R2003-0167 11-10-03 RESOLUTION NO. R2003-167
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PEARLAND,
TEXAS, AUTHORIZING AN AMENDMENT TO A DEVELOPMENT
AGREEMENT WITH P T & T, LTD., ASSOCIATED WITH THE WEST
MARY'S CREEK DETENTION FACILITY.
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 P T & T, Ltd., a copy of which is attached hereto as Exhibit "A" and made a
part hereof for all purposes, is hereby amended.
Section 2. That the City Manager or his designee is hereby authorized to execute
and the City Secretary to attest an amended development agreement with P T & T, Ltd.,
associated with the West Mary's Creek Detention Facility.
PASSED,APPROVED and ADOPTED this the 10th day of November
A.D., 2003.
P"
TOM REID
MAYOR
ATTEST:
Y NG I
Y S RETAR
APPROVED AS TO FORM:
CT(
D RRIN M. COKER
CITY ATTORNEY
AMENDMENT TO DEVELOPMENT AGREEMENT
BETWEEN THE CITY OF PEARLAND AND P T & T LTD.
(EXHIBIT A TO RESOLUTION R - )
This Agreement is entered into effective as of the day of , 2003, by
and between the CITY OF PEARLAND, TEXAS, (hereinafter "City"), and PT&T, ltd., a
Texas limited partnership (hereinafter "Developer").
WHEREAS, the initial Agreement between the City and Developer estimated the storm
water detention volume for Cypress Village Sections One and Two to be 94 acre-feet, but
upon completion and approval of the final drainage plan, the storm water detention
requirements were reduced to 89 acre-feet;
WHEREAS, the initial agreement anticipated that Developer would construct its detention
on a portion of Tract Ito the ultimate depth required by the City, but the final drainage
plan approved by the City and BDD4 required the Developer to construct its detention
using the entirety of Tract 1, but only to a depth sufficient to meet Developer's storm
water detention requirements;
WHEREAS, the City will complete excavation on Tract 1 to a depth sufficient to meet its
needs;
WHEREAS, the City has obtained an appraisal for Tracts 1 and 2 that supports the
proposed sales price of both tracts;
WHEREAS, City and Developer desire to amend the original Agreement approved by
Resolution R2002-150.
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:
�Le�elop�w� s�;iG �, "'vruivia yr
other engineers reasonably approved by the City, to prepare plans and
specifications for--the-Cerstruetien-ertht-Sto.-zrvRtcr-uetcntirorr av ume-regaired
for Cypress Village, Sections One and Two, to be constructed by Developer on
Tract 1. Such volume is expected to be 94 acre feet, encompassing approximately
constructed by Developer with 6:1 side slopes and a "wet bottom" with a
minimum of two (2) feet of permanent water depth.
1. (a.) Developer has caused its engineer, Dannenbaum Engineering
Corporation, to prepare plans and specifications for the construction
of the storm water detention volume required for Cypress Village,
Sections One and Two, and such plans and specifications have been
approved by the City and Brazoria Drainage District 4. In
accordance with such approved plans, Developer has caused 89 acre-
feet of storm water detention volume to be constructed on Tract 1
with 6:1 side slopes as required under the approved plans and
specifications.
(b.) Based on a static water elevation of 40.0 feet, the total detention
volume available on Tract 1 is 198 acre-feet. The Developer's
allocation is 89 acre-feet (45%) and the City's allocation is 109 acre-
feet (55%).
2. Construction of Developer's storm water detention for Cypress Village Sections
One and Two will be conditioned upon Developer's proceeding to develop
Cypress Village, Sections One and Two, and may be in phases, but in all events
Shall be in accordance with the plans and specifications approved by the City and
B ori., ��'e-District No. 4. Ci* rew t1, ht * t tt
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2. City has obtained an appraisal which supports the agreed upon base
purchase price of $10,881 per acre for Tract 1 and 2. The actual purchase
price for Tract 1 will be prorated based on the allocation of storm water
detention volume available to the City. Therefore, the purchase price for
Tract 1 will be $10,881 per acre x 25.8561 acres x 55% = $154,737.12. City
agrees to purchase Tract 1 by special warranty deed, subject to all matters of
record. City and Developer agree to use their best efforts to complete the
purchase by City of Tract 1 within 60 days of the date of this Amendment.
3. Provided that the proposed sales price is supported by an appraisal properly
prepared on behalf of the City, on or before November 15, 2002, City shall
pu-rch•,se Tract pi.%.iu 1 (by ., my .
' ee l fd .,b;eet to al-1 m-at-ters o f - ord) f-
J � 7
$10,881 per acre on a net basis. For example, if Developer's storm water
Tract 1 for $134,447 (25.8561 acres minus 13.5 acres — 12.3561 net acres C
$10,881 per acre). After the purchase date, (a) if Developer's detention
requirements for Cypress Village increase (but only if as a result of a change in
detention requirements by the City, Brazoria County Drainage District No. 4, or
other applicable governmental party) or decrease, then the Developer's detention
rights shall be increased or decreased and the Developer shall pay to the City, or
the City shall pay to the Developer, respectively, an amount for such increased or
decreased area at the rate of$10,881 per surface acre and additionally, if the party
being decreased has already performed the excavation, such party shall be paid by
the other party an amount for such excavation at the rate of$7,500 per acre-foot
and (b) Developer shall maintain its right to enter the property for excavation of
its storm water detention volume until such time that the full excavation is
completed. if the Cit.,'s l indicates a .,lue of less than $1 n 88
then--Deve-lope-may-elect either tot t th• ' n� t t a tl
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amounts of$10,881 per acre set forth in this Section 3, and in Section 6 below, to
the appraised fair market value per acre.
4. City shall cause its engineers to prepare plans and specifications for the
construction of its West Mary's Creek Storm Water Detention Facility. Such
plans shall incorporate the volume excavated by Developer so that the entire
detention volume functions as one facility. City shall cause the construction of
the West Mary's Creek Storm Water Detention Facility in accordance with the
plans and specifications.
5. City shall construct the Mary's Creek diversion structure and weir necessary for
the proper operation of the West Mary's Creek Storm Water Detention Facility.
Developer acknowledges that it may need to construct an interim diversion
structure and weir to serve its needs.
5. Provided that the proposed sales price is supported by an appraisal prepared on
behalf -the C:ty, beforevem ber-1-57- ,C-it-Y-sha, chas
for $10,881 per acre.
6. City agrees to purchase Tract 2 for $10,881 per acre by special warranty
deed, subject to all matters of record. City and Developer agree to use their
best efforts to complete the purchase by City of Tract 2 within 60 days of the
date of this Agreement as amended.
7. Developer shall preserve the right for the City to cross Drainage Reserve K (as
shown on the preliminary plat for Cypress Village, Section One) with a road right
of way for the extension of Magnolia Drive as shown on the preliminary plat for
Cypress Village, Section One, dated August 13, 2002.
7. The initial term of this Agreement-shall--lire- for a--period off-thrreee (e- ea
F elY-the te-C ty p rchases-klutz 1, and teriz mating on *th1�7
f f
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. The expiration or termination (other than by Developer pursuant to the
last ntenee of Sect:or 3 above) f this n greement wil „t affect Developer's
1 LLJL JIiI LLlJl1LJZi
rights to install and to utilize and to increase or decrease detention on Tract 1,
above.
8. The initial term of this Agreement as amended shall be for a period of three
(3) years, commencing on the date City purchases Tract 1, and terminating
on three (3) years thereafter, at which time, this Agreement as amended may
be automatically renewed in one (1) year increments contingent upon need
and the necessary funds being appropriated for said project in accordance _
with City's annual budgeting process. The expiration or termination of this
Agreement will not affect Developer's rights to install and to utilize and to
increase or decrease detention on Tract 1,which rights shall continue in
perpetuity, subject to the limitations of Section 3 above.
9. This Agreement may only be amended, modified, or supplemented by written
agreement and signed by both parties.
10. 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, such consent not to be unreasonably withheld; 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.
11. Nothing herein is intended to supersede or waive any City ordinance or regulation
pertaining to such construction.
12. 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 invalidating
the remainder of such provision or the remaining provisions of this Agreement.
13. This Agreement shall be construed and enforced in accordance with and governed
by the laws of the State of Texas.
14. This Agreement and all obligations created hereunder shall be performable in
Brazoria County, Texas.
15. Resolution No. R= is incorporated herein and made a part of this
Development Agreement for all purposes.
16. To accomplish execution of this Agreement, it may be executed in multiple
counterparts.
17 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, ADMINISTRA-
TORS, 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, ITS
AGENTS, EMPLOYEES, SUCCESSORS, OR ASSIGNS ARISING IN
CONNECTION WITH SUCH CONSTRUCTION BY DEVELOPER. THE
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.
PT&T, Ltd.
a Texas limited partnership
By: JNB&R, LLC, a Texas limited
liability company, its General
Partner and Manager
By: John N. Taylor
Title: Executive Manager
ATTEST: CITY OF PEARLAND,
a Texas municipal corporation
By: By:
Young Lorfing, City Secretary Bill Eisen, City Manager
•
STATE OF TEXAS §
COUNTY §
This instrument was acknowledged before me on this day of
2003, by John N. Taylor, Executive Manager of JNB&R, LLC, a Texas limited liability
company in its capacity as general partner and manager of PT&T, Ltd., a Texas limited
partnership, on behalf of said limited partnership.
Notary Public, State of Texas
My Commission Expires:
STATE OF TEXAS §
BRAZORIA COUNTY §
This instrument was acknowledged before me on this day of
2003, by Bill Eisen, City Manager of the City of Pearland, a Texas home rule
municipality, on behalf of said municipality.
Notary Public, State of Texas
My Commission Expires:
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