Ordinance No. 13,675ORDINANCE NO. 13,675
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 A DEVELOPMENT
AGREEMENT WITH TEXAS CAPITAL DEVELOPMENT CORPORATION,
INC., FOR THE USE OF PORTIONS OF THE CITY'S PROPERTY FOR
ACCESS TO PINE GULLY FOR STORMWATER OUTFALL FROM THE
TRINITY OAKS SUBDIVISION; AND PROVIDING FOR THE EFFECTIVE
DATE THEREOF.
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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 and City Clerk of the City of Baytown to execute and attest to a
Development Agreement with Texas Capital Development Corporation, Inc., for access to Pine
Gully for stormwater outfall from the Trinity Oaks Subdivision. A copy of said agreement is
attached hereto, marked Exhibit "A" and incorporated herein for all intents and purposes.
Section 2: This ordinance shall take effect immediately from and after its passage by
the City Council of the City of Baytown.
INTRODUCED, READ, and PASSED by the affirmative to of the City Council of the
City of Baytown, this the 11th day of January, 2018.
ATTE T:
L TICIA BRYSCH, Ci Clerk
APPROVED AS TO FORM:
dGI�ACIO RAMIREZ, SR., i Attorney
S
cobfs0l\legallKareniFileslCity Council. Ordinances\2018Vanuary l l DeveloperAgreementwithTexasCapital.doc
Exhibit "A"
DEVELOPER'S AGREEMENT
STATE OF TEXAS
COUNTY OF HARRIS
This Developer's Agreement (the "Agreement") is entered into as of January _ _. 2018, by
and between Texas Capital Development Corporation, Inc., a Texas corporation ( the "Developer")
and the City of Baytown (the "City"). The Developer, and the City, may be individually referred to
herein as a "Party" or collectively as the "Parties,"
RECITALS
WHEREAS, the Developer is the owner of approximately 90.3876 acres located within the
boundaries of Harris County Municipal Utility District No. 528 (the "District"). as more particularly
described in Exhibit "A," which is attached hereto and incorporated herein for all intents and
purposes ("Developer's Property"); and
WHEREAS, the City is the owner of approximately 118.216 acres located immediately
adjacent to the Developer's Property, as more particularly depicted in Exhibit "B," which is
attached hereto and incorporated herein for all intents and purposes ("City's Property"): and
WHEREAS, the Developer wishes to develop the Developer's Property into a single-family
residential subdivision, to be known as the Trinity Oaks Subdivision, in accordance with all codes
and ordinances of the City (the "Development"), in the phases shown in Exhibit "A" (each a
"Development Phase"), and
WHEREAS, for the Development, the Developer wishes to outfall stonnwater from the
Developer's Property across portions of the City's Property and into Pine Gully, as more
particularly depicted in Exhibit "C," which is attached hereto and incorporated herein for all intents
and purposes; and
WHEREAS. the Developer also wishes to abandon its 0.3644 -acre casement over portions
of the City's Property and to obtain another easement totaling approximately 0.4248 acres on other
portions of the City's Property, which 0.4248 -acre tract is more particularly described in Exhibit
"D," which is attached hereto and incorporated herein for all intents and purposes; and
WHEREAS, the Parties wish to enter into this Agreement to provide the terns under which
the Developer shall use certain property of the City at Pine Gully; NOW THEREFORE,
FOR AND IN CONSIDERATION of the mutual promises, covenants, benefits and
obligations hereinafter set forth, the receipt and sufficiency of which is hereby acknowledged by all
Parties, the Parties hereby agree and contract as follows:
Developer's Obligations.
1.1 Development. The Developer shall construct the Development on Developer's
Property in Development Phases.
1.2 Stormwater. Developer shall have the privilege to outfall stormwater into Pine
Gully and to construct and maintain improvements on certain portions of the
City's Property as approved by the City Manager (i) consistent with Section 1
Plans and Specs for Section 1 and (ii) consistent with plans and specifications
approved by the City for future phases of development; provided that the Developer
submits a written request to invoke the privilege at least thirty (30) days prior to the
date the Developer desires to use the City's Property, which notice shall include:
the name and contact information of the person or entity performing the work
on the City's Property;
b. the anticipated start and completion dates of Developer's work on the City's
Property;
the Section 1 Plans and Specs or the City -approved plans and specifications
for water, sanitary sewer, drainage, and paving facilities for the applicable
Development Phase;
d. the City -approved plans and specifications for the outfall of stormwater on
the City's Property for each Development Phase;
any other governmental approvals, if any, necessary for the work on the
City's Property to be performed;
f. a valid certificatc(s) of insurance and endorsements acceptable to the City for
the Developer and anyone performing work on behalf the Developer on the
City's Property pursuant to this Agreement. Such certificate(s) shall
evidence the following coverages throughout the period any work is
performed on the City's Property, which coverages may be updated from
time to time to meet the City's standards as determined by the City's Risk
Manager:
Commercial General Liability
.- General Aggregate: $2,000,000.
:- Per Occurrence: $1,000,000.
Products & Completed Operations Aggregate: $1,000,000.
Owners' and Contractors' Protective Liability: $1,000,000, during
construction and all renovations thereafter of the Project
improvements.
Personal & Advertising Injury: $1,000,000
.- Coverage shall be at least as Broad Form CGL
r No coverage shall be deleted from standard policy without
notification of individual exclusions being attached for review and
acceptance.
r Waiver of Subrogation required.
ii. Business Automobile Policy (BAP)
Combined Single Limits: $2,000,000.
Coverage for "Any Auto."
i Waiver of Subrogation required.
iii. Workers' Compensation: Statutory Limits
Employer's Liability: $1,000,000.
Waiver of Subrogation required.
This insurance coverage shall be primary insurance with respect to the City,
its officials, employees and agents, who shall be named as additional insureds
on the liability policies. Any insurance or self-insurance maintained by the
City, its officials, employees or agents shall be considered in excess of the
Developer's insurance and shall not contribute to it. The Developer shall
include or shall require its general contractor to include all subcontractors as
additional insureds under its policies or shall furnish separate certificates and
endorsements for each subcontractor. All coverages for the general
contractor and subcontractors shall be subject to all of the requirements stated
hcrcin.
The following are requirements for all policies required herein:
.- Insurance carrier must have an A.M. Best Rating of A:VII or
better.
Only insurance carriers licensed and admitted to do business in
the State of Texas will be accepted.
•- Liability policies must be on occurrence form.
Each insurance policy shall be endorsed to state that coverage
shall not be suspended, voided, canceled or reduced in coverage
or in limits except after thirty (30) days' prior written notice by
certified mail, return receipt requested, has been given to the City.
Upon request, and without cost to the City, certified copies of all
insurance policies and/or certificates of insurance shall be
furnished to the City.
g. a payment bond and a performance bond in accordance with Chapter 2253 of
the Texas Government Code for 100% of the cost of the total cost of the work
on the City's Property with the City listed as the beneficiary thereof if the
cost of the work charged to the Developer for the work on the City's Property
equals or exceeds $50,000; and
h. proof of payment to the City in the amount as required in Sections 1.3 and 1.4
of this Agreement, and
any other information that the City Manager determines is necessary to
properly administer this Agreement.
After using the City's Property in accordance with this Section, the Developer shall
obtain the City's approval of the improvements and shall restore the remainder of
City's Property that the Developer used to the same or better condition that the
City's Property was in prior to the Developer's use of the same.
1.3 Bridge Easement. Prior to exercising any privilege to use the City's Property as
allowed herein, the Developer shall (i) abandon in a form acceptable to the City
Attorney its 0.3644 -acre easement over portions of the City's Property, which
the City granted to Developer on February 2, 2016, and (ii) pay the City SIX
HUNDRED SIXTY-FOUR AND 40/100 DOLLARS ($664.40) for an casement
over the 0.4248 -acre property described in Exhibit "D" for roadway and utility
purposes.
1.4 Storniwater Easement. Prior to exercising any privilege to use the City's
Property as allowed herein, the Developer shall pay the City FIVE
THOUSAND AND NO/ 100 DOLLARS ($5,000.00) for a stormwater casement,
on which the Developer shall be required to construct and thereafter maintain
stormwater improvements for the Development consistent with plans and
specifications approved by the City. The Developer understands that this payment
is a prerequisite to obtaining a permit to commence development.
1.5 Bridec. The Developer shall be required to construct and maintain an
aesthetically pleasing bridge over Pine Gully on the 0.4248 -acre casement
obtained from the City. The City Manager must approve the design of the
bridge, and determine if the bridge is "aesthetically pleasing" prior to any
construction occurring on the 0.4248 -acre easement, which approval and
determination shall not be unreasonably withheld, conditioned, or delayed.
Should Developer fail to obtain the City's consent prior to the commencement
of any work within the 0.4248 -acre casement and fail to cure such default within
thirty (30) days after receipt of notice from the City, such casement shall revert
back to the City, and the Developer shall be required to restore the 0.4248 -acre
casement and other City Property disturbed by the Developer's operations to the
condition it was prior to constructing anything within the 0.4248 -acre casement.
1.6 Inspect Project/Property. During the term of this Agreement, while any work is
being performed by or on behalf of Developer pursuant to this Agreement, the
Developer understands and agrees that the City has the right to inspect the work
being performed on the City's Property at all reasonable times to ensure compliance
with the terms and conditions of this Agreement.
1.7 Indemnification.
THE DEVELOPER AGREES TO AND SHALL INDEMNIFY,
HOLD HARMLESS AND DEFEND, THE CITY, ITS
OFFICERS, AGENTS AND EMPLOYEES (HEREINAFTER
COLLECTIVELY IN THIS PARAGRAPH REFERRED TO
AS "CITY"), FROM AND AGAINST ANY AND ALL
CLAIMS, LOSSES, DAMAGES, CAUSES OF ACTION,
SUITS AND LIABILITY OF EVERY KIND, INCLUDING
ALL EXPENSES OF LITIGATION, COURT COSTS, AND
ATTORNEYS' FEES FOR INJURY TO OR DEATH OF ANY
PERSON, OR FOR DAMAGE TO ANY PROPERTY,
ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT, WHERE SUCH INJURIES, DEATH OR
DAMAGES ARE CAUSED BY THE SOLE OR JOINT
NEGLIGENCE OF THE DEVELOPER OR THE JOINT
NEGLIGENCE OF THE CITY AND ANY OTHER PERSON
OR ENTITY. IT IS THE EXPRESSED INTENTION OF THE
PARTIES HERETO, BOTH THE DEVELOPER AND THE
CITY, THAT THE INDEMNITY PROVIDED FOR IN THIS
PARAGRAPH IS AN INDEMNITY BY THE DEVELOPER
TO INDEMNIFY, PROTECT AND DEFEND THE CITY
FROM THE CONSEQUENCES OF THE CITY'S OWN
NEGLIGENCE, WHERE THAT NEGLIGENCE IS A
CONCURRING CAUSE OF THE INJURY, DEATH OR
DAMAGE AND FROM THE CONSEQUENCES OF THE
DEVELOPER'S OWN NEGLIGENCE, WHERE THAT
NEGLIGENCE IS THE SOLE OR CONCURRING CAUSE
OF THE INJURY, DEATH, OR DAMAGE.
FURTHERMORE, THE INDEMNITY PROVIDED FOR IN
THIS PARAGRAPH SHALL HAVE NO APPLICATION TO
THE CITY FOR ANY CLAIM, LOSS, DAMAGE, CAUSE OF
ACTION, SUIT AND LIABILITY WHERE THE INJURY,
DEATH OR DAMAGE RESULTS FROM THE SOLE
NEGLIGENCE OF THE CITY, UNMIXED WITH THE
FAULT OF ANY OTHER PERSON OR ENTITY. IN THE
EVENT THAT ANY ACTION OR PROCEEDING IS
BROUGHT AGAINST THE CITY BY REASON OF ANY OF
THE INDEMNITIES PROVIDED FOR HEREIN, THE
DEVELOPER FURTHER AGREES AND COVENANTS TO
DEFEND THE ACTION OR PROCEEDING BY LEGAL
COUNSEL ACCEPTABLE TO THE CITY. SUCH
ACCEPTANCE SHALL NOT BE UNREASONABLY
WITHHELD, CONDITIONED OR DELAYED.
1.8 Release. The Developer hereby releases, relinquishes, and discharges the City,
its officers, agents and employees from all claims, demands, and causes of
action of every kind and character, including the cost of defense thereof, that is
caused by or alleged to be caused by, arising out of, or in connection with this
Agreement. The Developer assumes full responsibility for its obligations under
this Agreement performed hereunder and hereby releases, relinquishes,
discharges, and holds harmless the City, its officers, agents, and employees
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from all claims, demands, and causes of action of every kind and character that
is caused by or alleged to be caused by, arising out of, or in connection with The
Developer's obligations hereunder. This release shall apply with respect to The
Developer's work regardless of whether said claims, demands. and causes of
action are covered in whole or in part by insurance.
City's Obligations.
2.1 Bridge Easement. After the Developer abandons its 0.3644 -acre casement over
portions of the City's Property, which the City granted to Developer on
February 2, 2016, and (ii) pays the City SIX HUNDRED SIXTY-FOUR AND
40/100 DOLLARS ($664.40), the City shall convey to the Developer an
casement, in a form satisfactory to the City Attorney, over the 0.4248 -acre
property described in Exhibit "D" for roadway and utility purposes.
2.2 Stormwater Easement. The City will convey to the Developer a stonnwater
casement, in a form acceptable to the City Attorney and subject to the
limitations contained in this Agreement, which will allow the Developer to
outfall stormwater into Pine Gully and to construct and maintain improvements
approved by the City Manager on certain portions of the City's Property
consistent with plans and specifications approved by the City.
Term and Termination.
3.1 Term. Subject to and upon the terms and conditions set forth herein, this Agreement
shall continue in force and effect from and after the Effective Date; however, the
Developer shall not be allowed to construct stonnwater improvements on the City's
Property after December 31, 2027.
3.2 Termination. This Agreement may be terminated by mutual consent of the parties or
for cause due to a breach of any term or condition of this Agreement. Prior to
termination for cause, however, the non -defaulting party must give the defaulting
party notice of the default specifying the default and providing for:
a. a seven (7) calendar day period to cure the default if the default is due to the
failure to make a payment required under this Agreement, or
b. a thirty (30) calendar day period to cure the default if the default is due to any
other breach of this Agreement; however, if such default is of such a nature
that it cannot reasonably be cured within thirty (30) calendar days, then the
non -defaulting party shall grant additional time if the defaulting Party
commences curing such default within thirty (30) calendar days and
diligently prosecutes such curing remedy thereafter.
Notwithstanding anything to the contrary contained in this Agreement, neither party
shall be deemed in violation of this Agreement if it is prevented from performing any
of the obligations hereunder due to a force majeure and the time for performance
shall be automatically extended by the period the party is prevented from performing
its obligations hereunder due to a force majeure and all payment obligations of the
City shall be extended until the Developer obtains a new certificate of occupancy. if
applicable, and commences operation of the Project. The term "Force Majeure." as
used herein, shall include, without limitation of the generality thereof, acts of God,
strikes, lockouts, or other industrial disturbances, acts of the public enemy, orders of
any kind of the government of the United States or the State of Texas or any civil or
military authority, insurrections, riots, epidemics, landslides, lightning, earthquakes,
fires, hurricanes, storms, floods, washouts, droughts, arrests, restraints of
government and people, civil disturbances, explosions, breakages or accidents to
machinery, pipelines or canals, partial or entire failure of water supply, and any other
inabilities of either Party, whether similar to those enumerated or otherwise, which
are not within the control of the party claiming such inability, and which such party
could not have avoided by the exercise of due diligence and care.
3.3 Continuing Obligations. It is expressly understood and agreed that the Developer's
obligations in Sections 1.3, 1.5, 1.7, and 1.8 survive the expiration or termination of
this Agreement. Likewise, it is expressly understood and agreed that the City's
obligations in Section 2.1 and 2.2 shall survive the expiration or termination of this
Agreement if the City has received the payment for the casements in accordance with
Sections 1.3 and 1.4, respectively.
General Provisions.
4.1 No Arbitration. Notwithstanding anything to the contrary contained in this
Agreement, the City and the Developer hereby agree that no claim or dispute
between the City and the 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 the City is subjected to an arbitration
proceeding notwithstanding this provision, the Developer consents to be joined in the
arbitration proceeding if the Developer's presence is required or requested by the
City for complete relief to be recorded in the arbitration proceeding.
4.2 Entire Agreement. This Agreement contains the entire agreement between the
parties. All prior negotiations, discussions, correspondence, and preliminary
understandings between the parties and others relating hereto are superseded by this
Agreement. This Agreement may only be amended, altered or revoked by written
instrument signed by the City and the Developer.
4.3 Sovereign Immunity. The City hereby waives governmental immunity from suit
solely for the purposes of adjudicating claims for breach of this Agreement. The
City's limited waiver of immunity does not stand as a basis for any claim of damage
against the City. All other immunities from suit, liability and damages arc
specifically retained by the City.
4.4 Notice. Any notice permitted or required to be given in this Agreement to the
Developer shall be given by registered or certified United States Mail, postage paid,
return receipt requested and addressed to Texas Capital Development Corporation,
Attention: Vice President, 5950 Berkshire Lane, Suite 375, Dallas, Texas 75225.
Any notice permitted or required to be given in this Agreement to the City shall be
given by registered or certified United States Mail postage prepaid, return receipt
requested, addressed to City of Baytown, Attention: City Manager, P.O. Box 424,
Baytown, Texas 77522-0424. All notices hereunder given shall be deemed validly
given when actually received or, if earlier, on the third day following deposit in a
United States Postal Service post office or receptacle if the notice otherwise
complies with all of the requisites of this article.
4.5 Independent Contractor. The relationship between the Developer and the City shall
be that of an independent contractor.
4.6 Parties in Interest. This Agreement shall be for the sole and exclusive benefit of the
Parties hereto and shall not be construed to confer any rights upon any third party.
The City shall never be subject to any liability in damages to any customer or
contractor of the Developer for any failure to perform its obligations under this
Agreement.
4.7 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
dctcnninations relative thereto.
4.8 Timeliness. Time is expressly declared to be of the essence in regard to this
Agreement.
4.9 Choice of Law, Venue. This Agreement shall be construed under and in accordance
with the laws of the State of Texas, and all obligations of the Parties created
hereunder are performable in Harris County, Texas.
4.10 Severability. In case any one or more of the provisions contained in this Agreement
shall for any reason be held to be invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect any other provision
thereof and this Agreement shall be construed as if such invalid, illegal or
unenforceable provision had never been contained herein.
4.11 Non -Waiver. Failure of either party hereto to insist on the strict performance of any
of the agreements herein or to exercise any rights or remedies accruing thereunder
upon default or failure of performance shall not be considered a waiver of the right to
insist on and to enforce, by an appropriate remedy, strict compliance with any other
obligation hereunder or to exercise any right or remedy occurring as a result of any
future default or failure of performance.
4.12 Interpretation. 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.
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4.13 Captions. The captions appearing at the first of each numbered section in this
Agreement arc inserted and included solely for convenience and shall never be
considered or given any effect in construing this Agreement or any provision hereof,
or in connection with the duties, obligations or liabilities of the respective Parties
hereto or in ascertaining intent, if any question of intent should arise.
4.14 Assignment. Neither Party to this Agreement may assign their rights, duties or
interests without first obtaining the written consent of the other Party.
4.15 Authority. Each party has the full power and authority to enter into and perform this
Agreement, and the person signing this Agreement on behalf of each party has been
properly authorized and empowered to enter into this Agreement. The persons
executing this Agreement hereby represent that they have authorization to sign on
behalf of their respective corporations and/or business entities.
4.16 Agreement Read. The Parties acknowledge that they have read, understand and
intend to be bound by the terms and conditions of this Agreement.
4.17 Multiple 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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year
opposite their signatures.
ATTEST:
LETICIA BRYSCH, City Clerk
APPROVED AS TO FORM-
IGNACIO RAMIREZ. SR., City Attorney
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CITY OF BAYTOWN, TEXAS
RICHARD L. DAVIS, City Manager (Date)
TEXAS CAPITAL. DF\'hLONNII:N-I
CORPORATION. INC.. a •I•exas
corporation
By: — — —
Name:-)cl,., (f u' f
-Title:
Date:
ti f:\ fl: OF TEXAS
l•t)UN I -Y l)1
Before me.�� rvt Jc �` '� ; �t S the undersigned notary Public. on this dad pensouall,
appeared the President of Texas Capital Dc4cloyment ('Depuration. Inc..
know n to me
_ pro\ ed to me on the oath of _ _ ___ or
+� pro\.ed to n>c through his/her current %� Xt, 5 twCvt l_> L, ,izt ` ;dcscripuun uC
identification card or other document issued by the federal government or an\ state
go%ernnunt 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 nc that hr she
cWcuted that instrument ]or the purposes and consideration therein expressed.
Green Under my hand and seal of office this U�dday of
:'; %"~• SHERRI JEFFORDS
:•; My Notary ID # 10932967
' Expiros August 3.2021
Notary Public infind tthc• State ufTexas
My commission expires. L `" 3. } o I
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