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R98-52 08-24-98RESOLUTION NO. R98-52 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS, REPEALING RESOLUTION R98-32 AND AUTHORIZING THE CITY MANAGER TO EXECUTE A DEVELOPMENT AGREEMENT WITH ML PARTNERSHIP, A TEXAS GENERAL PARTNERSHIP, FOR THE CONSTRUCTION AND OVERSIZING OF WATER AND/OR SANITARY SEWER FACILITIES TO SERVE SITES ALONG PEARLAND PARKWAY FROM MARY'S CREEK NORTH TO THE INTERSECTION OF BROADWAY (FM 518), AND SANITARY SEWER SERVICE ON PEARLAND PARKWAY FROM MARY'S CREEK NORTH ACROSS BROADWAY (FM 518) APPROXIMATELY 3,000 FEET, AND TO THE BARRY ROSE WASTEWATER TREATMENT PLANT ("BARRY ROSE WWTP") ALONG AN EASEMENT TO BE ACQUIRED BY THE CITY OF PEARLAND, AND DEDICATING SAID WATER AND SEWER FACILITIES TO THE CITY FOR OPERATION AND MAINTENANCE. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS: Section 1. That Resolution No. R98-32 is hereby repealed. Section 2. That certain Development Agreement by and between the City of Pearland and ML Partnership, a Texas General Partnership, a copy of which is attached hereto as Exhibit "A" and made a part hereof for al purposes, is hereby authorized and approved. Section 3. That the City Manager or his designee is hereby authorized to execute and the City Secretary to attest the original of the attached agreement for and on behalf of the City of Pearland. PASSED, APPROVED and ADOPTED this the ~L/~day of r~~ , A.D., 1998. TOM REID MAYOR RESOLUTION NO. R98-52 ATTEST: O NG Lr '' 147G CI ► SE( TARY APPROVED AS TO FORM: atAAA"-. H. CilffRa,.. DARRIN M. COKER CITY ATTORNEY 2 © © DEVELOPMENT AGREEMENT (EXHIBIT "A" TO RESOLUTION NO. R98-52) This Agreement is entered into this~.//~-L~day of ~//~d~r' , 1998, by and between the CITY OF PEARLAND, TEXAS, (hereinafter "City"), and ML PARTNERSHIP, a Texas general partnership (hereinafter "Developer"). WHEREAS, Developer plans to construct water and sanitary sewer facilities necessary for City to provide water on Pearland Parkway from Mary's Creek north to the intersection of Broadway (FM 518) and sanitary sewer service on Pearland Parkway from Mary's Creek north across Broadway (FM 518) approximately 3000 feet to a lift station and then north to the Barry Rose Wastewater Treatment Plant along an easement to be acquired by City and to dedicate said water and sanitary sewer facilities to City for operation and maintenance; and WHEREAS, City desires to cooperate with Developer to provide water and sanitary sewer service to Developer's property, and at the same time, increase and improve City's capacity to serve other properties in the vicinity of the property; and WHEREAS, The City Council of City authorized the City Manager on August 10, 1998, to implement a pro rata payback policy for properties on Pearland Parkway whereby benefitted properties will be required to pay a pro rata portion of the water and sanitary sewer main extension costs in addition to other City impact and connection fees; and WHEREAS, City desires to cancel the Development Agreement, authorized by Resolution No. R98-32, approved on March 23, 1998, to provide for additional water and sanitary sewer capacity beyond that which was originally planned in the March 23, 1998, Agreement; and WHEREAS, City and Developer desire a new agreement to set forth their revised respective responsibilities with regard to providing water and sanitary sewer service to Developer's property. 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: 1. The Development Agreement approved by Resolution No. R98-32 is canceled. 5 10. © © A 12-inch sanitary sewer gravity main (3,000 feet), an 84-inch diameter lift station, and an eight-inch sanitary force main (5,800 feet), and an eight-inch water main (2,900 feet) are needed to serve Developer's requirements. The sewer main must be extended from the Barry Rose Wast. water Treatment Rant and the water main must be extended from Broadway (FM 518). To serve additional tracts, the City has requested that Developer construct a 12-inch sanitary sewer gravity main (3,067 feet), a 15-inch sanitary sewer gravity main (5,084 feet), and an 18-inch sanitary sewer gravity main (630 feet), and a 16-inch water main (2,900 feet). Developer agrees to construct and fund such improvements'. The estimated costs for the water and sanitary sewer main extensions as requested by the City is 9485,673. City agrees to reimburse Developer 9285, 673 upon completion of the improvements and acceptance by City. Such amount shall be recovered and retained by the City from pro rata charges assessed against ben.fitted properties. Developer will cause its engineers, reasonably approved by the City, to prepare plans and specifications for the construction of the water and sanitary sewer mains desired by the City. The bid specifications shall require each bidder to reflect the difference in the cost of constructing the water and sanitary sewer main extensions as reflected in the plans and specifications and the cost which would have been incurred had the water and sanitary sewer main extensions been constructed to the size required by Developer. City reserves the right to reject any and all bids for the construction of the improvements. The initial ' ' ~ sd~all be for a period of one (1) year, ~,~ncing on~ , 19 ~'~f', and terminating on the day of ~e~- , 19 which time, this agreement may be automatically rene d 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 her.to of any rights under or interests in this agreement will be binding on another party her.to 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 suoh Gonsent (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 2 11. 12. 13. 14. 15. 16. 17. ® 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. R98-52 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. THE PROVISIONS OF THIS SECTION SHALL SURVIVE THE TERMINATION, EXPIRATION, OR CANCELLATION OF THIS AGREEMENT. 3 ® In witness whereof, the parties have hereunto set their hands and signatures on the date first above mentioned. ML Partnership, a Texas general partnership Managing General Partner ATTEST: CITY OF PEA. R.LAND, . c, ung rf"'::~;' tary Paul Grohman City Manager 4 STATE OF TEXAS § § COUNTIES OF BRAZORIA § AND HARRIS § BEFORE ME, the undersigned Notary Public, on this day personally appeared Robert Lewis, Managing General Partner of ML Partnership, 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. UNDER MY HAND AND , A.D., 19 (~). SEAL OF OFFICE THIS ~f4~ DAY OF ~~OTARyT~BL~~T~TE O~~FTEXAS Printed Name: My Commission Expires: ~'(~l' ~ STATE OF TEXAS § § COUNTIES OF BRAZORIA § AND HARRIS § GIVEN BEFORE ME, the undersigned Notary Public, on this day personally appeared Paul Grohman, City Manager of the City of Pearland, Texas, 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. UNDER MY HAND AND SEAL OF OFFICE THIS ~(/~. DAY OF Printed ~LI~.r~,~,I~ ~. ~/S~ My Commission Expires: (/)/-). ~/. 5