R2009-017 - 2009-02-02RESOLUTION NO. R2009-17
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
PEARLAND, TEXAS, CONSENTING TO THE ASSIGNMENT OF THE
UNIVERSITY OF HOUSTON-PEARLAND DESIGN BUILD
AGREEMENT.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND,
TEXAS:
Section 1. That certain Consent to Assignment attached hereto as Exhibit "A"
and made a part hereof for all purposes, is hereby approved.
PASSED, APPROVED, AND ADOPTED this 2"d day of February, A.D., 2009.
T REID
MAYOR
ATTEST:
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APPROVED AS TO FORM:
DARRIN M. COKER
CITY ATTORNEY
ASSIGNMENT AND ASSUMPTION AGREEMENT
This ASSIGNMENT AND ASSUMPTION AGREEMENT ("Assignment")
dated as of January 20, 2009, is entered into between HALE-MILLS
CONSTRUCTION, LTD. ("Assignor"), and PALMER CONSTRUCTION, LLC
("Assignee").
WHERE ~S, Assignor, as Contractor, is party to a certain agreement dated as
of January Z ` ; 2009, by and between Assignor and City of Pearland, Texas (the
"Owner"), related to the design and construction of the University of Houston Clear
Lake, Pearland Campus & Conference Center in Pearland, Texas (the "Construction
Contract"); and
WHEREAS, Assignor has agreed to assign the Construction Contract to
Assignee and Assignee has agreed to accept such assignment and to assume the
Construction Contact;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. Assignment. Assignor does hereby unconditionally and irrevocably
sell, assign, transfer and convey to Assignee, all of its right, title and interest in, to
and under the Construction Contract.
2. Assumption of Construction Contract. Assignee does hereby
unconditionally and irrevocably assume all of the obligations of Assignor under the
Construction Contract.
3. Further Assurances. Assignor shall, at the written request and
expense of Assignee, execute and deliver to Assignee all such further instruments
and take all such further action as may be reasonably necessary or appropriate in
order to more effectively sell, assign, transfer and convey to Assignee all of the
rights, title and interest of Assignor in and to the Construction Contract. Assignee
shall, at the written request and expense of Assignor, execute and deliver to
Assignor all such further instruments and take all such further action as may be
reasonably necessary or appropriate for the purpose of, or in connection with, the
assumption of the Construction Contract.
4. Miscellaneous. This Assignment shall be governed by, enforced in
accordance with, and interpreted under the internal substantive laws of the State of
Texas, without giving effect to the conflicts of law principles thereof.
243583.1 1562.0
5. Indemnity, Assignee agrees to INDEMNIFY, DEFEND and HOLD
Assignor HARMLESS of and from any and all claims, demands, liabilities, costs,
damages and expenses, including attorney's fees, asserted or claimed against
Assignor which arise out of or relate to, or are alleged to have arisen out of or relate
to, the Construction Contract. The DEFENSE, INDEMNITY AND HOLD
HARMLESS obligation in the foregoing sentence APPLIES EVEN IF the claims,
demands, liabilities and/or damages are CAUSED IN WHOLE OR IN PART BY
THE NEGLIGENCE, WHETHER ACTIVE, PASSIVE, SOLE OR CONCURRENT,
GROSS NEGLIGENCE, STRICT LIABILITY, WARRANTY BREACH, CONTRACT
BREACH OR OTHER LEGAL FAULT of Assignor.
6. Consent/Release. The Owner has executed this Assignment for
purposes of evidencing its consent to the assignment of the Construction Contract
hereunder and agrees to fully and finally RELEASE and DISCHARGE Assignor
and its surety of and from any and all claims, demands and causes of action, known
or unknown, arising out of or relating to the Construction Contract, whether in
contract or tort, statutory or otherwise. This release specifically intended to operate
and be applicable even if it is alleged, charged or proven that some or all of the
claims or damages released are solely and completely or partially caused by the
negligent acts, gross negligence, intentional conduct, strict liability, breach of
warranty, violation of statute, regulation or common law or any other conduct of
Assignor.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment to
be executed as of the ~l - day of Jar~ary, 2009.
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HALE-MILLS CONSTRUCTION, LTD.
By: PKP Management, LLC,
its General Partner
By: /~„'-
Name: ~ ~ 1 ; ~P, ~Kw.
Title: _ ~Pv'L3; ~ .,~ T
PALMER C~TSTRUCTION, LLC.
By: / ~
Name: .cd/i i-~.ey-
Title: ~/r~.,.. ~f~~
243749 1562.0 2
OWNER:
CITY OF
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DI1lW T DIAL i 13M50.121R
3900 Essex Lane,Suite 800 PPOI IE10.1n amc.com
Houston,Texas 77027-5198
AN D RE W S Tel 713.850.4200
MYERS Fax 713.850.4211
(�€��OU LTE R www.lawamc.com •
C ;.COHEN P.C.
ATTORNEYS AT LAW
January 22, 2009
Via Electronic Mail and First Class Mail
Darrin M. Coker
City Attorney - City of Pearland
Wells Fargo Building
6302 West Broadway, Ste. 250
Pearland, TX 77581
Re: University of Houston — Clear Lake Pearland Campus and Conference
Center
Dear Darrin:
As you know, I represent Hale-Mills Construction, Ltd. ("Hale-Mills"). Dave
Palmer left Hale-Mills under amicable circumstances and started Palmer
Construction, LLC ("Palmer Construction"). As part of that process, Hale-Mills
agreed to assign its contract with the City for the above-referenced Project to
Palmer Construction.
The assignment of the contract is contingent upon (1) the approval of the
assignment by the City, (2) the execution of the attached Assignment and
Assumption Agreement by all parties, and (3) the receipt of a written legal opinion
from the law firm of Coats Rose Yale Ryman & Lee, P.0 that the assignment is
legal under applicable Texas law. It is my understanding from Palmer
Construction's lawyer, Walter Rockwell, that the opinion letter shall be forthcoming
in the near future.
245038.1 1562.0
A
�► PALiTI ER
CONSTRUCTION , LLC .
Mr. Darrin Coker
City Attorney
Pearland City Hall
3519 Liberty Drive,Suite300
Pearland,Texas 77581
Re: Information Requested Concerning Assignment of Contract
On the University of Houston Campus Project
Dear Mr.Coker,
Although we do not see activity at the site we should celebrate the fact the University of Houston
Clearlake Campus at Pearland is officially underway.We would like to commend Mayor Reid and Council
along with the Staff for bringing such an important facility to our community.As we begin work I would
like to share some information concerning some recent developments that need our attention. Please
forward this information as you deem necessary to Mayor Reid,City Council Members, Bill Eisen and the
Staff for their review and consideration.We are very excited about the opportunity to be part of this
project and look forward to working together with the Staff and team assembled for this job.
Recently,my partners approached me and asked that I sell my interest in Hale-Mills.After 29 years at
Hale-Mills as part owner and General Partner since 1999,it has been a difficult decision.With some
exception, my Partners'focus has been on major prison design-build-finance projects over the United
States,while my own focus has been on the traditional greater Houston market in the commercial area
of similar projects to those we have built in the Pearland area such as Randall's, First Baptist,Trinity
Oaks,West Oaks Office Building,Cross Point Church, Pearland Junior High West,etc...
One of the gracious offers of my partners was to allow me to take my customers and my staff,in order
that my clients could be well cared for and my focus and continued success be maintained. Palmer
Construction LLC is now in business and will be staffed with the same members of my staff that have
worked with me for years,as well as the same members of professionals who worked in the preparation
of the U of H Clearlake Campus at Pearland project.
Palmer Construction, LLC. • 2407 Stevenson Road • Pearland,Texas 77581 • 281.744.6735 • Fax 281.648.9695
IOWPAi..mER
CONSTRUCTION , LLC .
Additionally,Studio Red Architects and all of its consultants have agreed to work for Palmer
Construction LLC. In other words,the same building team that is in the proposal chosen in the selection
process will be on the Palmer Construction LLC team and will be present on the project.
Palmer Construction is well prepared to fulfill the obligations of the contract for the project and can
provide the same valuable services and expertise which the City has come to expect.There are many
positive reasons to consider assigning this project directly to Palmer Construction.The assignment
would provide a direct line of responsibility and communication as well as contractual obligations
between the city and parties involved directly in the interest of this project. Palmer Construction
consists of the same team,consultants,and associates that was planned from the beginning.
Additionally,all payments,approvals, contract representation,certification,decision making,and the
success of the project can be handled immediately and directly by the principals involved with this
project.
All contract and proposal terms and conditions would remain the same.We respectfully request that the
contract between Hale-Mills Construction LTD and the city of Pearland be assigned to Palmer
Construction LLC.
Enclosed,please find the opening financial statement on Palmer Construction LLC in addition to an
assignment agreement for your review.Subsequent to Council's approval—within a reasonable time
frame—we will provide Palmer Construction LLC's insurance certificate and payment performance
bonds to replace Hale-Mills Construction LTD.
Sincere
David Palmer
President
Palmer Construction, LLC. . 2407 Stevenson Road • Pearland,Texas 77581 • 281.744.6735 • Fax 281.648.9695 As
PALMER CONSTRUCTION,LLC
BALANCE SHEET
JANUARY 22,2009
PALMER CONSTRUCTION,LLC
BALANCE SHEET
JANUARY 22,2009
CONTENTS
Pates
Accountants'Report 2
Balance Sheet 3
KARLINS &RAMEY
Certified Public Accountants LLC
Accountants'Report
We have compiled the accompanying balance sheet of Palmer Construction, LLC (a Limited
Liability Corporation) as of January 22, 2009, in accordance with Statements on Standards for
Accounting and Review Services issued by the American Institute of Certified Public
Accountants.
A compilation is limited to presenting in the form of financial statements information that is the
representation of management. We have not audited or reviewed the accompanying balance
sheet and,accordingly,do not express an opinion or any other form of assurance on it.
Management has elected to omit substantially all of the disclosures required by generally
accepted accounting principles. If the omitted disclosures were included with the balance sheet,
they might influence the user's conclusions about the Company's financial position.
Accordingly, this balance sheet is not designed for those who are not informed about such
matters.
The Woodlands,Texas
January 24,2009
I610 Wiuxlacad Court,Suim 245 • The Woodlands,Six 77380• Phone 281.364.0245 • Fax 281364.9677 • 6-►.e.karlincruucy.:616
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PALMER CONSTRUCTION,LLC
BALANCE SHEET
JANUARY 22,2009
ASSETS
CURRENT ASSETS
Cash and cash equivalents $ 2,250,000
Total current assets 2,250,000
TOTAL ASSETS $ 2,250,000
MEMBER'S EQUITY $ 2,250,000
See accountant's report.
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