R2002-0151 10-08-02 RESOLUTION NO. R2002-151
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PEARLAND,
TEXAS, AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO
ENTER INTO A DEVELOPMENT AGREEMENT WITH VMC PARTNERS,
LTD. FOR COST SHARING ASSOCIATED WITH EXTENSION OF
PEARLAN D PARKWAY.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS:
Section 1. That certain development agreement by and between the City of
Pearland and VMC Partners, LTD., a copy of which is attached hereto as Exhibit "A" and
made a part hereof for all purposes, is hereby authorized and approved.
Section 2. That the City Manager or his designee is hereby authorized to execute
and the City Secretary to attest a development agreement with VMC Partners, LTD, for
cost sharing associated with extension of Pearland Parkway.
PASSED, APPROVED and ADOPTED this the 23 dayof September ,
A.D., 2002.
ATTEST:
SECRETARY
APPROVED AS TO FORM:
DARRIN M. COKER
CITY ATTORNEY
TOM REID
MAYOR
Exhibit "A"
R2002-'15'1
COST SHARING AND DEVELOPMENT AGREEMENT
This Agreement is entered into thiig(>~ day of August, 2002, by and between the
CITY OF PEARLAND, TEXAS (hereinafter "City"), and VMC PARTNERS,
LTD., a Texas limited Partnership (hereinafter "Developer").
WHEREAS; As required by the City, the Developer plans to construct an
extension of the Pearland Parkway at the intersection of Oiler Drive and
the Pearland Parkway and along the front of The Villages ~ Mary's Creek,
Section 2, Phase 1 (hereinafter "Mary's Creek") and to dedicate said
improvements to the City for operation and maintenance; and;
WHEREAS; City desires to cooperate with Developer to provide said
improvements and, at the same time, increase and improve City's capacity
to serve other properties in the Vicinity of the Developer and;
WHEREAS; City and Developer desire an agreemem to set forth their respective
responsibilities with regard to constructing said street improvements by the
Developer.
WITNESSETH:
NOW THEREFORE, in consideration of the foregoing premises and other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, it is hereby agreed as follows:
In constructing approximately 880' of roadway along the Developer's
Mary's Creek, certain drainage, median and roadway improvemems need
to be oversized or expanded at the request of the City. A list of the
proposed improvements is attached hereto as Exhibit "A" and made a part
hereof.
The estimated cost for the oversizing and expansion of the roadway,
drainage and median is $39,800.75 which includes a 10% contingency.
The estimated engineering allocation costs for oversizing and expansion is
$5,970.11. The total estimated engineering, oversizing and expansion
costs to be reimbursed by City to Developer is estimated to be $22,885.43,
as described in Exhibit "A", attached hereto. Upon completion of the
Project, actual Costs will be accounted and reported to the City. Actual
oversizing, expansion and engineering reimbursement shah not exceed the
total estimated oversizing, expansion and engineering costs by more than
5% without prior approval of the City.
Developer will cause its engineers, reasonably approved by the City, to
prepare plans and specifications for the construction of the roadway,
o
10.
drainage and median desired by the City.
The bid specifications shall require bidder to reflect the difference in the
cost of constructing the roadway and median as reflected in the plans and
specifications and the cost which would have been incurred had the
roadway, drainage and median not been expanded as required by the City.
Upon approval of the plans and specifications by the City, Developer's
engineers will obtain competitive line item bids, in conformance with Local
Government Code Section 252.021, for the construction of the roadway,
drainage and median in accordance with the plans and specifications. The
bids will be reviewed by Developer and the City and a contract will be
awarded to the successful bidder by Developer. City reserves the right to
reject any and all bids for the construction of the roadway, drainage and
median.
Upon approval of the bids by the City, Developer shall cause the work to
be completed in accordance with the plans and specifications as approved
by the City. Developer's engineer and the City Engineer or designee shall
monitor the progress and workmanship of the contractor. Developer shall
advance the funds necessary to pay the contractor for the work performed.
The City will reimburse Developer, as defined in Paragraph 3, within 30
days after acceptance of the improvements by the City and evidence of paid
invoices.
The initial term of this Agreement shall be for a period of two (2) years,
commencing on the30 ~ day of July, 2002, and terminating on the gqxta
day of July, 2004, at which time this agreement may be automatically
renewed in one (1) year increments contingent upon need and the necessary
funds being appropriated for said project in accordance with the City's
annual budgeting process.
This agreement may only be amended, modified, or supplemented by
written agreement and signed by both parties.
No assignment by a party hereto of any rights under or interests in this
agreement will be binding on another party hereto without the written
consent of the party sought to be bound; and specifically but without
limitation, moneys that may become due and moneys that are due may not
be assigned without such consent (except to the extent that the effect of
this restriction may be limited by law), and unless specifically stated to the
contrary in any written consent to an assignment, no assignment will
release or discharge the assignor from any duty or responsibility under this
agreement.
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Nothing herein is intended to supersede or waive any City ordinance or
regulation pertaining to such construction.
Whenever possible, each provision of this agreement shall be interpreted in
such manner as to be effective and valid under applicable law, but if any
provision of this agreement is prohibitive or invalid under applicable law,
such provision shall be ineffective to the extent of such provision or
invalidity, without invafidating the remainder of such provision or the
remaining provisions of this agreemem.
This agreemem shall be construed and enforced in accordance with and
governed by the laws of the State of Texas.
This agreement and all obligations created hereunder shall be performable
in Brazoria County, Texas.
City Resolution No. ~2**:z-.t~ is incorporated herein and made a part of
this Development Agreement for all purposes.
To accomplish execution of this agreement, it may be executed in multiple
counterparts.
DEVELOPER HEREBY RELEASES, ACQUITS, AND FOREVER
DISCHARGES THE CITY, ITS OFFICERS, AGENTS,
EMPLOYEES, SUCCESSORS, AND ASSIGNS FROM ANY AND
ALL CLAIMS, DEMANDS, RIGHTS OR CAUSES OF ACTION OF
WHATSOEVER CHARACTER OR NATURE, INCLUDING
ATTORNEYS' FEES ARISING FROM OR BY REASON OF ANY
AND ALL BODILY OR PERSONAL INJURIES, INCLUDING
DEATH AND MENTAL ANGUISH, DAMAGE TO PROPERTY
AND THE CONSEQUENCES THEREOF WHICH MAY BE
SUSTAINED BY DEVELOPER, ITS HEIRS, EXECUTORS,
ADMINISTRATORS, SUCCESSORS, OR ASSIGNS AS A RESULT
OF THE CONSTRUCTION BY DEVELOPER OF THE
IMPROVEMENTS REFERENCED ABOVE, UNLESS CAUSED IN
WHOLE OR IN PART BY THE NEGLIGENCE OF THE CITY, ITS
OFFICERS, AGENTS, EMPLOYEES, SUCCESSORS, OR
ASSIGNS. DEVELOPER SHALL KEEP AND HOLD HARMLESS
THE CITY, ITS OFFICERS, AGENTS, EMPLOYEES.
SUCCESSORS, AND ASSIGNS FROM ANY AND ALL COST,
LIABILITY, DAMAGE OR EXPENSE OF ANY NATURE AND
HOWSOEVER CAUSED, INCLUDING ATTORNEYS~ FEES,
CLAIMED OR RECOVERED BY ANYONE BY REASON OF
INJURY TO OR DEATH OF ANY PERSON OR PERSONS OR
DAMAGE TO OR DESTRUCTION OF PROPERTY CAUSED BY
OR RESULTING FROM THE NEGLIGENCE OF DEVELOPER,
THEIR AGENTS, EMPLOYEES, SUCCESSORS. OR ASSIGNS
ARISING IN CONNECTION WITH SUCH CONSTRUCTION BY
DEVELOPER. TIlE PROVISIONS OF THIS SECTION SHALL
SURVIVE THE TERMINATION, EXPIRATION, OR
CANCELLATION OF THIS AGREEMENT.
In witness whereof, the parties have hereunto set their hands and signatures
on the date first above mentioned.
VMC Partners, Ltd.,
a Texas limited partnership,
by: FCOF Management Co., LLC.,
General Partner
Name.' J-~ M. Bonner-
Title: yanager
ATTEST:
,3~le.' Cit~ Secretar~
CITY OF PEARLAND,
A Texas municipal corporation
By:
Name: William Eisen
Title: City Manager
STATE OF TEXAS
COUNTY OF HARRIS
BEFORE ME, the undersigned Notary Public, on this day personally appeared
John M. Bonner, Manager of FCOF Management Co., LLC., the General
Partner of VMC Partners, Ltd., known to me to be the person whose name
is subscribed to the foregoing instrument and acknowledged to me that he
executed the same for the purposes and consideration therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE THIS ~94/cDAY OF
AUGUST, 2002.
i I --_-'.'.? ~t~ ? ~ MY COMMtS$10N EXPIRES
~l ~,,~,e,? December ~8 2005
'' ..... "Z ...........
Notary Public, state~~f Texas
STATE OF TEXAS
COUNTY OF BRAZORIA
BEFORE ME, the undersigned Notary Public, on this day personally appeared
William Eisen, City Manager of the City of Pearland, known to me to be
the person whose name is subscribed to the foregoing instrument and
acknowledged to me that he executed the same for the purposes and
consideration therein expressed.
//,ft,L GIVEN UNDER MY HAND AND SEAL OF OFFICE THIS
~2002.
~Tf/ DAYOF