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HomeMy WebLinkAboutR2009-118 - 2009-07-27 RESOLUTION NO. R2009-118 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 PINE HOLLOW PARK. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF QEARLAND, TEXAS: Section 1. That certain Development Agreement by and between the City of Pearland and the Pine Hollow Park Homeowners' Association, a copy of which is attached hereto as Exhibit "A" and made a part hereof for all purposes, is hereby authorized and approved. Section 2. That the City Manager or his designee is hereby authorized to execute and the City Secretary to attest a Development Agreement with the Pine Hollow Park Homeowners' Association. PASSED, APPROVED and ADOPTED this the 27th day of July, A.D., 2009. TOM REID MAYOR ATTEST: ..Q~,~,~ir,yy ;~~.. ..< _~. =w: Y GL T M C SE ETARY =`''` APPROVED AS TO FORM: f~JQ~----~ ~- DARRIN M. COKER CITY ATTORNEY Exhibit "A" Resolution 2009-118 DEVELOPMENT AGREEMENT (EXHIBIT "A" TO RESOLUTION NO. 82009-118) This Agreement is entered into this 27th day of July, 2009, by and between the City of Pearland, Texas (hereinafter "City"), and Pine Hollow Homeowners' Association, (hereinafter "HOA"). WHEREAS, Pine Hollow Park has become an asset to the Pine Hollow Subdivision residents and surrounding community; and WHEREAS, to Pearland residents, this park is more than just a place for kids to play, but also has hosted various neighborhood events including the Fall Festival, Spring Fling, and National Night Out; and WHEREAS, residents are concerned that children can easily access the detention pond areas that are located directly behind the park; and WHEREAS, in an effort to make Pine Hollow Park safer, the Pine Hollow Homeowners' Association requests that the City of Pearland share in the cost of erecting a fence between Pine Hollow Park and the detention ponds. WITNESSETH: NOW, THEREFORE, in consideration of the foregoing premises and other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, it is hereby agreed as follows: ARTICLE I DEFINITIONS; INCORPORATION OF RECITALS 1.1 Definitions. Capitalized terms used herein, including the recitals hereto, shall have the meanings set forth in this section, unless otherwise defined, or unless the context clearly requires another definition. City means the City of Pearland, Texas, a home rule municipality located in the counties of Brazoria, Harris and Ft. Bend, Texas. HOA means the Pine Hollow Homeowners' Association Effective Date means the date on which this Agreement is fully executed by the City and the HOA. Parry or Parties means all or any of the City and the HOA, as applicable. Fence Improvements means those improvements and costs more particularly described on Exhibit A attached hereto. 1.2 Recitals Incorporated. The representations, covenants, and recitations set forth in this Agreement are material to this Agreement and are hereby found and agreed to be true and correct and are incorporated into and made part here of as though they were fully set forth in this article. ARTICLE II COOPERATION Action of the Parties. The parties agree to take such actions, including the execution and delivery of such documents and instruments as may be necessary or appropriate to carry out the terms and intent of this Agreement. ARTICLE III EFFECTIVENESS OF AGREEMENT parties. This agreement shall become effective from and after its approval and execution by both ARTICLE IV CONSTRUCTION OF IMPROVEMENTS The City and the HOA agree to take the following actions: The City shall contract for the construction of the Fence Improvements within 60 days following the execution of this Agreement. In consideration for the City's agreement to construct the Fence Improvements, the HOA agrees to reimburse the City up to two thirds (2/3) of the City's total construction costs ("HOA Contribution") identified on Exhibit "A" attached hereto. Within thirty (30) days following written notification that a Certificate of Substantial Completion for the Fence Improvements has been issued by the City, the HOA shall deposit an amount equal to the HOA Contribution with the City. The maximum cost to the HOA shall not exceed the deposit amount equal to the HOA Contribution with the City. If the HOA Contribution amount that is deposited with the City is more than the cost of the project, the excess funds will be returned to the HOA no later than 3 months after completion of the project. ARTICLE V TF.R M 2 The initial term of this Agreement shall be for a period of eighteen (18) months, commencing on the 27th day of July, 2009, and terminating on the 26th day of January, 2011, provided, however, that this Agreement shall be automatically renewed in one (1) month increments until all of the obligations of the parties hereunder have been fully discharged or specifically waived in writing by the beneficiary thereof. ARTICLE VI AUTHORITY COVENANTS Powers. (a) The City hereby represents and warrants to the HOA that 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) The HOA hereby represents and warrants to the City that it has full lawful right, power and authority to execute and deliver and perform the terms and obligations of this Agreement and all of the foregoing have been or will be duly and validly authorized and approved by all necessary actions of the HOA ARTICLE VII GENERAL PROVISIONS 7.1 Time of the essence. Time is of the essence of this Agreement. The parties will make every reasonable effort to expedite the subject matter hereof and acknowledge that the successful performance of this Agreement requires their continued cooperation. 7.2 Default. (a) A party shall be deemed in default under this Agreement (which shall be deemed a breach hereunder) if such party fails to materially perform, observe or comply with any of its covenants, agreements or obligations hereunder or breaches or violates any of its representations contained in this Agreement. (b) Before any failure of any party to perform it's obligations under this Agreement shall be deemed to be a breach of this Agreement, the party claiming such failure shall notify, in writing, the party alleged to have failed to performed the alleged failure and shall demand performance. No breach of this Agreement may be found to have occurred if performance has commenced to the reasonable satisfaction of the complaining party within 30 days of the receipt of such notice, subject, however, to the terms and provisions of Section 7.2 (c). Upon a breach of this Agreement, the non-defaulting Party, in any court of competent jurisdiction, by an action 3 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 Personal liability of public officials or Pine Hollow Board Members. To the extent permitted by State law, no public official, employee or Pine Hollow Board Member shall be personally responsible for any liability arising under or growing out of this Agreement. 7.4 Notices. Any notice send under this Agreement (except as otherwise expressly required) shall be written and mailed, or sent by or personally delivered to an officer of the receiving party at the following addresses: If to the City: Bill Eisen -City Manager City of Pearland 3519 Liberty Drive Pearland, Texas 77581 With a copy to: Darrin Coker -City Attorney City of Pearland 3519 Liberty Drive Pearland, Texas 77581 4 If to the HOA: Kathy Dooley CMSI 2615 Bay Area Blvd Houston, TX 77058 With a copy to: Charles Jordan Daughtry & Jordan, P.C. 17044 El Camino Real Houston, TX 77058 Each party may change its address by written notice in accordance with this Section, Any communication addressed and mailed in accordance with this Section shall be deemed to be given when so mailed, any notice so sent by rapid transmission shall be deemed to be given when receipt of such transmission is acknowledged, and any communication so delivered in person shall be deemed to be given when receipted for by, or actually received by, an authorized officer of the City or the Developer, as the case maybe. 7.5 Amendments and waivers. Any provision of this Agreement may be amended or waived if such amendment or waiver is in writing and is approved by the City Council and the HOA. No course of dealing on the part of the City or the HOA nor any failure or delay by the City or the HOA with respect to exercising any right, power or privilege pursuant to this Agreement shall operate as a waiver thereof, except as otherwise provided in this Section. 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. 5 7.9 Applicable law. This Agreement is a contract made under and shall, be construed in accordance with and governed by the laws of the United States of America and the State of Texas, and any actions concerning this Agreement shall be brought in the Texas State District Courts of Brazoria County. 7.10 Entire agreement. This written agreement represents the final agreement between the parties and may not be contradicted by evidence of prior, contemporaneous, or subsequent oral agreements of the parties. There are no unwritten oral agreements between the parties. 7.11 Approval by the parties. Whenever the Agreement requires or permits approval or consent to be hereafter given by any of the parties, the parties agree that such approval or consent shall not be reasonably withheld or delayed. 7.12 Counterparts. This Agreement may be executed in several counterparts, each of which shall be an original and all of which shall constitute by one and the same agreement. 7.13 Interpretation. This Agreement has been jointly negotiated by the parties and shall not be construed against a party because that Party may have primarily assumed responsibility for the drafting of this Agreement. [signature pages follow] 6 IN WITNESS WHEREOF, the parties have duly executed this Agreement pursuant to all requisite authorizations as of the date first above written CITY: CITY OF PEARLAND, TEXAS, a home rule municipality By: pyyc/ COUNTERSIGNED: :~ - -. ~ By: _,--------- Bill E sen City Manager APPROVED AS TO FORM: ~c..,.~,.. ~. Darrin M. Coker City Attorney HOA: Pine Hollow Homeowners Association By: c~ L~ Title: ~i ~p rl D 1 ~C1(,J ~f~p p ~~ STATE OF TEXAS § 7 COUNTY OF CJr`0.2~ r;~, § BEFORE ME, the undersigned Notary Public, on this day personally appeared ~j~tltr ~1SQ.t7 ,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 A.D., 2009. ..""'°'~.,,, KATHERINE E. BITTIC{< ~ , =.~~'~Y•u~`~; Notary Public, State of Te>;a~ ~~ ~' ' My Commission Expires i ?:%, ;:~i'' December Ob, 20t 1 ! STATE OF TEXAS § COUNTY OF(~F~Z©~;~ § AND SEAL OF OFFICE THIS ~~'DAY OF NOTARY PUBLIC IN AND FOR THE STATE OF TEXAS Printed Name: ~~-~-11.~ ~,rL~ -lam, g~ ~ ~,(G My Commission Expires: ~'a, (~ Iv , ~ ~ BEFORE ME, the undersigned Notary Public, on this day personally appeared Q r~ ~, `l~b2.Q ZC,~C.I ,known to me to be the person whose name is subscribed to the foregoing 'nstrument 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 ~e~ DAY OF ~ ~~~ ~ , A.D., 2009. UI111NII111111/!/// ~' ` - T" ` '`11 1 /L~ ''pNR.A e~gi~y~ NOTARY PUBLIC IN AND FOR THE :: •o~P ~ • . s STATE OF TEXAS e, ~, 5 Printed Name: ~~ n t U ~1a`t ~ • •' 9lF OF SE+P : ~. `' My Commission Expires: (~ -a k - aO1 l~ 8 Exhibit "A" FINANCIAL CONTRIBUTIONS Pine Hollow Homeowners Association: City of Pearland: ,701.33 $ 3,850.67 Total Cost $11,552.00 CITY:ow PV,& r....71TECT,i. UAL FIEN'Croii3 C0 FENCING L 48,1 WIDE GAT a INSTALLATION M SC1'7 T E A Neil s t Q-1 Clo..-1`4, 1 y4S, TOTAL Q OTATION $ S rr�, r 2 " 614 WRITTEN AMOUNT L E U a,-) T nouSh,v v El lie. /f tr N A ZE D :FI PT y 'moo M ,r Firm: AR I ES (A)C D, e. 5 0Al.s Address: oZ xis/:S D u l o:r►+ �et Sa 4 a 4J 75Q 3 Telephone c3,2 g'l 9R 8,5SI Title: 1 ERG: s '� ,// W�.�<<. S4ek Y l r,(VG P n 4-4t7 /us 1' • X" Pc.lcv_4s /4 &a 3 Rek.. ts _ 17/b p ! X . 072. off • shk, y.. l5. 0 7 r S C2/ po s-ts x a. a . 3'r 6-et:ft. 17,1,s 1 I-s' x i CO • p1.r.r r.r,..r A Y% .•..' •etsa 4 p.I Lana 01111 CONTUCTORINSLIRANCg RQTJIBZ 4 TS&AGIfF:FVIRNT EEOLT M 4T5 il Contractors performing WOE on City property Of public right-of-way For the City of PrAriand shall nrnulA'O..t'itlr certifcateofitusurance or a copy of their insurancepoHcy(s)evidencing the coverages and coverage provisions identified ho i. ,.,,.c,.,. ...,- anta4ro;5 Si-tall pi)vitin lac City evicence that ail subcontractors pt".rfOrrTtttlg wore an the ttroit:ee blue the same . types and amounts of coverages as required herein or that the suboontraetora are included under the contractor's policy, ..,uaw wta.t.wutpaiiivzr anti wwaragrs must be authorized by tee I o:ras Llcpartrnent of Insurance tp transact lnierrtec9ln the State of Texas and must be acceniahle to the c.±h,nf'p,•±rlatyl, Listed below are the types and amounts of insurances required. The City reset teethe right to amrnA nr require Qdditivvat tw ee and amounts of nnveraaev nr nmvtatnna Awp+.,...p tz�a tti,e,nr± c f til.7.• k. TYPE 4P INsInIANCE.. • 1 Assrli!�rr nv 7rocr'rM1rg I tie.",P''r+.,�1. Workers'Compensation . Statutory Limits City to be provided a WAIVER OF 1 Employers'Liability I S100.000 per occurrence I STtARn(:A!TIN ,tul an,tr.,:,±,,.;..,. • of cancellation or materiel change.in• I coverage. '7• Commercial;ercia! Cinncr i (Public) Personal ..u. ,y 111,000,00G --.. -- —i .,even, (Public) c cwuR:li lI ut - - pet City to he name as ennitiaua<t Damage :insured and provided 30 day: JI i~idviuty v�utoiulia aovtirage jar: person; • Property , al Prertttsep/Operetinnt Si o,nnn per occ f ence; ec,'ler is notiJG of vp(]l;allatiolt or material lc) Prot.:^„...'C,;..:1?-:ctw ngeicgnie•i 1,00,:000 charge to coverage. 0peredone I I el TnderenArnt Cnnt%rtnra • d) Personal Injury I _._ __e).. Centrovtuai Liability I _ 3. Business Auto Liability to include 1 Combined Single Limit-S 1,000,000 +'City shall be provided 30 day Coverage for. 1 _ I nr,iim.of eanr 1.11nt4nn AP rn14...r:oi • a) Owned/Leased vehiolee I change in coverage. • b) *ten-oa aed yehicks I: uj Hired vehicles L -. .raa..ua.aa\,ut TaawCute&nuns may be r120si ro.eilrenfleinC!department.attn: Dona Carlson,v 281.652-1738,phone 281.632-1790. Questions re0erdind r+rluirtivl inelsrgrwq should bc dire:tad•to Deb Pearc ,Ciyy of Peariand 1?ur4baairlg -• (107„,.4' .1!,1(2ol)pcLluo. This formnm.st be pianM rmA"11lr,v.A"Pith a......Tv:nciloh. Yr.:::c e.t;ti.-y:Lit,vu Li.,Lava iue edyNued insurance ano if selected to perform work for the City,will provide the certificates of insurance with the above requiremorrt to the city_ t1 F T ChASUADEli1 WILL NOT BE ISSII1rT)WITVIOTrr trvmr r7_(Its TN stro AxtCM. i agree to provide the above described insurance Coverages within 10 working days if selected to perform work For the Cknv of?eertend. ! also a@.nt^.to prcviva 'the Cily evidence of durance coverage on any aad all subcontractors .' iitiitJ5.arVtn Vu u.e pooled. fir eti." 7116.4 Ur fL4J .. 'bh G �77<2. .,. u� W C7jf Comps.. ►�i�� - Ce.„ thVeltibv#((applicabte) Printed Nettle' qq • • • Ifi O 2'/4"0 x 16ga.POST . 0 RIBBED CHANNEL RAIL 1/2"x I7/16"x 14ga. 0 %a"Id x 16ga PICKET ® BX112 END BRACKET r1%" r- 95>," /2" 1 I t—f.I ICI a r-1p I fH� J O 64%" 72" 0 PANEL BRACKET OPTIONS POST TO POST ., I I II I I---t 1 a [o I+I t=) BX 114 LINE BRACKET *95/2"±/2" u 11 u u u u u u 11 u u u u Iu u Iu u Iu u� . u *95/2",%" 2/2"O 2" J , BX111 FLAT MOUNT BRACKET *96"f/2" 3"0 - I I', —.--I L.— 3l546"TYPICAL IIb lil ® BX113 SWIVEL BRACKET** *97'1/2 21/2" 1 I: r 1 I *97l/2"±/z 1 311 Ii .I i :- ...NOTE:When using swivel brackets on either or both ends of a panel installation,cam mull be taken to muse the spacing between - I I post and adjoining pickets meets applicable codes.This may require trimming one or both ends of the panel as needed. 3 6" _ J I--, . ._ I.-- POST NOTE:In locations subject to freezing,where pasts are grouted into core-drilled holes,a l/s diameter hole should be drilled in J the post approximately Y"above elevation to allow t r dminabre ofbuih-upp ground water.The drilled hale must be wiped clean and dry - I `•.• - I /.. and sprayed with AMEItISTAR cult rich primer and AMERISTAR edlbr match finish. _ FROST LINE:Rioter depth shown is minimum recommendation.In some cases local restrictions of fleeting weather conditions may • I I . .• I I . Rioter require a greater depth. •_ • •PANEL RACKING:Drawing shows fence panel at level ground elevation:for installations that must be racked to follow sloping ' I grades,the post spacing dimension shown must be measured along the grade. Title: MONTAGE PLUS PANEL MAJESTIC 3R EXT 4"GAP 6'H 8'W Drawing Number: Old Part Number: 11-100-0225 1 RMX370 �ii-lii ® 1555 N. Mingo DR:DJH SH . lof 1 SCALE: Do Not Scale Il►.ii!II AlVIERISTAR Tulsa, OK 74116 CK:RTM Date 02/19/07 REV: a 1-888-333-3422