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R98-36 04-27-98RESOLUTION NO. R98-36 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS; AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO EXECUTE A DEVELOPMENT AGREEMENT WITH BEAZER HOMES TEXAS, L.P., A TEXAS LIMITED PARTNERSHIP, FOR OVERSIZE CONSTRUCTION OF A WATER MAIN AND SANITARY SEWER FACILITIES TO SERVE TAX INCREMENT REINVESTMENT ZONE NO. 1 AND OTHER PROPERTIES IN ITS VICINITY WEST OF COUNTY ROAD 89 APPROXIMATELY ONE-HALF MILE SOUTH OF FM 518. 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 Beazer Homes Texas, L.P., a Texas limited partnership, 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 the original of the attached agreement for and on behalf of the City of Pearland. PASSED, APPROVED and ADOPTED this the27th , A.D., 1998. ATTEST: APPROVED AS TO FORM: DARRIN M. COKER INTERIM CITY ATTORNEY TOM REiD MAYOR day of April Memo To: Darrin Coker From: Alan Mueller Subject: Beazer oversize agreement Date: April 20, 1998 CC: Paul Grohman Attached is the proposed oversize agreement based on the standard development agreement we have used in the past. The basic project required by Beazer is a six-inch sewer force main and an eight-inch water main, extended from Max Road to the Beazer development on Old Chocolate Bayou Road. For sewer, the City will oversize the FM 518 line to a twelve-inch gravity main and the Old Chocolate Bayou line to an eight-inch force main. For water, the City will oversize the FM 518 line to sixteen-inch and the Old Chocolate bayou line to twelve-inch. The estimated cost to the City is $415,524 to be reimbursed to the developer in three equal annual installments. Build out of the subdivision is projected at three years. The estimated impact fees generated by the Beazer development are $489,265 (based on 245 homes), so the agreement more than pays for itself. ~ Please review the agreement and prepare a resolution for the April 27 Council meeting authorizing Paul to sign the agreement. Please contact me if you have any questions. Thanks. City of Friendswood 910 South Friendswood Drive Ffiendswood, Texas 77546-4856 (281) 996-3270 Fax: (281) 482-1634 November 4, 1998 Mayor HAROLD L WHITAKER Councilmcmbers l~'l-i/~N HAIECATE ~RRY ERICSSON TOM MANISON KIM BRIZF. NDINE ALINB DICKl~Y MBL MEASELES City Manager RONALD F~ COX City DF~OPJS McKENZ~ T.R.M.C CERT/RR ~P357-103-394 CITY OF PEARLAND Attn: Young Lorfing City Secretary 3519 Liberty Drive Pearland, Texas 77581 Re: Interlocal agreement between the City of Pearland and the City of Friendswood, for Water and Sanitary Sewer Services. Dear M~. ~ Enclosed is one executed original interlocal agreement between the City of Pearland and the City of Friendswood, for Water and Sanitary Sewer Services. If you have any questions regarding (281) 996-3270. this .agreement, please contact me at Sl~rely, Ddloris McKenzle, TRMC City Secretary Enclosure: RESOLUTION NO. R.gB~3~ A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF FRIENDSWOOD, TEXAS, AUTHORIZING THE MAYOR TO EXECUTE AN INTERLOCAL A~REEM~NT WITH THE CITY OF PEARLAND, FOR THE PROVISION OF WATER SEWER SERVICE. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FRIENDSWOOD, TEXAS~ SECTION 1. That certain agreement by and between the Cities of Friendswood and the City of Pearland regarding the furnishing of water and sanitary sewer service, 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. on behalf of the City of Friendswood. PASSED, APPROVED AND ADOPTED this the 1998. That the Mayor is hereby authorized to execute documents for and 2nd _day of November A.D., City of Friendswood ATTEST: City Secretary APPROVED AS TO FOP~M~ Kim Mickelson R98.36/LST03 EXHIBIT "A" THE STATE OF TEXAS COUNTIES OF HARRIS, BRAZORIA AND GALVESTON INTERLOCAL AGREEMENT BY AND BETWEEN CITY OF PEARLAND, TEXAS, CITY OF FRIENDSWOOD, TEXAS, FOR WATER AND SANITARY SEWER SERVICES This Agreement is made and entered into as of the 2nd day of November , 19 98, by and between the City of Pearland, Texas, a home rule municipality located in Brazoria and Harris Counties, Texas (hereinafter "Pearland"), and the City of Friendswood, a home rule municipality located in Harris and Galveston Counties, Texas (hereinafter "Friendswood"). WITNESSETH: WHEREAS, it is the desire of the City Councils of Pearland and Friendswood to cooperate with each other in providing water and sanitary sewer services to residents of each City where reasonably possible to do so; and WHEREAS, there are areas within each City where water and sanitary sewer services are not readily available from the City in which the area is located but to which such services are available from the other City; and WHEREAS, it is not the desire of either City to enter into this Agreement for the purpose of profit or gain; and WHEREAS, it is the intention and desire of each City to make adequate provision for water and sanitary sewer services for all residents within their respective corporate limits; and WHEREAS, there are ceFtain areas of Friendswood which currently can best be provided with water and sanitary sewer services by Pearland and certain areas of Pearland which currently can best be provided with water and sanitary sewer service by Friendswood; now, therefore, For and in consideration of the mutual obligations and benefits to be derived hereunder, Pearland and Friendswood do hereby agree as follows: I. TERM This Agreement shall be effective for a period of two (2) years commencing on the effective date hereof, subject to annual renewals by the City Councils of each City. II. AREAS SERVED If either City has an area to which it cannot reasonably provide water and sanitary sewer services but which it believes is within the service area of the other, it shall notify the other City of such need and request such services. Such notice and request shall contain a statement that the City Engineer of the requesting City has reviewed the plans and specifications of the applicable property owner relating to water and sanitary sewer line installations, that same meet all requirements of the requesting City's regulations, and that the Engineer will inspect all such installations as they are made. The City which will provide the service shall have the right to have its Engineer review such plans and speciftcations. If the City which will provide the service deems that it has the capacity to provide such service, it shall so notify the requesting City and provide water and sanitary sewer services under the terms and conditions of this Agreement. No extension or provision of water and/or sanitary sewer services by either City to any area located within the corporate limits of the other shall be undertaken except in accordance with the procedures hereof. 2 III. OWNERSHIP OF METERS AND LINES The installation and maintenance of water and sanitary sewer service lines and related transmission facilities shall be as required and provided by the City in which the area being served hereunder is located. Each City shall be responsible for the installation and maintenance of water meters within its boundaries. Neither City shall be prohibited hereby from imposing applicable impact or other service fees as authorized by law. Neither City shall provide service to an area of the other unless the lines through which the service will be provided has been conveyed to the City in which the area lies. In this connection, it is agreed that Pearland will not own any lines or meters within Friendswood, and Friendswood will not own any lines or meters within Pearland. All maintenance of lines or meters shall be done by the City within which such lines or meters lie. Either City shall, at the request of the other, calibrate or test any meter located within their respective City limits and through which the other is providing service, if the City requesting calibration or testing reasonably believes such meter is not functioning properly. IV. READING METERS, BILLING, AND RATES The City providing water service shall read customer meters and submit to customers all billings in the same manner and at the same rate as other customers being provided like service. Customer charges for sanitary sewer service shall be determined in the same manner. V. TAKE-OVER BY CITY BEING SERVED At any time either City desires to furnish water and sanitary sewer service to an area within its own limits then being served by the other City pursuant hereto, thirty (30) days' advance written notice thereof shall be given to the City then providing such service. After receiving such notice, the serving City shall send final bills and take other appropriate action to. consummate the take-over by the other city, It is understood that water and sanitary sewer service must be taken over simultaneously and that neither water nor sanitary sewer service can be taken over singularly. VI. ANNEX BOUNDARY LINES This Agreement shall have no effect on either City's corporate boundaries or areas of extraterritorial jurisdiction, and no annexation or exchange or .release of either City's extraterritorial jurisdiction shall be implied as a result hereof. VII. PRECEDENT This Agreement is intended only for the situation existing between Pearland and Friendswood during the Wrm hereof. It is not the intention of either City to establish precedent for any agreements between the City and other cities not a party hereto. VIH. INSPECTION OF BOOKS Either City shall have the right to inspect the books and tax records of the other by any designated officer or agent thereof concerning taxes collected made pursuant to this Agreemem. IX. APPROVAL This Agreement has been duly authorized by the governing bodies of each City as expressed in the official minutes of the Council meeting at which such authorization was granted. 4 MISCELLANEOUS Pearland and Friendswood agree and understand that in performance of this contract, all employees of pearland shall remain Pearland employees and shall not be considered agents, employees or borrowed servants of Friendswood, and all employees of Friendswood shall remain Friendswood employees and shall not be considered agents, employees or borrowed servants of Pearland. Pearland and Friendswood further agree that work and materials provided by Pearland in accordance with this Agreement, are provided without warranty of any kind to Friendswood or any third party, and work and materials provided by Friendswood in accordance with this Agreement, are provided without warranty of any kind to Pearland or any third party. Pearland and Friendswood each hereby agree, to the extent allowable by law, to defend, hold harmless, and indemnify the other, its officers, agents, and employees for any claims for injury or death of any person or any property damage arising out of each party's respective performance of obligations under this Agreement. This Agreement and all obligations created hereunder shall be performable in Harris, Brazoria, and Galveston Counties, Texas. 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 may only be amended, modified, or supplemented in writing and subsequently dated by Pearland and Friendswood. To accomplish execution of this agreement, it may be executed in multiple counterparts. EXECUTED IN DUPLICATE ORIGINALS this 2nd day of November 19 98 ATTEST: Darrin M. Coker City Attorney CITY OF PEARLAND_ TEXAS By: o~m, ~eeid~ ~fr~ Mayor ATTEST: D[lori~ McKenzie, qlRMC° City Secretary APPROVED AS TO FORM: Mayor Printed Name: Kim Mickelson City Attorney 6 THE STATE OF TEXAS § COUNTIES OF BRAZORIA § AND HARRIS § BEFORE ME, the undersigned Notary Public, on this day personally appeared Tom Reid, Mayor 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. GIVEN UNDER MY HAND AND SEAL OF OFFICE THIS 1~°d'' DAY OF ~)q..'~-~,e.4' , A.D., 19 q~ . NOTARY PUBI~IC, ST~E OF TEXAS Commission Expires: 9/9-'/~ q hinted Name: THE STATE OF TEXAS § COUNTIES OF HARRIS AND § GALVESTON § BEFORE ME, the undersigned Notary Public, on this day personally appeared Harold L. Whitaker, Mayor of the City of Friendswood, 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. GIVEN UNDER MY HAND AND SEAL OF OFFICE THIS 3rd November , A.D., 19 98 DAY OF Commission Expires: 8/10/99 Printed Name: Linda S. Thornton 7 FWDINTER.58 DEVELOPMENT AGREEMENT (EXHIBIT "A" TO RESOLUTION R98~_~) This Agreement is entered into this~__~~ day of ~'~/-; / , 1998, by and between the CITY OF PEARLAND, TEXAS, (hereinafter "City"), and Beazer Homes Texas, L.P., a Texas general partnership (hereinafter "Beazer"). WHEREAS, Beazer petitioned City for the creation of a Tax Increment Reinvestment Zone (hereinafter "TIRZ") and City created the TIRZ on December 9, 1997, encompassing.84 acres to be developed for single family housing west of County Road 89 approximately one-half mile south of FM 518; and WHEREAS, Beazer plans to construct a water main, sanitary sewer main, and appurtenances necessary for the City to provide water and Sanitary sewer service to the TIRZ and to dedicate said water main, sanitary sewer main, and appurtenances to the City for operation and maintenance; and WHEREAS, City desires to cooperate with Beazer to provide water and sanitary sewer service to the TIRZ, and at the same time, increase and improve City's capacity to serve other properties in the vicinity of the TIRZ; and WHEREAS, City and Beazer desire an agreement to set forth their respective responsibilities with regard to providing water and sanitary sewer service to the TIRZ. 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: A six-inch sanitary sewer force main and an eight-inch water main are needed to serve Beazer's requirements for the TIRZ and are required to be extended to the TIRZ from the existing termination points of the utilities in the vicinity of the FM 518 and FM 1128 intersection. To serve additional tracts, the City has requested that Beazer construct a twelve- inch sanitary sewer gravity main and a sixteen-inch water main on FM 518, and an eight-inch sanitary sewer force main and a twelve-inch water main on County Road 89. The estimated costs for the water and sanitary sewer main extensions to serve Beazer's requirements are $593,259. The estimated costs for the water and sanitary sewer main extensions as requested by the City are' $998,783. o o 10. Therefore, the estimated oversizing cost is $405,524 and the engineering allocation for the oversizing is $10,000. The total estimated oversizing cost to be reimbursed by City to Beazer is $415,524 as described in Exhibit A. Upon completion of the project, actual costs will be accounted and reported to the City. Actual oversizing reimbursement shall not exceed the total estimated oversizing cost by more than 5% without pdor approval of the City. Beazer will cause its engineers, reasonably approved by the City, to prepare plans and spedfications 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 spedfications and the cost which would have been incurred had the water and sanitary sewer main extensions been constructed to the size required by Beazer. Upon approval of the plans and spedfications by the City, Beazer's engineers will obtain competitive line item bids for the construction of the water and sanitary sewer main extensions in accordance with the plans and specifications. The bids will be reviewed by Beazer and the City and a contract will be awarded to the successful bidder by Beazer. City reserves the fight to reject any and all bids for the construction of the water and sanitary sewer main extensions. Upon approval of the bids by the City, Beazer shall cause the work to be completed in accordance with the plans and specifications. Beazer's engineer and the City Engineer or designee shall monitor the progress and workmanship of the contractor. Beazer shall advance the funds necessary to pay the contractor for the work performed. The City will reimburse Beazer, as defined in Paragraph 3, in three equal annual payments, the first payment of which shall be made within 30 days after acceptance of the improvements by the City and evidence of paid invoices. Subsequent payments shall be made on the anniversary date of the first payment. The initial term of this Agreement shall be for a pedod of three (3) years, commencing on the ~7'~ day of /~-; / , 1998, and terminating on the .~/~"-~ day of ~.p,-; I , 2001, 'at which time, this agreement may be automatically renewed 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 partJes. 2 11. 12. 13. 14. 15. 16. 17. 18. No assignment by a party hereto of any dghts under or interests in this agreement will be binding on another party hereto without the written consent of the party sought to be bound; and spedfically but without limitation moneys that may become due and moneys that are due may not be assigned without such consent (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 consent to an assignment no assignment will release or discharge the assignor fi`om 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 prevision or the remaining provisions of this agreement. This agreement shall be construed and enforced in accordance with and govemed by the laws of the State of Texas. This agreement and all obligations created hereunder shall be performable in Brazoda County, Texas. Resolution No. R98-z?,~ 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. BEAZER HEREBY RELEASE, ACQUIT, AND FOREVER DISCHARGE 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 PROPERTYAND THE CONSEQUENCES THEREOF WHICH MAY BE SUSTAINED BY BEAZER, ITS HEIRS, EXECUTORS, ADMINISTRATORS, SUCCESSORS, OR ASSIGNS AS A RESULT OF THE CONSTRUCTION BY BEAZER OF THE IMPROVEMENTS REFERENCED ABOVE, UNLESS CAUSED IN WHOLE OR IN PART BY THE NEGLIGENCE OF THE CITY, ITS OFFICERS, AGENTS, EMPLOYEES, SUCCESSORS, ORASSIGNS. BEAZER 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, 3 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 BEAZER, THEIR AGENTS, EMPLOYEES, SUCCESSORS, OR ASSIGNS ARISING IN CONNECTION WITH SUCH CONSTRUCTION BY BEAZER. THE PROVISIONS OF THIS SECTION SHALL SURVIVE THE TERMINATION, EXPIRATION, OR CANCELLATION OF THIS AGREEMENT. In witness whereof, the parties have hereunto set their hands and signatures on the date first above mentioned. Beazer Homes Texas, L.P. a Texas general partnership ATTEST: CITY OF PEARLAND, a Texas munidpal corporation By: Young Lorfing, City Secretary Paul Grohman, City Manager STATE OF TEXAS BRAZORIA COUNTY This instrument was ackaow[edged before ,1997, by Dan Olson,,~A'. ~/~, ~-~~,~', My Commission Expires: me on this /_.J~Z~day of ~ , on behalf of said partnership. 4 STATE OF TEXAS BRAZORIA COUNTY This instrument was acknowledged before me on this day of 1997, by Paul Grohman, City Manager of the City of Pearland, a Texas home rule municipality, on behalf of said munidpality. Notary Public, State of Texas My Commission Expires: 5 ~<HIBIT A VILLAGE OF EDGEWATER OFFSITE UTILITIES COST ALLOCATION Item Desc.,il3tio n BID SCHEDULE ONE (City of Peadand requirements 8, overslzlng) 1 Total Construction Facilities $ 17,589 2 Sanitary Se~,~r 8 inch force main along CR 89, & $ 363,243 12-inch gravity along FM 518 3 Water Distribution $ 479,951 12 inch along CR 89 and 16-in along FM 518 4 Supplimental items Well pointing & wet trench bedding $ 138,000 Total Bid for Bid Schedule No. '1 $ 998,783 BID SCHEDULE TWO (Beazer size requirements) I Construction Facilities $ 17,694 2 Sanitary Sewer 8-in force main along CR 89, & $ 272,663 8 -in force main along FM 518 3 Water Distribution $ 302,902 8-in along CR 89 and 6-in along FM 518 4 Supplimental items (Well pointing & wel trench bedding) $ Total Bid for Bid Schedule No. 2 $ 593,259 SUMMARY A Oversizing Cost and Lines required by Peadaed (Bid Schedule 1) B Beazer requirement to serve Village of Edgewater ( Bid Schedule 2) Oversizing cost to City of Pearland g98,783 $($93,259) 405.524 Total Peadand Fee Share II. Construction Phase Projec~ Administration Project Reprosentalion $ 7.315 $ 1,000 $ 16,077 $ 2,500 Total Engineering Fee $ 80.199 $ 10.000 (a) Pearlaed Assigned $2,500 in cost ~'or design of sanitary sewer and second design for force main (b) Peadand Assigned $4,000 in cost for design of sanita~ sewer and second design for force main. Cost of station is total Beazer Cost & is not included in Peadand Total (c) Addihonal administration and inspection lime required to monilo~ sanitary sewer installation ENGINEERING FEE ALLOCATION (offsite utilities & Lift Station) I. Design Phase 1 Preliminary Design $ 15.856 $ 2,500 (a) 2 Final Design $ 36.997 $ 4,000 Co) 3 Bid/Award Contract $ 3.954 (b) DEVELOPMENT AGREEMENT (EXHIBIT "A" TO RESOLUTION R98-36) Agreement is entered into thiJ~?-~'day of /~/¢~'/4.-- ,1998, by and This between the CITY OF PEARLAND, TEXAS, (herein~fter'~'-- "City"), and Beazer Homes Texas, L.P., a Texas limited partnership (hereinafter "Beazer"). WHEREAS, Beazer petitioned City for the creation of a Tax Increment Reinvestment Zone (hereinafter "TIRZ") and City created the TIRZ on December 9, 1997, encompassing 84 acres to be developed for single family housing west of County Road 89 approximately one-half mile south of FM 518; and WHEREAS, Beazer plans to construct a water main, sanitary sewer main, and appurtenances necessary for the City to provide water and sanitary sewer service to the TIRZ and to dedicate said water main, sanitary sewer main, and appurtenances to the City for operation and maintenance; and WHEREAS, City desires to cooperate with Beazer to provide water and sanitary sewer service to the TIRZ, and at the same time, increase and improve City's capacity to serve other properties in the vicinity of the TIRZ; and WHEREAS, City and Beazer desire an agreement to set forth their respective responsibilities with regard to providing water and sanitary sewer service to the TIRZ. WI!NESSE!H: 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: A six-inch sanitary sewer force main and an eight-inch water main are needed to serve Beazer's requirements for the TIRZ and are required to be extended to the TIRZ from the existing termination points of the utilities in the vicinity of the FM 518 and FM 1128 intersection. To serve additional tracts, the City has requested that Beazer construct a twelve-inch sanitary sewer gravity main and a siXteen-inch water main on FM 518, and an eight-inch sanitary sewer force main and a twelve-inch water main on County Road 89. The estimated costs for the water and sanitary sewer main extensions to serve Beazer's requirements are 9593,259.00. The estimated costs for the water and sanitary sewer main extensions as requested by the City are 9998,783.00. Therefore, the estimated oversizing cost is 9405,524.00 and the engineering allocation for the oversizing is $10,000.00. The total estimated oversizing cost to be reimbursed by City to Beazer is ~415,52z~.OO as described in Exhibit A-1. Upon completion of the project, actual costs will be accounted and reported to .. o 10. 11. the City. Actual oversizing reimbursement shall not exceed the total estimated oversizing cost by more than 5% without prior approval of the City. Beazer will cause its engineers, reasonably approved by the City, to prepare plans and specifications for the constrpction 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 Beazer. Upon approval of the plans and specifications by the City, Beazer's engineers will obtain competitive line item bids for the construction of the water and sanitary sewer main extensions in accordance with the plans and specifications. The bids will be reviewed by Beazer and the City and a contract will be awarded to the successful bidder by Beazer. City reserves the right to reject any and all bids for the construction of the water and sanitary sewer main extensions. Upon approval of the bids by the City, Beazer shall cause the work to be completed in accordance with the plans and specifications as approved by the City. Beazer's engineer and the City Engineer or designee shall monitor the progress and workmanship of the contractor. Beazer shall advance the funds necessary to pay the contractor for the work performed. The City will reimburse Beazer, as defined in Paragraph 3, in three equal annual payments, the first payment of which shall be made within 30 days after acceptance of the improvements by the City and evidence of paid invoices. Subsequent payments shall be made on the anniversary date of the first payment. The initial term of this Agreement shall be for a period of three (3) years, commencin, on the-~ day of ,,~,,,~?'?_ ~_ , 1998, and terminating on th~..~,'~ day o'~-/-~"-~,~, ~_ ' ,~, ~001, at which time, this agreement may be'aul~omatically rene~w~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 hereto of any rights under or interests in this agreement will be binding on another party hereto 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 such consent (except to the extent that the effect of this restriction may be 2 12. 13. 14. 15. 16. 17. 18. limited by law), and unless specifically stated to the contrary in any written 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. R98-36 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. BEAZER HEREBY RELEASE, ACQUIT, AND FOREVER DISCHARGE 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 BEAZER, ITS HEIRS, EXECUTORS, ADMINISTRATORS, SUCCESSORS, OR ASSIGNS AS A RESULT OF THE CONSTRUCTION BY BEAZER 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. BEAZER 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 BEAZER, THEIR AGENTS, EMPLOYEES, SUCCESSORS, OR ASSIGNS ARISING IN CONNECTION WITH SUCH CONSTRUCTION BY BEAZER. 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. ATTEST: Beazer Homes Texas, L.P., a Texas limited partnership CITY OF PEARLAND, ~ By~ ~c°rp°rati° Paul Grohman, City Manager 4 STATE OF TEXAS § cOUNTY OF BEFORE ME, the undersigned Notary Public, on this day personally appeared Dan Olson, ~/~. ~¢7 ,¢~'~¢-¢~-.Z ~-/¢_.~, of Beazer Homes Texas, L.P., known to me to be the per~n whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same for the purposes and consideration therein expressed. GIVEN ~,,.-~ Teddy M. Bowman ~'uy c~. Ex.. 9-14-98 UNDER MY HAA~D AND SEAL OF OFFICE THIS ~,-~/~'¢~AY OF , A.D., 19 Notary P~lic, St/~te of Texas Printed Name: My Commission Expires: STATE OF TEXAS COUNTY OF BRAZORIA BEFORE ME, the undersigned Notary Public, on this day personally appeared Paul Grohman, City Manager of the City of Pearland, 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. GIVEN UNDER MY HAND AND SEAL OF OFFICE THIS ~4~--, A.D., 19 ~. /"/"~ DAY OF l~io~'~y 13ub~i~, ~a't~-of Texas Printed Name:~~~, '~/~ M y Commission Expires: Z./_¢_ ~) j~ VIL_AGE OF EDGEWATER OFFSITE UTILITIES COST ALLOCATION Item Description Total 'BID SCHEDULE ONE (City of Peadand requirements & overalzlng) 1 Construction Facilities $ 17,589 2 Sanitary Sewer 8 inch force main along CR 89, & $ 363.243 12-inch gravity along FM 518 3 Water Distribution $ 47g,g51 12 inch along CR 89 and 16-in along FM 518 4 Sopplimental items Well pointing & wet trench bedding $ 138,000 Total Bid for Bid Schedule No. t $ 998,783 BID SCHEDULE TWO (Beazer size requirements) I Construction Facitities $ 17,694 2 Sanita~ Sewer 8-in force main along CR 89, & $ 272,663 8 -in force main along FM 518 3 Water Distdbation $ 302,902 8-in along CR 89 and 8-in along FM 518 4 Supplimental items (Well pointing & wel trench bedding) $ Total Bid for Bid 6chedule No. 2 $ 593.259 SUMMARY A Ove~sizing Cost and Lines required by Peadand (Bid Schedule 1) B Beazer requirement to serve Village of Edgewater ( Bid Schedule 2) Oversizing cost to City of Peadand $ 998,783 ~ (593.259) $ 405,524 Total Peadand Fee Share I1. Construction Phase Preject Administration Project Representation $ 7.315 $ 1,000 $ 16,077 $ 2,500 Total Engineering Fee $ 80,199 $ 10,000 (a) Peariaed Assigned $2,500 in cost for design of sanitary sewer and second design for force main (b) Peadand Assigned $4,000 in cost for design of sanitary sewer and second design for force main. Cost of Uti station is total Beazer Cost & is not included in Pearland Total (c) Additional administration and inspection time required to monitor sanitary sewer installation ENGINEERING FEE ALLOCATION (offsite utilities & Lift Station) I. Design Phase I Preliminary Design $ 15,856 $ 2.500 (a), 2 Final Design $ 36.997 $ 4.000 (b) 3 Bid/Award Contract $ 3,954 (b) EXHIBIT DEVELOPMENT AGREEMENT (EXHIBIT "A" TO RESOLUTION R98-36) This Agreement is entered into this day of , 1998, by and between the CITY OF PEARLAND, TEXAS, (hereinafter "City"), and Beazer Homes Texas, L.P., a Texas limited partnership (hereinafter "Beazer"). WHEREAS, Beazer petitioned City for the creation of a Tax Increment Reinvestment Zone (hereinafter "TIRZ") and City created the TIRZ on December 9, 1997, encompassing 84 acres to be developed for single family housing west of County Road 89 approximately one-half mile south of FM 518; and WHEREAS, Beazer plans to construct a water main, sanitary sewer main, and appurtenances necessary for the City to provide water and sanitary sewer service to the TIRZ and to dedicate said water main, sanitary sewer main, and appurtenances io the City for operation and maintenance; and WHEREAS, City desires to cooperate with Beazer to provide water and sanitary sewer service to the TIRZ, and at the same time, increase and improve City's capacity to serve other properties in the vicinity of the TIRZ; and WHEREAS, City and Beazer desire an agreement to set forth their respective responsibilities with regard to providing water and sanitary sewer service to the TIRE. 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 . A six-inch sanitary sewer force main and an eight-inch water main are needed to serve Beazer's requirements for the TIRZ and are required to be extended 'Ito the TIRZ from the existing termination points of the utilities in the vicinity of tie FM 518 and FM 1 128 intersection. 2. To serve additional tracts, the City has requested that Beazer construct a twelve-inch sanitary sewer gravity main and a sixteen-inch water main pn FM 518, and an eight-inch sanitary sewer force main and a twelve-inch water main on County Road 89. 3. The estimated costs for the water and sanitary sewer main extensions to serve Beazer's requirements are $593,259.00. The estimated costs for the water and sanitary sewer main extensions as requested by the City are $998,783.00. Therefore, the estimated oversizing cost is $405,524.00 and the engineering allocation for the oversizing is $10,000.00. The total estimated oversizing cost to be reimbursed by City to Beazer is $415,524.00 as described in Exhibit AO . Upon completion of the project, actual costs will be accounted and reportedlto 1 the City. Actual oversizing reimbursement shall not exceed the total estimated oversizing cost by more than 5% without prior approval of the City. 4. Beazer will cause its engineers, reasonably approved by the City, to preps Ie plans and specifications for the construction of the water and sanitary sewer mains desired by the City. 5. 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 incurreid had the water and sanitary sewer main extensions been constructed to the size required by Beazer. 6. Upon approval of the plans and specifications by the City, Beazer's engineers will obtain competitive line item bids for the construction of the water and sanitary sewer main extensions in accordance with the plans and specifications. The bids will be reviewed by Beazer and the City and a contract will be awarded to the successful bidder by Beazer. City reserves the right to rejeFt any and all bids for the construction of the water and sanitary sewer main extensions. 7. Upon approval of the bids by the City, Beazer shall cause the work to be completed in accordance with the plans and specifications as approved by the City. Beazer's engineer and the City Engineer or designee shall monitor tliie progress and workmanship of the contractor. Beazer shall advance the funds necessary to pay the contractor for the work performed. 8. The City will reimburse Beazer, as defined in Paragraph 3, in three equal annual payments, the first payment of which shall be made within 30 days after acceptance of the improvements by the City and evidence of paid invoices. Subsequent payments shall be made on the anniversary date of the first payment. 9. The initial term of this Agreement shall be for a period of three (3) years, commencing on the day of , 1998, and terminating on the day of , 2001 , at which time, this agreement may be automatically renewed 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. 10. This agreement may only be amended, modified, or supplemented by writt n agreement and signed by both parties. 11 . No assignment by a party hereto of any rights under or interests in this agreement will be binding on another party hereto 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 such consent (except to the extent that the effect of this restriction may be 2 limited by law), and unless specifically stated to the contrary in any written consent to an assignment no assignment will release or discharge the assignor from any duty or responsibility under this agreement. 12. Nothing herein is intended to supersede or waive any City ordinance or regulation pertaining to such construction. 13. 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 provisiors of this agreement. 14. This agreement shall be construed and enforced in accordance with and governed by the laws of the State of Texas. 15. This agreement and all obligations created hereunder shall be performable n Brazoria County, Texas. 16. Resolution No. R98-36 is incorporated herein and made a part of this Development Agreement for all purposes. 17. To accomplish execution of this agreement, it may be executed in multiple counterparts. 18. BEAZER HEREBY RELEASE, ACQUIT, AND FOREVER DISCHARGE 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 BEAZER, ITS HEIRS, EXECUTORS, ADMINISTRATORS, SUCCESSORS, OR ASSIGNS AS A RESULT OF THE CONSTRUCTION BY BEAZER OF THE IMPROVEMENTS REFERENCED ABOVE, UNLESS CAUSED IN WHOLE OR �N PART BY THE NEGLIGENCE OF THE CITY, ITS OFFICERS, AGENTS, EMPLOYEES, SUCCESSORS, OR ASSIGNS. BEAZER 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 BEAZER, THEIR AGENTS, EMPLOYEES, SUCCESSORS, OR ASSIGNS ARISING IN CONNECTION WITH SUCH CONSTRUCTION BY BEAZER. 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. Beazer Homes Texas, L.P., a Texas limited partnership By: Dan Olson Title: ATTEST: CITY OF PEARLAND, a Texas municipal corporation By: Young Lorfing, City Secretary Paul Grohman, City Manager 4 Cm6.1 (4") STATE OF TEXAS § COUNTY OF § BEFORE ME, the undersigned Notary Public, on this day personally appeared Dan Olson, of Beazer Homes Texas, L.P., known o 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. GIVEN UNDER MY HAND AND SEAL OF OFFICE THIS DAY OF , A.D., 19 Notary Public, State of Texas Printed Name: My Commission Expires: STATE OF TEXAS § COUNTY OF BRAZORIA § BEFORE ME, the undersigned Notary Public, on this day personally appeared Paul Grohman, City Manager of the City of Pearland, known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me th1at he executed the same for the purposes and consideration therein expressed. GIVEN UNDER MY HAND AND SEAL OF OFFICE THIS DAY OF , A.D., 19 . Notary Public, State of Texas Printed Name: My Commission Expires: 5 EXHIBIT (41111) - VILAGE OF EDGEWATER OFFSITE UTILITIES COST ALLOCATION Item Description Total • BID SCHEDULE ONE (City of Pearland requirements&oversizing) 1 Construction Facilities $ 17,589 2 Sanitary Sewer 8 inch force main along CR 89, & $ 363.243 12-inch gravity along FM 518 3 Water Distribution $ 479,951 12 inch along CR 89 and 16-in along FM 518 4 Supplimental items Well pointing &wet trench bedding $ 138,000 Total Bid for Bid Schedule No.1 $ 998,783 • BID SCHEDULE TWO(Beazer size requirements) 1 Construction Facilities $ 17,694 2 Sanitary Sewer 8-in force main along CR 89, & $ 272,663 8-in force main along FM 518 3 Water Distribution $ 302,902 8-in along CR 89 and 8-in along FM 518 4 Supplimental items(Well pointing &wet trench bedding) $ - Total Bid for Bid Schedule No. 2 $ 593,259 SUMMARY A Oversizing Cost and Lines required by Pearland(Bid Schedule 1) $ 998,783 B Beazer requirement to serve Village of Edgewater(Bid Schedule 2) $(593,259) Oversizing cost to City of Pearland $ 405,524 Total Pearland Fee Share ENGINEERING FEE ALLOCATION (offsite utilities&Lift Station) lJ Design Phase 1 Preliminary Design $ 15,856 $ 2,500 (a) 2 Final Design $ 36,997 $ 4,000 (b) 3 Bid/Award Contract $ 3,954 (b) • II. Construction Phase Project Administration $ 7,315 $ • 1,000 • Project Representation $ 16,077 $ 2,500 Total Engineering Fee $ 80;199 $ 10,000 (a) Pearland Assigned $2,500 in cost for design of sanitary sewer and second design for force main _ (b) Pearland Assigned $4,000 in cost for design of sanitary sewer and second design for force main. Cost of Lift station is total Beazer Cost& is not included in Pearland Total (c) Additional administration and inspection time required to monitor sanitary sewer installation