Ordinance No. 13,056ORDINANCE NO. 13, 056
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN,
TEXAS, AUTHORIZING AND DIRECTING THE CITY MANAGER TO
EXECUTE AND THE CITY CLERK TO ATTEST TO THE DEVELOPMENT
AGREEMENT WITH D.R. HORTON, INC., FOR CERTAIN ROADWAY AND
INFRASTRUCTURE IMPROVEMENTS ASSOCIATED WITH GOOSE CREEK
RESERVE; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS:
Section 1: That the City Council of the City of Baytown, Texas, hereby authorizes and
directs the City Manager to execute and the City Clerk to attest to the Development Agreement with
D.R. Horton, Inc., for certain roadway and infrastructure improvements associated with Goose Creek
Reserve. A copy of such agreement is attached hereto as Exhibit "A" and incorporated herein for all
intents and purposes.
Section 2: That the City Council of the City of Baytown authorizes payment pursuant to
the agreement authorized in Section 1 hereof in an amount not to exceed ONE HUNDRED SIXTY
THOUSAND AND NO /100 DOLLARS ($160,000.00).
Section 3: That the City Manager is hereby granted general authority to approve a
decrease or an increase in costs by FIFTY THOUSAND AND NO/ 100 DOLLARS ($50,000.00) or
less, provided that the amount authorized in Section 2 hereof may not be increased by more than
twenty-five percent (25 %).
Section 4: This ordinance shall take effect immediately from and after its passage by the
City Council of the City of Baytown. 1-11)
INTRODUCED, READ and PASSED by the affirmative vote o'the City Council of the City
of Baytown this the 10th day of December, 2015. 7 T
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APPROVED AS TO FORM:
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Exhibit "A"
DEVELOPMENT AGREEMENT
THE STATE OF TEXAS
COUNTY OF CHAMBERS
This Development Agreement (the "Agreement ") is made and entered into between the
City of Baytown, a municipal corporation located in Harris and Chambers Counties, Texas (the
"City"), whose address for purposes hereof is P.O. Box 424, Baytown, Texas 77522, and D.R.
Horton, Inc., a Texas corporation (the "Developer"), whose address for purposes hereof is 301
Commerce Street, Suite 500, Fort Worth, Texas 76102 -4178.
WITNESSETH:
I.
Project Description
The Project will consist of the improvements to existing roadways and associated
drainage and utility adjustments as necessary, to alleviate congestion and improve level of
service and safety as the various stages of the Goose Creek Reserves, a subdivision in Harris
County, are constructed (the "Project ").
Ii.
Developer Obligations
2.1 Obligations.
(a) Roadway Improvements. The Developer shall undertake the following
improvements to the existing roadways and associated drainage and utility
adjustments:
1. Southeast Ouadrant.
a. In the southeast quadrant, the Developer shall construct proposed
intersections with proposed southeast drive and Emmett Hutto
Boulevard with both northbound and southbound lanes and grade
separated crossing over Harris County Flood Control District
Ditch# 0129- 00 -00, as shown in Exhibit 2, which is attached
hereto and incorporated herein for all intents and purposes. Work
shall be completed and approved by the City prior to occupancy of
Section 2 as shown in Exhibit 1, which is attached hereto and
incorporated herein for all intents and purposes.
Development Agreement, Page 1
b. The Developer will construct a grade separated crossing for
pedestrians and vehicles over the median Harris County Flood
Control District ( "HCFCD ") Ditch ( #0129- 00 -00).
C. The Developer shall design or cause to be designed the proposed
intersections with northbound and southbound Emmett Hutto
Boulevard for safe traverse over the median ditch for pedestrians
and vehicles.
d. The Developer shall design or cause to be designed the proposed
grade separated crossing so as not to impede stormwater flow in
the existing HCFCD ditch as approved by HCFCD.
C. The Developer shall design or cause to be designed the proposed
layout of the intersections so that the design does not preclude
future traffic signalization at the intersection.
f. All designs specified herein shall be in conformance with the
City's standard specifications. The Developer's plans and
specifications must be approved in writing by the Director of
Engineering prior to the commencement of any construction.
g. Once Developer has obtained the City's Director of Engineering's
written approval, the Developer shall construct or cause the
improvements in accordance with the plans and specifications
approved by the City's Director of Engineering.
2. Northwest Quadrant:
a. At the intersection of W. Baker Road and Country Club Drive, the
Developer shall design and construct a left turn bay of adequate
storage capacity into the existing median island along Baker Road
for turning movement westbound to southbound as shown in
Exhibit 3, which is attached hereto and incorporated herein for all
intents and purposes. Work shall be completed and approved by
the City prior to occupancy of Section 4 as shown in Exhibit 1.
b. The Developer shall design and construct or cause to be designed
and constructed the proposed layout of the intersection so as not to
preclude future signalization and addition of future left turn lanes.
C. Proposed ultimate improvements at the Intersection of W. Baker
Road and Country Club Drive will include a signalized
intersection. The work shall be completed and approved by the
City prior to occupancy of Section 5 as shown in Exhibit 1.
Development Agreement, Page 2
d. The Developer shall design and construct the signalized
intersection in accordance to City's standards and specifications.
e. All designs specified herein shall be in conformance with the
City's standard specifications. The Developer's plans and
specifications must be approved in writing by the Director of
Engineering prior to the commencement of any construction.
f. Once Developer has obtained the City's Director of Engineering's
written approval, the Developer shall construct or cause the
improvements in accordance with the plans and specifications
approved by the City's Director of Engineering.
All roadway, drainage and utility design required herein shall be performed by a
professional engineer licensed in the State of Texas.
(b) Costs. All costs associated with the design and construction of the Project shall
be bome by the Developer, with the exception of the certain construction and
material testing for the signalized intersection referenced in Section 2.1(b)2.d
hereinabove. For those costs, which the Developer and the City estimate to be
THREE HUNDRED TWENTY THOUSAND AND N01100 DOLLARS
($320,000.00), the City agrees to pay either (i) 50% of the final construction cost
or (ii) $160,000, whichever is less. Payment shall be made by the City thirty (30)
days after both the City's acceptance of the signalized intersection and the City's
receipt of a proper invoice therefor.
(c) Update and Inspection. Upon request, the Developer shall provide to the City an
update on the status of the Project and the City shall have a right to inspect the
Project without notice at all reasonable times.
(d) Title. The legal title to the Project and all appurtenances related thereto shall be
vested in the City upon the City's acceptance of the same; and Developer shall
have no claim thereto.
III.
Term
Subject to and upon the terms and conditions set forth herein, this Agreement shall
continue in force and effect from the Effective Date (as hereafter defined) until the final
completion and acceptance of the Project by City.
Development Agreement. Page 3
IV.
General Provisions
4.1 Non - Waiver. Failure of City to declare any default immediately upon occurrence thereof,
or delay in taking action in connection therewith, shall not waive such default, but City
shall have the right to declare any such default at any time and take such action as might
be lawful or authorized hereunder, either in law or in equity.
4.2 Default. If Developer is in default of this Agreement, then City shall have the right to
declare Developer in default and immediately terminate the Agreement without notice,
unless otherwise specified herein, or exercise any other rights or remedies available
hereunder or as a matter of law. Developer is in default of this agreement if:
(1) Developer fails to timely perform any obligation imposed upon Developer
hereunder and does not cure the default within fifteen (15) days (unless
another period of time is specified herein) after written notice describing
the default in reasonable detail has been given to Developer or, if the City
Manager in his sole discretion, determines that the default cannot
reasonably be cured within the fifteen (15) day period, if Developer does
not commence curative work within the fifteen (15) day period and
prosecute the work to completion with diligence;
(2) Developer institutes proceedings, whether voluntary or otherwise, under
the provisions of the Federal Bankruptcy Act or any other federal or state
law relating to bankruptcy or insolvency; or
(3) Developer makes any assignment of this Agreement not permitted in
Section 4.7 without the written approval of City.
Should City terminate this Agreement for Developer's default, City will be relieved of its
obligations hereunder and Developer shall not be entitled to any reimbursement of the
costs incurred associated with the Project pursuant to Section 2.1(c). Additionally,
should this Agreement be terminated, City shall be entitled to seek all other relief which
may be allowed by law.
4.3 Remedies Cumulative. All rights and remedies of City and/or Developer under this
Agreement shall be cumulative and none shall exclude any other rights or remedies
allowed by law.
4.4 Amendments. This Agreement may not be altered, changed or amended, except by an
instrument in writing, signed by both parties hereto.
4.5 Release. By this Agreement, City does not consent to litigation or suit, and City hereby
expressly revokes any consent to litigation that it may have granted by the terms of this
Agreement or any other contract or agreement, any charter, or applicable state law. Nothing
contained herein shall be construed in any way so as to waive in whole or part City's
Development Agreement, Page 4
sovereign immunity. Developer assumes full responsibility for its obligations under this
Agreement performed hereunder and hereby releases, relinquishes, discharges, and holds
harmless City, its officers, agents, and employees from all claims, demands, and causes of
action of every kind and character, including the cost of defense thereof, for any injury to or
death of any person (whether they be either of the parties hereto, their employees, or other
third parties) and any loss of or damage to property (whether the property be that of either of
the parties hereto, their employees, or other third parties) that is caused by or alleged to be
caused by, arising out of, or in connection with Developer's work to be performed
hereunder. This release shall apply with respect to Developer's work regardless of whether
said claims, demands, and causes of action are covered in whole or in part by insurance.
4.6 No Arbitration. Notwithstanding anything to the contrary contained in this Agreement, City
and Developer hereby agree that no claim or dispute between City and Developer arising out
of or relating to this Agreement shall be decided by any arbitration proceeding including,
without limitation, any proceeding under the Federal Arbitration Act (9 U.S.C. Sections 1-
14), or any applicable State arbitration statute, including, but not limited to, the Texas
General Arbitration Act, provided that in the event that City is subjected to an arbitration
proceeding notwithstanding this provision, Developer consents to be joined in the arbitration
proceeding if Developer's presence is required or requested by City for complete relief to be
recorded in the arbitration proceeding.
4.7 Assignment. Developer shall not assign this Agreement without first obtaining the written
consent of City; provided that nothing herein shall be construed to prevent Developer from
assigning this agreement to its construction lender as security for the development of its
project associated with this Agreement.
4.8 Notice. Any notice required to be given under this Agreement or any statute, ordinance, or
regulation, shall be effective when given in writing and deposited in the United States mail,
certified mail, return receipt requested, or by hand- delivery, addressed to the respective
parties as follows:
CITY
City of Baytown
Attn: City Manager
P.O. Box 424
Baytown, TX 77522
DEVELOPER
D.R. Horton, Inc.
301 Commerce Street, Suite 500
Fort Worth, TX 76102 -4178
4.9 Binding Effect. This Agreement and each provision hereof, and each and every right, duty,
obligation, and liability set forth herein shall be binding upon and inure to the benefit and
obligation of City and Developer and their respective successors and assigns.
Development Agreement, Page 5
4. 10 Application of Laws. All terms, conditions, and provisions of this Agreement are subject to
all applicable federal, state and local laws and regulations, and all judicial determinations
relative thereto.
4.11 Choice of Law and Venue. This Agreement is declared to be a Texas contract, and all of the
terms thereof shall. be construed according to the laws of the State of Texas. The place of
making and the place of performance for all purposes shall be Baytown, Harris County,
Texas.
4.12 Ambiguities. In the event of any ambiguity in any of the terms of this Agreement, it shall
not be construed for or against any party hereto on the basis that such party did or did not
author the same.
4.13 Complete Agreement. This Agreement contains the entire understanding and constitutes the
entire agreement between the parties hereto concerning the subject matter contained herein.
There are no representations, agreements, arrangements, or understandings, oral or written,
express or implied, between or among the parties hereto, relating to the subject matter of this
Agreement, which are not fully expressed herein.
4.14 Duplicate Originals. It is understood and agreed that this Agreement may be executed in a
number of identical counterparts each of which shall be deemed an original for all purposes.
4.15 Headings. The headings and subheadings of the various sections and paragraphs of this
Agreement are inserted merely for the purpose of convenience and do not express or imply
any limitation, definition, or extension of the specific terms of the section and paragraph so
designated.
4.16 Gender and Number. The pronouns of any gender shall include the other genders, and
either the singular or the plural shall include the other.
4.17 Severability. If any section, subsection, paragraph, sentence, clause, phrase or word in this
Agreement, or application thereof to any person or circumstance is held invalid by any court
of competent jurisdiction, such holding shall not affect the validity of the remaining portions
of this Agreement, and the parties hereby declare they would have enacted such remaining
portions despite any such invalidity.
4.18 Agreement Read. The parties acknowledge that they have read, understand and intend to
be bound by the terms and conditions of this Agreement.
4.19 Authority. The officers executing this Agreement on behalf of each party hereby confirm
that such officers have full authority to execute this Agreement and to bind the party he/she
represents.
Development Agreement, Page 6
EXECUTED ON this the _ _ day of , 20_ (the "Effective
Date ").
CITY OF BAYTOWN
By:_
RICHARD L. DAVIS, City Manager
ATTEST:
LETICIA BRYSCH, City Clerk
APPROVED AS TO FORM:
IGNACIO RAMIREZ, SR., City Attorney
EXECUTED ON this the q day of e4 &be�,- , 20
D. OR N, IN .
('nature)
Chdstopher Undhms
(Printed Name) Division President
(Title)
STATE OF TEXAS §
COUNTY OF §
Before me, M.PpII~ Mkty �, the undersigned notary public, on this day personally
appeared JH7�NFR LIA/bftR -.s'r the DIV6JW 1?? 5t1)f 4- of D.R.
HORTON, INC., on behalf of such corporation
known to me;
proved to me on the oath of _ ; or
Develo�nnent Agreement, Page 7
proved to me through his/her current
{description of identification card or other document issued by the federal
government or any state government that contains the photograph and signature of
the acknowledging person}
(check one)
to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me
that he /she executed that instrument for the purposes and consideration therein expressed.
Given under my hand and seal of office this !I_
# ®KORIE JOHNSTON
* ID #1 "
My Comm. Ex ,,AprI 06, 2016
day ofd , 20j
Notary Pub c in and for the State of
Texas
My commission expires: y 71S
RAaren files Contmcts D R. tlonon Development Agreement Development Agreement.doc
Development Aereement. Page 8
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