R2006-199 11-27-06
RESOLUTION NO. R2006-199
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PEARLAND,
TEXAS, AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO
ENTER INTO A REIMBURSEMENT AGREEMENT WITH THE PINE
HOLLOW HOMEOWNERS ASSOCIATION.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS:
Section 1. That certain Reimbursement Agreement by and between the City of
Pearland and the Pine Hollow Homeowners Association, 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 Reimbursement Agreement with the Pine Hollow
Homeowners Association, for design services associated with the Pine Hollow Drainage
Improvement Project.
PASSED, APPROVED and ADOPTED this the 2ih day of November, A.D., 2006.
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TOM REID
MAYOR
ATTEST:
APPROVED AS TO FORM:
~ it- a-L-
DARRIN M. COKER
CITY ATTORNEY
Resolution 2006-199
11/27/06
REIMBURSEMENT AGREEMENT
(EXHIBIT "A" TO RESOLUTION NO. R2006)
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This Agreement is entered into this ~ day of .l)l"(erl)~ 2006, by and between the City of
Pearland, Texas (hereinafter "City"), and?u1fl H D I/o w H D A ' (hereinafter
"HOA").
WHEREAS, in 2002 the City contracted with Century Engineering to prepare a comprehensive
engineering study of the drainage problems in the Pine Hollow subdivision and the surrounding
area; and
WHEREAS, the engineering study recommended the construction of specific drainage
improvements within the Pine Hollow subdivision to help mitigate the impact of storm water on
the property owners in the immediate area; and
WHEREAS, the City and the HOA desire to combine their resources and efforts to implement
the mitigative measures recommended in the 2002 engineering study.
WIT N E SSE T H:
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:
ARTICLE I
DEFINITIONS; INCORPORATION OF RECITALS
1.1 Definitions. Capitalized terms used herein, including the recitals hereto, shall
have the meanings set forth in this section, unless otherwise defined, or unless the context clearly
requires another definition.
City means the City of Pearland, Texas, a home rule municipality located in the counties
of Brazoria, Harris and Ft. Bend, Texas.
HOA means the Pine Hollow Homeowners Association
Effective Date means the date on which this Agreement is fully executed by the City and
the HOA.
Party or Parties means all or any of the City and the HOA, as applicable.
1.2 Recitals Incorporated. The representations, covenants, and recitations set forth in
this Agreement are material to this Agreement and are hereby found and agreed to be true and
correct and are incorporated into and made part here of as though they were fully set forth in this
article.
ARTICLE II
COOPERATION
Action of the Parties. The parties agree to take such actions, including the execution and
delivery of such documents, instruments and, in the City's case, the adoption of such ordinances
and resolutions, as may be necessary or appropriate to carry out the terms and intent of this
Agreement.
ARTICLE III
EFFECTIVENESS OF AGREEMENT
This agreement shall become effective from and after its approval and execution by both
parties.
ARTICLE IV
ENGINEERING SERVICES
The City shall contract with an engineering firm for design, bid and construction
administration services ("Engineering Services") as described Exhibit "A" attached hereto. The
HOA, within ten (10) days following written notification of the costs associated with
Engineering Services, shall deposit funds with the City equal to the amount of the Engineering
Services. The final plans and specifications shall be subject to the approval of the City and the
HOA, with such approval not being unreasonably withheld by either Party. In the event this
Agreement is terminated as provided for in this Agreement, the HOA shall remain responsible
for all costs associated with the Engineering Services that were performed prior to the receipt of
the notice of termination.
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ARTICLE V
TERM
The initial term of this Agreement shall be for a period of eighteen ~ months,
commencing on the if lb. day of .Dec.QYY\~ 2006, and terminating on ~he ~ day ?f
::::run.p , 200ji, provided, however, that thIS Agreement shall be automatIcally renewed In
one (1) month increments until all of the obligations of the parties hereunder have been fully
discharged or specifically waived in writing by the beneficiary thereof.
ARTICLE VI
AUTHORITY COVENANTS
Powers.
(a) The City hereby represents and warrants to the HOA that the City has full
constitutional and lawful right, power and authority, under currently applicable law, to execute
and deliver and perform the terms and obligations of this Agreement, and all of the foregoing
have been or will be duly and validly authorized and approved by all necessary City proceedings,
findings and actions
(b) The HOA hereby represents and warrants to the City that it has full lawful right,
power and authority to execute and deliver and perform the terms and obligations of this
Agreement and all of the foregoing have been or will be duly and validly authorized and
approved by all necessary actions of the HOA
ARTICLE VII
GENERAL PROVISIONS
7.1 Default.
(a) A party shall be deemed in default under this Agreement (which shall be deemed
a breach hereunder) if such party fails to materially perform, observe or comply with any of its
covenants, agreements or obligations hereunder or breaches or violates any of its representations
contained in this Agreement.
(b) Before any failure of any party to perform it's obligations under this Agreement
shall be deemed to be a breach of this Agreement, the party claiming such failure shall notify, in
writing, the party alleged to have failed to performed the alleged failure and shall demand
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performance. No breach of this Agreement may be found to have occurred if performance has
commenced to the reasonable satisfaction of the complaining party within 30 days of the receipt
of such notice, subject, however, to the terms and provisions of Section 7 .1 (c). Upon a breach
of this Agreement, the non-defaulting Party, in any court of competent jurisdiction, by an action
of proceeding at law or in equity, may secure the specific performance of the covenants and
agreements herein contained, may be awarded damages for failure of performance, or both.
Except as otherwise set forth herein, no action taken by a Party pursuant to the provisions of this
Section of this Agreement shall be deemed to constitute an election of remedies and all remedies
set forth in this Agreement shall be cumulative and non-exclusive of any other remedy either set
forth herein or available to ay Party at law or in equity. Each of the Parties shall have the
affirmative obligation to mitigate its damages in any event of a default by the other Party.
(c) Notwithstanding anything in this Agreement which is or may appear to be to the
contrary, if the performance of any covenant or obligation to be performed hereunder by any
Party is delayed as a result of circumstances which are beyond the reasonable control of such
Party (which circumstances may include, without limitation, pending or threatened litigation,
acts of God, war, acts of civil disobedience, fire or other casualty, shortage of materials, adverse
weather conditions [such as, by way of illustration and not limitation, severe rain storms or
below freezing temperatures, or tornados] labor action, strikes or similar acts, the time for such
performances shall be extended by the amount of time of such delay. The Party claiming delay
of performance as a result of any of the foregoing "force majeure" events shall deliver written
notice of the commencement of any such delay resulting from such "force majeure" event not
later than seven days after the claiming Party becomes aware of the same, and if the claiming
Party fails to so notify the other Party of the occurrence of a "force majeure" event causing such
delay, the claiming Party shall not be entitled to avail itself of the provisions for the extension of
performance contained in this Section.
7.2 Personal liability of public officials. To the extent permitted by State law, no
public official or employee shall be personally responsible for any liability arising under or
growing out of this Agreement.
7.3 Notices. Any notice send under this Agreement (except as otherwise expressly
required) shall be written and mailed, or sent by rapid transmission confirmed by mailing written
confirmation at substantially the same time as such rapid transmission, or personally delivered to
an officer of the receiving party at the following addresses:
If to the City:
Bill Eisen - City Manager
City of Pearland
3519 Liberty Drive
Pearland, Texas 77581
With a copy to:
Darrin Coker - City Attorney
City of Pearland
3519 Liberty Drive
Pearland, Texas 77581
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If to the HOA:
Linda Pancherz
CMSI
2615 Bay Area Boulevard
Houston, TX 77058
With a copy to:
Charles Jordan
Daughtry & Jordan, P.C.
17044 El Camino Real
Houston, TX 77058
Each party may change its address by written notice in accordance with this Section, Any
communication addressed and mailed in accordance with this Section shall be deemed to be
given when so mailed, any notice so sent by rapid transmission shall be deemed to be given
when receipt of such transmission is acknowledged, and any communication so delivered in
person shall be deemed to be given when receipted for by, or actually received by, an authorized
officer of the City or the HOA, as the case may be.
7.5 Amendments and waivers. Any provision of this Agreement may be amended or
waived if such amendment or waiver is in writing and is approved by the City Council and the
HOA. No course of dealing on the part of the City or the HOA nor any failure or delay by the
City or the HOA with respect to exercising any right, power or privilege pursuant to this
Agreement shall operate as a waiver thereof, except as otherwise provided in this Section.
7.6 Invalidity. In the event that any of the provisions contained in the Agreement
shall be held unenforceable in any respect, such unenforceability shall not affect any other
provisions of the Agreement and, to that end, all provisions, covenants, agreements or portions of
the Agreement are declared to be servable.
7.7 Successor and assigns. Either party to this Agreement shall have the right to
assign its rights under this Agreement or any interest herein, so long as it first gives to the other
party notice of such assignment and acknowledgement of such assignment from the assignee and
obtains the prior written consent from the other party to such assignment, which consent shall not
be umeasonably withheld, conditioned or delayed.
7.8 Exhibits, titles of articles, sections and subsections. The exhibits attached to this
Agreement are incorporated herein and shall be considered a part of the Agreement for the
purpose stated herein, except that in the event of any conflict between any of the provisions of
such exhibits and the provisions of the Agreement, the provisions of this Agreement shall
prevail. All titles or headings are only for the convenience of the parties and shall not be
construed to have any effect or meaning as to the agreement between the parties hereto. Any
reference herein to a section or subsection shall be considered a reference to such section or
subsection of the Agreement unless otherwise stated. Any reference herein to an exhibit shall be
considered a reference to the applicable exhibit attached hereto unless otherwise state.
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7.9 Applicable law. This Agreement is a contract made under and shall, be construed
in accordance with and governed by the laws of the United States of America and the State of
Texas, and any actions concerning this Agreement shall be brought in the Texas State District
Courts of Brazoria County.
7.10 Entire agreement. This written agreement represents the final agreement between
the parties and may not be contradicted by evidence of prior, contemporaneous, or subsequent
oral agreements of the parties. There are no unwritten oral agreements between the parties.
7.11 Approval by the parties. Whenever the Agreement requires or permits approval
or consent to be hereafter given by any of the parties, the parties agree that such approval or
consent shall not be reasonably withheld or delayed.
7.12 Counterparts. This Agreement may be executed in several counterparts, each of
which shall be an original and all of which shall constitute by one and the same agreement.
7.13 Interpretation. This Agreement has been jointly negotiated by the parties and
shall not be construed against a party because that Party may have primarily assumed
responsibility for the drafting of this Agreement.
[signature pages follow]
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IN WITNESS WHEREOF, the parties have duly executed this Agreement pursuant to all
requisite authorizations as of the date first above written
CITY:
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CITY OF PEARLAND, TEXAS, a home
rule municipality
By:
By:
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BiW'"Eisen
City Manager
11/27/06
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APPROVED AS TO FORM:
~Jt,~
arnn M. Coker
City Attorney
HOA:
Pine Hollow Homeowners Association
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STATE OF TEXAS
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GIVEN UNDER MY HAND AND SEAL OF OFFICE THIS ,J\"\~ DA Y OF
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EXHffiIT A
(to Contract for Professional Services)
TASK NO.1
Topographic surveying information shall be obtained within the eXIstmg subdivision,
including detailed sections of detention ponds #3,4,5,6, 7, 8, and 9, coordination of pipeline
probe depths and sections at the 8-inch and 30-inch pipeline roadway crossings, street paving
and lot finished floor elevations in areas designated with a history of flooding, proposed
outfalls into Mary's Creek, and existing natural ground sheet flow elevations from the
northwest of the subdivision Mary's Creek @ outfall locations. Estimated completion time
is Five (5) weeks from Notice to Proceed
TASK NO.2
After obtaining the topographic information, prepare a preliminary analysis of the
functionality of the detention facilities, an analysis of the street paving/pipeline
crossing/finished floor elevations, and conduct a preliminary consultation with the pipeline
companies regarding requirements for crossings. A report will be furnished to the City
regarding alternatives for remediation, preliminary layouts of the alternatives and cost
estimates for each. Included will be the off-site diversion around the northwesterly portion of
the subdivision and any additional required outfalls. Coordination will also be conducted with
the Pine Hollow Homeowners Association. Estimated completion time is five (5) weeks
after receipt of surveys.
TASK NO.3
Once the most cost effective alternatives are selected, construction plans for the project will
be prepared. Approval of the City of Pearl and, B.D.D. #4, and, the pipeline companies will
be obtained. The plans will also be coordinated with the Homeowners Association.
Technical specifications and bid documents will also be prepared. Estimated completion
time is twelve (12) weeks which includes review by governmental agencies.
TASK NO.4
When authorized, assistance will be given the City in the advertisement for bids. Pre-Bid
meeting will be conducted, addendums issued if required, an analysis of the bids received
performed and a recommendation for award submitted. The contracts with the selected
contractor will be prepared and a pre-construction meeting will be coordinated. Approval of
any shop drawings and monthly payments will be provided. Periodic and final inspections in
conjunction with the City's staff will also be provided.
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