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HomeMy WebLinkAboutR2025-130 20250728RESOLUTION NO. R2025-130 A Resolution of the City Council of the City of Pearland, Texas, authorizing a Funding Agreement with the Avalon Terrace Community Association (Avalon Terrace) for common area fence improvements, in amount not to exceed $200,000.00. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS: Section 1. That certain Funding Agreement by and between the City of Pearland and Avalon Terrace, 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 Funding Agreement with Avalon Terrace. PASSED, APPROVED and ADOPTED this the 28th day of July, A.D., 2025. ________________________________ J.KEVIN COLE MAYOR ATTEST: ________________________________ FRANCES AGUILAR, TRMC, MMC CITY SECRETARY APPROVED AS TO FORM: ________________________________ DARRIN M. COKER CITY ATTORNEY Docusign Envelope ID: 8EFE0C5D-67A8-4F2D-9834-B8B084F43455 Docusign Envelope ID: 8EFE0C5D-67A8-4F2D-9834-B8B084F43455 7/29/2025 | 12:14 PM CDT Page 2 of 10 I. Summary of Agreement Terms. Parties: City of Pearland Avalon Terrace Community Association 3519 Liberty Drive c/o Crest Management – 17171 Park Row, Suite 310 Pearland TX 77581 Houston, Texas 77084 Scope of Work: Community Perimeter Fencing Repair/Replacement Avalon Terrace Subdivisions I and II Maximum Amount: $200,000 Council Resolution No: Resolution R2025 - 130 Agreement Type: Lump Sum Advance of Cost-Justified Payments Effective Date: July 28, 2025 End Date: September 30, 2025 Renewal: None Extension and/or Amendment: Upon the Agreement of the Parties II. Standard Contractual Provisions. A. Definitions. Community Property means the location of existing permanent structures that are outside of areas owned by private homeowners, that are owned, maintained, and operated by the residential community homeowner association (HOA). Perimeter Fencing means the wooden fencing surrounding the outer portion of the Subdivisions subject to this Agreement. Scope of Work means the work for which the City describes herein; specifically, the repair and/or replacement of wooden, boarded, exterior boundary barriers located on Community Property in the areas specified in Part B, below. B. Scope of Work and Payment. HOA will complete the Scope of Work in accordance with the terms and conditions specified in this Agreement. The City shall pay HOA for the replacement and/or repair of eligible damaged and/or dilapidated fencing located along the perimeter of Avalon Terrace No. 1 and/or Avalon Terrace No. 2; specifically: i. Approximately 1,800 linear feet of Perimeter Fencing along the west side of Reid Boulevard and Old Max Court, just south of the property line of 2350 Reid Boulevard to the southern-most end of Property ID 596252 at the end of the Avalon Terrace No. 1 subdivision; ii. Approximately 1,000 linear feet of Perimeter Fencing along the east side of Stone Road, from Hughes Ranch Road to W. Cliff Stone Road; iii. Approximately 2,000 linear feet of Perimeter Fencing along the south side of W. Cliff Stone Road, from Stone Road to Reid Boulevard; iv. Approximately 1,000 linear feet of Perimeter Fencing along the west side of Reid Boulevard, from W. Cliff Stone Road to Hughes Ranch Road; Docusign Envelope ID: 8EFE0C5D-67A8-4F2D-9834-B8B084F43455 Page 3 of 10 v. Approximately 2,000 linear feet of Perimeter Fencing along the north side of Hughes Ranch Road, from Reid Boulevard to Stone Road; and vi. Perimeter Fencing not located along a public road that is not visible to the general public from outside the subdivisions subject to this Agreement, that is also located on public or Community Property. The Scope of Work shall also include any basic paint and/or stain required to achieve or maintain uniformity of beautification throughout the entire perimeter fence line. Exclusions. Ineligible Perimeter Fencing replacement and/or repairs shall include: vii. approximately 2,261 linear feet of Perimeter Fencing located along the southern-most perimeter of Avalon Terrace No. 1, pursuant to a construction project associated with the Asian Town retail/commercial development; viii. fencing that has already been the subject of replacement since July 14, 2024; ix. fencing that has been the subject of insurance payments to cover the repairs and/or replacement as a claim in response to Hurricane Beryl; and/or x. outside of the locations described above in Part B, items i - v. Payments. xi. Payments will be made to the Avalon Terrace Community Association for eligible work that has been completed and is pending payment to the HOA’s selected contractor, in accordance with the attached Payment Application (Exhibit C); xii. Payments may be subject to 5% retainage, to be paid upon certified completion of the total Scope of Work at the conclusion of the project. Payment Instructions. xiii. HOA shall complete the Payment Application (Exhibit C), providing the City with a cumulative account of the beginning balance allocated to the HOA, all previous payments made to HOA, the amount of the current requested funds for payment, and the remaining balance of funds. The Application shall also include the geographic area of the work performed, cumulative percentage of the total work performed prior to the request, the percentage of work completed as part of the Application being submitted for payment, and the total amount being requested in the Payment Application being submitted. Payment Applications shall include the numerical Pay App Number in sequence of each submission (Example: Pay App No. 1, 2, 3, etc.). Payment Applications should be submitted by the Authorized Representative of the HOA, preferably the President or the HOA’s Treasurer. Attachments shall include photographic evidence of the segment of the Scope of Work that has been completed, contractor invoice(s) requesting payment from the HOA for the Scope of Work completed, and proof of payment made to contractor(s) for the previously approved Payment Application. The City Docusign Envelope ID: 8EFE0C5D-67A8-4F2D-9834-B8B084F43455 Page 4 of 10 shall make no payment to HOA unless all prior payments due to contractor have been made, documented by proof of payment (canceled check or proof of ACH transfer). C. Performance of the Scope of Work The HOA shall select a licensed, insured, experienced contractor to perform the Scope of Work. The HOA shall also utilize basic procurement methodologies that prioritize low-bidder(s), cost-reasonableness, and the quality and experience of contractor(s) with a history of performing this type of work (fence repair and replacement). A written contract must be established between the HOA and the selected contractor, in which the selected contractor: i. must not be debarred or suspended from performing work that is being paid for with State or public funds; and ii. agrees to comply with the applicable terms and conditions herein. Certification of Completion will be documented, per Exhibit D, to be executed by the parties and the contractor performing the Scope of Work. D. Termination Provisions. (1) City Termination for Convenience. Under this paragraph, the City may terminate this Agreement during its term at any time for the City’s own convenience by giving written notice to HOA. If the City terminates this Agreement under this paragraph, the City will pay the HOA for all Scope of Work rendered in accordance with this Agreement up to the date of termination. (2) Termination for Default. Either party to this Agreement may terminate this Agreement as provided in this paragraph if the other party fails to comply with its terms. The party alleging the default will give the other party notice of the default in writing citing the terms of the Agreement that have been breached and what action the defaulting party must take to cure the default. If the party in default fails to cure the default as specified in the notice, the party giving the notice of default may terminate this Agreement by written notice to the other party, specifying the date of termination. Termination of this Agreement under this paragraph does not affect the right of either party to seek remedies for breach of the Agreement as allowed by law, including any damages or costs suffered by either party. E. Liability and Indemnity. Any provision of any attached Agreement document that limits the HOA’s liability to the City or releases the HOA from liability to the City for actual or compensatory damages, loss, or costs arising from the performance of this Agreement or that provides for Contractual indemnity by one party to the other party to this Agreement is not applicable or effective under this Agreement. (1) Except where an Additional Agreement Document provided by the City provides otherwise, each party to this Agreement is responsible for defending against and liable for paying any claim, suit, or judgment for damages, loss, or costs arising from that party's negligent acts or omissions in the performance of this Agreement in accordance with applicable law. (2) This provision does not affect the right of either party to this Agreement who is sued by a third party for acts or omissions arising from this Agreement to bring in the other party to this Agreement as a third-party defendant as allowed by law. Docusign Envelope ID: 8EFE0C5D-67A8-4F2D-9834-B8B084F43455 Page 5 of 10 F. Assignment. HOA shall not assign this Agreement without prior written consent of City. G. Law Governing and Venue. This Agreement is governed by the law of the State of Texas and a lawsuit may only be prosecuted on this Agreement in a court of competent jurisdiction located in or having jurisdiction in Brazoria County, Texas. H. Entire Agreement. This Agreement represents the entire Agreement between the City and the HOA and supersedes all prior negotiations, representations, or Agreements, either written or oral. This Agreement may be amended only in writing signed by both parties. I. Independent HOA. HOA shall perform the work under this Agreement as an independent entity and not as an employee of the City. The City has no right to supervise, direct, or control the HOA or HOA’s officers or employees in the means, methods, or details of the work to be performed by HOA under this Agreement. The City and HOA agree that the work performed under this Agreement is not inherently dangerous, that HOA will perform the work in a professional and skilled manner, and that HOA will take proper care and precautions towards the safety of the HOA’s officers and employees. J. Dispute Resolution Procedures. The HOA and City desire an expeditious means to resolve any disputes that may arise between them regarding this Agreement. If either party disputes any matter relating to this Agreement, the parties agree to try in good faith, before bringing any legal action, to settle the dispute by submitting the matter to mediation before a third party who will be selected by agreement of the parties. The parties will each pay one- half of the mediator’s fees. K. Attorney’s Fees. Should either party to this Agreement bring suit against the other party for breach of Agreement or for any other cause relating to this Agreement, neither party will seek or be entitled to an award of attorney’s fees or other costs relating to the suit. L. Severability. If a court finds or rules that any part of this Agreement is invalid or unlawful, the remainder of the Agreement continues to be binding on the parties. III. Special Terms or Conditions. State law requires municipalities to comply with specific statutory prohibitions when allocating public funds for any type of public work, directly or as part of a subaward or subrecipient agreement. The following provisions are required by law and must be complied with. A. Texas Government Code - Chapter 2271. Prohibition on Agreements with Companies that Boycott Israel. By signing this Agreement, the HOA certifies that, if it is a company with at least 10 full-time employees and has a value of at least $100,000 that is paid wholly or partly from public funds, that it: i. does not boycott Israel; and ii. will not boycott Israel during the term of the Agreement. B. Texas Government Code - Chapter 2274. Prohibition on Agreements with Companies that Discriminate Against Firearm and Ammunition Industries. By signing this Agreement, the HOA certifies that, if it is a company with at least 10 full-time employees and has a value of at least $100,000 that is paid wholly or partly from public funds, that it: i. does not have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association; and ii. will not discriminate during the term of the Agreement against a firearm entity or firearm trade association. Docusign Envelope ID: 8EFE0C5D-67A8-4F2D-9834-B8B084F43455 Page 6 of 10 C. Texas Government Code - Chapter 2276. Prohibition on Agreements with Companies Boycotting Certain Energy Companies. By signing this Agreement, the HOA certifies that, if it is a company with at least 10 full-time employees and has a value of at least $100,000 that is paid wholly or partly from public funds, that it: i. does not boycott energy companies; and ii. will not boycott energy companies during the term of the Agreement. IV. Additional Agreement Documents. The following specified documents attached to this Agreement are part of this Agreement. Any provision contained in the HOA’s Additional Agreement Documents that conflicts with this Agreement shall have no legal effect. • Exhibit B - Project Layout Maps: Avalon Terrace I and Avalon Terrace II • Exhibit C - Payment Application • Exhibit D – Certification of Completion Docusign Envelope ID: 8EFE0C5D-67A8-4F2D-9834-B8B084F43455 Page 7 of 10 EXHIBIT B Avalon Terrace I - Project Map Docusign Envelope ID: 8EFE0C5D-67A8-4F2D-9834-B8B084F43455 Page 8 of 10 EXHIBIT B Avalon Terrace II - Project Map Docusign Envelope ID: 8EFE0C5D-67A8-4F2D-9834-B8B084F43455 Page 9 of 10 Exhibit C Payment Application Docusign Envelope ID: 8EFE0C5D-67A8-4F2D-9834-B8B084F43455 Page 10 of 10 Exhibit D CITY OF PEARLAND CERTIFICATE OF PROJECT COMPLETION RESPONSIBLE PARTY: Avalon Terrace Community Association SCOPE OF WORK: Replacement and/or Repairs to Perimeter Fencing CONTRACT AWARD – RESOLUTION NO: R2025-_____ CONTRACT AMOUNT: $________________ FINAL PROJECT COST: $______________ AMOUNT PAID: $______________________ REMAINING BALANCE: $_____________ DATE OF COMPLETION: _______________ CERTIFICATION THE UNDERSIGNED ACKNOWLEDGES THAT IT POSSESSES THE CURRENT LEGAL AUTHORITY TO CERTIFY THE ASSURANCES OUTLINED HEREIN AND THAT THE RESPONSIBLE PARTY’S GOVERNING BODY HAS ACTED IN CONCURRENCE WITH THE FOLLOWING CONDITIONS: 1. THAT ALL WORK RELATED TO THE ABOVE REFERENCED CONTRACT AWARD (RESOLUTION NO. R2025-_____ HAS BEEN COMPLETED, INCLUDING ALL CONSTRUCTION, REPAIRS, RELATED COSTS, PAYMENTS, RETAINAGE, AND/OR OTHER FINANCIAL ENTAILMENTS. 2. HENCEFORTH, THE UNDERSIGNED ALSO CERTIFY AND ASSURE THAT ALL CURRENT AND FUTURE RESPONSIBILITY FOR MAINTENANCE, OPERATION, DAMAGES, INSURANCE, FUTURE REPAIRS, AND ANY OTHER ADDITIONAL WORK OR COSTS REQUIRED SHALL REST SOLELY WITH THE APPLICANT. 3. THIS CERTIFICATION EFFECTUATES THE CONDITION THAT TITLE SHALL VEST ENTIRELY WITH THE RESPONSIBLE PARTY NAMED ABOVE, AND THAT NO GRIEVANCES, OBLIGATIONS, ENCUMBRANCES, LIABILITIES OR ANY OTHER ASSOCIATED CONCERNS SHALL BE BROUGHT FORTH TO THE CITY REGARDING THIS PROJECT, IN ANY FORM OR FASHION. CERTIFIED, ASSURED, AS NOTARIZED _______________________________ _____________ PRINTED NAME TITLE ________________________________ _____________ SIGNATURE DATE NOTARY Docusign Envelope ID: 8EFE0C5D-67A8-4F2D-9834-B8B084F43455