R2002-0150 10-23-02 RESOLUTION NO. R2002-150
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 PT&T, LTD. FOR
THE ACQUISITION OF PROPERTY ASSOCIATED WITH THE WEST
MARY'S CREEK DETENTION PROJECT.
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 PT & T, 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 PT & T, LTD, for the
acquisition of property associated with the West Mary's Creek Detention Project.
PASSED, APPROVED and ADOPTED this the 23 dayof September ,
A.D., 2002.
ATTEST:
APPROVED AS TO FORM:
DARRIN M. COKER
CITY ATTORNEY
MAYOR
DEVELOPMENT AGREEMENT
(EXHIBIT A TO RESOLUTION R 2002- 150
Exhibit "A"
R2002-'150
This Agreement is entered into effective as of the '~ r~b day of (~C,x:o c~xtr~ , 2002, by and
between the CITY OF PEARLAND, TEXAS, (hereinafter "City"), and PT&T, ltd., a Texas
limited partnership (hereinafter "Developer").
WHEREAS, Developer intends to construct a residential subdivision to be known as Cypress
Village, Section One, on approximately 50.3466 acres located at the southwest corner of Harkey
Road and Mary's Creek and Section Two, on approximately 51.2668 acres; and
WHEREAS, Developer owns an adjacent tract of approximately 25.8561 acres ("Tract I") which
the City desires to purchase for inclusion iu the City's "West Mary's Creek Storm Water
Detention Facility; and
WHEREAS, Developer desires to retain certain rights for excavation of storm water detention
capacity on Tract I to serve its needs for Cypress Village, Section One and Two; and
WHEREAS, Developer is required to dedicate to the City the south ½ of the future right of way
width of Magnolia Drive and to construct ½ of the boulevard adjacent to Cypress Village,
Section One, as a condition of plat approval for Cypress Village, Section One; and
WHEREAS, Developer owns an adjacent, tract of approximately 1.5066 acres ("Tract 2") that is
in the location of the north Y2 of the future Magnolia Drive right of way width adjacent to
Cypress Village, Section One, which the City desires to acquire; and
WHEREAS, City and Developer desire an agreement to set forth their respective responsibilities
with regard to construction of storm water detention facilities and Magnolia Drive.
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 it .... hareby agreed, ~' us~
follows:
Developer will cause its engineers, Dannenbaum Engineering Corporation or other
engineers reasonably approved by the City, to prepare plans and specifications for the
construction of the storm water detention volume required 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 13.5 surface acres. The storm water detention
facility shall be designed and constructed by Developer with 6:1 side slopes and a '~wet
bottom" with a minimum of two (2) feet of permanent water depth.
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 m accordance
with the plans and specifications approved by the City and Brazoria County Drainage
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District No. 4. City reserves the right to inspect the construction and the right of final
approval and acceptance of the improvements.
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 purchase Tract 1 (by
special warranty deed, subject to all matters of record) for $10,881 per acre on a net
basis. For example, if Developer s storm water detenti~on needs are 13.5 acres, the ,City
shall purchase the entire 25.8561 acres of Tract 1 for $1.~4,447 (25.8561 acres minus I.~.5
acres = 12.3561 net acres ~ $10,881 per acre). After the purchase date, (a) if
eveloper 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 City's appraisal indicates a value
of less than $10,881 per acre, then Developer may elect either to terminate this
Agreement or to reduce the 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.
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.
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.
Provided that the proposed sales price is supported by an appraisal prepared on behalf of
the City, on or before November 15, 2002, City shall purchase Tract 2 for $10,881 per
acre.
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.
Ttie initial term of this Agreement 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 may be automatically renewed in one (l) year increments
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10.
11.
12.
13.
14.
15.
16.
contingent upon need and the necessary funds being appropriated fbr said project in
accordance with the City's annual budgeting process. The expiration or termination
(other than by Developer pursuant to the last sentence of Section 3 above) 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.
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, 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.
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 invalidating the remainder of such
provision or the remaining provisions of this Agreement.
This Agreement 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.
Resolution No. R i,~?' ~,f'o 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 TttEREOF
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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, 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
~~eneral Partner and Manage7
ATTEST:
Vo u~jL~ n ,~/~ it:~c~r e t a~ ,/
CITY OF PEARLAND.
a Texas municipal corporation
By: ~~'~'
Bill Eisen, City Manager
969607 4 [X)~: 4
STATE OF TEXAS §
~/~,~\ %. COUNTY §
This instrument was acknowledged before me on this ~o t~o day of OoToO,%~.., 2002,
by John N, Taylor, Executive Manager of JNB&R, LLC, a Texas limited liability company in its
capacity as general panner 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;f/ day of ~'"~/.e.-,.. , 2002, by
Bill Eisen, City Manager of the City of Pearland, a Texas home rule mumc]pahty, on behalf of
said municipality,
~l~otary Public, State of Texas
My Commission Expires:
PERLA N, LEHMAN
Notary Public, State of Texas
My Commission Expires:
APRIL 2, 2005
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