible and the City is desirous of
having the Addition completed as rapidly as possible, the City agrees to
release lots as follows:
Fire Code requirements satisfied. Building permits shall be issued on up
to 15% of the lots (up to 5 lots) when all appropriate Fire Code
requirements are satisfied and street signs with street names are in place.
Temporary, all-weather signs as specified in the Manual of Uniform Traffic
Control Devices (MUTCD) securely fastened in the ground are acceptable
until permanent street signs are installed.
Public Works (excluding sidewalks and streetscape) Substantially Complete.
Building permits for the remainder of the lots shall not be issued until all
Public Works infrastructure other than sidewalks and streetscape are
deemed substantially complete by the City.
Public Works (including sidewalks and streetscape) Accepted. The Developer
recognizes that Certificates of Occupancy for residential dwellings will not
be issued until the supporting Public Works infrastructure including
sidewalks, streetscape and permanent street signs with block numbers and
regulatory signs within the Addition have been accepted by the City.
SIGNED AND EFFECTIVE on the date last set forth below.
Page 13 of 19 2013 Revision
DEVELOPER:
By:
Title:
Address:
STATE OF TEXAS
COUNTY OF TARRANT
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.
(SEAL)
Notary Public
My commission expires:
CITY OF SOUTHLAKE, TEXAS
Page 14 of 19 2013 Revision
la
Mayor
ATTEST:
City Secretary
Date:
City Attorney
Date:
Page 15 of 19 2013 Revision
REQUIREMENTS FOR IRREVOCABLE LETTER OF CREDIT
1. The Letter of Credit must have a 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
percent (6%), 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 Letter 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 16 of 19 2013 Revision
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:
a. 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........................................................................................ $1,0001000
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.
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-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
Page 17 of 19 2013 Revision
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.
e. 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.
f. "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.
Policy Endorsements
Each insurance policy to be furnished by CONTRACTOR shall include the following conditions by
endorsement to the policy:
name the CITY as an additional insured as to all applicable policies;
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;
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;
the policy phrase "other insurance" shall not apply to the CITY where the CITY is an additional
insured on the policy.
Page 18 of 19 2013 Revision
2. Special Conditions
a. Insurance furnished by the CONTRACTOR shall be in accordance with the following
requirements:
(i) 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:
(i) CONTRACTOR hereby waives subrogation rights for loss or damage to the extent
same 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;
(iv) deductible limits on insurance policies exceeding $10,000 require approval of the CITY;
(v) 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;
(vi) 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;
(vii) 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;
(viii) 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
(ix) Prior to the effective date of cancellation, CONTRACTOR shall deliver to the CITY a
replacement certificate of insurance or proof of reinstatement.
Page 19 of 19 2013 Revision