HomeMy WebLinkAboutR2009-100 - 2009-06-08 RESOLUTION NO. R2009-100
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 ASSOCIATED WITH THE
ORANGE STREET/TOWN DITCH PROJECTS.
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 Pipe & Tube Supplies, Inc., 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 Pipe & Tube Supplies, Inc.
PASSED, APPROVED and ADOPTED this the 8th day of J ie, A.D., 2009.
TOM REID
MAYOR
ATTEST:
Y• NG LO, G, TR
CU► SECTARY
APPROVED AS TO FORM:
DARRIN M. COKER
CITY ATTORNEY
Exhibit "A"
Resolution No. R2009-100
DEVELOPMENT AGREEMENT
(EXHIBIT "A" TO RESOLUTION NO. R2009)
This Agreement is entered into this 8th day of June , 2009, by and between the City of
Pearland, Texas (hereinafter "City"), and Pipe & Tube Supplies, Inc., (hereinafter "PT").
WHEREAS, the City plans to construct the Town Ditch Phase III Project (hereinafter "Project")
to improve drainage in the surrounding areas; and
WHEREAS, PT desires that the City include Additional Work in the Project to accommodate the
drainage and detention plans for PT's expansion on certain property situated northwest of their
existing property which is located at 4201 West Orange Street, Pearland, Texas 77581
WHEREAS, City and PT desire an agreement to set forth their respective responsibilities with
regard to the Additional Work associated with the Project
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.
Add/Alternate Work means the additional work not included in City's original scope of
work for the Project and shall include, but not be limited to, widening of the ditch,
reconfiguration of the slope paving and erosion control, back swale drains and outfall pipes
necessary to drain PT's expansion property.
Additional Engineering Design Services the scope of services and costs attached hereto as
Exhibit "A".
City means the City of Pearland, Texas, a home rule municipality located in the counties
of Brazoria, Harris and Ft. Bend, Texas.
PT means Pipe & tube Supplies, Inc.
Effective Date means the date on which this Agreement is fully executed by the City and
PT.
Party or Parties means all or any of the City and PT, as applicable.
Project means the Town Ditch Phase III Project being constructed by City, which
includes an open ditch along the western property line of PT that turns east and crosses PT's
property in a box culvert and returns to an open ditch east of PT's property, crossing under the
BNSF Railroad and tying into the existing segment of Town Ditch between the railroad and
SH35.
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 and instruments as may be necessary or appropriate to carry out the
terms and intent of this Agreement.
Parties.
ARTICLE III
EFFECTIVENESS OF AGREEMENT
This agreement shall become effective from and after its approval and execution by both
Responsibilities
ARTICLE IV
RESPONSIBILITIES OF THE PARTIES
a) PT shall prepare a drainage model/study and site grading plan (hereinafter
"Plans") to be used for incorporation of PT's detention requirements into the Project; and
b) PT shall present the Plans to Brazoria County Drainage District No. 4 (hereinafter
"BDD No.4") and City for approval; and
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c) Within three (3) days following the Effective Date of this Agreement, PT shall
make payment, to the City, for the Additional Engineering Design Services associated with the
Add/Alternate Work in an amount not to exceed $15,300.00 as reflected in the Additional
Engineering Design Services unless otherwise agreed upon by the Parties.
d) Upon completion of the Additional Engineering Design Services, City shall
simultaneously submit the revised design to PT and BDD No.4 for approval.
e) Upon approval of the revised design by BDD No.4, City shall incorporate the
Add/Alternate Work into the City's bid for the Project as and add/alternate bid item. Within
seven (7) days following City's opening of the bids for the Project, PT shall make payment to
City in an amount equal to the cost of the Add/Alternate Work selected by the City. PT shall
simultaneously make payment for Management Costs to the City in an amount equal to nine
percent (9%) of the total amount of the Add/Alternate Work. The Management Costs shall
include costs associated with construction management and inspection, construction materials
testing and administrative costs for City personnel. Upon receipt of full payment for the
Add/Alternate Work and the Management Costs, City shall execute a construction contract for
the Project, including the Add/Alternate Work, authorizing the Project contractor to commence
work;
f) Within seven (7) days following the Effective Date of this Agreement, PT shall
convey, to City, the required rights -of -way and easements (including any necessary access and
work easements) necessary for the Project and the Orange Street Road Project in the amounts
previously agreed to in the letter dated November 20, 2008 from RFJ Property Consulting in the
amount of $299,031.00, to be paid at the time of conveyance. Within seven (7) days following
the City's opening of bids for the Project, PT shall convey, to the City, any additional required
rights -of -way and easements (including any necessary access and work easements) required for
the Add/Alternate Work.
g) PT requested and agrees to accept all of the excavated soil from PT's property in
relation to the Project, in accordance with the approved Plans, with said excavated soil to be
spread in accordance with the grading plan to be included in the approved Plans. PT shall be
responsible for all costs of grading and compacting the excavated soil placed on PT's property in
accordance with this Agreement which will be bid as part of the Add/Alternate Work. In the
event the excavated soil from PT's property exceeds the quantities required to comply with the
Plans, Pt shall pay the established rate for removal of excess excavated materials. In the event the
quantity of excavated soil from PT's property is deficient to comply with the Plans, PT agrees to
accept excavated soil from other segments of the Project in order to comply with the Plans.
h) It is understood that PT is working with the Pearland Economic Development
Corporation ("PEDC") for funding of all or a portion of the PT monetary obligations hereunder,
and PT will cooperate separately with the PEDC to secure such funding.
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i) Subject to the City's approval of PT's site plan, City shall provide the necessary
driveway permits for two access drives from Mykawa Road fronting a portion of PT's property,
to PT's existing improved property located at 4201 West Orange Street, Pearland, Texas 77581,
such permits to be provided within three (3) days following the City's award of the bid for the
Project. The City shall provide the necessary culverts for the two access drives to insure that City
and PT have access to PT's property, including the existing improved property referenced herein,
during construction of the Project.
j) City shall use its best efforts to perform and require its contractors to perform all
work in relation to the Project in such a manner as to allow PT to continue its operations,
including access to its material and services.
ARTICLE V
TERM
The initial term of this Agreement shall be for a period of eighteen months,
commencing on the day of , 2009, 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 PT that it 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) PT 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 PT's
authorized representative.
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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 or
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" 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 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
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receiving party at the following addresses:
If to the City:
With a copy to:
If to the PT:
With a copy to:
Bill Eisen - City Manager
City of Pearland
3519 Liberty Drive
Pearland, Texas 77581
Darrin Coker - City Attorney
City of Pearland
3519 Liberty Drive
Pearland, Texas 77581
Jeff Scearce, President, Pipe & Tube Supplies, Inc.
4201 West Orange
Pearland, Texas 77581
Jim D. Hamilton, Ross, Banks, May, Cron & Cavin, P.C.
2 Riverway, Suite 700
Houston, Texas 77056
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 facsimile 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
PT. No course of dealing on the part of the City or PT nor any failure or delay by the City or PT
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.
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]
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IN WITNESS WHEREOF, the parties have duly executed this Agreement pursuant to all
requisite authorizations as of the date first above written
By:
APPROVED AS TO FORM:
Darrin M. Coker
City Attorney
CITY:
CITY OF PEARLAN TEXAS, a home
rule municipality
By:
COUNTERS GNED:
Bill Eisen
City Manager
PT:
By: Ceci4r,
Title: nis,); ck4
8
STATE OF TEXAS
COUNTY OF &cctopka
BEFORE ME, the undersigned Notary Public, on this day personally appeared
Q e✓\ , known to me to be the person whose name is subscribed to the
foregoing instrument and acknowledged to me that he/she executed the same for the purposes
and consideration therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE THIS `ate DAY OF
e , A.D., 2009.
Icn co
FOFS•
06.28-20.\°0
'/4/,,1,1111Illlnlu0
STATE OF TEXAS
COUNTY OF Fi4 2_6 r ct
.2
0
NOTARY PUBLIC IN AND FOR THE
STATE OF TEXAS
Printed Name: ; - \ r
My Commission Expires: (c,-)g-tO
BEFORE ME, the undersigned Notary Public, on this day personally appeared
4. Scearce , known to me to be the person whose name is subscribed to the
foregoing' instrument and acknowledged to me that he/she executed the same for the purposes
and consideration therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE THIS / /q DAY OF
, A.D., 2009.
4 k.ek
NOTARY PUBLIC
STATE OF TEXAS
AND FOR THE
Printed Name: > EP ki0Cer
My Commission Exp>'res: 9-//- 2e/19
9
i
EXHIBIT LIST
1
10
JACOBS
May 21, 2009
Skipper Jones
Project Manger
Projects Department
City- of Pearland
3519 Liberty Drive
Pearland, TX
77581
RE: Design of Town Ditch Between, Highway 35 and Orange S.
Project No. DR2004
P.O. No. 080123
Account No. 201-0000-565.01-02
Dear Mr. Jones:
In an Apr ii 2009 drainage report by R.G. Miller Engineers, presented to Brazoria County Drainage District
No. 4 (BDD4). Mr. Duane Barrett proposed an alternate alignment and cross-section for a portion of the
Town Dftch alignment currently under design by Jacobs. This alternative cross section can generally be
described as shifting a portion of the currently proposed alignment centerline 50eastward, and adding
50' "benches' on each side of this shifted centerline. To propery represent this shift and cross-section
change as an Add/Aternate n the bid package, additional engineeringldraftng and survey work is
necessary.
Additional drawings are required to detail all the affected alignment and cross sections. Additionally,
another review submission must be made to BDD4, along with attendance of the subsequent Board
meeting. Jacobs requests an additional funding in the amount of $13,200,00 to accommodate these
modifications and submissions
Aso, we have received the attached proposal from C.L.Davis & Company: for additional survey services
cn the above referenced project. This additional effort required is preparation of the alternative parcel
map required by the proposed widening. Jacobs requests additional funding in the amount of S2,100,00,
per the attached proposal.
The total additional funding request is therefore 515„300.00.
Sincerely,
Jacobs.
\ ,
Stephen E. P.E.
Project Manager
Attachments: May 20, 2009 CL Davis Survey Proposal
C. L. DAVIS & COMPANY
LAND SURVEYING
1500 Winding \\:,3.
Friendswoodi Texas 7754.6
781..482,9490
FAX 781.482.1294
c isci.Tananv ,
N.1a) 0. 2009
Nir. Stephen E. Swindell, P.E.
ilacobs Carter Burgess. Inc.
55 Waugh Drive, Suite 8o
Houston, Texas 77007
Re: City of Pearland - Town Ditch E.
(Additional Services No. 2)
Proposal No. 2009-06,6
ion to Mkawa Road
Dear Mr. SM,
Our proposal tor land sun e.,lne services for the above referenced project is as f011ovvs:
1. Preparation of additional parcel plat out of Pipe and Tube Tract (Fee includes
drawings. metes and bounds description and monumentation of parcel.). .. S2,100.00
Total Amount. . .. „ . .... . 52.100.00
Ans changes or revisions in the scope of the project after authorization to pr'ixeed v. ill be billed on an hourly
basis as described beiovv:
• Principal
• Registered Proles 'onal Land Sunic.v or (R.PLS)
• Technical ''CAD
• Three-man field crew
• Data Collector
• Clerical
SI 50,00
SI00,00
$9500
S120.00
S40,00
S55,00
Ail surveing services are under the jurisdiction of the Texas Board of Land Surveying: 7701 North Lamar.
Suite 400; Austin, Texas 78752: phone number: 512-452-9427. Any complaints about surveyina services
.311ould be sent to the above address to the attention of Complaints Officer of the Board.
Thank you fr the obportunit to submit this bropos.& and we hick forward to working with Lou.
Sincerelv Appniwed & Az,tepted
C. I_ Davis. R,P.L.S.
tke ret„
- Dry.;11 -S No. -4:
Mr, Stephen E. Sindel1,P. L. Date
Jacobs Carter Burgess. k,c.
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