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Agenda_GUS_02.10.2017
Notice of Meeting for the Georgetown Utility System Adv isory Board of the City of Georgetown February 10, 2017 at 2:00 PM at Georgetown Municipal Complex, 300-1 Industrial Av enue, Georgetown TX The City o f G eo rgeto wn is committed to comp lianc e with the Americans with Dis abilities Ac t (ADA). If yo u req uire as s is tanc e in participating at a p ublic meeting d ue to a disability, as d efined und er the ADA, reas onab le as s is tance, ad ap tatio ns , or acc o mmo d ations will b e provid ed up o n req uest. P leas e c o ntact the City Sec retary's Office, at leas t three (3) days prior to the sc hed uled meeting d ate, at (512) 930-3652 o r City Hall at 113 Eas t 8th Street fo r add itional info rmation; TTY us ers ro ute through Relay Texas at 711. Regular Session (This Regular S es s io n may, at any time, b e rec es s ed to convene an Exec utive S es s io n fo r any p urpose authorized b y the Op en Meetings Act, Texas Go vernment Co d e 551.) A Call to Ord er The Board may, at any time, rec es s the R egular S es s io n to convene in Exec utive S es s io n at the reques t of the Chair, a Board Memb er, the City Manager, As s is tant City Manager, G eneral Manager of Utilities, City Co uncil Member, o r legal c o uns el for any p urpos e authorized b y the Op en Meetings Act, Texas Government C o d e Chapter 551, and are s ubjec t to actio n in the Regular Ses s ion that follows . B Introduction of Vis itors Emp lo yee R ec ognitio n -- Ric hard P ajes tka, Matt Braun and Kolton Keith -- Mike Wes tbrook, Elec tric/T &D Operatio ns Manager C Dis cus s ion regard ing P ro ject P ro gress R ep o rt, timelines, and Co uncil Ac tions - Michael Hallmark, CIP Manager D Ind ustry Up d ates Legislativ e Regular Agenda E Review and p o s s ib le ac tion to approve the minutes from the regular GUS Bo ard meeting held on January 13, 2017. - S heila K. Mitchell, GUS Board Liais o n F Co nsideration and possible recommendatio n to ap p ro ve Task Order KPA-17-002 with Kasberg, Patric k & As s o ciates , LP of Geo rgeto wn, Texas , for p ro fes s io nal s ervic es related to Edward s Aquifer Recharge Zo ne Rehabilitation 2016-2017 in the amo unt o f $350,850.00– Wesley Wright, P.E., Sys tems Engineering Directo r/Mic hael Hallmark, CIP Manager G Co nsideration and possible recommendatio n to ap p ro ve Task Order KPA-17-005 with Kasberg, Patric k & As s o ciates , LP. of Geo rgeto wn, Texas , for p ro fes s io nal s ervic es related to the R ep lacement o f the San Gabriel Park Was tewater Lift S tatio n in the amo unt o f $396,260.00 – Wes ley Wright, P.E., S ystems Page 1 of 101 Engineering Directo r/Mic hael Hallmark, C IP Manager. H Co nsideration and possible recommendatio n to Counc il on a Utility Agreement with T hree Forks Partners hip , LTD and Trio Development, LLC fo r improvements related to the proposed Homestead develo p ment. -- Wes ley Wright, P.E., Sys tems Engineering Direc tor Adjournment CERTIFICATE OF POSTING I, Shelley No wling, C ity S ecretary fo r the C ity of Geo rgeto wn, Texas , d o hereby c ertify that this Notice of Meeting was p o s ted at City Hall, 113 E. 8th Street, a p lace read ily acc es s ible to the general p ublic at all times , on the ______ d ay o f __________________, 2017, at __________, and remained so p o s ted fo r at leas t 72 c o ntinuo us ho urs p receding the sc heduled time o f s aid meeting. ____________________________________ S helley No wling, City Sec retary Page 2 of 101 City of Georgetown, Texas Utility System Advisory Board February 10, 2017 SUBJECT: Call to Ord er The Bo ard may, at any time, recess the Regular Ses s ion to c o nvene in Exec utive Ses s ion at the req uest of the Chair, a Bo ard Member, the City Manager, As s is tant City Manager, General Manager o f Utilities , City Counc il Memb er, or legal counsel fo r any purp o s e autho rized by the Op en Meetings Ac t, Texas Go vernment Code Chap ter 551, and are s ub jec t to ac tion in the Regular Ses s io n that fo llo ws. ITEM SUMMARY: FINANCIAL IMPACT: N/A SUBMITTED BY: Page 3 of 101 City of Georgetown, Texas Utility System Advisory Board February 10, 2017 SUBJECT: Disc ussion regarding Projec t Progres s Report, timelines , and Counc il Ac tio ns - Mic hael Hallmark, CIP Manager ITEM SUMMARY: 2016 Water Improvements All hyd rants ins talled . CR258 water line tie in firs t week in F eb ruary, Pro jec t is 90% complete. Berry Creek Wastewater Interceptor Engineering ap p ro ved in May 2015. Final Des ign P lans are 50% complete & eas ements are 10% c o mp lete. Cedar Breaks EST Notice to Pro c eed 7/18/16. 24” water main ins talled and c o nc rete p ed es tal is 100% complete, Tank Crew mo ves in firs t of February. Projec t o verall is 50% c o mp lete. CR 255 Rec o mmended by GUS 10/09/15, ap p ro ved by C C o n 10/27/15. Preliminary C o ns truc tion P lans are near 80% c o mp lete & Eas ements 50% complete. Expec t to b id S ummer 2017. 2014 – 2015 EARZ Projec t is 100% c omplete and final Pay Ap plic ation s ub mitted for p ayment. 2016 EARZ Manho le Rehab wo rk und erway, projec t is 10% c o mp lete. Pecan Branch WWTP Plans are 100% c o mp lete and b id opening 3/28/17 with GUS Board and Co unc il in May 2017. Es timated 18 month c ons truc tio n time. Rabbit Hill EST Pedestal wo rk 100% c o mp lete, interior b o wl c o ating 75% c o mp lete with finis h c oat to be installed first week of February. Logo to be installed after interio r finis h coat. Shell Road Water line Final Des ign Plans are 90% c o mp lete & Easements are 60% c o mp lete. Westinghouse Regional Lift Station NTP – 1/3/17 Ero s io n Controls installed & c rews ins talled firs t 200 LF of 12” fo rcemain 1/30/17. Council Actions -- Attached FINANCIAL IMPACT: N/A Page 4 of 101 SUBMITTED BY: Wes ley Wright, P.E., S ystems Engineering Direc to r/Mic hael Hallmark, CIP Manager. ATTACHMENTS: Description Type February 2017 GUS Updates Backup Material Council Rpt Jan mtgs for Feb GUS Backup Material Page 5 of 101 Project: 2016 Miscellaneous Water Sys. Improvements Project# 2CO Update: February, 2017 Project Description: Project includes the installation of 10 Fire hydrants in the Western District and approximately 210 LF of C-900 waterline. Purpose: The purpose of this project is to improve water service and add fire protection. Manager: Michael Hallmark Engineer: CDM Smith Contractor: PROTA Inc. Phase Start Finish Status / Comments Preliminary Engineering May 2016 June 2016 Complete Final Design July 2016 July 2016 Complete ROW / Easements N/A N/A N/A Bid / Award Bid # 201648 June 2016 August 2016 Recommended by GUS on 8/12/16. Approved by CC on 8/22/16 Construction NTP issued 10/3/16 All 10 hydrants installed in Western District with final cleanup 90% complete. Rabbit Hill fill valve improvements installed & final cleanup with revegetation under away. CR258 water line tie in first full week in February, Project is 90% complete Post Construction Page 6 of 101 Project: Berry Creek Wastewater Interceptor Project# 3CJ Update – February 2017 Project Description: This project will consist of approximately 15,000 linear feet of wastewater interceptor ranging in diameter from 36-inch to 30-inch from the existing Berry Creek lift station to the existing Sun City lift station. The alignment of the interceptor will generally follow Berry Creek. Purpose: The purpose of this project is to add wastewater capacity in Sun City, provide wastewater service to the Shell road area, and will allow Sun City Lift Station to come off line when the future phases are complete. Manager: Michael Hallmark Engineer: CDM Smith Contractor: TBD Phase Start Finish Status / Comments Preliminary Engineering May 2015 February 2016 Recommended by GUS 5/8/15 approved by CC 5/26/15. Final Design February 2016 November 2016 50% complete ROW / Easements June 2015 10% complete Bid / Award Bid # Construction Post Construction Page 7 of 101 Project: Cedar Breaks Elevated Water Storage Tank Project# 2CH Update – February 2017 Project Description: This project will consist of 2 million gallon Elevated Water Storage Tank. Purpose: The purpose of this project is to add elevated water storage in lieu of the ground storage tank and pump station and meet the demands of the water system in the 980 pressure plane. Manager: Michael Hallmark Engineer: CDM Smith Contractor: Landmark Constructors Phase Start Finish Status / Comments Preliminary Engineering January 2014 June 2014 Complete Final Design June 2014 July 2014 ROW / Easements January 2016 March 2016 Bid / Award Bid # 201624 NOA 6/29/16 NTP 7/18/16 March 2016 April 2016 Bid opening 3/29/16. Recommended by GUS 6/10/16. Approved by CC on 6/28/16. Construction 7/18/16 Substantial Scheduled for 9/16/17 Notice to Proceed 7/18/16. 24” water main installed and concrete pedestal is 100% complete, Tank Crew moves in first of February. Project is 50% complete Post Construction Page 8 of 101 Project: County Road 255 Waterline Improvements Project# 2JE Update –February 2017 Project Description: This project involves upgrading the existing 15-inch water main with 16-inch C-905 or DI pipe. This project will consist of approximately 44,500 LF of 16-inch water main replacement. Purpose: The purpose of this project is to upgrade the class pipe water mains to C-905 or DI pipe, and replace this existing main that has a large amount of water leaks. Manager: Michael Hallmark Engineer: KPA Contractor: TBD Phase Start Finish Status / Comments Preliminary Engineering October 2015 March 2016 Recommended by GUS 10/09/15, approved by CC on 10/27/15. Final Design March 2016 November 2016 80% Complete ROW / Easements October 2015 50% complete Bid / Award Bid # Construction Post Construction Page 9 of 101 Project: EARZ 2014-2015 Project# 3CJ Update – February 2017 Project Description: This project will consist of pipe bursting, cured-in-place, open trench, & rehabbing manholes. Purpose: The purpose of this project is to make repairs on the wastewater collection system to be in compliance with TCEQ rules and regulations. Manager: Michael Hallmark Engineer: KPA Contractor: T. Construction, LLC Phase Start Finish Status / Comments Preliminary Engineering March 2015 June 2015 Task Order Recommended by GUS 2/13/15 Approved by CC 2/24/15. Final Design June 2015 August 2015 Complete ROW / Easements N/A N/A N/A Bid / Award Bid # 201554 Bid opening 9/1/15 August 16, 2015 September 1, 2015 Recommended by GUS 10/9/15, approved by CC on 10/27/15. Construction 270 Calendar Days December 2015 September 2016 NTP 11/20/15 Project is 100% complete and Final Pay Application submitted for payment Post Construction October 2016 November 2016 Page 10 of 101 Project: EARZ 2015-2016 Project# 3CL Update – February 2017 Project Description: This project will consist of pipe bursting, cured-in-place, open trench, & rehabbing manholes. Purpose: The purpose of this project is to make repairs on the wastewater collection system to be in compliance with TCEQ rules and regulations. Manager: Michael Hallmark Engineer: KPA Contractor: Coyote Construction Phase Start Finish Status / Comments Preliminary Engineering March 2016 June 2016 Task Order Recommended by GUS 3/11/16 Approved by CC 3/22/16 Final Design June 2016 August 2016 Complete ROW / Easements N/A N/A N/A Bid / Award Bid # 201554 Bid opening 8/30/16 August 14, 2016 August 21, 2016 City Council approved 10/25/16 & PreConstruction Meeting scheduled 11/29./16 Construction 270 Calendar Days NTP issued 11/29/16 Manhole Rehab work underway, Project is 10% complete Post Construction Page 11 of 101 Project: Pecan Branch Wastewater Treatment Plant Expansion Project# 3CA Update – February 2017 Project Description: The project includes expanding the existing Pecan Branch WWTP from 1.5 mgd to 3.0 mgd including the construction of an influent pump station, screening and grit removal facilities, aeration basins, secondary clarifiers, cloth disk filters, UV disinfection facility, sludge holding tanks facilities, site grading and paving, electrical improvements, and instrumentation improvements. Purpose: The purpose of this project is to provide wastewater treatment for future growth and development. Manager: Michael Hallmark Engineer: CDM Smith Contractor: TBD Phase Start Finish Status / Comments Preliminary Engineering November 2012 March 2013 Complete Final Design December 2015 January 2017 100% Set of Plans ROW / Easements Complete Bid / Award Bid # 201717 March 2017 May 2017 Bid Opening 3/28/17 GUS Board 5/12/17 City Council 5/23/17 NOA 5/24/17 Construction NTP – TBD Post Construction Page 12 of 101 Project: Rabbit Hill Elevated Water Storage Tank Project# 2CE Update – February 2017 Project Description: This project will consist of 1 million gallon Elevated Water Storage Tank, pump station and piping. Purpose: The purpose of this project is to add elevated water storage in lieu of the ground storage tank and pump station and meet the demands of the water system in the 1065 pressure plane. Manager: Michael Hallmark Engineer: CDM Smith Contractor: Landmark Structures Phase Start Finish Status / Comments Preliminary Engineering May 2015 October 2015 Task Order recommended by GUS 5/8/15, Approved by CC 5/26/15. Final Design October 2015 October 2015 Complete ROW / Easements May 2014 November 2015 Complete Bid / Award Bid # 201609 425 Day Contract NTP 2/1/2016 October 2015 November 2015 Pre-bid 11/10/15 Bid opening 11/19/15 Recommended by GUS 12/1/15 Approved by CC 12/8/15 Construction February 2016 April 2017 Pedestal work 100% complete, interior bowl coating 75% complete with finish coat to be installed first week of February, Logo to be installed after interior finish coat Post Construction Page 13 of 101 Project: Shell Road Waterline Improvements Project# 3CI Update – February 2017 Project Description: This project will consist of approximately 13,500 LF of 16-inch water line and approximately 2300 LF of 12-inch waterline. Purpose: The purpose of this project is to provide secondary feed of water to Sun City. Manager: Michael Hallmark Engineer: KPA Contractor: TBD Phase Start Finish Status / Comments Preliminary Engineering April 2015 August 2015 Task Order Recommended by GUS 3/13/15 Approved by CC 3/24/15. Final Design August 2015 November 2016 90% complete ROW / Easements June 2015 60% complete Bid / Award Bid Construction Post Construction Page 14 of 101 Project: Westinghouse Regional Lift Station Project# 3CE Update – February 2017 Project Description: This project will consist of a new wastewater lift station with appurtenant electrical and instrumentation improvements including an emergency generator. Also included will be Stonehedge Lift Station improvements this project will provide electrical improvements at the Stonehedge Lift Station that will allow the use of a portable emergency generator, and the addition of piping improvements including a flow control valve and vault and a new 8-inch force main. Purpose: The purpose of this project is to provide wastewater service for growth and development in the Westinghouse area. Manager: Michael Hallmark Engineer: CDM Smith Contractor: CC Carlton Phase Start Finish Status / Comments Preliminary Engineering August 2014 October 2014 Complete Final Design October 2014 July 2016 100% complete ROW / Easements August 2014 August 2016 Complete Bid / Award Bid # 201646 September 2016 October 2016 Bid Opening 9/29/16 GUS Board 11/11/16 City Council approved 11/22/16 NOA sent 11/23/16 Construction NTP – 1/3/17 Erosion Controls installed and crews installed first 200 LF of 12” forcemain 1/30/17 Post Construction Page 15 of 101 GUS BOARD ITEMS FORWARDED TO COUNCIL January 10, 2017 P Forwarded from Georgetown Utility Systems Advisory Board (GUS): Consideration and possible action for final reconciliation with the CH2M for the management, operation, and maintenance of the City’s water and wastewater facilities for the period starting October 1, 2015 through September 30, 2016 in the amount of $307,225.92 -- Glenn W. Dishong, Utility Director Q Forwarded from Georgetown Utility Systems Advisory Board (GUS): Consideration and possible action to approve a contract with Siemens Industry, Inc. for the capital upgrade of the Lake Water Treatment Plant intake pump electrical system in the approximate amount of $450,000.00 -- Glenn W. Dishong, Utility Director January 24, 2017 K Forwarded from Georgetown Utility Systems Advisory Board (GUS): Consideration and possible action to approve a contract with Environmental Improvements, Inc. for the capital upgrade of the San Gabriel wastewater treatment plant head works fine screen in the approximate amount of $80,518.14 -- Glenn W. Dishong, Utility Director ALL ITEMS PASSED Page 16 of 101 City of Georgetown, Texas Utility System Advisory Board February 10, 2017 SUBJECT: Review and pos s ible actio n to ap p ro ve the minutes fro m the regular GUS Board meeting held o n January 13, 2017. - Sheila K. Mitc hell, GUS Bo ard Liais on ITEM SUMMARY: Bo ard to review, revis e and /or ap p ro ve the minutes fro m the regular GUS Board meeting held o n January 13, 2017. FINANCIAL IMPACT: N/A SUBMITTED BY: Sheila K. Mitc hell/GUS Bo ard Liais o n ATTACHMENTS: Description Type GUS Jan 13 2017 DRAFT Minutes Backup Material Page 17 of 101 Minutes of the Meeting of the Georgetown Utility Systems Advisory Board and the Governing Body of the City of Georgetown, Texas January 13, 2017 at 2:00PM at Georgetown Municipal Complex, 300-1 Industrial Avenue, Georgetown, TX The City of Georgetown is committed to compliance with the Americans with Disabilities Act (ADA). If you require assistance in participation at a public meeting due to a disability, as defined under the ADA, reasonable assistance, adaptations, or accommodations will be provided upon request. Please contact the City Secretary’s Office, at least three (3) days prior to the scheduled meeting date, at (512) 930-3652 or City Hall at 113 East 8th Street for additional information: TTY users route through Relay Te xas at 711. Board Members Present: Bill Stump – Chair, Mike Cunningham – Vice Chair, Joyce Mapes -- Secretary, Ed Pastor, John Copelan, Edward Wiley, Steve Fought Board Members Absent: none Staff Members Present: Jim Briggs, Mike Babin, Wes Wright, Chris Foster, Leticia Zavala, David Thomison, Michael Hallmark, Sheila Mitchell Others Present: None Regular Session (This Regular Session may, at any time, be recessed to convene an Executive Session for any purpose authorized by the Open Meetings Act, Texas Government Code 551.) A. Call to Order – Called to order by Chair at 2:00PM The Board may, at any time, recess the Regular Session to convene an Executive Session at the request of the Chair, a Board Member, the City Manager, Assistant City Manager, General Manager of Utilities, City Council Member, or legal counsel for any purpose authorized by the Open Meetings Act, Texas Government Code Chapter 551, and are subject to action in the Regular Session that follows. B. Introduction of Visitors -- None Employee Recognition --None submitted at time of posting C. Discussion regarding the Project Progress Report, timelines including projects and Council Actions. – Michael Hallmark, Project Manager Hallmark gave update, stating reports were included in packets. Stump discussed sewer line project and lay of line along Berry Creek. He stated this might be a good time for a newspaper article to educate the public on gravity lines. Hallmark noted one of the projects is a Capital Improvement Project for Berry Creek Interceptor (BCI). Wright spoke on two BCI projects; current and future. Wright noted future project may come to board, possible in February/March. Briggs further commented on the wastewater master plan and regionalization in San Gabriel Basin. Wright reminded board of TCEQ maintenance requirements for systems located over the Edwards Aquifer. Pastor asked and Hallmark gave update on CR255 located in Western District area. D. Industry Updates Briggs updated on legislation filed by Senator Schwertner related to dissolving Special Districts on a statewide level; companion bill filed in House. Another local bill filed by Schwertner to specifically dissolve the Chisholm Trail Board. Expecting better support of this bill this session. Possibly effective September 1st if passed. February 2nd will be hearing in the Third Court of Appeals regarding lawsuits filed by former CTSUD customers. Electric Rate adjustment for Transmission Cost of Service will go out to customers on February billing. An electric rate review should be accomplished this calendar year to be in compliance with our policy. Original review was 2011 and again three years ago. No changes were made at that time. Rate review will come to Board at a future meeting once complete. In addition updates will begin coming to Board quarterly in Executive Session for fund balance updates, as directed by Council. Briggs also discussed weather, energy and water consumption based Page 18 of 101 on weather patterns. Foster will bring seasonal updates to Board. Briggs also discussed Rate Stabilization Fund. The CIP process is about to start; potential to start the process for a South Lake Water Treatment Plant Site. Stump held discussion regarding time of use, conservation, etc. Legislative Regular Agenda The Board will individually consider and possibly take action on any or all of the following items: E. Review and possible action to approve the minutes from the Regular GUS Board meeting held on December 8, 2016. – Sheila K. Mitchell, GUS Board Liaison No discussion. Motion by Pastor, seconded by Mapes to approve the minutes from the Regular GUS Board meeting held on December 8, 2016. Approved 7-0-0 F. Consideration and possible recommendation to approve a contract with Environmental Improvements, Inc., for the capital upgrade of the San Gabriel wastewater treatment plant head works fine screen in the approximate amount of $80,518.14. – David W. Thomison, Water Services Manager Thomison clarified amount in item caption requested for repairs is correct for $80,518.14. He provided update on repairs needed at San Gabriel wastewater treatment plant . Stump asked and Thomison confirmed screen is a very large stainless steel screen. Cunningham noted this is an intake screen and asked if costs include materials and installation by vendor? Thomison confirmed those costs are included. Cunningham stated this is a very reasonable price. Pastor asked about life cycle and discussion continued about materials, maintenance and causes of failures. Briggs also spoke on EI2 (Environmental Improvements, Inc.) and their desire to get into the preventive maintenance market in this area in the future. Some discussion continued. Motion by Cunningham, seconded by Pastor to approve a contract with Environmental Improvements, Inc., for the capital upgrade of the San Gabriel wastewater treatment plant head works fine screen in the approximate amount of $80,518.14. Approved 7-0-0 Stump informed board this will be his last o fficial meeting, as his term will be up in March. He will be traveling so unable to attend the March meeting. Board thanked him for his service. Stump stated he enjoyed his time with the board and looks forward to seeing what they work on in the future. Adjournment Motion by Wiley, seconded by Copelan to adjourn. Approved 7-0-0. Meeting adjourned at 2:43PM. __________________________ _____________________________ Bill Stump – Chair Joyce Mapes – Secretary _________________________________ Sheila K. Mitchell, GUS Board Liaison Page 19 of 101 City of Georgetown, Texas Utility System Advisory Board February 10, 2017 SUBJECT: Cons id eration and p o s s ib le rec o mmendation to approve Tas k Ord er KPA-17-002 with Kas b erg, Patric k & Assoc iates, LP o f Georgetown, Texas, for profes s ional services related to Ed wards Aq uifer Rec harge Zone Rehabilitatio n 2016-2017 in the amo unt of $350,850.00– Wes ley Wright, P.E., S ystems Engineering Direc tor/Michael Hallmark, CIP Manager ITEM SUMMARY: The Texas Commis s ion Enviro nmental Quality (TC EQ) regulations require that was tewater c o llectio n s ystems over the Ed ward Aq uifer Rec harge Zone (EARZ) b e tes ted and defec ts b e c o rrected . GUS Water/Was tewater S ervic es Dep artment p erforms all tes ting o f the wastewater s ys tem and Kas b erg, Patric k and As s o ciates (KPA) reviews the city testing d ata and recommend s remed ial ac tion need ed to prevent exfiltration into aquifer. T his item will evaluate the tes ting info rmation provided b y the was tewater d ep artment and takes the remediatio n recommendatio n and engages the servic es of KPA to perform the nec es s ary d es ign, bidding, and c o nstruc tion management to enact the recommended rep airs . KPA is q ualified bec aus e o f their experience with reviewing City o f Georgeto wn EARZ testing data and numero us p rojec ts they have done for the c ity. Purs uant to the Master Servic es Agreement, Tas k Ord er KPA-17-002 (attac hed ) defines the s cope of work as : Testing evaluatio n, surveying, s c hematic d es ign, final d es ign, b id d ing, and c o nstruc tion adminis tration for the rehab ilitatio n o f defec ts in the existing was tewater s ystem identified in the EARZ 2016-2017 tes ting. Imp ro vements will rep lac e by open c ut and /or rehabilitate through trenc hless o r c ured-in-plac e technologies , the exis ting vitrified clay piping s ystem, o ffs et p ip e joints and bric k manho les whic h are failing with a s o und was tewater s ys tem that will ad here to current TCEQ regulatio ns. STAFF RECOMMENDATIONS: Staff rec o mmend s executing Task Order KPA-17-002 fo r professional servic es relating to Ed wards Aq uifer Rec harge Zone R ehabilitation 2016-2017 with Kas b erg, P atric k, & Assoc iates , LP o f Georgetown, Texas, in the amount o f $350,850.00. FINANCIAL IMPACT: Funds fo r this exp enditure are bud geted in the Was tewater CIP. S ee attac hed C IP Bud getary & Financ ial Analysis Sheet. SUBMITTED BY: Wes ley Wright, P.E., S ystems Engineering Direc to r/Mic hael Hallmark, CIP Manager ATTACHMENTS: Description Type B&FAW Backup Material Tas k Order Backup Material Page 20 of 101 FINANCIAL IMPACT: YTD Spent/Enc Agenda Item Engineering 238,550 Right of Way 60,000 Construction 1,159,755 Other Costs testing/inspection Current Budget Available Budget BUDGET BALANCE Variance TOTAL 1,500,000 298,550 1,201,450 1,159,755 41,695 2.78% General Ledger Account Number COMMENTS: Testing costs are expected to be 25,000 and will be funded from BUDGET BALANCE FINANCIAL IMPACT: YTD Spent/Enc Agenda Item Engineering 238,550 Right of Way 60,000 Construction 1,220,000 Other Costs testing/inspection Current Budget Available Budget BUDGET BALANCE Variance TOTAL 1,500,000 298,550 1,201,450 1,220,000 (18,550) -1.24% General Ledger Account Number COMMENTS: Testing costs are expected to be 25,000 and will be funded from BUDGET BALANCE Example Project Project 2 Example Page 21 of 101 DATE: PROJECT NAME:3CM 12/19/2016 Division/Department:GUS / Wastewater Director Approval Prepared By:Michael Hallmark Finance Approval TW01252017 TOTAL ANNUAL BUDGET 1,500,000.00 (Current year only) Actual Cost Agenda Total Spent Encumbrance Item & Encumbered % Annual (A) before agenda item (B)(A + B) Budget Consulting $350,850.00 $350,850.00 23% Right of Way 0.00 0% Construction $669,205.00 $669,205.00 45% Other Costs 0.00 0% Total Current Year Costs $669,205.00 $1,020,055.00 Approved GENERAL LEDGER ACCOUNT NUMBER CY Budget 660-9-0581-90-037 $1,500,000.00 Total Budget $1,500,000.00 TOTAL PROJECT BUDGET 1,500,000.00 Prior Years Current Year Total Project % Total Spent/Encumbered Costs Costs Budget Consulting 350,850.00 350,850.00 23% Right of Way 0.00 0.00 0% Construction 669,205.00 669,205.00 45% Other Costs 0.00 0.00 0% Total Project Costs 0.00 1,020,055.00 1,020,055.00 Comments: Task Order KPA-17-002 for EARZ 2016-2017 CIP- Budgetary and Financial Analysis Worksheet Page 22 of 101 TASK ORDER Georgetown – Revised 3.11 EJCDC E-505 Standard Form of Agreement Between Owner and Engineer Professional Services—Task Order Edition Copyright ©2004 National Society of Professional Engineers for EJCDC. All rights reserved. Attachment 1 – Task Order Form Page 1 of 4 Task Order In accordance with paragraph 1.01 of the Master Services Agreement between Owner and Kasberg, Patrick & Associates, LP (“Engineer”) for Professional Services – Task Order Edition, dated March 23, 2011 ("Agreement"), Owner and Engineer agree as follows: 1. Specific Project Data A. Title: EARZ Wastewater Rehabilitation 2016-2017 B. Description: Engineering Services for City of Georgetown’s Wastewater System related to EARZ Wastewater Rehabilitation 2016-2017. Engineering services include system review, report, schematic design, final design, bidding and construction administration for identifying applicable rehabilitation methods and detailed opinions of probable cost. C. City of Georgetown Project Number: ______3CM_______________________ D. City of Georgetown General Ledger Account No.: ___660-9-0581-90-037 ___________ E. City of Georgetown Purchase Order No.: ____________________________ F. Master Services Agreement, Contract Number: 2016-730-MSA 2. Services of Engineer See Exhibit A, Scope of Services, attached 3. Owner's Responsibilities Owner shall have those responsibilities set forth in the Agreement subject to the following: Consultant will require coordination from the City to convert image and video files into a format that Consultant can open. Additionally, Consultant may require assistance from City Staff to field locate manholes during the compilation period. 4. Times for Rendering Services Phase Completion Date System Review & Report February 24, 2017 Report Preparation March 31, 2017 90% Construction Plan Preparation June 16, 2017 Bid Documents July 28, 2017 Task Order No. KPA-17-002, consisting of _10__ pages. Page 23 of 101 TASK ORDER Georgetown – Revised 3.11 EJCDC E-505 Standard Form of Agreement Between Owner and Engineer Professional Services—Task Order Edition Copyright ©2004 National Society of Professional Engineers for EJCDC. All rights reserved. Attachment 1 – Task Order Form Page 2 of 4 5. Payments to Engineer A. Owner shall pay Engineer for services rendered as follows: Category of Services Compensation Method Lump Sum or Not to Exceed Amount of Compensation for Services Basic Services System Review & Report, Schematic Design, Final Design, Bidding, and Construction Administration for EARZ WW Rehabilitation 2016- 2017 A. Lump Sum $350,850.00 B. The terms of payment are set forth in Article 4 of the Agreement unless modified in this Task Order. 6. Sub-Consultants: 7. Other Modifications to Agreement: 8. Attachments: Exhibit A – Scope of Services Exhibit B – Fee Schedule 9. Documents Incorporated By Reference: The Agreement effective March 23, 2016. Page 24 of 101 Page 25 of 101 TASK ORDER Georgetown – Revised 3.11 EJCDC E-505 Standard Form of Agreement Between Owner and Engineer Professional Services—Task Order Edition Copyright ©2004 National Society of Professional Engineers for EJCDC. All rights reserved. Attachment 1 – Task Order Form Page 4 of 4 DESIGNATED REPRESENTATIVE FOR TASK ORDER: DESIGNATED REPRESENTATIVE FOR TASK ORDER: Name: Michael Hallmark Name: Michael Newman, P.E., CFM Title: Project Manager Title: Senior Project Manager Address: 300-1 Industrial Ave. Georgetown, TX 78626 Address: 1008 South Main Street Georgetown, TX 78626 E-Mail Address: michael.hallmark@georgetown.org E-Mail Address: mnewman@kpaengineers.com Phone: 512-930-3569 Phone: 512-819-9478 Fax: 512-930-3559 Fax: Page 26 of 101 EXHIBIT A – DETAILED PROJECT SCOPE EDWARDS AQUIFER RECHARGE ZONE WASTEWATER REHABILITATION 2016-17 SERVICES PROVIDED BY ENGINEER KASBERG, PATRICK & ASSOCIATES, LP GEORGETOWN, TEXAS Project Description: This project involves compiling and summarizing the testing results performed by City of Georgetown personnel in conjunction with EARZ Wastewater Rehabilitation 2016-2017 program. Once the data has been compiled, a determination will be made of the applicable rehabilitation methods and detailed opinions of probable cost will be generated. A final report will be prepared detailing this information. In addition, the project involves schematic design, final design, bidding and construction administration for the rehabilitation and/or replacement of wastewater system defects identified in the Edwards Aquifer Recharge Zone (EARZ) 2016-2017 Preliminary Report. Improvements will include construction of wastewater infrastructure improvements and/or rehabilitation of existing infrastructure to remove infiltration and exfiltration of wastewater and assure proper sizing of the wastewater infrastructure. System modifications, including reconstruction of manholes and their benches/inverts to facilitate proper flow through the system. Scope of Services: The scope of services associated with the preliminary design phase and report preparation for the Edwards Aquifer Recharge Zone (EARZ) Wastewater Rehabilitation 2016-2017 includes: I. System Review and Report A. Compilation and Review of Field Data i. Manhole Inspections 1. The ENGINEER will compile all existing manhole inspection data from the City of Georgetown into electronic form. This includes both the inspector’s reports and manhole photos. 2. The ENGINEER will review the existing information and generate individual manhole inspection reports including photographs and line connection details for each manhole. 3. The ENGINEER will generate a Manhole Inspection Summary which identifies all manholes inspected as part of this project. 4. The ENGINEER will produce an overall map to be included in the report that shows the location and condition of all inspected manholes. ii. Video Inspections 1. The ENGINEER will review the Wastewater Line Inspection Videos while noting areas with potential defects for further inspections. 2. The ENGINEER will generate a Video Inspection Summary, which will include label, length, and material of all videoed lines. 3. The ENGINEER will produce an overall map to be included in the report that shows the location and condition of all videoed wastewater line. Page 27 of 101 B. Defect Identification and Rehabilitation Method Recommendation i. Manhole Inspections 1. The ENGINEER will identify all exfiltration and/or infiltration defects based on the information supplied by the City. 2. The ENGINEER will generate individual defect sheets for each defective manhole, which will include defect photos and the preliminary recommendation for a rehabilitation method. ii. Video Inspections 1. The ENGINEER will identify all exfiltration and/or infiltration defects based on the videos supplied by the City. 2. The ENGINEER will generate individual defect sheets for each defective wastewater line, which will include screen captures of defects and the preliminary recommendation for a rehabilitation method. C. Cost Estimation i. The ENGINEER shall generate a detailed Preliminary Opinion of Probable Construction Cost for the rehabilitation of each defect identified in this report. ii. The ENGINEER will produce a summary that will show the breakdown of construction costs for manhole rehabilitation, trenchless rehabilitation, and open cut rehabilitation. The ENGINEER will use this to make a recommendation of how to assemble the defects into the most efficient construction projects. II. Report Preparation A. All testing, summaries, recommendations and Opinions of Probable Costs will be presented in a final report. B. The ENGINEER will present two copies of the 90% Review Set to the City for review. C. The ENGINEER will incorporate all comments into the Final Report. D. The ENGINEER will present electronic copy sets of the Final Report to the City. Scope of Services: The scope of services associated with final design, bidding and construction administration for this project to be provided by the ENGINEER includes design surveys, schematic design, wastewater construction and rehabilitation design, traffic control design, coordination with the City of Georgetown, bidding and construction administration. The engineering services will include the following: III. Site Surveys A. Obtain and review existing data i. The design team will collect existing data from the City of Georgetown and other utility providers to incorporate into the design surveys. This will include existing water, wastewater, telephone, gas and other utilities that can be identified. The design team will work with the City to collect information on their systems and utilize one calls and direct contact with other utility providers to establish locations of existing utilities. Page 28 of 101 IV. Schematic Design A. The ENGINEER will incorporate all site surveys into computer aided drafting and develop topographies and surfaces. All existing utilities will be incorporated from data gathered. This will include topographic working drawings to prepare the schematic design. B. The ENGINEER will develop design schematics to illustrate the proposed improvements and sequence of construction. Exhibits of the schematic design will be produced and reviewed with City Staff. These shall include proposed construction techniques based on data discovered and received during the Design Surveys Phase. All comments from City Staff will be incorporated into the Schematic Design. Preliminary costs will be developed based on the schematic design and reviewed with City Staff. V. Final Design C. The ENGINEER will incorporate the decisions and concepts from the schematic design meetings into the final design. D. The ENGINEER will develop plan and profile drawings for the proposed improvements and include existing utilities to show any conflict. If conflict does occur, the ENGINEER will design the project to avoid or relocate any conflicts. E. The ENGINEER will design wastewater rehabilitation and construction methods. F. The ENGINEER will incorporate the construction method for wastewater improvements into the final design. Plan sheets will be created for these sections and include details. G. The ENGINEER will prepare final details for the project and incorporate these into the final design sheets. H. The ENGINEER will prepare bid set documents that require the Contractor to provide, submit, and receive applicable SWPPP permits, implement erosion control measures and submit applicable Notice of Intent with the TCEQ. I. The ENGINEER will prepare final contract documents and specifications for the project. Five copies of these documents will be submitted to City Staff for review. All comments will be incorporated into the contract documents and specifications for final bidding documents. J. The ENGINEER will deliver review sets of the design sheet sets at 90% stage. Five sets will be delivered to the City for review. All comments will be incorporated in the design sets. K. The ENGINEER will prepare final design bidding documents to include plans, specifications and contract documents. The plan sheets will be on 11x17 sheets. Bid items will require the Contractor to include traffic control plans signed by a Texas registered Professional Engineer for work within roadways. L. The ENGINEER will prepare and submit a Sewage Collection System submittal Page 29 of 101 to the TCEQ, where applicable for extending wastewater system. M. Rehabilitation work for this project involves existing public utility wastewater system lines and structures. Researching and obtaining additional easements is not included in the scope of this task order. VI. Bidding N. The ENGINEER will develop the invitation to bid and deliver to City Staff for advertising the project for public bidding. The ENGINEER will also solicit bids from past contractors to acquire as competitive a bidding process as possible. O. The ENGINEER will manage and distribute bidding documents. P. The ENGINEER will prepare for the Pre-Bid Conference, develop an agenda and sign in sheet, conduct the Pre-Bid Conference, take notes at the conference, prepare minutes and incorporate into the addenda. Q. The ENGINEER will receive all questions from bidders, log the questions and answer in the form of an addenda. R. The ENGINEER will conduct the bid letting, receive all bids, tabulate the bids and certify them. S. The ENGINEER will research the low bidder(s) qualifications and recommend award to the City of Georgetown. VII. Construction Administration T. The ENGINEER will prepare contract documents; forward them to the contractor awarded the project by the Georgetown City Council. Once the contractor has executed the contract documents, they will be checked for proper documentation and forwarded to the City of Georgetown for execution. U. The ENGINEER will schedule and conduct the Pre-Construction Conference. Minutes from the conference will be taken and distributed. V. The ENGINEER will receive and review all submittals and material samples for the project. Documentation for the submittals will be generated and distributed to the City of Georgetown and the contractor. W. The ENGINEER will hold regularly scheduled construction progress meetings. These meetings will include meeting agendas covering project specifics and schedules. Notes will be taken by the ENGINEER at the meetings. Minutes will then be developed and distributed to the City of Georgetown Staff and the contractor. X. The ENGINEER will make periodic visits the project site. These site visits are utilized to perform a general overview of the project and answer any questions the contractor may have. The City of Georgetown will provide daily on-site Page 30 of 101 representation for the project. Y. The ENGINEER will develop pay estimate forms for the project. These will b e distributed to City Staff and the contractor. The ENGINEER will review the pay requests with City Staff. Z. The ENGINEER will conduct a final walk through of the project. Punch list items will be generated during this review. A letter addressed to City Staff will be generated discussing the findings of the walk through. The contractor will be copied on this letter as well. AA. The ENGINEER will develop final record drawings for the City of Georgetown Staff. The record drawings will be presented in electronic form with pdf of each plan sheet and provided via thumb drive or DVD. A full 11”x17” hard copy can also be made available upon request. Page 31 of 101 System Review and Report Clerical CAD EIT PE PM Principal Total Hrs.Total Fee Compile Manhole Data 8 65 30 15 7 125 15,115.00$ Review Videos and Compile Raw Data 8 165 45 25 24 267 32,640.00$ Summarize Defects 55 38 22 10 8 133 14,285.00$ Recommend Rehabilitation Method 30 18 10 8 66 8,780.00$ Prepare Detailed OPCs 28 8 4 4 44 5,460.00$ Format Data into Report Sheets 20 90 20 6 4 140 15,010.00$ Prepare Summary Maps 120 18 4 4 4 150 12,870.00$ Draft Report Preparation 25 35 5 2 2 69 6,445.00$ Incorporate Review Comments 4 2 2 2 10 1,410.00$ Final Report Preparation 40 40 20 10 10 120 12,700.00$ Subtotal System Review & Report 101 175 513 174 88 73 1124 124,715.00$ Schematic Design Clerical CAD EIT PE PM Principal Total Hrs.Total Fee Incorporate existing utilities data - 27 18 - 4 8 57 6,155.00$ Site Reconnaissance - 8 37 25 - 8 78 9,460.00$ Identification of Construction / Rehab Method - - 22 22 10 17 71 10,280.00$ Design / Prepare Schematic Layout - 33 33 16 13 12 107 12,580.00$ Prepare Preliminary Cost Estimates - - 8 - 4 - 12 1,480.00$ Meet with City Staff to Review - - - - 4 4 8 1,440.00$ Subtotal Schematic Design - 68 118 63 35 49 333 41,395.00$ Final Design Clerical CAD EIT PE PM Principal Total Hrs.Total Fee Incorporate schematics into Final Design - 26 26 26 5 2 85 9,390.00$ Prepare plan and profile sheets.- 200 120 105 60 25 510 56,375.00$ Illustrate Existing Utilities and Design to avoid conflicts - 85 72 31 15 10 213 22,520.00$ Design Roadway Repair / Surface Restoration - 6 30 14 8 - 58 6,770.00$ Design Erosion Control - 6 6 4 2 2 20 2,340.00$ Prepare Contract Documents and Specifications for Review 30 24 24 16 14 8 116 11,970.00$ Review Final Design with City Staff & incorporate comments - 15 27 15 7 7 71 8,505.00$ Prepare Final Bid Documents 28 16 14 14 2 4 78 7,220.00$ Subtotal Final Design 58 378 319 225 113 58 1,151 125,090.00$ Bidding Clerical CAD EIT PE PM Principal Total Hrs.Total Fee Advertise / Solicit Bidders 4 - 2 - 2 2 10 1,150.00$ Distribute plans and specifications 8 - 4 2 - - 14 1,130.00$ Pre-Bid Conference 2 - 4 - - 4 10 1,330.00$ Answer Questions and Prepare Addenda - 4 4 2 2 2 14 1,710.00$ Receive & Tabulate Bids 4 - 4 2 2 - 12 1,230.00$ Recommend Award 4 - - - 2 - 6 540.00$ Subtotal Bidding 22 4 18 6 8 8 66 7,090.00$ Construction Administration Clerical CAD EIT PE PM Principal Total Hrs.Total Fee Prepare Contract Documents & distribute to Contractor 6 4 4 - - 2 16 1,450.00$ Review Submittals 6 - 24 10 5 2 47 5,400.00$ Construction Meetings/minutes/etc.10 - 28 30 30 12 110 14,740.00$ Site Review - - 40 50 50 28 168 24,550.00$ Final Walkthrough - - - - 10 10 20 3,600.00$ Record Drawings 8 12 4 4 2 1 31 2,820.00$ Subtotal Construction Administration 30 16 100 94 97 55 392 52,560.00$ Summary of Labor & Cost Clerical CAD Tech EIT PE PM Principal Total Hrs.Total Fee 1. System Review and Report 101 175 513 174 88 73 1,124 124,715.00$ 2. Schematic Design - 68 118 63 35 49 333 41,395.00$ 3. Final Design 58 378 319 225 113 58 1,151 125,090.00$ 4. Bidding 22 4 18 6 8 8 66 7,090.00$ 5. Construction Administration 30 16 100 94 97 55 392 52,560.00$ Project Total 211 641 1,068 562 341 243 3,066 350,850.00$ Exhibit B Fee Schedule Edwards Aquifer Recharge Zone Wastewater Rehabilitation 2016-17 Page 32 of 101 City of Georgetown, Texas Utility System Advisory Board February 10, 2017 SUBJECT: Cons id eration and p o s s ib le rec o mmendation to approve Tas k Ord er KPA-17-005 with Kas b erg, Patric k & Assoc iates, LP. o f Georgetown, Texas, for profes s ional services related to the Replac ement of the San Gab riel Park Was tewater Lift Station in the amount of $396,260.00 – Wesley Wright, P.E., Sys tems Engineering Direc tor/Michael Hallmark, CIP Manager. ITEM SUMMARY: This Task Ord er is Professional Engineering S ervic es to prepare p lans and s pec ificatio n fo r the cons tructio n of a new Lift S tatio n upstream o f the exis ting lift station at San Gabriel Park. T his CIP p ro jec t is in the wastewater mas ter and will s erve the b uildout o f the San Gabriel Was tewater basin. These p ro fes s ional engineering services inc lud e preliminary d es ign, final des ign, bidding s ervic es cons tructio n adminis tratio n s ervic es , and p rojec t c oordination. These s ervic es als o includ e to p o graphic s urveys, enviro nmental Phas e I inves tigations , a geologic as s es s ment, geotec hnic al s o il borings and inves tigations , bidding d o cuments , s p ecific atio ns , regulato ry ap p ro val (TCEQ), c o s t es timates , b id d ing s upport servic es , and cons tructio n ad ministratio n fo r the San Gabriel Park Lift S tatio n Replac ement. STAFF RECOMMENDATIONS: Staff rec o mmend s executing Task Order KPA-17-005 fo r professional servic es related to S an Gab riel Park Was tewater Lift Station with Kas b erg, Patric k, & as s o ciates , LP. o f Georgeto wn, Texas , in the amount of $396,260.00. FINANCIAL IMPACT: Funds fo r this exp enditure are bud geted in the c urrent year Was tewater CIP. S ee attac hed CIP Budgetary & Financ ial Analys is S heet. SUBMITTED BY: Wes ley Wright, P.E., S ystems Engineering Direc to r/Mic hael Hallmark, CIP Manager. ATTACHMENTS: Description Type B&F W Backup Material Tas k Order Cover Memo Page 33 of 101 FINANCIAL IMPACT: YTD Spent/Enc Agenda Item Engineering 238,550 Right of Way 60,000 Construction 1,159,755 Other Costs testing/inspection Current Budget Available Budget BUDGET BALANCE Variance TOTAL 1,500,000 298,550 1,201,450 1,159,755 41,695 2.78% General Ledger Account Number COMMENTS: Testing costs are expected to be 25,000 and will be funded from BUDGET BALANCE FINANCIAL IMPACT: YTD Spent/Enc Agenda Item Engineering 238,550 Right of Way 60,000 Construction 1,220,000 Other Costs testing/inspection Current Budget Available Budget BUDGET BALANCE Variance TOTAL 1,500,000 298,550 1,201,450 1,220,000 (18,550) -1.24% General Ledger Account Number COMMENTS: Testing costs are expected to be 25,000 and will be funded from BUDGET BALANCE Example Project Project 2 Example Page 34 of 101 DATE: PROJECT NAME:3CN 1/26/2017 Park Lift Station & FM Division/Department:GUS / Wastewater Director Approval Prepared By:Michael Hallmark Finance Approval TW01/30/2017 TOTAL ANNUAL BUDGET 3,982,000.00 (Current year only) Actual Cost Agenda Total Spent Encumbrance Item & Encumbered % Annual (A) before agenda item (B)(A + B) Budget Consulting $396,260.00 $396,260.00 10% Right of Way 0.00 0% Construction $0.00 0% Other Costs 0.00 0% Total Current Year Costs $0.00 $396,260.00 Approved GENERAL LEDGER ACCOUNT NUMBER CY Budget 660-9-0581-90-164 $3,982,000.00 Total Budget $3,982,000.00 TOTAL PROJECT BUDGET 3,982,000.00 Prior Years Current Year Total Project % Total Spent/Encumbered Costs Costs Budget Consulting 396,260.00 396,260.00 10% Right of Way 0.00 0.00 0% Construction 0.00 0.00 0% Other Costs 0.00 0.00 0% Total Project Costs 0.00 396,260.00 396,260.00 Comments: Task Order KPA-17-005 CIP- Budgetary and Financial Analysis Worksheet Page 35 of 101 TASK ORDER Georgetown – Revised 3.11 EJCDC E-505 Standard Form of Agreement Between Owner and Engineer Professional Services—Task Order Edition Copyright ©2004 National Society of Professional Engineers for EJCDC. All rights reserved. Attachment 1 – Task Order Form Page 1 of 4 Task Order In accordance with paragraph 1.01 of the Master Services Agreement between Owner and Kasberg, Patrick & Associates, LP (“Engineer”) for Professional Services – Task Order Edition, dated March 23, 2016 ("Agreement"), Owner and Engineer agree as follows: 1. Specific Project Data A. Title: San Gabriel Park Lift Station Replacement Project Description: The work to be performed by the Engineer under this contract consists of providing final plans and specifications for the San Gabriel Park Lift Station Replacement Project. The Scope of Services is based on constructing a new submersible lift station to replace the existing Park Lift Station that has experienced deterioration to pumps, piping and various metal supports contained within the stations wet well area. The scope generally includes the design of a new, stand-alone submersible lift station and the extension of a new 20-inch force main to connect to the existing force main. The proposed scope will include sizing the wet well and ancillary facilities for the ultimate build out while recommending the necessary equipment to maximize the existing 20-inch force main. The project will consist of providing final design for the lift station structural, mechanical and electrical components, environmental phase I investigations, archeological investigations, a geologic assessment, geotechnical soil borings and investigations, topographical surveys, bidding documents, specifications, OPCs, bidding services, and construction administration for the San Gabriel Park Lift Station Replacement (See Attached Exhibit C). This scope does not include design of a new force main to the WWTP. C. City of Georgetown Project Number: ___3CN_______________________________ D. City of Georgetown General Ledger Account No.: __660-9-0581-90-164____ E. City of Georgetown Purchase Order No.: _______________________________ F. Master Services Agreement, Contract Number: 2016-730-MSA____________ 2. Services of Engineer See Exhibit A, Scope of Services, attached 3. Owner's Responsibilities Owner shall have those responsibilities set forth in the Agreement subject to the following: Coordination from the City to capture locations of existing City owned utilities and easements within the project limits and Record Drawings and Technical Manuals for the Existing Park Lift Station, Existing Force Main, & Existing WWTP Permitted Capacities. Task Order No. KPA-17-005-TO, consisting of 13 pages. Page 36 of 101 TASK ORDER Georgetown – Revised 3.11 EJCDC E-505 Standard Form of Agreement Between Owner and Engineer Professional Services—Task Order Edition Copyright ©2004 National Society of Professional Engineers for EJCDC. All rights reserved. Attachment 1 – Task Order Form Page 2 of 4 4. Times for Rendering Services Phase Completion Date Basis of Design 120 Days Final Design 150 Days Bidding Phase 45 Days Construction Administration 270 Days 5. Payments to Engineer A. Owner shall pay Engineer for services rendered as follows: Category of Services Compensation Method Lump Sum or Not to Exceed Amount of Compensation for Services Basic Services Project Management, Final Engineering Design, Bidding Documents, Construction Administration, Surveying Documents, Geotechnical Services, Environmental and Archaeological Clearances, Geological Assessment, Project Submittal Fees A. Lump Sum $396,260.00 B. The terms of payment are set forth in Article 4 of the Agreement unless modified in this Task Order. 6. Consultants: Kasberg, Patrick & Associates, LP – Georgetown, Texas Terracon Associates, Inc. – Austin, Texas All County Surveying – Temple, Texas McCreary & Associates – Dallas, Texas Winton Engineering, Inc – Waco, Texas 7. Other Modifications to Agreement: None 8. Attachments: Exhibit A – Scope of Services Exhibit B – Project Fee Schedule Exhibit C – Project Location Map 9. Documents Incorporated By Reference: The Agreement effective March 23, 2016. Page 37 of 101 Page 38 of 101 TASK ORDER Georgetown – Revised 3.11 EJCDC E-505 Standard Form of Agreement Between Owner and Engineer Professional Services—Task Order Edition Copyright ©2004 National Society of Professional Engineers for EJCDC. All rights reserved. Attachment 1 – Task Order Form Page 4 of 4 DESIGNATED REPRESENTATIVE FOR TASK ORDER: DESIGNATED REPRESENTATIVE FOR TASK ORDER: Name: Michael Hallmark Name: Trae Sutton, P.E., CFM Title: Project Manager Title: Principal Address: 300-1 Industrial Ave. Georgetown, TX 78626 Address: 1008 South Main Street Georgetown, TX 78626 E-Mail Address: Michael.Hallmark@georgetown.org E-Mail Address: TSutton@kpaengineers.com Phone: (512) 930-3569 Phone: (512) 819-9478 Fax: (512) 930-3559 Fax: (254) 773-6667 Page 39 of 101 Page 1 of 5 EXHIBIT A – DETAILED PROJECT SCOPE of SERVICES for PARK LIFT STATION REPLACEMENT TASK ORDER PROVIDED BY ENGINEER KASBERG, PATRICK & ASSOCIATES, LP GEORGETOWN, TEXAS Project Description: The work to be performed by the Engineer under this contract consists of providing final plans and specifications for the San Gabriel Park Lift Station Replacement Project. The Scope of Services is based on constructing a new submersible lift station to replace the existing Park Lift Station that has experienced deterioration to pumps, piping and various metal supports contained within the stations wet well area. The scope generally includes the design of a new, stand-alone submersible lift station and the extension of a new 20-inch force main to connect to the existing force main. The proposed scope will include sizing the wet well and ancillary facili ties for the ultimate build out while recommending the necessary equipment to maximize the existing 20-inch force main. The project will consist of providing final design for the lift station structural, mechanical and electrical components, environmental phase I investigations, archeological investigations, a geologic assessment, geotechnical soil borings and investigations, topographical surveys, bidding documents, specifications, OPCs, bidding services, and construction administration for the Park Lift Station Replacement (See Attached Exhibit C). This scope does not include design of a new force main to the WWTP. Scope of Services: The scope of services associated with the Park Lift Station Replacement Project includes: I. Project Management/Coordination 1.1 The ENGINEER shall coordinate, conduct and document a Project Kickoff Meeting with City Staff. 1.2 The ENGINEER shall attend 30%, 60%, 90% and 100% Project Submittal Meetings with City Staff. The ENGINEER shall review the submittal package with City Staff and provide written questions and or comments that may arise during the design process and review those with City Staff and provide recommendations, if required. Assume six (6) meetings shall be required. 1.3 The ENGINEER shall provide Contract Management and Coordination. This shall include developing monthly invoices and progress reports, subconsultant coordination, design coordination with the City and design coordination with dry utilities. 1.4 The ENGINEER shall obtain and review the existing data provided from the City and that have a direct impact of the proposed project. Page 40 of 101 Page 2 of 5 II. Basis of Design, Environmental Clearances and Investigations 2.1 Design surveys a. Proposed Lift Station site. b. Existing Lift Station site including existing influent gravity sewer and finished floor elevations and related electrical panels and support platform. 2.2 Geotechnical borings at site of proposed Lift Station. 2.3 Phase I Environmental Site Assessment for proposed Lift Station Site and Force Main extension. 2.4 Cultural resources site clearance (Archeological) 2.5 Geologic Assessment for Georgetown Salamander clearance 2.6 Preliminarily size the following components for both Phase I (initial) and ultimate buildout: a. Obtain historical lift station pumping rates and available capacity at WWTP. b. Prepare system head curve for existing force main. c. Select submersible pumps (number and size). d. Wet well configuration and size. e. Discharge piping, including surge valves(s). f. Electrical Panels and Controls. g. Perform power study for Electrical Generator (compare Phase I requirements with existing generator to determine/confirm adequate capacity). h. Evaluate need for wet well chopper pump to prevent clogging of pumps. 2.7 Meet with City and Pump Manufacturers to determine initial pump selection. 2.8 Meet with Georgetown to coordinate /determine/confirm electrical power requirements for new service. 2.9 Perform Hydrological and Hydraulic Calculations using HEC-RAS and other floodplain modeling programs to identify the location of the 25 year floodplain of the San Gabriel River in relation to the proposed lift station site. 2.10 Prepare letter report for submittal to TCEQ detailing the proposed Lift Station, including applicable calculations, details and exhibits. III. Final Design 3.1 30% Plan Sheets – Engineer shall perform services for the 30% design review submittal for the following: a. Force Main Extension. i. Alignment and grade b. Submersible Pump Station – structures will be designed for ultimate buildout with equipment and ancillary facilities sized for Phase I service. Page 41 of 101 Page 3 of 5 i. Pump Selection and layout ii. Wet Well iii. Piping iv. Structural c. Electrical panel layout d. Discharge piping i. Layout ii. Structural e. Site Plan i. Grading ii. Piping iii. Structures iv. Electrical 3.2 30% Review Meeting 3.3 60% Plan Sheets and Technical Specifications a. Same components as Item 2.1 (30% Review Set) b. Prepare updated OPC 3.4 60% Review Meeting 3.5 90% Plan Sheets and Technical Specifications a. Same components as Item 2.1 (30% Review Set) 3.6 90% Review Meeting 3.7 Prepare and Submit TCEQ SCS Plan (TCEQ Fees not included in this proposal). 3.8 Incorporate comments from 90% Review Meeting into final Bid Set. 3.9 Prepare updated OPC 3.10 Monthly design and progress meetings with City Staff and weekly project updates/emails to allow design issues to be addressed as required. 3.11 Incidental Design a. The ENGINEER will design erosion control measures to be utilized for the project and shall identify the locations of the measures to be installed in an overall erosion control exhibit to be incorporated into the plans. b. The ENGINEER will provide miscellaneous construction details required to construct the project. c. The ENGINEER will develop and prepare project specific technical specifications. d. The ENGINEER will prepare a project bid schedule. The ENGINEER will perform a quantity take off for the project and will prepare and opinion of Page 42 of 101 Page 4 of 5 probable construction cost based off the 100% plan sets (bidding sets). e. The ENGINEER will prepare Contract Documents and Technical Specification books and 100% Plan Sets and deliver to the City. (10 Sets). IV. Bidding 4.1 The ENGINEER will develop the invitation to bid and deliver to City Staff for advertising the project for public bidding. The ENGINEER will also solicit bids from past contractors to acquire as competitive a bidding process as possible. 4.2 The ENGINEER will manage and distribute bidding documents. 4.3 The ENGINEER will prepare for the Pre-Bid Conference, develop an agenda and sign in sheet, conduct the Pre-Bid Conference, take notes at the conference, prepare minutes and incorporate into the addenda. 4.4 The ENGINEER will receive all questions from bidders, log the questions and answer in the form of an addenda. 4.5 The ENGINEER will conduct the bid letting, receive all bids, tabulate the bids and certify them. 4.6 The ENGINEER will research the low bidder(s) qualifications and recommend award to the City of Georgetown. V. Construction Administration 5.1 The ENGINEER will prepare contract documents; forward those to the contractor awarded the project by the Georgetown City Council. Once the contractor has executed the contract documents, they will be checked for proper documentation and forwarded to the City of Georgetown for execution. 5.2 The ENGINEER will prepare and distribute construction plan sets, incorporating information and changes to the plans and specifications that were addressed in the Addenda. 5.3 The ENGINEER will schedule and conduct the Pre-Construction Conference. Minutes from the conference will be taken and distributed. 5.4 The ENGINEER will receive and review all submittals and material samples for the project. Documentation for the submittals will be generated and distributed to the City of Georgetown and the contractor. 5.5 The ENGINEER will hold bi-monthly construction progress meetings. These meetings will include meeting agendas covering project specifics and schedules. Notes will be taken by the ENGINEER at the meetings. Minutes will then be developed and distributed to the City of Georgetown Staff and the contractor. 5.6 The ENGINEER will make periodic visits the project site. These site visits are utilized to perform a general overview of the project and answer any questions the contractor may have. The City of Georgetown will provide daily on-site representation for the project. 5.7 The ENGINEER will develop pay estimate forms for the project. These will be Page 43 of 101 Page 5 of 5 distributed to City Staff and the contractor. The ENGINEER will review the pay requests with City Staff. 5.8 The ENGINEER will conduct a final walk through of the project. Punch list items will be generated during this review. A letter addressed to City Staff will be generated discussing the findings of the walk through. The contractor will be copied on this letter as well. 5.9 The ENGINEER will develop final record Drawings for the City of Georgetown Staff. The record Drawings will be presented in the form of a DVD with pdf of each plan sheet and a full 11x17 hard copy. Page 44 of 101 EXHIBIT B: PROJECT TEAM FEE SCHEDULE BREAKDOWN Park Lift Station Replacement Summary of Professional Services Fee January 24, 2017 KPA ACS TERRACON McCreary Winton TOTAL 1. PROJECT MANAGEMENT/COORDINATION 23,890.00$ 23,890.00$ 2. BASIS OF DESIGN, ENVIRONMENTAL CLEARANCES & INVESTIGATIONS 64,160.00$ 4,000.00$ 18,000.00$ 86,160.00$ 3. FINAL DESIGN 168,690.00$ 15,800.00$ 4,500.00$ 188,990.00$ 4. BIDDING 12,030.00$ 1,000.00$ 1,000.00$ 14,030.00$ 5. CONSTRUCTION ADMINISTRATION 70,340.00$ 2,900.00$ 1,500.00$ 74,740.00$ PROFESSIONAL SERVICES TOTAL 339,110.00$ 4,000.00$ 18,000.00$ 19,700.00$ 7,000.00$ 387,810.00$ Project Fees: TCEQ WPAP Assessment Fee 6,500.00$ TCEQ SCS Assessment Fee 1,950.00$ Project Fees Total 8,450.00$ PROJECT TOTAL 396,260.00$ Subconsultants: Topographic Surveying/ROW Documents/TCE Documents - All County Surveying (ACS) Environmental (Phase I ESA/Geological Assessment/Archeological Investigations) - Terracon Geotechnical Report Evaluation - Terracon Electrical Engineering - McCreary & Associates Structural Engineering - Winton Engineering,Inc. COST SUMMARY Summary of Hours SUMMARY Page 1 of 3 Page 45 of 101 EXHIBIT B: KPA FEE SCHEDULE BREAKDOWN Principal Project Manager Project Engineer Graduate Engineer (EIT) Senior Eng Tech (CAD) Eng Tech (CAD)Clerical Fee Schedule 200.00$ 160.00$ 135.00$ 105.00$ 85.00$ 75.00$ 55.00$ 1. PROJECT MANAGEMENT/COORDINATION a.Coordination/Project Support with All County Surveying (Topographic Surveys) 2,430.00$ 2 4 4 4 2 2 2 20 b.Coordination/Project Support with Terracon (GA, Arch., Geotech & Env.) 4,630.00$ 4 8 4 12 4 4 2 38 c.Coordination/Project Support with McCreary (Electrical) 4,360.00$ 4 8 2 12 4 4 2 36 d.Coordination/Project Support with Winton Engr. ( Structural)4,360.00$ 4 8 2 12 4 4 2 36 e.Project Review Meeting with Staff (30%) 1,920.00$ 2 2 2 6 4 16 f.Project Review Meeting with Staff (60%) 1,920.00$ 2 2 2 6 4 16 g.Project Review Meeting with Staff (90%) 1,920.00$ 2 2 2 6 4 16 h.Final Project Review/Submittal Meeting with Staff 2,350.00$ 2 2 2 8 4 4 22 Subtotal Project Management/Coordination 23,890.00$ 22 36 20 66 14 30 12 200 2. BASIS OF DESIGN, ENVIRONMENTAL CLEARANCES & INVESTIGATIONS a.Obtain historical pumping rates, pump and generator submittals and record drawings 4,670.00$ 2 6 6 12 4 12 42 b.Prepare system head curve for existing force main 5,920.00$ 4 12 6 12 8 6 48 c.Determine capacity for initial phase and ultimate build out 4,420.00$ 4 8 8 12 32 d.Select pumps & evaluate chopper pump needs/ options 7,960.00$ 10 18 8 4 8 12 60 e. Size wet well and preliminary layout of lift sta. 8,040.00$ 6 12 12 18 6 12 66 f.Determine power requirements/coordinate with Georgetown 4,420.00$ 4 8 8 12 32 g.Perform 25 year floodplain analysis 16,800.00$ 8 12 40 60 8 12 140 h.Preliminary Opinion of Probable Cost 3,890.00$ 4 4 8 12 2 30 i.Prepare letter report, details and exhibits 8,040.00$ 8 8 14 6 6 24 6 72 Subtotal Basis of Design 64,160.00$ 50 88 110 148 40 78 8 522 3. FINAL DESIGN a.Lift Station - Wet Well & Pumps 83,100.00$ 72 220 100 40 80 120 632 b.Force Main Extension 13,780.00$ 12 18 18 24 10 36 118 c.Lift Station Piping 14,760.00$ 15 18 18 24 18 32 125 d.Site Plan 11,640.00$ 14 14 14 18 12 24 96 e.Details/Incidentals 17,010.00$ 12 18 24 32 18 48 10 f.Prepare and submit TCEQ SCS Plan 11,180.00$ 10 12 18 24 10 18 2 10 g.Technical Specs and Bid Documents 12,690.00$ 12 24 24 18 24 102 h.Final Opinion of Probable Cost 4,530.00$ 4 6 8 14 4 36 Subtotal Final Design 168,690.00$ 151 330 224 194 148 278 30 1,129 January 24, 2017 Summary of Professional Services Fee Estimate by Employee/Position Category Park Lift Station Replacement TOTAL Kasberg, Patrick & Associates, LP (KPA) Total Fee Summary of Hours Scope Items KPA Page 2 of 3 Page 46 of 101 EXHIBIT B: KPA FEE SCHEDULE BREAKDOWN Principal Project Manager Project Engineer Graduate Engineer (EIT) Senior Eng Tech (CAD) Eng Tech (CAD)Clerical Fee Schedule 200.00$ 160.00$ 135.00$ 105.00$ 85.00$ 75.00$ 55.00$ January 24, 2017 Summary of Professional Services Fee Estimate by Employee/Position Category Park Lift Station Replacement TOTAL Kasberg, Patrick & Associates, LP (KPA) Total Fee Summary of Hours Scope Items 4. BIDDING a.Advertise / Solicit Bidders 1,120.00$ 2 2 4 2 10 b.Distribute plans and specifications 1,220.00$ 1 2 4 2 4 13 c.Pre-Bid Conference 1,580.00$ 2 2 4 2 2 12 d.Answer Questions and Prepare Addenda 6,640.00$ 4 12 16 4 12 8 56 e.Receive & Tabulate Bids & Prepare Letter of Recommendation 1,470.00$ 2 4 2 4 12 Subtotal Bidding 12,030.00$ 8 21 24 16 0 14 20 103 5. CONSTRUCTION ADMINISTRATION a.Prepare Contract Documents & Construction Sets 4,100.00$ 2 4 4 8 4 12 8 42 b.Review Submittals 7,440.00$ 2 12 16 24 8 62 c.RFI's Review and Responses 8,450.00$ 4 12 24 18 8 66 d.Review and Approve Monthly Pay Estimates 4,500.00$ 2 8 16 12 38 e.Bi-Monthly Construction Meetings/minutes/etc.13,740.00$ 18 18 24 32 12 104 f.Site Review/Visits 12,840.00$ 12 24 24 32 92 g.Final Walkthrough/Punch List Development 5,380.00$ 4 8 8 18 6 44 h.Project Closeout Documentation Preparation 7,300.00$ 4 12 12 24 8 60 i.Record Drawings 6,590.00$ 4 4 8 12 8 24 6 66 Subtotal Construction Administration 70,340.00$ 52 102 136 168 12 44 60 574 Total Fee Principal Senior Engineer Project Engineer Graduate Engineer (EIT) Senior Eng Tech (CAD) Eng Tech (CAD)Clerical TOTAL 1. PROJECT MANAGEMENT/COORDINATION 23,890.00$ 22 36 20 66 14 30 12 200 2. BASIS OF DESIGN, ENVIRONMENTAL CLEARANCES & INVESTIGATIONS 64,160.00$ 50 88 110 148 40 78 8 522 3. FINAL DESIGN 168,690.00$ 151 330 224 194 148 278 30 1,355 4. BIDDING 12,030.00$ 8 21 24 16 0 14 20 103 5. CONSTRUCTION ADMINISTRATION 70,340.00$ 52 102 136 168 12 44 60 574 339,110.00$ 283 577 514 592 214 444 130 2,754 Summary of Labor & Associated Cost TOTAL KPA Page 3 of 3 Page 47 of 101 CE-21 LO-24 LO-29 LO-37 SYC-22 SYC-26-22-21 SYC-40-28 MH MH MH 15'' WW 15'' WW 2 0 ' ' W W 2 0 ' ' W W 2 0 ' ' W W 2 0 ' ' W W 2 0 ' ' W W 2 0 ' ' W W 2 0 ' ' W W 1 2 ' ' W W 1 2 ' ' W W 1 2 ' ' W W 12'' W W 12'' W W 12'' W W 12'' W W 12'' W W 12'' W W 12'' W W 12'' W W 12'' W W 12'' W W 30 ' ' W W 30 ' ' W W 30 ' ' W W 30 ' ' W W 30 ' ' W W 30 ' ' W W 18'' W W 18'' W W 16 ' ' F M 16 ' ' F M 16 ' ' F M 16 ' ' F M 16 ' ' F M 16 ' ' F M PROPOSED LIFT STATION SITE KASBERG, PATRICK & ASSOCIATES, LP CONSULTING ENGINEERS GEORGETOWN, TEXAS 78626 Firm Registration No. F-510 SAN GABRIEL PARK LIFT STATION IMPROVEMENTS EXHIBIT C © 20 1 7 K a s b e r g , P a t r i c k & A s s o c i a t e s , L P K P A F i r m R e g i s t r a t i o n N u m b e r F - 5 1 0 FI L E : P: \ G e o r g e t o w n \ 2 0 1 5 \ 2 0 1 5 - 1 4 7 S a n G a b r i e l P a r k I m p r o v e m e n t s \ C A D \ P l a n s \ w o r k i n g p l a n s e t \ w a t e r a n d w a s t e w a t e r \ L I F T S T A T I O N E X H I B I T . d w g L A S T S A V E D : 1/ 2 6 / 2 0 1 7 9 : 2 9 : 5 8 A M LA Y O U T : LI F T S T A T I O N E X H I B I T 0 HORIZONTAL SCALE IN FEET 20 40 N O R T H GEORGETOWNTEXAS EST. 1848 Page 48 of 101 City of Georgetown, Texas Utility System Advisory Board February 10, 2017 SUBJECT: Cons id eration and p o s s ib le rec o mmendation to C o uncil o n a Utility Agreement with Three F o rks Partnership , LT D and Trio Develo p ment, LLC for imp ro vements related to the p ro p o s ed Ho mes tead d evelopment. -- Wes ley Wright, P.E., Systems Engineering Directo r ITEM SUMMARY: The p ro p o s ed Homes tead develo p ment is loc ated b etween IH35 and Airport R o ad , north o f Lakeway and s o uth o f Berry Creek Drive. T he p ro p o s ed d evelopment cons is ts o f primarily res id ential (between 900 & 1,000 units), with s o me proposed retail/commerc ial/o ffice and p o s s ib ly a sc ho o l(s ) s ite. Staff is currently negotiating the terms of a full d evelopment and Municipal Utility Dis trict (MUD) cons ent. A key compo nent o f those d o cuments will b e this p ro p o s ed Utility Agreement by whic h the develo p ment will receive organized was tewater collec tion. The City's o verall Was tewater Master Plan provid es for wastewater service to this d evelopment thro ugh the Berry Creek Interc epto r (BCI) - a 7+ mile large d iameter wastewater interc epto r that flows from Sun City, alo ng Berry Creek, and terminates at the Pec an Branc h Was tewater Treatment Plant (PBWWTP ). The BC I will ultimately s erve all of Sun City, muc h of Geo rgeto wn Village, and mo s t of the undevelo p ed land in the Shell Ro ad /Hwy 195 corridor. The portio n of the BC I from Sun City to Airport R o ad is currently und er d es ign and we are ac tively o b taining easements to fac ilitate c o nstruc tion. Per the terms o f the p ro p o s ed agreement, the d eveloper will facilitate d es ign and cons tructio n o f the BCI fro m Airport Road to the P BWWTP. This develo p er sup p o rt will inc lude a $4 million c ap ital contribution to the projec t, d ed icatio n (at no cost) of all eas ements c o ntro lled by the d evelo p er (a s avings es timated o ver $1 millio n), and projec t management support to fac ilitate and exp ed ite the BCI. Ad d itionally, capital p ro jects are often s ignificantly less expens ive when bid b y a private d evelop er, s uch as Trio, as o p p o s ed to b eing bid b y the c ity. It is important to note that the attached agreement is s till in DRAFT fo rm. Several mino r deal p o ints and legal comments need to be ad d res s ed . A final d o c ument will be p res ented to Counc il in Marc h. STAFF RECOMMENDATION: Staff rec o mmend s s up p o rt o f the p ro p o s ed agreement. FINANCIAL IMPACT: The City's maximum contribution to the BCI per the terms of this agreement is $13 million, o f whic h $12 millio n is in the c urrent year CIP b udget. The remaind er will either b e funded through fund b alanc e or b e inc luded in next year's CIP bud get. SUBMITTED BY: Wes ley Wright ATTACHMENTS: Description Type Page 49 of 101 DRAFT Homes tead Utility Agreement Backup Material Homes tead Utility Agreement - BCI Route Backup Material Page 50 of 101 UTILITY AGREEMENT BY AND BETWEEN: THE CITY OF GEORGETOWN TEXAS AND THREE FORKS PARTNERSHIP, LTD. AND TRIO DEVELOPMENT, LLC DATE: DRAFT 01/16/2017 Page 51 of 101 Utility Agreement WCMUD No. 35 (Homestead Subdivision) i Contents ARTICLE I INTRODUCTION ................................................................................................... 1 ARTICLE II DEFINITIONS ....................................................................................................... 2 ARTICLE III CONDITIONS PRECEDENT .......................................................................... 14 3.01 Acquisition of Land by Developer. ........................................................................ 14 3.02 Notice of Intent to Proceed. ..................................................................................... 14 3.03 Reimbursement of City Expenses. ........................................................................ 15 3.04 BCI Letter of Credit . ............................................................................................. 15 3.05 Developer Execution of this Agreement and the Related Agreements.................14 3.06 Effect of Failure to Perform Conditions Precedent. ............................................. 14 3.07 City Bond Issuance. ................................................................................................ 16 ARTICLE IV ELECTRIC SERVICES .................................................................................... 16 4.01 Developer Obligations .............................................................................................. 16 4.02 City Obligations ........................................................................................................ 17 ARTICLE V POTABLE WATER SERVICES; FIRE FLOW .............................................. 17 5.01 Developer Obligations .............................................................................................. 17 5.02 City Obligations. . .................................................................................................... 18 ARTICLE VI ON-SITE WASTEWATER IMPROVEMENTS ............................................ 18 6.01 Developer Obligations. . .......................................................................................... 18 6.02 City Obligations. . .................................................................................................... 18 ARTICLE VII DRAINAGE IMPROVEMENTS. ................................................................... 19 7.01 Developer Obligations. . .......................................................................................... 19 7.02 City Obligations. ..................................................................................................... 19 ARTICLE VIII PRIVATE IRRIGATION SYSTEM ............................................................. 19 8.01 Developer Obligations .............................................................................................. 19 8.02 City/POA Obligations............................................................................................... 20 ARTICLE IX BCI ....................................................................................................................... 21 9.01 General. . .................................................................................................................. 21 9.02 Deadlines. ................................................................................................................. 20 9.03 BCI Engineer Selection. . ........................................................................................ 21 9.04 BCI Plans.. ................................................................................................................. 21 9.05 BCI Contract Documents.. ....................................................................................... 21 9.06 BCI Contractor Selection. . ..................................................................................... 22 9.07 BCI Change Orders. . .............................................................................................. 22 9.08 BCI Pay Applications.. ............................................................................................. 22 9.09 Payments to BCI Contractor. .................................................................................. 24 9.10 City Right to Terminate. .......................................................................................... 26 ARTICLE X OTHER UTILITY SERVICES .......................................................................... 27 10.01 Gas Services. T ......................................................................................................... 27 10.02 Electric Services. ..................................................................................................... 27 10.03 Other Services. .......................................................................................................... 27 ARTICLE XI EASEMENTS ..................................................................................................... 27 11.01 General.. .................................................................................................................... 27 11.02 Title Commitment and Title Policy. . ..................................................................... 27 Page 52 of 101 Utility Agreement WCMUD No. 35 (Homestead Subdivision) ii 11.03 Locations.................................................................................................................... 28 11.04 Minimum Widths. ................................................................................................... 28 11.05 Forms. ...................................................................................................................... 29 11.06 Time for Providing. . ................................................................................................ 29 11.07 Eminent Domain.. ..................................................................................................... 29 ARTICLE XII ADDITIONAL PROCEDURES AND OBLIGATIONS ............................... 29 12.01 Design. . ..................................................................................................................... 29 12.02 Duty to Construct. .................................................................................................... 30 12.03 Periodic Inspections. . .............................................................................................. 30 12.04 Completion Notice.. .................................................................................................. 30 12.05 Final Inspection; City Acceptance. ......................................................................... 30 12.06 Insurance; Payment and Performance Bonds.. ..................................................... 30 12.07 Notice of Commencement of Construction; Inspections.. ..................................... 30 12.08 Construction Traffic.. ............................................................................................... 31 12.09 Stop Work Orders. . ................................................................................................ 31 12.10 Maintenance Period and Maintenance Bond. ........................................................ 31 12.11 As Built Plans.. .......................................................................................................... 32 12.12 Transfer of Warranties.. .......................................................................................... 32 12.13 City’s Rights. . .......................................................................................................... 32 ARTICLE XIII IMPACT FEES AND OTHER FEES ........................................................... 32 13.01 Impact Fee Assessment and Payment.. ................................................................... 32 13.02 Capacity Interest. .................................................................................................... 33 13.03 Refunds for BCI Construction. ............................................................................... 34 13.04 Other Development and Utility Fees. .................................................................... 34 13.05 Tree Preservation and Protection.. ......................................................................... 35 13.06 Fire SIP Fees. . ......................................................................................................... 35 ARTICLE XIV PROHIBITION ON PROVISION OF SERVICES OUTSIDE THE LAND ....................................................................................................................................................... 35 14.01 Services Outside the Land. . ................................................................................... 35 ARTICLE XV AUTHORITY AND APPROVALS ................................................................. 35 15.01 Authority. . ............................................................................................................... 35 15.02 City’s Regulatory Approvals. ................................................................................ 35 15.03 No Relinquishment of Municipal Regulatory Authority. ................................... 36 ARTICLE XVI TERM, ASSIGNMENT AND REMEDIES .................................................. 36 16.01 Term. ........................................................................................................................ 36 16.02 Assignment and Delegation. ................................................................................... 36 16.03 Default and Rights and Remedies for Default. ...................................................... 36 16.04 City’s Remedies During Owner’s, Developer’s or District’s Cure Periods. ..... 37 16.05 Rights and Remedies for Default After Expiration of Cure Period. .................... 37 16.06 City’s Additional Rights and Remedies for Default.. ............................................ 38 16.07 Additional City Remedy Related to Developer Default on the BCI or Termination of this Agreement. . .......................................................................................... 38 ARTICLE XVII MISCELLANEOUS PROVISIONS ............................................................ 39 17.01 Cooperation. .............................................................................................................. 39 17.02 Notice. : ..................................................................................................................... 39 17.03 Severability; Amendment; Waiver. ........................................................................ 40 Page 53 of 101 Utility Agreement WCMUD No. 35 (Homestead Subdivision) iii 17.04 Applicable Law and Venue. ................................................................................... 41 17.05 Entire Agreement. .................................................................................................. 41 17.06 Exhibits, Headings, Construction and Counterparts. . ........................................ 41 17.07 Time. . ....................................................................................................................... 42 17.08 Authority for Execution. . ....................................................................................... 43 17.09 Exhibits. ................................................................................................................... 43 17.10 Effective Date; Recordation. .................................................................................. 43 Page 54 of 101 DRAFT 01/16/2017 Utility Agreement – Homestead Subdivision Page 1 UTILITY AGREEMENT THE STATE OF TEXAS § § COUNTY OF WILLIAMSON § This Utility Agreement (“Agreement”) is entered into by and between the City of Georgetown, Texas (“City”), a home-rule city located in Williamson County, Texas; and Trio Development, LLC, a Texas limited liability corporation (“Developer”). Three Forks Partnership, Ltd., a Texas limited partnership (“Owner”) has joined this Agreement for the limited purposes set forth herein. ARTICLE I INTRODUCTION 1.01 Owner is the owner that certain property consisting of approximately 340.5 acres of land, more or less, which is more particularly described by metes and bounds and surveyor’s sketch attached hereto as Exhibit A (the “Land”). 1.02 Developer has a contract to purchase the Land from Owner. 1.03 The Land is located within the city limits of the City of Georgetown, Texas. 1.04 The Land is situated entirely within the City’s water and wastewater service areas, and partially within the City’s electric service area. 1.05 Owner, Developer and the City have agreed to the creation over the Land of one (1) “in-city” or “city service” municipal utility district pursuant to Section 54.016 of the Texas Water Code under the terms and conditions of a Consent Agreement among them dated to be effective on even date herewith, said municipal utility district to be known upon its creation as Williamson County Municipal Utility District No. 35 (or some other named municipal utility district) (the “District”). 1.06 Developer and the City have also entered into that certain Development Agreement dated to be effective on even date herewith pertaining to, among other things, the development of the Land and the construction of certain transportation improvements necessary to serve the Land. 1.07 The City has determined that, pursuant to the terms of this Agreement, the Consent Agreement and the Development Agreement, the City will benefit from: (i) the quality of the development that will result on the Land; (ii) the creation of the District to finance the water, wastewater and roadway systems and other improvements authorized Page 55 of 101 DRAFT 01/16/2017 Utility Agreement – Homestead Subdivision Page 2 in this Agreement and the Related Agreements for the District; (iii) and the extension of the City’s wastewater and transportation network. The Developer has determined that, pursuant to the terms of this Agreement, they will benefit from: (i) the certainty and assurance of the development regulations applicable to the development of the Land in accordance with this Agreement and the Related Agreements, (ii) the commitment for City wastewater services to the Land in accordance with this Agreement and the Related Agreements; and (iii) the ability to obtain the financial commitments that are necessary for a development of this scope to become competitive in the marketplace. NOW, THEREFORE, in consideration of the forgoing recitals and mutual agreements set forth herein, and other good and valuable consideration, the receipt, adequacy and sufficiency of which are all hereby acknowledged, the City and Developer hereby agree as follows: ARTICLE II DEFINITIONS 2.01 Definitions. In addition to the terms defined elsewhere in this Agreement or in the City’s ordinances, the following terms and phrases used in this Agreement have the meanings set out below: (a) Agreement: means this Utility Agreement between the City and Developer. (b) Alternative Wastewater Extension Project: means the alternative facilities to be constructed for the extension and provision of wastewater service to the Land, at Developer’s sole cost and expense, in the event the Developer does not enter into the BCI Contract or terminates the BCI Contract in accordance with the terms hereof because the costs of the BCI Project exceed the Maximum BCI Price. (c) Assignee: means a successor-in-interest to City or Developer, as permitted under Section 16.02 of this Agreement. (d) Berry Creek Interceptor or “BCI:” means, collectively, BCI Section 1 (defined herein) and BCI Section 2 (defined herein), constituting a wastewater interceptor having a diameter varying from thirty six inches (36”) to forty two inches (42”), being approximately four (4) total miles in length, and extending from the northwest corner of the Land at Airport Road to the City’s Berry Creek Wastewater Treatment Plant, generally following the course of Berry Creek, all as generally shown on Exhibit __, and which is Page 56 of 101 DRAFT 01/16/2017 Utility Agreement – Homestead Subdivision Page 3 to be constructed by Developer on behalf of the District pursuant to this Agreement. (e) BCI Bid Commencement Date: means the first date of publication by Developer of a newspaper advertisement for bids for construction of the BCI. (f) BCI Change Order: means a document recommended by the BCI Engineer (defined herein) which is signed by the BCI Engineer, BCI Contractor (defined herein), and the City’s Project Representative (defined herein) and authorizes an addition, deletion, or revision in the BCI Contract Documents (defined herein) other than an adjustment in the Maximum BCI Contract Price (defined herein), BCI Commencement Deadline (defined herein), or the BCI Completion Deadline (defined herein), issued on or after the Effective Date of the BCI Construction Contract (defined herein). (g) BCI Commencement Deadline: means 5:00 PM CST on the date that is two (2) years after the Effective Date (defined herein), subject to force majeure. (h) BCI Completion Deadline: means 5:00 PM CST on the date that is three (3) years after the Effective Date (defined herein), subject to force majeure. (i) BCI Contract: means the contract between Developer and the BCI Contractor for construction of the BCI. (j) BCI Contract Price: means price payable under the BCI Contract Documents (defined herein) to the BCI Contractor (defined herein) for Completion of Construction (defined herein) of the BCI, which amount must be less than or equal to the Maximum BCI Price (defined herein). (k) BCI Contractor: means the contractor selected to construct the BCI. (l) BCI Engineer: means the Engineer selected to design the BCI. (m) BCI Letter of Credit: means an irrevocable letter of credit in favor of the City available by draft signed by the City Manager or his/her designee, in the amount of the Developer’s BCI Share (defined herein) issued by an issuer having a rating equivalent to the City’s minimum acceptable rating established under the City’s financial institution rating system then in effect and substantially in the form attached hereto as Exhibit __. Page 57 of 101 DRAFT 01/16/2017 Utility Agreement – Homestead Subdivision Page 4 (n) BCI Pay Application: means an application for payment from the BCI Engineer, BCI Contractor or other vendor or contractor providing goods or services relating to the BCI in a form mutually acceptable to the Developer and the City’s Project Representative which must be used by the BCI Engineer, BCI Contractor or other vendor or contractor during the course of design and construction of the BCI when requesting progress or final payments and which must be accompanied by such supporting documentation as required by the BCI Contract and this Agreement. (o) BCI Project Costs: means: (i) all Easement Acquisition Costs (defined herein); (ii) all payments to the BCI Engineer and BCI Contractor for design and construction of the BCI; and (iii) other costs and expenses relating to the BCI, including all costs of designing, surveying, permitting, engineering, materials, labor, construction and inspection of the BCI. All BCI Project Costs must be directly related to the BCI and must be reasonable. Developer shall provide a summary of all BCI Project Costs that it incurs together supporting documentation to the City from time to time upon request of the City. (p) BCI Section 1: means that portion of the BCI beginning at the City’s Pecan Branch Wastewater Treatment Plant and ending at the Homestead Connection Point (shown on Exhibit __) located in the southeast corner of the Land at the boundary of the Land and _______, and shall be forty two inches (42”) and/or thirty six inches (36”) in diameter (as specified in writing by the City within ten (10) business days of receipt of a request by the BCI Engineer during the design phase). (q) BCI Section 2: means that portion of the BCI beginning at the Homestead Connection Point, continuing north along the eastern Land boundary to the Berry Creek Lift Station (located off of the Land but shown on Exhibit __), and ending at the northwest corner of the Land where it meets the City’s existing Berry Creek Lift Station, and shall be forty two inches (42”) and/or thirty six inches (36”) in diameter (as specified in writing by the City within ten (10) business days of receipt of a request by the BCI Engineer during the design phase). (r) City: means the City of Georgetown, Texas, a home rule city located in Williamson County, Texas. (s) City Attorney: means the City Attorney for the City. Page 58 of 101 DRAFT 01/16/2017 Utility Agreement – Homestead Subdivision Page 5 (t) City’s BCI Project Percentage: means seventy five percent (75%) of BCI Project Costs but not in excess of the City’s BCI Share. (u) City’s BCI Share: means the amount of the City’s monetary contribution towards the BCI Project Costs, which amount shall be the product of the City’s BCI Project Percentage multiplied by the BCI Project Costs, but in no event shall the City’s BCI Share exceed THIRTEEN MILLION U.S. DOLLARS ($13,000,000.00). (v) City’s Director of Finance: means the Director of Finance for the City, or such other person designated by the City Manager. (w) City Council: means the City Council of the City. (x) City’s Financial Advisor: means the financial advisor retained by the City to advise it on public finance matters. (y) City Improvements: means, collectively, the BCI (defined herein); On-Site Water Improvements (defined herein); On-Site Wastewater Improvements (defined herein); Drainage Improvements (defined herein); Electric Improvements (defined herein) necessary to provide electric services that portion of the Land within the City’s certificated electric service area; and the Water Line (defined herein), and individually any one of them. (z) City Manager: means the City Manager of the City. (aa) City’s Project Representative: means the person(s) designated in writing by the City Manager to the Developer as being the authorized representative(s) of the City for matters relating to the design and construction of, and processing of construction payments for, the BCI. (bb) City Secretary: means the City Secretary of the City. (cc) Closing Date: means 5:00 PM CST on the date that Developer closes on the acquisition of the Initial Land, which date shall be not more than ninety (90) days after the Effective Date of this Agreement. (dd) Commencement of Construction occurs, Construction Commences on, and/or Developer will be deemed to Commence Construction of the BCI (defined herein) at such time as: Page 59 of 101 DRAFT 01/16/2017 Utility Agreement – Homestead Subdivision Page 6 (1) Developer, District and/or City (as applicable under Article XI of this Agreement) has obtained all necessary Easements for construction of the BCI in accordance with the terms of this Agreement; and (2) Developer has obtained all necessary permits and approvals from the City and any other governmental body having jurisdiction over the construction of the BCI authorizing construction of the BCI; and (3) Developer has entered into a contract with the BCI Contractor to construct the entirety of the BCI on or before the Completion Deadline; and (4) Developer has issued a "Notice to Proceed" to the BCI Contractor authorizing the BCI Contractor to commence and pursue all of the work necessary to complete the BCI on or before the Completion Deadline; and (5) The BCI Contractor has delivered materials and equipment to, mobilized contractors on, or otherwise started substantial site work for the BCI under the BCI Construction Contract (defined herein). (ee) Completion of Construction: means completion of construction of the BCI will be deemed to have occurred when: (1) the construction of the BCI is substantially complete such that the entire length of the line is fully operational, and it can be used for its intended purpose; and (2) only Punch List Items (defined herein) remain to be completed and such items do not adversely affect the capability of the BCI to be operated and function safely, and (3) the City has issued a Letter of Acceptance (defined herein) for the BCI; and (4) BCI Engineer, BCI Contractor, and City’s Project Representative have each certified that BCI is substantially complete; and Page 60 of 101 DRAFT 01/16/2017 Utility Agreement – Homestead Subdivision Page 7 (5) the BCI Engineer, BCI Contractor, and City’s Project Representative have each certified to the City that all Punch List Items can be completed within thirty (30) days; and (6) all required testing and inspections applicable to the construction and operation of the BCI have been conducted and all final approvals required for use have been obtained from public and quasi-public authorities with jurisdiction over the BCI. (ff) Completion Notice: means the written notice to be submitted by Developer to the City upon substantial completion of each of the City Improvements stating that construction of the relevant improvement (or segment thereof, if allowed to be constructed in segments) has been substantially completed and is ready for final inspection by the City. All completion notices must include the following items: (1) A request for the City to accept the completed City Improvement for ownership, operation and maintenance; and (2) Executed, recordable Easements required by Article XI of this Agreement necessary for the completed City Improvement; and (3) Executed Maintenance Bonds required by Section 12.10 of this Agreement for the completed City Improvement; and (4) As-built plans required by Section 12.11 of this Agreement for the completed City Improvement; and (5) Certifications that there are no liens or other encumbrances on the completed City Improvements or the Easements for the completed City Improvement, including copies of all lien releases. (gg) Connection: means a connection to the On-Site Water Improvements (defined herein) or to the On-Site Wastewater Improvements (defined herein) on the Land, the cumulative number of which shall not exceed the Connection Limit (defined herein). For the purposes of this Agreement, the physical connection into the On-Site Water Improvements that corresponds to the number of water service connections with a 5/8” or ¾” meter (as Page 61 of 101 DRAFT 01/16/2017 Utility Agreement – Homestead Subdivision Page 8 allowed by the Governing Regulations) shall represent one (1) Connection. For the purposes of this Agreement, the physical sewer connection into the On-Site Wastewater Improvements that corresponds to the number of water service connections with a 5/8” or ¾” meter (as allowed by the Governing Regulations) shall also represent one (1) Connection. The number of Connections represented by water meters larger than 5/8” or ¾” in size (as allowed by the Governing Regulations) shall be the same as the number of water “Service Units” calculated using Georgetown’s meter equivalency standards set forth in Section 13.32.050 of Georgetown’s Code of Ordinances, as said ordinance may be amended from time to time by the City Council. (hh) Connection Limit: means the maximum number of Connections on the Land, which shall not exceed one thousand four hundred eighty five (1,485) for water services and one thousand four hundred eighty five (1,485) for wastewater service. (ii) Consent Agreement: means the Consent Agreement dated to be effective on even date herewith between the City, Owner and Developer pertaining to the creation of the District over the Land. (jj) Developer: means Trio Development, LLC, a Texas limited liability company, or its permitted successors and Assignees permitted by this Agreement. (kk) Developer Improvements: means the Electric Improvements necessary to provide electric service to that portion of the Land that is not within the City’s certificated electric service area and any gas improvements constructed by or on behalf of Developer to the Land. (ll) Developer’s BCI Project Percentage: means twenty five percent (25%) of BCI Project Costs. (mm) Developer’s BCI Share: means the amount of the Developer’s monetary contribution towards the BCI Project Costs, which amount shall be the product of the Developer’s BCI Project Percentage multiplied by the BCI Project Costs, but in no event shall Developer’s BCI Share exceed FOUR MILLION U.S. DOLLARS ($4,000,000.00) or be less than THREE MILLION FIVE HUNDRED THOUSAND U.S. DOLLARS ($3,500,000.00). Page 62 of 101 DRAFT 01/16/2017 Utility Agreement – Homestead Subdivision Page 9 (nn) Development Agreement: means the agreement dated to be effective on even date herewith between the City and Developer for the development of the Land, including, among other things, the construction and/or funding of certain transportation improvements. (oo) District: means a municipal utility district to be created over the Land, with the City’s consent and subject to the terms and conditions of the Consent Agreement. (pp) District’s Board: means the Board of Directors of the District. (qq) Land’s Irrigation System: means and includes the Private Wells (defined herein) and the Irrigation Improvements (defined herein), plus any other equipment, facilities, fixtures, improvements or appurtenances, used to store or convey and distribute captured stormwater within ponds or non- potable groundwater from the Private Wells to users on the Land for landscape irrigation purposes, but specifically excluding the Drainage Improvements. (rr) Drainage Improvements: means street curbs and storm water inlets constructed by Developer in conjunction with public street improvements, together with all piping, cleanouts and manholes associated with storm water management from said public streets, but specifically excluding all Irrigation Improvements including any holding, detention, retention and or/water quality ponds, and the like whether or not they are part of the Irrigation Improvements. Roadside ditches, swales and the like shall constitute Drainage Improvements only to the extent they are used for drainage and conveyance (but not water quality treatment). (ss) Easements: means, collectively, the temporary construction and access easements, and the permanent utility and access easements, necessary for the construction, maintenance, operation, repair and replacement of the City Improvements and the Developer Improvements. (tt) Easement Acquisition Costs: means the costs and expenses incurred by Developer for acquisition of permanent or temporary easements necessary construct, operate, maintain, repair or replace the BCI, including surveying, appraisal and legal fees, and the monetary consideration incurred paid by Developer to a landowner. To qualify as BCI Project Costs, all Easement Acquisition Costs shall be subject to the City’s confirmation of reasonableness. Page 63 of 101 DRAFT 01/16/2017 Utility Agreement – Homestead Subdivision Page 10 (uu) Effective Date: means the latest date accompanying the signature lines below. (vv) Electric Improvements: means and includes all electric improvements and facilities necessary for the certificated provider of retail electric services to provide electric service to customers on the Land. (ww) Engineer: means the registered professional engineer licensed to practice in the State of Texas retained by the Developer to prepare the Plans (defined herein) and the Easements (defined herein). (xx) Financing Commitments: has the meaning set forth in Section 3.02 of this Agreement. (yy) Governing Regulations: means collectively, the following: (1) this Agreement; (2) the City’s Code of Ordinances, as the same may be amended from time to time by the City Council; (3) the City’s Unified Development Code (defined herein), except as modified by this Agreement, the Related Agreements (defined herein), or the PUD Ordinance (defined herein); (4) the City’s Development Manual (including, without limitation, the fee schedule), including amendments that may be approved from time to time by the City; (5) the City’s Construction Specifications and Standards Manual, including amendments that may be approved from time to time by the City; (6) the City’s Drainage Criteria Manual, including amendments that may be approved from time to time by the City; (7) the City’s Traffic Calming Standards, including amendments that may be approved from time to time by the City; (8) the PUD Ordinance (defined herein); Page 64 of 101 DRAFT 01/16/2017 Utility Agreement – Homestead Subdivision Page 11 (9) ordinances that the City is required to adopt from time to time by state or federal law, including amendments that may be adopted from time to time by the City; (10) all national and international residential and commercial building codes adopted by the City, (e.g., electric codes, building codes, plumbing codes, mechanical codes, energy conservation codes and fire codes), including changes and local amendments thereto that may be adopted from time to time by the City; and (11) all statutes, laws, orders, standards, ordinances, rules, regulations, permits, and approved plans and specifications of the TCEQ, the City, and any other entity having jurisdiction over the BCI (defined herein); On-Site Water Improvements (defined herein); On-Site Wastewater Improvements (defined herein); Land’s Irrigation System (defined herein); Drainage Improvements (defined herein); Electric Improvements (defined herein); Water Line (defined herein); and any other utility improvements constructed to serve the Land; and (12) the Related Agreements (defined herein). (zz) Impact Fees. means the fees adopted by the City Council in accordance with Chapter 395, Texas Local Government Code, as the same may be revised from time to time by the City Council. (aaa) Initial Land: means the first phase of the Land to be acquired and developed by Developer consisting of not less than 100 acres and which shall include the lands on which the Berry Creek Trail (as defined in the Development Agreement) and the easement for the BCI shall be located. (bbb) Irrigation Improvements: means and includes those irrigation system facilities necessary to provide captured storm water and non-potable groundwater water to users on the Land for landscape irrigation purposes, including but not limited to the Private Wells (defined herein) and associated piping, valves, inlets, and outlets necessary to hold or store the storm water and groundwater after discharge from the City’s Drainage Improvements, including all holding, detention, retention and/or water quality ponds, ditches, swales and the like (to the extent they are used for water quality treatment), plus any liners or monitoring wells, if required by Page 65 of 101 DRAFT 01/16/2017 Utility Agreement – Homestead Subdivision Page 12 the Governing Regulations, together with all irrigation lines and other facilities and ancillary improvements used in conjunction with the Land’s Irrigation System (defined herein). (ccc) Land: means the 340.5 acres of land located in the City limits of the City of Georgetown, Texas which is more specifically described by metes and bounds and surveyor’s sketch on Exhibit A. (ddd) Letter of Acceptance: means a document signed by the City’s Project Representative accepting a City Improvement for ownership, maintenance and operation by the City. (eee) Maximum BCI Price: means SEVENTEEN MILLION U.S. DOLLARS ($17,000,000.00), inclusive of all contingency and other BCI Project Costs. (fff) Notice: means notice as described in Section 17.02 of this Agreement. (ggg) Notice of Intent to Proceed: has the meaning set forth in Section 3.02 of this Agreement. (hhh) On-Site Wastewater Improvements: means and includes the wastewater system facilities necessary for the City to provide retail wastewater collection and treatment service to Connections on the Land in accordance with the Governing Regulations, including but not limited to all piping, manholes, and lift stations located within designated easements or rights of way up to the point of service entry by a single customer. (iii) On-Site Water Improvements: means and includes the water system facilities necessary for the City to provide retail potable water service to Connections on the Land in accordance with the Governing Regulations, including but not limited to all piping, valves, and hydrants within designated easements or rights of way up to the customer side of the meter. (jjj) Owner: means Three Forks Partnership, Ltd., a Texas limited partnership, or its permitted successors or Assignees as permitted by this Agreement. (kkk) Parties: means, collectively, the City and Developer, and their respective Assignees permitted by this Agreement. (lll) Party: means, individually, the City or Developer, or their respective successors and Assignees permitted by this Agreement. Page 66 of 101 DRAFT 01/16/2017 Utility Agreement – Homestead Subdivision Page 13 (mmm)PER: means that certain “Preliminary Engineering Report for Williamson County Municipal Utility District No. 35” by Jones-Heroy & Associates, Inc., 1900 East Howard Lane, Building A, Suite 6, Pflugerville, TX 78660 (last updated on ____________, 2017). (nnn) Plans: means, collectively, the drawings and specifications prepared by Engineer or BCI Engineer (as applicable) in accordance with the Governing Regulations for all City Improvements, the Land’s Irrigation System and Developer Improvements, and individually the drawings and specifications prepared by Engineer or BCI Engineer (as applicable) in accordance with the Governing Regulations for any one of them. (ooo) POA: means an incorporated or unincorporated property owners association to be created by Owner or Developer for the purpose of, among other things, owning, operating maintaining, repairing, and replacing the Land’s Irrigation System . (ppp) Private Wells: means those certain groundwater production wells, together with all associated pumps, valves, housing, piping, and ancillary equipment, having State Water Well Id. Numbers ___ and ___, and located on land owned by Glynn D. and Dora Dean Buie described in Instrument No. 2001014355 and by Owner described in Instrument No. 2005003918, both as recorded in the Official Public Records of Williamson County, Texas and as shown on Exhibit __, plus any replacement groundwater production wells drilled to supplement, rework, or replace the wells having the state water well numbers stated above. (qqq) PUD Ordinance: means the City-Council approved planned unit development (PUD) zoning ordinance pertaining to the Land, as the same may be amended from time to time by the City Council. (rrr) Related Agreement(s): means, collectively, the Development Agreement and the Consent Agreement (defined herein), and individually either of them. (sss) TCEQ: means the Texas Commission on Environmental Quality, or its successor state agency having jurisdiction over municipal utility districts, the City Improvements and/or the Developer Improvements. (ttt) UDC: means the City’s Unified Development Code, as the same may be amended from time to time by the City Council. Page 67 of 101 DRAFT 01/16/2017 Utility Agreement – Homestead Subdivision Page 14 (uuu) Water Line: means the new twelve inch (12”) water line to be constructed by Developer, looped to the City’s existing twelve inch (12”) line on Airport Road and extended to the easternmost boundary line of the Land. ARTICLE III CONDITIONS PRECEDENT 3.01 Acquisition of Land by Developer. As a condition precedent to the effectiveness of this Agreement, Developer shall acquire all rights, title, and interest in the Initial Land on or before the Closing Date, and shall also provide to the City Attorney a copy of the recorded deed evidencing its ownership of the Initial Land on or before the date that is five (5) days after the Closing Date. 3.02 Notice of Intent to Proceed. (a) On or before the date that is at least thirty (30) days before the BCI Bid Commencement Date, as a condition precedent to the effectiveness of this Agreement, Developer shall provide a Notice of Intent to Proceed (herein so called) to the City Attorney that: (1) Is sworn to and executed by representatives of Developer and Developer’s lender(s) or equity sources stating that the Developer has entered into an equity joint venture with a partner and/or a loan or credit agreement with a so-called conduit lender, commercial bank or similar financial institution (collectively, the “Financing Commitments”) from persons having the financial capability to perform their obligations under such agreement(s), and which provide construction investment and/or financing on terms typical for “construction/min-perm” financing (not subject to any contingency or condition other than those typically associated with such loans or equity investments), which are collectively in principal amounts sufficient, together with other available funds committed by Developer, to pay all costs and expenses for the design, development, land acquisition and construction of the BCI in accordance with this Agreement and the Related Agreements; and (2) Is accompanied by a written letter from the Developer’s certified financial advisor summarizing the amounts, preconditions, terms, and repayment obligations for each of Page 68 of 101 DRAFT 01/16/2017 Utility Agreement – Homestead Subdivision Page 15 the Financing Commitments, which letter shall be accompanied by term sheets, loan or equity documents, or commitment letters from the lending parties or equity partners detailing the terms and conditions for the Financing Commitments; and (3) Includes a sworn statement from the Developer affirming that Developer is ready to commence construction of and intends to complete construction of the BCI. (b) The Notice of Intent to Proceed will not be accepted by the City Attorney unless the Developer has allowed the City Attorney and the City’s Financial Advisor at least thirty (30) calendar days to review the Financing Commitments and all accompanying agreements and security instruments relating thereto, and the City’s Financial Advisor has issued a written memorandum to the City Attorney summarizing the dates and description of the documents reviewed and providing a certified opinion as to whether the Financing Commitments are sufficient to fund Developer’s financial obligations under this Agreement for the Notice of Intent to Proceed and whether the City’s Financial Advisor is reasonably satisfied that the Financing Commitments are sufficient to pay all costs and expenses for the City Improvements save and except the City’s BCI Share. (c) The City and Developer agree that, if requested by the Developer in writing, in lieu of providing hard copies of the Notice of Intent to Proceed to the City Attorney, it shall allow the City’s Financial Advisor to view the Notice of Intent to Proceed and documents related thereto under a mutually acceptable Non-Disclosure Agreement. 3.03 Reimbursement of City Expenses. As additional consideration for this Agreement and as a condition precedent to the effectiveness of this Agreement, Developer shall pay City’s staff and outside consultant and legal fees and expenses associated with negotiation and preparation of this Agreement and the Related Agreements, which amounts must be received by the City on or before the Effective Date. Payment by check must be remitted to the City Manager at the address for Notice provided in this Agreement. Developer shall request wiring instructions from the City Manager prior to remitting payment by bank wire. 3.04 BCI Letter of Credit. To secure its obligations under this Agreement and as a condition precedent to the effectiveness of this Agreement, Developer shall cause to be issued, at no cost to the City, the BCI Letter of Credit in favor of the City and Page 69 of 101 DRAFT 01/16/2017 Utility Agreement – Homestead Subdivision Page 16 substantially in the form attached hereto as Exhibit __ and received by the City Attorney on or before the first to occur of either the BCI Bid Commencement Date or the date that the City approves a preliminary plat for any portion of the Land. 3.05 Execution of this Agreement and the Related Agreements. As a condition precedent to the effectiveness of this Agreement, Developer’s authorized representative shall execute this Agreement and the Related Agreements on or before the Closing Date, and Developer shall comply with all other conditions precedent contained in the Related Agreements when and as required by the Related Agreements. In addition, as a condition precedent to the effectiveness of this Agreement and the Related Agreements, Owner’s authorized representative must sign this Agreement and the Related Agreements solely for purposes of evidencing Owner’s consent to the terms and conditions of this Agreement and the recordation in the Official Property Records of Williamson County, Texas. All Parties agree that Owner shall have no liability or responsibility for the performance of any obligations of Developer under this Agreement or the Related Agreements. 3.06 Effect of Failure to Perform Conditions Precedent. This Agreement shall be void ab initio and shall have no force or effect if any one or more of the conditions precedent described in Sections 3.01 through 3.05 of this Agreement are not fully performed on or before the dates such performances are required by this Agreement. 3.07 City Bond Issuance. After the City’s Financial Advisor provides written documentation to the City Attorney certifying that the Financing Commitments are in place and the Developer has satisfied the conditions precedent stated in Sections 3.01 through 3.04 of this Agreement, and before the Developer executes the BCI Construction Contract (defined herein), the City shall issue bonds, the proceeds of which shall be used to fund the City’s BCI Share. Developer acknowledges that the City’s BCI Share is to be paid, if paid, solely out of City bond proceeds issued for such purpose and from no other source except as determined in the City’s sole and absolute discretion. The City shall not be required to fund the City’s BCI Share out of any other source other than proceeds of bonds issued for that purpose. ARTICLE IV ELECTRIC SERVICES 4.01 Developer Obligations (a) City’s Electric Service Area. In the City’s current certificated electric area and any future singly- or dually-certificated electric area of the City’s (if Page 70 of 101 DRAFT 01/16/2017 Utility Agreement – Homestead Subdivision Page 17 any) on the Land, the City shall be the exclusive provider of retail electric service to said portions of the Land. (b) Electric Improvements. Developer cause all Electric Improvements and facilities necessary to provide electric service to customers on the Land to be designed and constructed in accordance with the Governing Regulations (for improvements within the City’s electric service area) or to the standards promulgated by the authorized electric service provider (for improvements outside of the City’s electric service area). 4.02 City Obligations (a) Design and Construction of Electric Improvements. After receipt of payment by Developer of the City’s electric tap fees, including but not limited to the cost of materials and labor, the City shall design and construct such Electric Improvements as are required to serve customers on the Land. (b) Electric Service in City’s Electric Service Area. After completion of construction of the Electric Improvements necessary to provide electric service to that portion of the Land that is within the City’s certificated electric service area, and acceptance of same by the City as evidenced by the City’s Letter of Acceptance, the City shall provide electric service to customers on the Land that are within the City’s certificated electric service area on the same basis as it provides service to similarly classified customers within its electric service area. (c) No City Electric Service Outside of City’s Electric Service Area. The City shall have no obligation to provide electric service to customers on the Land that are not located within the City’s certificated electric service area. ARTICLE V POTABLE WATER SERVICES; FIRE FLOW 5.01 Developer Obligations (a) Water Line. Developer shall, at no cost to the City, design and construct the Water Line in accordance with the Governing Regulations. The Water Line may be constructed in phases corresponding to the phased development of the Land, but each phase of the Water Line shall be looped as necessary to meet fire flow requirements. Upon completion, the Water Line must loop on Airport Road and extend through the Land from Airport Road to the easternmost Property boundary. Page 71 of 101 DRAFT 01/16/2017 Utility Agreement – Homestead Subdivision Page 18 (b) On-Site Water Improvements. Developer shall, at no cost to the City, design and construct the On-Site Water Improvements in accordance with the Governing Regulations. In addition, Developer shall design and construct at no cost to the City any and all other water improvements necessary if fire flow greater than 1,500 gallons per minute is required by the applicable provisions of the Governing Regulations. 5.02 City Obligations. After completion of construction of the Water Line and the On-Site Water Improvements and acceptance of same by the City for operation and maintenance as evidenced by the City’s issuance of a Letter of Acceptance, and after payment of water impact fees by each applicant for service (or as otherwise provided herein with respect to any school lands), the City shall provide retail water services to the Land at a level not to exceed the Connection Limit, and provide fire flow to the Land not to exceed 1,500 gallons per minute (or at such greater flow rate as may be required if Developer funds and constructs other improvements for such purposes under the Governing Regulations in accordance with Section 5.01(b) above). ARTICLE VI ON-SITE WASTEWATER IMPROVEMENTS 6.01 Developer Obligations. Developer shall, at no cost to the City, design and construct the On-Site Wastewater Improvements in accordance with the Governing Regulations. The Developer may construct the On-Site Wastewater Improvements in phases as allowed by the Governing Regulations. 6.02 City Obligations. After completion of construction of the BCI, and after construction of the On-Site Wastewater Improvements necessary for each final plat of the Land and acceptance of same by the City for operation and maintenance as evidenced by the City’s issuance of Letter(s) of Acceptance, and after receipt of payment of all applicable wastewater impact fees and other fees from each applicant for service for that portion of the Land shown on each final plat, the City shall provide retail wastewater services to the individual applicants for service within the portion of the Land being final platted in accordance with the terms and conditions of this Agreement and the Related Agreements. The total wastewater service furnished by the City within the Land shall not exceed the Connection Limit. Page 72 of 101 DRAFT 01/16/2017 Utility Agreement – Homestead Subdivision Page 19 ARTICLE VII DRAINAGE IMPROVEMENTS. 7.01 Developer Obligations. Developer shall, at no cost to the City, design and construct the Drainage Improvements as an integrated drainage, retention, detention, and storm water system in compliance with the Governing Regulations. 7.02 City Obligations. On completion of construction of the Drainage Improvements and acceptance of same by the City for operation and maintenance as evidenced by the City’s issuance of a Letter of Acceptance, the City shall provide drainage services to the Land. To the extent that a roadside drainage, swale or the like provides both stormwater conveyance and water quality treatment, the City shall be responsible for operation and maintenance of the facility only as necessary to maintain its drainage functions, and the District or POA shall be responsible for the operation and maintenance of the facility as related to water quality treatment in accordance with Article VIII below. ARTICLE VIII LAND’S IRRIGATION SYSTEM 8.01 Developer Obligations (a) Regulatory Approvals. After securing all permits and/or any other regulatory approvals necessary for the Land’s Irrigation System, and providing copies of same to the City, Developer shall, at no cost to the City, design and construct the Irrigation Improvements in compliance with the Governing Regulations. On an ongoing basis during the term of this Agreement, Developer shall provide, or cause to be provided, copies of any and all permits, amendments, modifications, renewals, water well driller’s reports, and any other authorizations related to the Land’s Irrigation System to the City. (b) Authorized Water Source. Except as otherwise provided in this Section or approved by the City Council, the only authorized sources of water for the Land’s Irrigation System shall be stormwater conveyed by the Drainage Improvements or groundwater produced from the Private Wells. In no event shall Developer cause, suffer or allow potable water to be used in the Land’s Irrigation System without the prior written consent of the City Council as evidenced by a separate written agreement between Developer or the District and the City stating the terms and conditions pursuant to which an alternative or supplemental water supply source may be used in for the Land’s Irrigation System. Page 73 of 101 DRAFT 01/16/2017 Utility Agreement – Homestead Subdivision Page 20 (c) Authorized Uses. The water from the Land’s Irrigation System shall be used solely for landscape irrigation purposes on the Land and for no other purpose. In no event shall Developer cause, suffer or allow water from the Land’s Irrigation System to be provided to land located outside of the District for compensation or otherwise without the City Council’s prior written consent. The Land’s Irrigation System must be owned, operated, maintained, repaired and replaced in accordance with the Governing Regulations and any other applicable federal or state laws or regulations. (d) Use of Right-of Way. The City, in its sole discretion, may authorize placement of lines associated with the Irrigation Improvements in the City’s right-of-way pursuant to the terms and conditions of a License to Encroach Agreement between the City and Developer, District or POA (as applicable according to which entity owns the Irrigation Improvements). 8.02 City/District/POA Obligations (a) No City Obligations or Liability. The City shall have no responsibility or liability for ownership, operation, maintenance, repair or replacement the Land’s Irrigation System. Any approvals by the City of plans or specifications related to the Land’s Irrigation System shall be in its regulatory capacity only and not in any propriety capacity. (b) District or POA Obligations. Upon completion of construction, and as and when any portion of the Land adjacent to or having such improvements is platted or when otherwise required under the Governing Regulations, Developer shall cause the Land’s Irrigation System to be dedicated or transferred to the District or POA for ownership, operation, maintenance, repair and replacement, subject to the restrictions set forth below and in the Consent Agreement. The District may, at its discretion, enter into agreements or leases providing for operation, maintenance, repair or replacement of the Land’s Irrigation System by the POA; provided, however that the District is not authorized to expend proceeds from District bond issuances to operate, maintain, repair or replace the Land’s Irrigation System. The District shall convey the Land’s Irrigation System to the POA upon request of the City prior to dissolution of the District, or the District may enter into a lease conveyance agreement with the POA pursuant to which the POA shall be responsible for operation and maintenance of the Land’s Irrigation System and acquire ownership thereof upon or prior to dissolution of the District. Page 74 of 101 DRAFT 01/16/2017 Utility Agreement – Homestead Subdivision Page 21 ARTICLE IX BCI 9.01 General. City and Developer agree to cooperate to cause construction of the BCI to occur as provided in this Agreement. Without limiting the applicability of all other terms and conditions of this Agreement to the BCI, the provisions of Article XII shall also apply to design and construction of the BCI. In addition, Developer shall cause the BCI Letter of Credit to remain in place until such time as the City notifies the issuer under Section 9.09(a) of this Agreement that it can be released. The foregoing shall not be construed to prevent Developer for reducing the amount of the BCI Letter of Credit from time to time in accordance with the terms of Section 9.09(a). 9.02 Deadlines. Developer shall cause Commencement of Construction of the BCI to occur on or before the BCI Commencement Deadline. Developer shall cause Completion of Construction of the BCI to occur on or before the BCI Completion Deadline subject to force majeure. 9.03 BCI Engineer Selection. Developer shall provide the City with a copy of the draft request for qualifications/request for proposals for engineers to prepare the BCI Plans (defined below), and make the draft request for qualifications/request for proposals available to City at least fifteen (15) days before publication. The City may request modification of the request for qualifications/request for proposals and may also request that copies of same be made available to engineers that the City believes may be qualified so that they may be given an opportunity to respond. Developer shall select an Engineer to prepare the BCI Plans following all laws pertaining to such selection that are or would be applicable to the District, provided that the City must also approve Developer’s selection of the BCI Engineer. The City’s approval shall be set forth in writing and signed by the City’s Assistant Manager/General Manager of Utilities. 9.04 BCI Plans. Developer shall, after receiving approval of the selection of the BCI Engineer from the City, retain the BCI Engineer to prepare design drawings, specifications, bid, and design documents for the construction and installation of the BCI (the "BCI Plans"). Developer further agrees to cause the BCI Plans to be prepared in accordance with the Governing Regulations, and formatted such that the items relating to the construction of the BCI are distinguished from the On-Site Wastewater Improvements so that the City’s progress payments for the BCI described in Section 9.09 of this Agreement can be accurately and easily calculated. The BCI Plans must be sufficiently detailed to be included with final BCI Construction Contract (defined herein) bid documents. Developer also agrees cause the BCI Engineer to prepare and seal an estimate of costs for the construction and installation of the BCI in accordance with the Page 75 of 101 DRAFT 01/16/2017 Utility Agreement – Homestead Subdivision Page 22 BCI Plans (the “Engineer’s BCI Cost Estimate”). Developer shall deliver drafts of the BCI Plans and the Engineer’s BCI Cost Estimate to the City no later than the date that is twelve (12) months after the Closing Date. The City agrees to use its best efforts to provide comments on the original draft and any subsequent drafts within ten (10) business days of receipt by the City’s Project Representative of same. In the event that the City’s Project Representative fails to respond to within said ten (10) business day timeframe, consent by the City shall not be deemed, implied or presumed. If the City disapproves any drafts, the foregoing process shall be repeated until the BCI Plans are approved. Developer shall cause final BCI Plans to be approved by the City not later than the date that is eighteen (18) months after the Closing Date. 9.05 BCI Contract Documents. Developer shall prepare or cause to be prepared a draft bid documents and contract for the construction of the BCI which is consistent and in accordance with the Governing Regulations (collectively, the "BCI Contract Documents"). Developer shall provide the City with copies of the draft BCI Contract Documents at least fifteen (15) days before publication. The City may request modification of the draft BCI Contract Documents and may also request that final copies of same be made available to contractors that the City believes may be qualified so that they may be given an opportunity to respond. The final City-approved BCI Contract Documents shall be publically advertised for bid and awarded in accordance with the Governing Regulations and any other procurement requirements applicable to the District. 9.06 BCI Contractor Selection. Developer shall select a contractor to construct the BCI following all laws pertaining to such selection that are or would be applicable to the District, provided that the City must also approve Developer’s selection of the BCI Contractor. The City’s approval shall be set forth in writing and signed by the City’s Assistant Manager/General Manager of Utilities. Developer shall within five (5) days of execution of same provide two (2) complete sets of all of the BCI Contract Documents to the City. 9.07 BCI Change Orders. Developer shall provide, or cause the BCI Engineer to provide, written copies of all BCI Change Orders to the City’s Project Representative. Any and all BCI Change Orders must be agreed to in writing by all of the following: the City’s Project Representative, BCI Engineer, BCI Contractor, and the Developer. Any work described in a BCI Change Order that is performed without first receiving written approval from all persons from whom approval is required under this Section is not eligible for payment by the City under this Agreement, shall be paid by Developer, and are in addition to the Developer’s BCI Share. The City agrees to use its best efforts to provide its decision regarding approval of a BCI Change Order within ten (10) business Page 76 of 101 DRAFT 01/16/2017 Utility Agreement – Homestead Subdivision Page 23 days of receipt by the City’s Project Representative of same. In the event that the City’s Project Representative fails to respond to a request for approval a BCI Change Orders within said ten (10) business day timeframe, consent by the City to the BCI Change Order shall not be deemed, implied or presumed. In the event the City withholds or denies approval of a BCI Change Order, Developer shall revise the BCI Change Order to address the City’s comments on same and may suspend work on the BCI until City approval is received, or may pursue remedies against the BCI Contractor if the BCI Contractor refuses to agree to revisions required by the City, but all costs incurred by Developer in connection therewith shall be considered BCI Project Costs. Any BCI Change Order that would have the effect of increasing the Maximum BCI Price, extending the BCI Commencement Deadline, or extending the BCI Completion Deadline shall require a formal amendment of this Agreement. If the City and Developer do not enter into such an amendment, then Developer may terminate the BCI Contract and this Agreement, in which case the City shall release the remaining amount of the BCI Letter of Credit. Nothing herein shall be construed to prevent Developer or the BCI Engineer from issuing field directives that do not increase the BCI Contract Price or change the approved design of the BCI. 9.08 BCI Pay Applications. (a) From BCI Engineer. Prior to payment by Developer to the BCI Engineer for work performed on the BCI, Developer shall provide, or cause the BCI Engineer to provide, written copies of all BCI Pay Applications to the City’s Project Representative. Any and all BCI Pay Applications for the BCI Engineer must be agreed to in writing by the City’s Project Representative and the Developer. Any payments for work described in a BCI Pay Application that is paid without first receiving written approval from all persons from whom approval is required under this Section is not eligible for payment to Developer by the City under this Agreement, shall be paid by Developer out of funds other than the City’s BCI Share, and are in addition to the Developer’s BCI Share. The City agrees to use its best efforts to provide its decision regarding approval of a BCI Pay Application within ten (10) business days of receipt by the City’s Project Representative of same. In the event that the City’s Project Representative fails to respond to a request for approval a BCI Pay Application within said ten (10) business day timeframe, consent by the City to the BCI Pay Application shall not be deemed, implied or presumed. Notwithstanding the foregoing provisions, however, the City’s approval of any BCI Pay Application shall not have the effect of increasing the Maximum BCI Price, extending the BCI Completion Page 77 of 101 DRAFT 01/16/2017 Utility Agreement – Homestead Subdivision Page 24 Deadline, and any City action that purports to do so shall be void and have no effect without an amendment of this Agreement (b) From BCI Contractor. Prior to payment by Developer to the BCI Contractor for work performed on the BCI, Developer shall provide, or cause the BCI Contractor to provide, written copies of all BCI Pay Applications to the City’s Project Representative. Any and all BCI Pay Applications must be agreed to in writing by all of the following: the City’s Project Representative, BCI Engineer, BCI Contractor, and the Developer. Any payments for work described in a BCI Pay Application that is paid without first receiving written approval from all persons from whom approval is required under this Section is not eligible for payment to Developer by the City under this Agreement, shall be paid by Developer out of funds other than the City’s BCI Share, and are in addition to the Developer’s BCI Share. The City agrees to use its best efforts to provide its decision regarding approval of a BCI Pay Application within ten (10) business days of receipt by the City’s Project Representative of same. In the event that the City’s Project Representative fails to respond to a request for approval a BCI Pay Application within said ten (10) business day timeframe, consent by the City to the BCI Pay Application shall not be deemed, implied or presumed. Notwithstanding the foregoing provisions, however, the City’s approval of any BCI Pay Application shall not have the effect of increasing the Maximum BCI Price, extending the BCI Completion Deadline, and any City action that purports to do so shall be void and have no effect without an amendment of this Agreement. 9.09 Payments of BCI Project Costs. (a) Subject to the terms and conditions of this Agreement, including but not limited to Sections 9.07 and 9.08 of this Agreement, the City and Developer each shall be responsible for payment of a pro rata share of BCI Project Costs as follows: (1) Developer shall be responsible for payment of BCI Pay Applications in an amount equal to Developer’s BCI Project Percentage, up to the amount which, combined with all other BCI Project Costs funded by Developer, equals the Developer’s BCI Share, and shall provide the City’s Project Representative with receipts for such payments within five (5) days of payment of same. Page 78 of 101 DRAFT 01/16/2017 Utility Agreement – Homestead Subdivision Page 25 (2) City shall be responsible for payment to Developer of BCI Pay Applications in an amount equal to City’s BCI Project Percentage, up to the amount which, combined with all other BCI Project Costs funded by the City, equals the City’s BCI Share. (3) Within ten (10) days after City approval of each BCI Pay Application, the City shall provide payment of its pro rata share of each BCI Pay Application to Developer in the amount of the City’s BCI Project Percentage. Developer shall utilize all such sums received from the City only for payment of BCI Pay Applications and for no other purpose. The Developer shall provide the City’s Project Representative with receipts for payment of each BCI Pay Application within five (5) days after payment of same. (b) After payment of BCI Project Costs by Developer, the City shall authorize reduction of the BCI Letter of Credit from time to time, but not more frequently than quarterly, and in no event shall the BCI Letter of Credit be reduced to an amount less than Developer’s share of the remaining construction costs of the BCI. After payment to the BCI Contractor of the full amount of Developer’s BCI Share, the City shall authorize release of the BCI Letter of Credit. (c) The BCI Contract may contain provisions as necessary and approved by the City to ensure that the Developer will not be in breach thereof due to the City’s failure to timely provide payment for completed construction for which City is responsible under this Agreement; however, in no event may the City be a party to the BCI Contract, even for the limited purposes of providing payment to the BCI Contractor after Developer has fully paid Developer’s BCI Share, nor may the Developer assign the remaining payment obligations under the contract to the City after Developer has fully paid Developer’s BCI Share. The City agrees that the BCI Contract may contain provisions authorizing termination of the contract by Developer in the event the City elects to not pay any portion of a BCI Pay Application for which the City is responsible for payment under the terms of this Agreement or if payment of same by Developer would cause the Developer to fund BCI Project Costs in excess of the Developer’s BCI Share. 9.10 Other Developer Payments Related to the BCI Page 79 of 101 DRAFT 01/16/2017 Utility Agreement – Homestead Subdivision Page 26 (1) Developer is solely responsible for securing all federal, state, and local permits necessary for design and construction of the BCI. All costs associated therewith shall qualify as BCI Project Costs, and shall be paid by the Developer and the City according to Developer’s BCI Project Percentage, and City’s BCI Project Percentage, respectively. (2) Developer shall have no obligation to retain a construction manager for the BCI. (3) Developer shall have no obligation to pay any inspection fees to the City in connection with construction of the BCI. (4) Except as set forth in Article XI below, Developer is solely responsible for securing the Easements necessary for construction, ownership, operation, maintenance and repair of the BCI. All costs and expenses incurred in connection therewith shall qualify as BCI Project Costs, and shall be paid by the Developer and the City according to Developer’s BCI Project Percentage, and City’s BCI Project Percentage, respectively. 9.11 City Right to Terminate. If BCI Contractor’s bid price for construction of the BCI causes the BCI Project Costs to exceed the Maximum BCI Price, this Agreement is automatically terminated with no further action by any Party, unless City Council approves an amendment to this Agreement within sixty (60) days of receipt of the bid increasing the City’s BCI Share to an amount that is not less than the difference between the selected BCI Contractor’s bid price for constructing the BCI and the Developer’s BCI Share. If the City Council does not approve such a contract amendment, or if Developer fails to execute such a contract amendment, this Agreement is automatically terminated and neither Party shall have any obligations to the other except as set forth in Sections 9.12 below. 9.12 Alternative Service in the Event of Termination. In the event of termination of this Agreement or the BCI Contract under Section 9.07, Section 9.08, Section 9.08 or Section 9.11 above, the City agrees to otherwise make wastewater service available to the Land in a quantity up to the Connection Limit through the Alternative Wastewater Extension Project. Under such circumstances, the Developer shall be solely responsible for design and construction of the Alternative Wastewater Extension Project in accordance with the City’s standard service extension policies. Page 80 of 101 DRAFT 01/16/2017 Utility Agreement – Homestead Subdivision Page 27 ARTICLE X OTHER UTILITY SERVICES 10.01 Gas Services. The Developer shall be solely responsible for securing gas services to the Land. Nothing in this Agreement provides franchise rights to gas service providers or authorization to use City easements or rights of way for the provision of gas services to the Land. 10.02 Electric Services. The Developer shall be solely responsible for securing electric services for those portions of the Land that are not within the City’s certificated electric service area. Nothing in this Agreement provides franchise rights to other electric service providers or authorization to use City easements or rights of way for the provision of electric services to the Land. 10.03 Other Services. Other services the Land shall be provided in accordance with the terms of the Consent Agreement. ARTICLE XI EASEMENTS 11.01 General. Except for temporary construction Easements and as provided in Sections 11.07 and 11.08 below, Developer must obtain on behalf of the City as grantee, all permanent, exclusive, perpetual, and lien-free Easements necessary for the entire lengths of the BCI and Water Line that are not located in public right-of-way or public utility easements, including those portions of the BCI and Water Line to be placed outside the boundaries of the Land, at no cost to the City. Except for temporary construction Easements or as allowed by Section 8.01(d) of this Agreement, Developer must also grant permanent, exclusive, perpetual, and lien-free Easements necessary for the Drainage Improvements, On-Site Wastewater Improvements, On-Site Water Improvements, and Electric Improvements that are not located within public right-of-way to the City at no cost to the City. City acknowledges and agrees that the Drainage Improvements, On-Site Wastewater Improvements, On-Site Water Improvements, and Electric Improvements may be located within public right-of-way and dedicated public utility easements in accordance with the City’s standard practices. In recognition that Developer’s costs of acquisition of easements for the BCI shall qualify as BCI Project Costs, Developer agrees that City may review and approve the purchase price for all BCI easements. Any such review and approval shall be rendered by the City’s Project Representative within ten (10) business days of receipt of a request by Developer. Page 81 of 101 DRAFT 01/16/2017 Utility Agreement – Homestead Subdivision Page 28 11.02 Title Commitment and Title Policy. Developer shall, at no cost to the City, obtain title commitment(s) and title insurance polic(ies) in favor of the City for the utility and permanent access Easements for the City Improvements, with the title polic(ies) having only those standard, pre-printed exceptions that are part of the promulgated form of Texas title insurance policy and exceptions acceptable to the City Attorney, in the City Attorney’s sole discretion. To the extent any person has granted a lien or other encumbrance on all or any portion of the land upon which the City Improvements will be constructed or which will be used for permanent access prior to the date the said utility Easement is recorded, Developer shall cause the holder of such lien or encumbrance to execute such instruments as the City Attorney and title company may require to evidence the fact that the lien or other encumbrance has been subordinated by the holder. The recording costs and preparation of conveyance documents and the title policy required by this Section shall be at no cost to the City, such costs being the responsibility of Developer. 11.03 Locations. The locations of the permanent utility Easement and permanent access Easement for the BCI shall be in the areas generally shown on Exhibit __ with such adjustments as are finally approved in writing by the City’s Project Representative during the BCI’s design phase. The location of the permanent utility Easement and permanent access Easement for the Water Line shall be as stated in the final plans for the Water Line approved in writing by the City’s Project Representative or his designee during the Water Line’s design phase. The locations of the permanent utility Easements and permanent access Easements (if needed) for the Drainage Improvements, On-Site Wastewater Improvements, and On-Site Water Improvements shall be as stated on the final recorded plats for the Land or, upon request of the City Attorney, set forth in separate recordable instruments. 11.04 Minimum Widths. The BCI utility Easement(s) shall have a minimum width of either fifty (50) feet, or one-and-one-half (1.5) times the number of feet of BCI line depth, whichever is greater. The Water Line utility Easement(s) shall have a minimum width of either fifteen (15) feet, or one-and-one-half (1.5) times the number of feet of Water Line depth, whichever is greater. The utility Easements for piping associated the On-Site Water Improvements and On-Site Wastewater Improvements not authorized to be located within public right-of-way pursuant to Section 8.01(d) of this Agreement shall have a minimum width of either fifteen (15) feet, or one-and-one-half (1.5) times the number of feet of the deepest line that the City allows in the Easement, whichever is greater. The utility Easements for any lift stations included as part of the On-Site Wastewater Improvements or BCI shall be 10,000 square feet. All temporary construction easements shall be in widths and locations acceptable to the City in its reasonable discretion. Unless access is via a dedicated, constructed public street, all Page 82 of 101 DRAFT 01/16/2017 Utility Agreement – Homestead Subdivision Page 29 permanent access Easements shall be at least twenty (20) feet wide and in locations acceptable to the City in its reasonable discretion. 11.05 Forms. All Easements shall be in forms substantially similar to the forms of easements attached hereto as Exhibits __ and approved by the City Attorney. The City Attorney may approve changes to the form of easements that may arise as a result of negotiations with landowners. 11.06 Time for Providing. Except to the extent easement acquisition is delayed because of the eminent domain process, all recordable temporary construction Easements shall be provided to the City simultaneously with the submittal to the City of the construction plans for the associated improvement. All final recordable utility and permanent access Easements shall be provided to the City not later than the time of submittal of the Completion Notice (defined herein). On approval by the City Attorney, all Easements shall be recorded in the Official Public Records of Williamson County at Developer’s expense. 11.07 Eminent Domain by City. If Developer is unable to obtain the Easements after using good faith efforts to do so, the City shall, upon request by Developer, acquire the Easements, using its power of eminent domain if necessary, at City’s sole cost and expense. All costs and expenses incurred by the City shall qualify towards the City’s BCI Share. 11.08 Eminent Domain by District. If Developer is unable to obtain the Easements after using good faith efforts to do so, the Developer may also request the District to acquire the Easements, using its power of eminent domain if necessary, at Developer’s cost and expense. ARTICLE XII ADDITIONAL PROCEDURES AND OBLIGATIONS 12.01 Design. At no cost to the City, Developer shall cause Engineer to prepare design drawings, specifications, bid documents and design documents for the construction of the City Improvements and the Developer Improvements in compliance with the Governing Regulations (the " Plans"). Upon completion of the preliminary Plans, Engineer shall submit a set of the preliminary Plans to the City for the City's review and approval. As set forth in Section 9.04, the City shall provide comments to Engineer on the preliminary Plans within ten (10) business days after receipt thereof. If the City disapproves any element of the preliminary Plans, it shall so advise Engineer and the process shall be repeated until the Plans are approved by the City. Page 83 of 101 DRAFT 01/16/2017 Utility Agreement – Homestead Subdivision Page 30 12.02 Duty to Construct. Developer shall construct or cause to be constructed the City Improvements and Developer Improvements in accordance with the provisions of the Governing Regulations. Developer shall diligently prosecute completion of the City Improvements and Developer Improvements and shall keep the City’s Project Representative apprised of construction progress on a basis that is not less than quarterly or otherwise as often as reasonably required. 12.03 Periodic Inspections. The City shall have the right to inspect the construction of the City Improvements at any time. 12.04 Completion Notice. Upon Completion of Construction of a City Improvement, or any component thereof, Developer shall submit a Completion Notice to the City. 12.05 Final Inspection; City Acceptance. On receipt of the Notice of Completion for a City Improvement (or portions of same if not required by this Agreement to be constructed in its entirety), the City shall inspect the subject City Improvement and respond by either submitting a list of items still requiring completion or modification or, if constructed in accordance with the Governing Regulations, issue a Letter of Acceptance for the subject City Improvement. No Letter of Acceptance shall be valid unless and until all punch list items requiring completion or modification are completed and all elements of the Completion Notice provided to the City. After issuance of a valid Letter of Acceptance, the City shall own, operate and maintain the subject City Improvement, and the Developer shall have a capacity interest in same as set forth in Section 13.02 of this Agreement. 12.06 Insurance; Payment and Performance Bonds. Prior to and as a condition of Developer's issuance of notice to proceed with construction of the any City Improvement, Developer shall post, or cause the contractor to post, performance and payment bonds in the full amount of the contract prices of the subject City Improvement, and to secure the required insurance, all in accordance with the insurance and bond requirements set forth in Exhibit __ to this Agreement. 12.07 Notice of Commencement of Construction; Inspections. Developer shall give written notice to the City’s Assistant City Manager/General Manager of Utilities sufficient to allow the City to assign an inspector and conduct a preconstruction conference prior to commencement of construction of a City Improvement. The City shall have the right to periodically inspect the construction of a City Improvement. The City will provide such inspection services for the standard fees charged by the City for inspections inside the City limits; provided, however, no inspection fees shall be applicable to the construction of the BCI. The Engineer can observe City inspections for Page 84 of 101 DRAFT 01/16/2017 Utility Agreement – Homestead Subdivision Page 31 the purpose of gathering the information required to complete and submit all TCEQ- required reports. The City will retain copies of all inspection reports for the City’s applicable records retention period, and provide them to the Developer upon request. 12.08 Construction Traffic. With respect to construction of On-Site Water Improvements and On-Site Wastewater Improvements and other construction within the boundaries of the Land, construction traffic must be routed through the Land and not on or through roads in adjacent neighborhoods or private roads. Without limiting the generality of the foregoing, construction traffic is specifically prohibited on __________. 12.09 Stop Work Orders. The City shall have the right to inspect, from time to time, the construction of the City Improvements. If the City determines that a City Improvement is not being constructed in compliance with the Governing Regulations and Developer, Engineer, or the contractor or other agent of the Developer, fails to correct the non-compliance within a reasonable period of time after notice thereof, the City shall have the right to enforce compliance and to stop new work on the City Improvement by the issuance of a “stop-work order” until the non-compliance is corrected to the reasonable satisfaction of the City. Nothing in this Section shall create any liability of the City to determine whether the City Improvement is constructed in accordance with the Governing Regulations. Stop work orders issued by City staff may be appealed to the City Manager by Developer. 12.10 Maintenance Period and Maintenance Bond. Developer hereby warrants that the City Improvements shall be free from defects for a period of one (1) year from the date the City accepts each City Improvement for ownership, operation and maintenance (the "Maintenance Period"). Developer shall correct and repair, or cause to be corrected and repaired, any defects in materials or workmanship of the City Improvements that occurs before and during the Maintenance Period due to any cause, other than those arising solely out of the gross negligence or willful misconduct of the City. As a condition of issuance of a Letter of Acceptance, and to secure Developer’s warranty obligations during the Maintenance Period, Developer shall provide a maintenance bond, or cause Developer’s contractor to provide a maintenance bond, in the amount of twenty five percent (25%) of the total cost of constructing each of the City Improvements (the "Maintenance Bond(s)"). The Maintenance Bond(s) must be in a form approved for use in the City's Development Manual. The City Improvements must meet the requirements of the Governing Regulations and the final, City-approved Plans for said City Improvement at the end of the Maintenance Period in order for the City to release the Maintenance Bond applicable to that City Improvement. Upon expiration of the Maintenance Period and release of a Maintenance Bond, Developer or Developer’s Page 85 of 101 DRAFT 01/16/2017 Utility Agreement – Homestead Subdivision Page 32 contractor (as applicable) shall have no further obligations or responsibility for the subject City Improvement. 12.11 As Built Plans. After construction of each City Improvement, Developer shall submit a set of the relevant construction Plans certified as "as-built" by the Engineer responsible for preparing the Plans. The as-built Plans shall be in the format requested by the City. 12.12 Transfer of Warranties. Within fifteen (15) calendar days after expiration of the Maintenance Period for a City Improvement, Developer shall transfer to the City all contractor, subcontractor, consultant, and manufacturer warranties for the subject City Improvement and all components thereof pertaining to said City Improvement. Any such third party warranty will expire pursuant to its original terms. 12.13 City’s Rights. Developer acknowledges that, issuance of a Letter of Acceptance by the City, the City will utilize the subject City Improvement, including capacity for the District to the extent of, and as conditioned by, this Agreement, as part of the City's overall utility system; however, such use will not be performed in a manner that impairs the City's ability to provide service to the Land via the City Improvements in accordance with the terms of this Agreement. ARTICLE XIII IMPACT FEES AND OTHER FEES 13.01 Impact Fee Assessment and Payment. (a) General. Except as otherwise provided in Section 13.01(b) of this Agreement, all Impact Fees for each wastewater and water service Connection on the Land will be assessed by the City based on the Impact Fees in effect at the time of final approval by the City of the final subdivision plat for the portion of the Land that includes that Connection. Developer shall pay, or cause to be paid, the applicable Impact Fees at the time of application for a building permit. (b) Impact Fees for School Tract/Connections. All Impact Fees for each wastewater and water service Connection associated with any school constructed or to be constructed on the Land will be assessed by the City based on the Impact Fees in effect at the time of final approval by the City of the final subdivision plat for the portion of the Land that includes Connection(s) for a school. Developer shall pay or cause to be paid all Page 86 of 101 DRAFT 01/16/2017 Utility Agreement – Homestead Subdivision Page 33 impact fees for any school placed or to be placed on the Land prior to and as a condition of any final plat that contains a lot(s) for a school site. (c) Refunds. Refunds of Impact Fees, if any, shall be in accordance with the provisions Section 13.03 of this Agreement. 13.02 Capacity Interest. (a) Upon completion of the City Improvements, and payment of the applicable Impact Fee, the City agrees to guarantee capacity in the City’s wastewater utility system or water service system, as applicable, in an amount equal to the number of water service Connections for which Water Impact Fees have been paid or the amount equal to the number of wastewater service Connections for which Wastewater Impact Fees have been paid, as applicable, up to the Connection Limit, provided, however, that: (1) Service is available only upon payment of impact fees and the City's approval of the final plat or plats of the Land and the recording of same in the final plat records of Williamson County in accordance with the requirements of the UDC; (2) This Agreement in no way obligates the City to approve service extension requests not conforming to the requirements of the City's ordinances nor otherwise binds the governmental powers of the City with respect to the approval or denial of the same; provided, however that so long as the terms of this Agreement are satisfied, the City agrees to not unreasonably withhold, condition or delay its approval of any service extension request; (3) This Agreement does not exempt Developer from the requirements of any provisions of the Governing Regulations applicable to development within the Land covered by the service extension requests; (4) This Agreement does not guarantee approval of the final plat or plats of the Land or the approval of any other applications or permits related to the Land; (5) This Agreement will not be construed to create or confer upon Developer any manner of legal title to, equitable interest in or other claim of joint ownership with respect to property, Page 87 of 101 DRAFT 01/16/2017 Utility Agreement – Homestead Subdivision Page 34 whether real, personal or mixed comprising a City Improvement, after final acceptance by the City of a City Improvement; and (6) The City can use the capacity in the City Improvements as long as it does not damage or decrease the Developer's capacity interest. (b) Except as provided in Section 13.02(a) above, nothing in this Agreement shall be construed as reserving capacity for the Developer or District in the City Improvements, any existing City wastewater collection and treatment facilities, any existing City water distribution or treatment facilities, or any future City water or wastewater facilities constructed by third parties prior to the payment of the applicable Impact Fees. (c) Any conveyance or transfer of City Improvements to the City by Developer under this Agreement shall not affect Developer’s right to seek reimbursement from the District for the cost of the City Improvements and Developer Improvements constructed or financed by Developer, or the District’s right to effect such reimbursement. Developer’s capacity interest and contract rights may be conveyed to the District as consideration for the receipt of proceeds from bonds issued by the District to reimburse costs and expenses funded by Developer under this Agreement. 13.03 Impact Fee Credits for BCI Construction. Provided Developer (a) funds BCI Project Costs up to Developer’s BCI Share; and (b) causes Completion of Construction of the BCI to occur on or before the BCI Completion Deadline, then the City shall remit to Developer the interceptor portion of the wastewater impact fees collected by the City from wastewater Connections on the Land that is applicable to construction of the BCI only, up to the Developer’s BCI Share. Any such payments shall be paid by the City to Developer on or before March 31 beginning in the calendar year following issuance of the City’s Letter of Acceptance for the BCI, and ending on the date that is ten (10) years after the City’s first payment to Developer under this subsection, after which time the City shall have no obligation to refund or credit any impact fees for the BCI. Each reimbursement payment shall be for the number of wastewater Connections within the Land for which wastewater impact fees were collected by the City during the preceding calendar year. In no event shall the total amount of any payments made by the City under this subsection exceed the Developer’s BCI Share. 13.04 Other Development and Utility Fees. Developer shall pay or cause to be paid the City’s usual and customary utility connection fees (e.g., water and wastewater Page 88 of 101 DRAFT 01/16/2017 Utility Agreement – Homestead Subdivision Page 35 meter connect fees and engineering and inspection fee) for all Connections within the Land. The City agrees that no City inspection fees will be applicable to the construction of the BCI. 13.05 Tree Preservation and Protection. The provisions of Chapter 8.02 of the UDC pertaining to Tree Preservation and Protection shall apply to construction of the City Improvements and the Developer Improvements. If mitigation measures or payments are required, Developer shall perform the mitigation measures and/or pay the mitigation fees when and as required by the UDC. Any tree mitigation payments made by Developer under this Section 13.05 with respect to the BCI shall be considered BCI Project Costs. 13.06 Fire SIP Fees. Developer agrees to pay or cause to be paid the amount of SIX HUNDRED THIRTY U.S. DOLLARS ($630) for platted lot on the Land to aid in the provision by the City of fire services to the Land. Payment of the Fire SIP Fee shall be made by each applicant at the time of request of a building permit. ARTICLE XIV PROHIBITION ON PROVISION OF SERVICES OUTSIDE THE LAND 14.01 Services Outside the Land. The Developer, District, and the POA are prohibited from providing potable water, irrigation, wastewater, garbage, fire, police, electric, or emergency medical or other services outside the boundaries of the Land. ARTICLE XV AUTHORITY AND APPROVALS 15.01 Authority. This Agreement is entered into under the statutory authority of Section 54.016 of the Texas Water Code and other laws of the State of Texas. 15.02 City’s Regulatory Approvals. Prior to commencing construction of improvements on the Property, Developer must submit, and obtain approval from the City acting in its regulatory capacity for, such permit applications and other requests for approvals or authorizations as are necessary under the Governing Regulations. Wherever the terms of this Agreement call for, or reference, City’s approval of any engineering or other drawings ,plans and/or specifications relating to construction of any improvement or any component thereof, it is expressly agreed that City’s approval of such drawings, plans and/or specifications will constitute City’s approval of the general design and layout scheme described in such drawings, plans and/or specifications only and will not, Page 89 of 101 DRAFT 01/16/2017 Utility Agreement – Homestead Subdivision Page 36 however, make City responsible in any way for the technical adequacy of such items or for any liabilities arising out of any construction undertaken in accordance therewith. 15.03 No Relinquishment of Municipal Regulatory Authority. Notwithstanding anything contained in this Agreement to the contrary, the City’s review (and if applicable, approval) of proposed and final plans, specifications, site plans, plats, drawings, or other submittals from Developer or other persons in connection with this Agreement or the Related Agreements shall constitute approval for purposes of this Agreement only, and not be deemed to constitute approval, or replace, the City’s right to review and approve same, under City’s regulatory authority and/or police power under Texas or local law. 15.04 Governmental Powers and Immunity. By its execution of this Agreement, the City does not waive or surrender any of its governmental powers, immunities or rights. Nothing herein shall waive any claims, defense or immunities that the City has with respect to suits against the City. Nothing in this Agreement is intended to impair or diminish the performance by the City of its governmental functions. ARTICLE XVI TERM, ASSIGNMENT AND REMEDIES 16.01 Term. This Agreement shall be effective from the Effective Date and shall continue in effect until the first to occur of any of the following dates: (a) the date that is thirty (30) years after the Effective Date, or (b) the date that the Development Agreement is terminated, or (c) the date that this Agreement is terminated in writing by mutual agreement of the City and Developer. This Agreement shall be recorded in the Official Records of Williamson County and shall run with the Land but shall not be binding upon any individual lot owner other than Developer. 16.02 Assignment and Delegation. No Party may assign any of its rights under this Agreement, either voluntarily or involuntarily, whether by merger, consolidation, dissolution, operation of law, or any other manner, except with the prior written consent of the other Party. Any purported assignment of rights or delegation of performance in violation of this Section is void. 16.03 Default and Rights and Remedies for Default. (a) Cross Default; Notification of Default. Any material breach by a party of the Related Agreements shall be deemed a default by the same party under this Agreement. If City or Developer commits a default of this Agreement or a Related Agreement, one of them that is not in default shall give Notice Page 90 of 101 DRAFT 01/16/2017 Utility Agreement – Homestead Subdivision Page 37 to the defaulting entity that describes the default in reasonable detail. Failure to construct the City Improvements when and as required by this Agreement shall be a material default. Failure to own, operate and maintain the Land’s Irrigation System in accordance with the requirements of this Agreement and the Governing Regulations shall be a material default. (b) Cure of Default. For any default of this Agreement or a Related Agreement that can be cured by the payment of money or the posting of the Fiscal Security (each a “Monetary Default”), the defaulting entity shall be allowed thirty (30) days after the date of the Notice to cure the Monetary Default (the “Monetary Default Cure Period”). For any default of this Agreement or a Related Agreement that is not a Monetary Default (a “Non‐Monetary Default”), the defaulting entity must commence the cure of any Non‐ Monetary Default specified in the Notice within thirty (30) days after the date of the Notice, and thereafter diligently pursue such cure to completion but in no event longer than ninety (90) days after the date of the Notice (the “Non‐Monetary Default Cure Period”). 16.04 City’s Remedies During Developer’s or District’s Cure Periods. In the event of a default by Developer under this Agreement or a Related Agreement, the City shall be relieved of all of its obligations to the Developer under this Agreement, the Related Agreements, and the Governing Regulations, including, without limitation, obligations to process or approve applications, permits, plats, plans, acceptance for maintenance and operation, utility connections, utility taps, or any other development or utility‐related applications or requests pertaining to the Land, during the applicable Cure Period for a material Developer default pertaining to the Land. During the Cure Period, the actions authorized by this Section are the City’s exclusive remedies for delay. If the Developer’s default remains uncured after the applicable Cure Period, the City shall also be entitled to all rights and remedies available to it under this Agreement, by law or in equity, or by statute or otherwise. 16.05 Rights and Remedies for Default After Expiration of Cure Period. (a) If the defaulting entity does not cure the default of this Agreement or a Related Agreement within the applicable Cure Period, and if a non‐ defaulting entity has not waived the default in writing, then after the expiration of the applicable Cure Period, the non‐defaulting entity may, in its sole discretion, and without prejudice to any other right or remedy allowed under this Agreement or a Related Agreement, seek any other relief available at law or in equity against the defaulting entity, all of which Page 91 of 101 DRAFT 01/16/2017 Utility Agreement – Homestead Subdivision Page 38 are cumulative and are in addition to any other right or remedy given under this Agreement or a Related Agreement which may now or subsequently exist in law or in equity by statute or otherwise, and the exercise of any one remedy does not preclude the exercise of another. (b) Damages, if any, to which any non‐defaulting entity may be entitled shall be limited to actual damages and shall not include special, incidental, or consequential damages. (c) To the extent that any course of dealing, act, omission, failure, or delay in exercising any right or remedy under this Agreement or a Related Agreement constitutes the election of an inconsistent right or remedy, that election does not constitute a waiver of any right or remedy, or limit or prevent the subsequent enforcement of any provision of this Agreement or a Related Agreement. No single or partial exercise of any right or remedy under this Agreement or a Related Agreement precludes the simultaneous or subsequent exercise of any other right or remedy. 16.06 City’s Additional Rights and Remedies for Default. In addition to the rights and remedies above, if the Developer does not cure a default of this Agreement or a Related Agreement within the applicable Cure Period and if the City has not waived the default of this Agreement or a Related Agreement in writing, then after the expiration of the applicable Cure Period, without regard to Developer’s partial performance, if any, the City is entitled to terminate any Related Agreement as it relates to the Land upon written notice to Developer, with the effect set forth in this Section. Termination of any Related Agreement pursuant to this Section does not terminate, limit or restrict the rights and remedies of the City and is without prejudice to the City’s claim for damages. IN ADDITION TO THE CITY’S RIGHT UNDER COMMON LAW TO REDRESS FOR ANY BREACH OR UNCURED DEFAULT, DEVELOPER SHALL INDEMNIFY AND DEFEND THE CITY AGAINST ALL LOSSES, DAMAGES (INCLUDING, WITHOUT LIMITATION, CONSEQUENTIAL DAMAGES) COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, INTEREST (INCLUDING PREJUDGMENT INTEREST IN ANY LITIGATED MATTER), PENALTIES, COURT COSTS, AND ATTORNEY’S FEES AND EXPENSES) ASSERTED AGAINST, IMPOSED UPON OR INCURRED BY THE CITY, DIRECTLY OR INDIRECTLY, ARISING OUT OF OR RESULTING FROM THE BREACH OR UNCURED DEFAULT AND TERMINATION OF THE AGREEMENT AND ENFORCEMENT OF THIS SECTION. 16.07 Additional City Remedy Related to Developer Default on the BCI or Termination of this Agreement. Developer’s failure to Commence Construction of the BCI on or before the BCI Commencement Deadline in breach of this Agreement, Page 92 of 101 DRAFT 01/16/2017 Utility Agreement – Homestead Subdivision Page 39 Complete Construction of the BCI on or before the BCI Completion Deadline, or pay the BCI Engineer or the BCI Contractor undisputed amounts due when due, which failures are not cured within the applicable Cure Periods, constitute a material default of this Agreement. In any such event, after expiration of the applicable Cure Period or after termination (as applicable), (x) Developer shall transfer the BCI Plans and all Easements in whatever state of development or completion that are in Developer’s possession or under Developer’s control to the City, and (y) the City shall have the right to use amounts drawn on the BCI Letter of Credit towards design and/or construction of the BCI; and (z) if the BCI Letter of Credit is not sufficient to fund the costs for which Developer is responsible under this Agreement, Developer relinquishes all rights to receive payments for construction of the BCI and relinquishes all rights to receive Impact Fee credits or reimbursements for construction of the BCI. These remedies are in addition to, and not in lieu of, any other rights and remedies the City may have in the event of Developer default under this Agreement or a Related Agreement. The provisions of this Section shall survive termination of this Agreement. ARTICLE XVII MISCELLANEOUS PROVISIONS 17.01 Cooperation. (a) The Parties each agree to execute such further documents or instruments as may be necessary to evidence their agreements hereunder or enable the fulfillment of their respective obligations hereunder, provided in either case the terms of this Agreement are not modified or amended thereby. (b) In the event of any third party lawsuit or other claim relating to the validity of this Agreement or any part hereof or any actions taken hereunder by any Party, the Parties agree to cooperate in the defense of such suit or claim, and to use their respective best efforts to resolve the suit or claim without diminution in their respective rights and obligations under this Agreement while allowing each Party to effect the benefits of this Agreement to it. 17.02 Notice. Any notice given under this Agreement must be in writing and may be given: (i) by depositing it in the United States mail, certified, with return receipt requested, addressed to the party to be notified and with all charges prepaid; or (ii) by depositing it with Federal Express or another delivery service guaranteeing “next day delivery”, addressed to the party to be notified and with all charges prepaid; or (iii) by personally delivering it to the party, or any agent of the party listed in this Agreement. Notice by United States mail will be effective on the earlier of the date of receipt or three (3) days after the date of mailing. Notice given in any other manner will be effective Page 93 of 101 DRAFT 01/16/2017 Utility Agreement – Homestead Subdivision Page 40 when received. Courtesy copies shall be sent by email to each party as available. For purposed of notice, the addresses of the Parties will, until changed as provided below, be as follows: City: City of Georgetown P. O. Box 409 Georgetown, Texas 78627 Attn: City Manager City of Georgetown P. O. Box 409 Georgetown, Texas 78627 Attn: City Secretary City of Georgetown P. O. Box 409 Georgetown, Texas 78627 Attn: City Finance Director City of Georgetown P. O. Box 409 Georgetown, Texas 78627 Attn: City Attorney Developer: Trio Development, LLC 7811 Ranch Road 2338 Georgetown, TX 78633-4145 Attn: Gary Newman Freeman & Corbett 8500 Bluffstone Cove, Ste. B-104 Austin, TX 78759 Attn: Anthony (“Tony”) Corbett The parties may change their respective addresses to any other address within the United States of America by giving at least five (5) days’ written notice to the other party. The Parties may, by giving at least five (5) days’ written notice to each other, designate additional parties to receive copies of notices under this Agreement. 17.03 Severability; Amendment; Waiver. Page 94 of 101 DRAFT 01/16/2017 Utility Agreement – Homestead Subdivision Page 41 (a) If any provision of this Agreement is illegal, invalid, or unenforceable, under present or future laws, it is the intention of the Parties that the remainder of this Agreement not be affected, and, in lieu of each illegal, invalid, or unenforceable provision, that the Parties have a thirty (30) day period to negotiate a provision be added to this Agreement by mutual agreement of the Parties which is legal, valid, and enforceable and is as similar in terms to the illegal, invalid or enforceable provision as is possible. If no agreement can be reached to modify the illegal, invalid, or unenforceable provision, and the provision is an essential element of this Agreement, this Agreement shall be null and void. (b) The Parties may not amend this Agreement, except in a written agreement executed by duly authorized representatives of the Parties. (c) The Parties may not waive any provision in this Agreement, except pursuant to a writing executed by the Party or Parties against whom the waiver is sought to be enforced. A wavier made in writing on one occasion is effective only in that instance and only for the purpose it is given and is not to be construed as a waiver on any future occasion or against any other Party. (d) Provided any amendment does not change any rights or obligations of Owner under this Agreement, Owner’s signature shall not be required for any amendment of this Agreement. Any purported amendment executed without Owner’s joinder that would alter Owner’s rights and duties hereunder shall be void. 17.04 Applicable Law and Venue. The interpretation, performance, enforcement and validity of this Agreement are governed by the laws of the State of Texas. Venue will be in a court of appropriate jurisdiction in Williamson County, Texas. 17.05 Entire Agreement. This Agreement and the attached Exhibits, and the Related Agreements and the exhibits attached thereto, collectively contain the entire agreement of the Parties. There are no other agreements or promises, oral or written, between the Parties regarding the subject matter of those agreements. The agreements can be amended only by written agreement signed by the Parties. 17.06 Exhibits, Headings, Construction and Counterparts. All schedules and exhibits referred to in or attached to this Agreement are incorporated into and made a part of this Agreement for all purposes. The paragraph headings contained in this Agreement are for convenience only and do not enlarge or limit the scope or meaning of Page 95 of 101 DRAFT 01/16/2017 Utility Agreement – Homestead Subdivision Page 42 the paragraphs. Wherever appropriate, words of the masculine gender may include the feminine or neuter, and the singular may include the plural, and vice-versa. The Parties acknowledge that each of them have been actively and equally involved in the negotiation of this Agreement. Accordingly, the rule of construction that any ambiguities are to be resolved against the drafting party will not be employed in interpreting this Agreement or any exhibits hereto. This Agreement may be executed in any number of counterparts, each of which will be deemed to be an original, and all of which will together constitute the same instrument. This Agreement will become effective only when one or more counterparts, individually or taken together, bear the signatures of all of the Parties. 17.07 Time. (a) Time is of the essence of this Agreement. In computing the number of days for purposes of this Agreement, all days will be counted, including Saturdays, Sundays and legal holidays; however, if the final day of any time period falls on a Saturday, Sunday or legal holiday, then the final day will be deemed to be the next day that is not a Saturday, Sunday or legal holiday. (b) Notwithstanding any provision in this Agreement to the contrary, each party’s respective obligations are subject to force majeure. For purposes of this Agreement, the term “Force Majeure” includes acts of God, strikes, lockouts or other industrial disturbances, acts of the public enemy, orders of the government of the United States or the State of Texas (including any agencies or political subdivisions thereof) or any civil or military authority, insurrections, riots, epidemics, landslides, lightning, earthquakes, fires, hurricanes, storms, floods, washouts, droughts, arrests, restraints of government and civil disturbances, explosions, breakage, or accidents to equipment, pipelines, or canals, partial or complete failure of water supply not within the reasonable control of a Party, and any other inabilities of either Party, whether similar to those enumerated or otherwise, that are not within the control of the Party claiming the inability and that could not have been avoided by the exercise of due diligence and care. It is specifically agreed that the term “force majeure” shall include time periods for which Developer’s performance is delayed while it seeks regulatory approvals (provided Developer has furnished all required information required to secure such approvals) and time periods during which easement acquisition is delayed due to the necessity for eminent domain, and Developer’s obligations hereunder shall be tolled during such force majeure periods. Page 96 of 101 DRAFT 01/16/2017 Utility Agreement – Homestead Subdivision Page 43 17.08 Authority for Execution. The City certifies, represents, and warrants that the execution of this Agreement is duly authorized and adopted in conformity with its City Charter and City ordinances. The Developer hereby certifies, represents, and warrants that the execution of this Agreement is duly authorized and adopted in conformity with the articles of incorporation and bylaws or partnership agreement of each entity executing on behalf of the Developer. 17.09 Joinder by Owner. Owner joins this Agreement solely for purposes of evidencing its consent to the terms hereof and the recordation of this Agreement in the Official Property Records of Williamson County, Texas. All Parties acknowledge and agree that Owner has no rights or obligations under this Agreement. Upon acquisition by Developer of the entirety of the Land, Owner shall no longer be a party to this Agreement. 17.10 Exhibits. The following exhibits are attached to this Agreement, and made a part hereof for all purposes: Exhibit A - Land (Metes and Bounds and Surveyor’s Sketch) Exhibit B - Berry Creek Interceptor (“BCI) (including BCI Section 1 and BCI Section 2) Exhibit C - Form of BCI Letter of Credit Exhibit D - Private Wells Exhibit E - PER Exhibit F - Insurance and Payment and Performance Bond Requirements Exhibit G - Form of Permanent Utility Easement Exhibit H - Form of Permanent Access Easement Exhibit I- Exhibit J- Description of Initial Land Exhibit K- Water Line Phasing Plan Exhibit L- Utility Easement Location Exhibit 17.11 Effective Date; Recordation. This Agreement shall be effective as of Effective Date. This Agreement shall be recorded in the Official Public Records of Williamson County, Texas, at Developer’s expense. Developer shall obtain and record subordination agreements for any lender liens on the Land or other interests in the Land, and on the City’s interests under this Agreement and the Related Agreements that are prior to the time of recordation of this Agreement and the Related Agreements. [Signature pages follow.] Page 97 of 101 DRAFT 01/16/2017 Utility Agreement – Homestead Subdivision Page 44 IN WITNESS WHEREOF, the undersigned Parties have executed this Agreement on the dates indicated below. CITY: CITY OF GEORGETOWN, TEXAS By: ________________________ Dale Ross, Mayor ATTEST: By: Shelley Nowling, City Secretary APPROVED AS TO FORM: By: Charlie McNabb, City Attorney STATE OF TEXAS § § COUNTY OF WILLIAMSON § This instrument was acknowledged before me on the _____ day of _________________, 2017, by Dale Ross, Mayor of the City of Georgetown, Texas, a home-rule city, on behalf of the City. (seal) ____________________________________ Notary Public Signature Page 98 of 101 DRAFT 01/16/2017 Utility Agreement – Homestead Subdivision Page 45 DEVELOPER: TRIO DEVELOPMENT, LLC, a Texas limited liability company By: Name: Gary L. Newman Title: Managing Member and Director THE STATE OF TEXAS § COUNTY OF WILLIAMSON § This instrument was acknowledged before me on this ____ day of ___________________, 2017, by Gary L. Newman, Managing Member and Director of Trio Development LLC, a Texas limited liability company, on behalf of said limited liability company. (seal) ____________________________________ Notary Public Signature Page 99 of 101 Exhibit K Engineering Report OWNER: THREE FORKS PARTNERSHIP, LTD., a Texas limited partnership By: , its ______________________ By: Name: Title: THE STATE OF TEXAS § COUNTY OF WILLIAMSON § This instrument was acknowledged before me on this ____ day of ___________________, 2017, by _________________, _________________ of ______________________, a ___________________ and General Partner of Three Forks Partnership, Ltd., a Texas limited partnership, on behalf of said limited partnership. (seal) ____________________________________ Notary Public Signature Page 100 of 101 BR I D G E AIR P O R T R O A D IH 3 5 S H 1 3 0 BERR Y C R E E K PECAN BRANCH WASTE WATER TREATMENT PLANT SECTION 2 FROM HOMESTEAD'S CONNECTION POINT TO AIRPORT ROAD THE BERRY CREEK INTERCEPTOR'S APPROX. LENGTH IS 5,320 LF SECTION 1 FROM PECAN BRANCH WASTEWATER TREATMENT PLANT TO HOMESTEAD'S CONNECTION POINT, THE BERRY CREEK INTERCEPTOR'S APPROX. LENGTH IS 15,930 LF HOMESTEAD CONNECTION POINT CR 1 5 2 CR 9 7 1 WW WW WW WW WW WW WW WW WW WW WW WW WW WW WW WW WW WW WW WW WW WW WW WW WW WW WW WW WW C R 1 9 3 RR 0 2,000'4,000' SCALE: 1" = 2,000' N 7004 BEE CAVE ROAD BUILDING 2, SUITE 100 AUSTIN, TX 78746 512-831-7700, TX FIRM NO 12207, TBPLS FIRM NO 10194108 L: \ J O B \ T R I O D e v e l o p m e n t \ T D V 1 6 0 0 1 - H o m e s t e a d \ C A D \ E x h i b i t s \ P r o p o s e d U t i l i t i e s 8 x 1 1 2 0 1 6 - 0 3 - 1 4 PRELIMINARY WASTEWATER PLAN BERRY CREEK WASTEWATER INTERCEPTOR GEORGETOWN, TEXAS 04/27/2016 Page 101 of 101