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R2008-088 2008-06-23RESOLUTION NO. R2008-88 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 FOR CONSTRUCTION OF THE PINE HOLLOW DRAINAGE IMPROVEMENTS. 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 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 Development Agreement with the Pine Hollow Homeowners' Association. PASSED, APPROVED and ADOPTED this the 23~d day of e, A. D., 2008. L~~~ TOM REID MAYO R ATTEST: -°Q~aizZ;y;~;a,,.. _'4 ~J' ,~'~ Ica _ '' ~ Y NG I G, _, t,;, ~,; .... 1~~1 :'' ` Y SE ETAR --.. APPROVED AS TO FORM: ~~ h ~_ DARRIN M. COKER CITY ATTORNEY ExF~ibit "A" R2008-88 08-0129 Pine Hollow Drainage Improvements (P. H. Homeowners' Assoc. DEVELOPMENT AGREEMENT (EXHIBIT "A" TO RESOLUTION NO. R2008- ) This Agreement is entered into this 23rd day of June 2008, by and between the City of Pearland, Texas (hereinafter "City"), and the Pine Hollow Homeowners' Association, (hereinafter "HOA"). WHEREAS, in 2002 the City hired 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; and WHEREAS, the City and the HOA entered into agreements R2006-]99 and R2006-200 for a contract with Lentz Engineering for design services associated with the Pine Hollow Improvement project; and WHEREAS, Lentz Engineering has developed final construction drawings which have been approved by the City and the HOA; and WHEREAS, the City and the HOA desire to combine their resources and effort to execute these approved construction projects within Pine Hollow. 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: 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. Improvements means those improvements more particularly described on Exhibit A attached hereto. 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 parties. This agreement shall become effective from and after its approval and execution by both ARTICLE IV CONSTRUCTION OF IMPROVEMENTS The City and the HOA agrees to take the following actions: (a) Pursuant to the agreement between the City and the HOA, approved as R2006- 199, the City shall contract with an engineering firm for design, bid and construction administration services ("Engineering Services") associated with the Improvements. The HOA, within ten (1 O) days following written notification of the costs associated with Engineering Services contract for the Improvements, shall deposit funds with the City that are 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. 2 (b) The City shall advertise and competitively bid the construction of the Improvements (with the exception of any required pipeline adjustments, which shall be separately negotiated between the City and the affected pipeline company), in accordance with Local Government Code Chapter 252. The bids shall be subject to the review of the City and the HOA, and the City shall award the contract to the lowest responsible bidder. The City reserves the right to reject any and all bids for the construction of the Improvements. (c) The HOA, within ten (10) days following the City's award of the contract to the lowest responsible bidder, shall deposit funds with the City that are equal to the amount of the bid, but in no event shall said amount exceed $530,000.00. Upon receipt of the funds from the HOA, the City shall enter into a construction contract with the lowest responsible bidder, and shall cause construction of the Improvements to be completed in accordance with the final plans and specifications. (d) The funding provided for in this Agreement, as limited in Section IV (c) above, shall be the responsibility of the HOA, however the City shall be responsible for additional funding, including change orders, that may be authorized by the City Council. ARTICLE V TERM The initial term of this Agreement shall be for a period of eighteen months, commencing on the day of 2008, and terminating on the day of 200_, 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 Time of the essence. Time is of the essence of this Agreement. The parties will make every reasonable effort to expedite the subject matter hereof and acknowledge that the successful performance of this Agreement requires their continued cooperation. 7.2 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 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 7.2 (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, hurricanes, flooding, 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" 4 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. 7.3 Personal liability of public officials or Pine Hollow Board Members. To the extent permitted by State law, no public official, employee or Pine Hollow Board Member shall be personally responsible for any liability arising under or growing out of this Agreement. 7.4 Notices. Any notice send under this Agreement (except as otherwise expressly required) shall be written and mailed, or sent by 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 If to the HOA: Linda Pancherz CMSI 2615 Bay Area Blvd Houston, TX 77058 With a copy to: Charles Jordan Daughtry 8i 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 Developer, 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. 5 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 unreasonably 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. 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] 6 IN WITNESS WHEREOF, the parties have duly executed this Agreement pursuant to all requisite authorizations as of the date first above written CITY: CITY OF PEARLAND, TEXAS, a home rule municipality G~ B y: ~~ Tom Reid, Mayor 6-23-08 ..-4EARLy~p.,' etc ._ ATTEST: =~ ~`~ ~ ~-; •~ ~ z-u°._- ~ a~ ~ung L ng ty Sec etary APPROVED AS~~TjjO FORM: Qom' L (, .L (, . Darrin M. Coker City Attorney COUNTERSIGNED B y: Bill Eisen 6-23-08 City Manager HOA: Pine Hol~omeowners Association By:~f-1 Title: ~tf/`~`O~f rte' /f~~t7iL~-~ 7 4 ,, FC N� .- . • P• I /....z PNDWEHT _ ��' AREA 17-a (SEE SHEET 20) \v BIPROYE3IEM [_1 ,(�p- {x\,t.E��Y, AREA 17-A' I "Y\ T..'c C�7 \ YJI (EfE 9IEEr to Jj l; VICINITY MAP 11 L JL.J L J e l I I 1,1 rk❑vosEo �y y1 a_ U L T RIF 01ASE ORME ,, _�. 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P0E YADEY 0U\4 y - ID y RIPROMIENT AREA e• )-' -- ^ � AE' (NOT IN THIS=TRACT) = x, c .. ...... .._....�,,.�'_ ...,..�, I �o 'E 3 a Nancy Kozanecki Ron Ricaldi Regina Blue Pine Hollow Homeowners Association 3705 Pine Branch Drive Pearland, TX 77581 June 18, 2008 Narciso Lira City of Pearland Pearland, TX 77581 RE: Pine Hollow Drainage Improvement Project Dear Sir: As you are well aware, flooding is a serious concern to all residents of Pearland. Severe storms, such as experienced by Tropical Storm Allison, have exposed the vulnerabilities of several drainage and detention systems within our subdivision. You may recall that several homes in Pine Hollow and Pine Hollow Estates were flooded or damaged during this destructive storm. Even during typical rain events, abnormal street ponding problems frequently occur wtihin our subdivision, which can impair the ability of emergency vehicles to respond to an urgent situation. It has been seven (7) years since Tropical Storm Allison. The final construction drawings have now been determined and bids have been obtained to execute this project. The Pine Hollow HOA is requesting that the Drainage Project consist of all projects designated as Pine Hollow's responsibility as outlined by these documents except for Improvement Areas#4, #5 and#15. According to the lowest bid, the cost for the remaining Pine Hollow projects is approximately$548,000. The HOA has committed to the City of Pearland $530,000 towards the construction of these projects. The HOA requests that the Council support the Staffs recommendation that the difference between the HOA commitment and the lowest bid, approximately$18,000, plus the cost of any associated change orders required to complete the Pine Hollow Drainage Project will be funded by the City of Pearland. The Pine Hollow HOA also endorses the request by the City Staff to pre-approve$25,000 for change orders so that this project can move along expeditiously without having to go back for Council approval for small items that may come up during the construction. If the City chooses not to fund the$18,000 difference then the next Improvement Area that will be removed from the overall drainage project is Improvement Area#9. The Pine Hollow HOA would like to especially complete Improvement Area#9 at this time for the following reasons: • Although not fully funded by the HOA, it is fiscally prudent on behalf of all the Pearland taxpayers to do this project as part of this project by taking advantage of the shared funding from the HOA. If this project is not funded at this time, there is no guarantee that any additional funds will be available from the HOA in future to execute this project. Therefore, the City of Pearland would need to fund the entire project estimated cost of$89,000. • Unlike the other project areas that were eliminated from consideration, where the determination was made that the project provided little benefit(example: area#15) or were unnecessary because of other projects would negate the benefit(example: project area#17A& B would negate any benefit from areas#4 and#5). No other project was identified that would make this (Area #9) an unnecessary improvement nor was this designated as a project that provided only minimal benefit to the overall design. • The location of this improvement area is along the City of Pearland Pine Hollow Park. There are other construction areas around the park that are part of the project. The Pine Hollow Board feels that doing all of the construction around the park together would be less of an inconvenience as well as to mitigate any safety risks to children due to potential flooding than if this project is installed at a later date. • There is a project to install a fence along the back of Pine Hollow Park. If the fence is installed and later it is determined that Improvement Area#9 is needed in the future, a portion of this fence would need to be pulled down and replaced thus adding additional costs to the overall project. • The improvements in this area are substantial. This includes the replacement of a 36" line with a 60" line to help drain local streets and to reinforced detention pond wall by outfall to prevent erosion. The Board of Trustees would like to continue our strong working relationship with both the City of Pearland and Drainage District#4 to implement projects that alleviate flooding. This has been a long process for all parties involved. The Pine Hollow Board appreciates all that the City and DD#4 has done in support of the Pine Hollow Drainage Project. We would like to thank the City Staff, especially Narciso Lira, Mike Hodge, Darrin Coker, and Bill Eisen, who have helped with the success of this project. Without the City and DD#4 support, Pine Hollow would not have a cohesive project plan that leverages all the various municipal resources into a single drainage plan. Respectfully, Nancy Kozanecki Ron Ricaldi Regina Blue Pine Hollow HOA Board of Trustees Cc: Darrin Coker Bill Eisen Mike Hodge Council . . • r-''--;.--.:-- :- ,-; ..-..''-'.',-;.:-',.: ..7.- • ..:-,, ' -:. l•----;•i'-' ••..-'' ' ':' -,':. --.:; I--- ' .::,-- •.-- --.;,, :-..,',': l'-:j: '--••-:'--,i'''.,-,:r.,..-," '-•:, -:'::',.-, 7-_.,1,-.;'; -,..-1, -',;'...:.-.,' --',..„....;',-;:-.:,, •..... .. tr:';';;,.:., ..i.r.1, .1'.. :•..-. 1:!.‘ -.:„.: -,_-',---„,--_,',,,,-1:-',-,.- -.1,;-,' -.-;:,;-. 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