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R97-31 05-19-97RESOLUTION NO. R97-31 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS, AUTHORIZING AND APPROVING A DEVELOPMENT AGREEMENT BETWEEN THE CITY OF PEARLAND AND U. S. HOME CORPORATION TO ESTABLISH CERTAIN COMMITMENTS IMPOSED AND MADE IN CONNECTION WITH THE DEVELOPMENT OF THE COUNTRYPLACE NORTH PROPERTY AND THE EXTENSION OF McHARD ROAD. 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 U. S. Home Corporation relating to the development of the Countryplace North property and the extension of McHard Road, a copy of which is attached hereto as Attachment "A" and made a part hereof for all purposes, is hereby authorized and approved. Section 2. That the City Manager is hereby authorized to execute and the City Secretary to attest the original and counterparts of the attached Agreement for and on behalf of the City of Pearland. PASSED, APPROVED and ADOPTED this the/¢~//day of 4~/,.~ , A.D., 1997. ,_.~~.~.~ TOM REID MAYOR ATTEST: SECRETARY c/ APPR/~ED AS TO FORM: McHARD ROAD DEVELOPMENT AGREEMENT AN AGREEMENT BETWEEN THE CITY OF PEARLAND, TEXAS AND U.S. HOME CORPORATION THE STATE OF TEXAS COUNTY OF BRAZORIA This McHard Road Development Agreement (the "Agreement") is made and entered into as of the date set out below by and between the CITY OF PEARLAND, TEXAS (the "City"), a municipal corporation in Brazoria County, Texas, acting by and through its governing body, the City Council of Pearland, Texas, and U.S. HOME CORPORATION, a Delaware corporation (the "Developer"). RECITALS The Developer owns approximately 268 acres of land within the extra-territorial jurisdiction of the City in Brazoria County, Texas described in Exhibit "A" attached hereto and made a part hereof for all purposes (hereinafter referred to as the "Countryplace North Property"). The City is a home rule city with all powers except those specifically limited by the Constitution and laws of the State of Texas. Developer intends to develop the Countryplace North Property in phases as a single family residential master planned community. The southern boundary of the Countryplace North Property is defined by and is adjacent to McHard Road, a four-laned esplanaded boulevard road which runs in an east/west direction from Highway RLR\103098 . i\DEVELOPMENT. AGR\ 2301 . 35 288 to its present point of termination at Countryplace Boulevard, an existing road which is the entry road into the Developer's Countryplace project which is south of McHard Road. The purpose of this Agreement is to provide for the construction of an extension of McHard Road from its present termination point at Countryplace Boulevard in an easterly direction to the western boundary of a Brazoria County drainage ditch which runs in a north/south direction and is adjacent to the eastern boundary of the Countryplace North Property. It is the intent of this Agreement to establish certain commitments imposed and made in connection with the development of the Countryplace North Property and such extension of McHard Road. NOW, THEREFORE, for and in consideration of the mutual agreements, covenants, and conditions contained herein, and other good and valuable consideration, the City and the Developer agree as follows: Section 1. Defined Terms. Unless the context requires otherwise, and in addition to the terms defined above, the following terms and phrases used in this Agreement shall have the meanings set out below: "City" means the City of Pearland, Texas, a municipal corporation situated in Brazoria County, Texas, acting by and through its governing body, the City Council of Pearland, Texas. "City Code" means the Code of Ordinances of the City of Pearland, Texas. RLR\103098. l\DEVELOPMENT.AGR\230t. 35 2 "City Council" means the City Council of the City of Pearland, Texas or any successor governing body. "City Manager" means the City Manager of the City of Pearland, Texas. "Developer" means U.S. Home Corporation, a Delaware corporation, its successors and assigns. "Party" or "Parties" means a party or the parties to this Agreement, being the City and the Developer. Section 2. Dedication of Right-of-Way. Immediately after the execution of this Agreement, the Developer shall proceed to dedicate to Brazoria County an easement and the right of way for the extension of McHard Road as a four-lane boulevard road from Countryplace Boulevard to the western boundary of the existing drainage ditch which runs along the eastern boundary of the Countryplace North Property (the "McHard Road Extension"). The right of way for the McHard Road Extension shall be of varying widths up to 180 feet as indicated on Developer's land plan attached hereto as Exhibit "A". Section 3. Approval of Plats. Immediately after the execution of this Agreement and upon application by the Developer, the City shall give final approval of the plat for the development of an approximately 31.3 acre portion of the Countryplace North Property as The Lakes of Countryplace, Section One subdivision ("Section One"). Thereafter, from time to time as portions of the Countryplace North Property are developed or proposed for development, the City shall, as long as Developer has met the RLR\ 103098 . 1\DEVELOPMENT. AGR\ 2301 . 35 3 requirements of the City's subdivision ordinance and has performed its obligations under this Agreement and is not in default hereunder, approve the plats for each proposed subdivision thereof without requiring the immediate construction of the McHard Road Extension; provided such plats shall in all other respect be acceptable to and comply with the City's requirements. Section 4. Construction of North Lanes. The Developer shall, at its sole cost and expense, construct the northern two (2) lanes of the McHard Road Extension in accordance with plans approved by the City, Brazoria County and all other governmental authorities with jurisdiction over such project. Such road construction project shall be commenced by Developer on or before the earlier of (i) the date on which the Developer commences construction of the streets or utilities to serve the next subdivided portion of the Countryplace North Property after Section One (such next subdivision being hereinafter referred to as "Section 2"), or (ii) three (3) years after the date of this Agreement. The construction of the northern two (2) lanes of the McHard Road Extension once commenced shall diligently and continuously be pursued to completion by Developer in a timely manner. Section 5. Emergency Access for Section One. The Developer anticipates that Section 2 will be configured so that a street to be constructed within Section One will be extended through Section 2 and will connect with the McHard Road Extension near the south- eastern corner of the Countryplace North Property and provide an emergency access for each of such subdivisions. In the event RLR\103098. l\DEVELOPMENT.AGR\2301.35 4 Developer has not completed or is not proceeding with the development of Section 2 by the date which is three (3) years after the date of this Agreement, the Developer agrees to construct a temporary road over the Countryplace North Property which will provide a secondary emergency access and connect Section One to the McHard Road Extension near the eastern end thereof. Section 6. Construction of South Lanes. The City and the Developer have agreed that the City shall be responsible for constructing the southern two lanes of the McHard Road Extension, but that the Developer shall contribute to the cost thereof as hereinafter specified. The amount to be contributed by the Developer for the cost of the southern two lanes of the McHard Road Extension shall be equal to the cost of the north two lanes, as determined by the contract awarded by the Developer for such work (the "Contribution Amount"). Upon the completion of the north two lanes of the McHard Road Extension, the Developer shall provide the City with a copy of the construction contract for such project and the final pay request submitted by the contractor and approved by the Developer's project engineer to confirm the Contribution Amount. The Contribution Amount shall be paid in installments by the Developer to the City as each subdivision of the Countryplace North Property after Section 2 is platted, with payment being made in proportion to the acreage platted in each such subdivision. The Countryplace North Property, exclusive of Section One and Section 2 as presently planned, contains approximately 217 acres. Thus, for example, if the first platted subdivision after Section 2 RLR\103098.1\DEVELOPMENT. AGR\2301.35 5 contains 43 acres, 19.8% of the Contribution Amount would be payable by the Developer to the City with the filing of the plat for such subdivision (43 + 217 = 19.8%). The foregoing calculation would be appropriately adjusted if the acreage within proposed Section 2 changes. Notwithstanding the foregoing to the contrary, any unpaid portion of the Contribution Amount shall be paid by the Developer to the City on the date which is six (6) years after the date of this Agreement. Section 7. Escrow of Contribution Amount. The City shall deposit the Contribution Amount in one or more interest bearing accounts at a bank or other financial institution selected by the City and shall use such funds only for the purpose specified in this Agreement. All interest earned on the funds contributed by the Developer shall become a part of the fund for the construction of the south two lanes of the McHard Road Extension. The City shall have the authority to determine when to construct such project, subject to the following provisions hereof, and shall be solely responsible for completing such work and paying the amount, if any, by which the costs exceed the Contribution Amount and interest earned. If the cost of the south two lanes of the McHard Road Extension is less than the Contribution Amount and interest earned prior to the expenditure of the funds by the City for such work, the excess or remaining funds shall be refunded to the Developer by the City upon completion of the project. If the City determines not to construct the south two lanes of the McHard Road Extension or if the construction of such project is not commenced RLR\ 10 3 0 9 8 . 1 \ DEVELOPMENT. AGR\ 2 3 01 . 3 5 6 by the City within one (1) year after payment of the final portion of the Contribution Amount and diligently pursued to completion thereafter, the interest earned on the Contribution Amount shall be refunded to the Developer. Section 8. Remedies. In the event of a material breach of this Agreement by a Party hereto, the nondefaulting Party shall have the right to any and all remedies available at law or in equity. Section 9. Assignment or Sale. Developer shall have the right to assign its rights under this Agreement and to sell all or any portion of the Countryplace North Property without the consent of the City. However, a sale of the Countryplace North Property or a portion thereof which has not been platted shall be subject to the obligation to pay the Contribution Amount upon platting as set forth in this Agreement and the terms of this Agreement shall be binding upon a subsequent purchaser of the unplatted land. Section 10. Miscellaneous Provisions. A. Notice. The Parties contemplate that they will engage in informal communications with respect to the subject matter of this Agreement. However, any formal notices or other communications ("Notice") required to be given by one Party to another by this Agreement shall be given in writing addressed to the Party to be notified at the address set forth below for such Party, (i) by delivering the same in person, (ii) by depositing the same in the United States Mail, certified or registered, return receipt requested, postage prepaid, addressed to the Party to be notified, RLR\103098. i\DEVELOPMENT. AGR\ 2301.35 7 (iii) by depositing the same with Federal Express or another nationally recognized courier service guaranteeing "next day delivery," addressed to the Party to be notified, or (iv) by sending the same by telefax with confirming copy sent by mail. Notice deposited in the United States mail in the manner hereinabove described shall be deemed effective from and after the date of such deposit. Notice given in any other manner shall be effective only if and when received by the Party to be notified. For the purposes of notice, the addresses of the Parties, until changed as provided below, shall be as follows: 1. Notices. All notices required or permitted hereunder shall be in writing and shall be served on the parties at the following address: City: With a copy to: Developer: With a copy to: City of Pearland 3519 Liberty Drive Pearland, Texas 77581-5416 Attn: City Manager Mr. Richard Burdine Assistant City Manager City of Pearland 3519 Liberty Drive Pearland, Texas 77581-5416 U.S. Home Corporation 12012 Wickchester Suite 150 Houston, Texas 77079 Attn: Paul Linter Richard L. Rose Coats, Rose, Yale, Holm, Ryman & Lee, P.C. 800 First City Tower 1001 Fannin St. Houston, Texas 77002 RLR\103098 . 1 \DEVELOPMENT. AGR\ 2301 . 35 8 The Parties shall have the right from time to time to change their respective addresses, and each shall have the right to specify as its address any other address within the United States of America by giving at least five (5) days written notice to the other Party. If any date or any period provided in this Agreement ends on a Saturday, Sunday, or legal holiday, the applicable period for calculating the notice shall be extended to the first business day following such Saturday, Sunday or legal holiday. B. Time. Time is of the essence in all things pertaining to the performance of this Agreement. C. Terminology. The captions in this Agreement are for reference purposes only and shall not modify or affect this Agreement in any manner whatsoever. Wherever required by the context, any gender shall include any other gender, the singular shall include the plural, and the plural shall include the singular. D. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas. E. Venue. The parties hereto hereby consent that venue of any action brought under this Agreement shall be in Brazoria County, Texas. F. ,Severability. In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other Drovisions hereof, and this Agreement shall be construed as if such invalid, illegal, or unenforceable provisions had never been contained herein. Provided, however, in the event such provision is of a material nature another provision with as nearly the same tenor, effect and reading, but which is valid, legal and enforceable shall be immediately and automatically added hereto so that no such invalidity, illegality or unenforceability shall result in a materially adverse change in the benefits bargained for by any of the parties hereto. G. Construction. The Parties acknowledge that each Party and its counsel have reviewed and revised this Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement or any amendments or exhibits hereto. H. Entire Agreement. This Agreement contains the entire agreement between the Parties and no oral statements or prior written matter not specifically incorporated herein shall be of any force or effect. No variation, modification or changes thereof shall be binding on either Party hereto unless set forth in a written document executed by such Parties or a duly authorized agent, officer or representative thereof. I. Waiver. Any failure by a Party hereto to insist upon strict performance by the other Party of any material provision of this Agreement shall not be deemed a waiver thereof or of any other provision hereof, and such Party shall have the right of any time thereafter to insist upon strict performance of any and all of the Drovisions of this Agreement. RLR\103098. i\DEVELOPMENT. A~R\2301.35 1 0 Agreement this 20thday of J. Reservation of Rights. To the extent not inconsistent with this Agreement, each Party reserves all rights, privileges, and immunities under applicable laws. K. Further Documents. The Parties agree that at any time after execution of this Agreement, they will, upon request of another Party, execute and deliver such further documents and do such further acts and things as the other Party may reasonably request in order to effectuate the terms of this Agreement. L. Authority for Execution. The City hereby certifies, represents, and warrants that the execution of this Agreement is duly authorized and adopted in conformity with the City Charter and City Code. The Developer hereby certifies, represents, and warrants that the execution of this Agreement is duly authorized and adopted in conformity with the articles of incorporation and bylaws of such entity. IN WITNESS WHEREOF, the undersigned Parties have executed this May , 1997. ATTEST: Its: Pau' Grohman, City Manager DEVELOPER a ielaware ~.rp~,~ L RLR\103098. l\DEVELOPMENT.AGR\2301.35 1 i THE STATE OF TEXAS COUNTY OF ~ of This instrument was~cknQw~ledged before )~,e, on the C/ day , 1997 by /'/~7~/~ ~/~/~/7 , ~//~ ~~of the Cit~f Pearland, on behalf o~said city. ~ 7~ Name ~inted or typed My co~ission expires: THE STATE OF TEXAS COUNTY OF HARRIS .~,his instrument was acknowledged b~fore me on U.S. Home Corporation, a Delaware corporation, on corporation. ~.e '~-t'I day of behalf of said (SEAL) ,.~ ~.~.;~;.. , ~ , ~ P for ,', ('('%~%).:~ Notary?ubllc. State of Texas ~th~ State of Texas ~"~~~~~Name printed or typed My co~isslon expires: RLR\103098. l\DEVELOPMENT.AGR\2301.35 12 ,/