R2009-161 - 2009-09-28RESOLUTION NO. R2009-161
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 WITH AGGREKO.
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 Aggreko, 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 Aggreko.
PASSED, APPROVED and ADOPTED this the 28t" day of September, A.D., 2009.
TOM REID
MAYOR
ATTEST:
Y N F ,T C
S CRETA Y
``O~~~ARLgy~ ,~;
M ; i 3y
~", ; fn.
APPROVED AS TO FORM:
n ~ tr . ~--
DARRIN M. COKER
CITY ATTORNEY
Exhibit "A"
Resolution No. R2009-161
DRIVEWAY AGREEMENT
THE STATE OF TEXAS §
COUNTY OF BRAZORIA §
THIS AGREEMENT ("Agreement"), is made and entered into this ~6 day of
~Q~ , 2009 (the "Effective Date") by and between AGGREKO, hereinafter
referred to as "Aggreko" and the CITY OF PEARLAND, hereinafter referred to as "City",
whether one or more.
WHEREAS, City desires to construct a portion of Magnolia Road and an accompanying
overpass ("Road Improvements") that may affect access to Aggreko's facility on Magnolia
Road; and
WHEREAS, City is desirous of entering into an agreement with Aggreko whereby
certain driveways will be closed by Aggreko in exchange for a cash contribution from the City
that will be used by Aggreko to construct access and parking improvements (hereinafter "Facility
Improvements"), as more particularly described on Exhibit "A" attached hereto, to
accommodate the City's road and overpass construction; and
NOW THEREFORE, for and in consideration of the premises and mutual covenants
herein contained, the receipt and sufficiency of which are hereby acknowledged, it is agreed as
follows:
1. Pursuant to the terms of this Agreement, Aggreko shall:
a. Allow City to permanently close driveway number 17, as shown on Exhibit
"B" attached hereto, after a Notice to Proceed for the Road Improvements is
issued by City;
b. Obtain a sitework permit from City for construction of the Facility
Improvements, and initiate construction of said improvements within one
year following execution of this Agreement. Because the Facility
Improvements are required by the City to accommodate the Road
Improvements; the sitework permit for the Facility Improvements shall not
be subject to detention, sidewalk, parking or landscaping requirements of the
City (such development exemptions are strictly limited to the Facility
Improvements identified on Exhibit "A").
Page 1 of 6
2. In exchange for Aggreko's agreement to satisfy the requirements identified in
paragraph number 1 above, City shall make a one hundred seventy-seven thousand dollar
($1.77,000.00) payment ("City Contribution") to Aggreko which shall be used offset the cost of
the Facility Improvements. One-half (1/2) of the City Contribution shall be delivered to Aggreko
within 15 working days following the issuance of the driveway permit to construct the
Improvements, and the remaining one-half (1/2) shall be delivered to Aggreko upon the City's
determination that the Facility Improvements are substantially complete.
3. Before any failure of any party to perform its obligations under this Agreement
shall be deemed to be a breach, the Party claiming such failure shall notify, in writing, the Party
alleged to have failed to perform of the alleged failure and shall demand performance. No
breach of this Reimbursement 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. Upon a breach of this Agreement, the non-defaulting Party, in any court of
competent jurisdiction, by an action or 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 or pursuant to the provisions of any other 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 nonexclusive of any other remedy either set forth herein
or available to any party at law or in equity. Each of the parties shall have the affirmative
obligation to mitigate its damages in the event of a default by the other Party.
4. This Agreement shall become a binding obligation on the signatories upon
execution by all signatories hereto. City warrants and represents that the individual executing
this Agreement on behalf of City has full authority to execute this Agreement and bind City to
the same. Aggreko warrants and represents that the individuals executing this Agreement on
their behalf have full authority to execute this Reimbursement Agreement and bind them to the
same.
5. This Agreement shall be governed by and construed in accordance with the laws
of the State of Texas, and all obligations of the parties created hereunder are performable in
Brazoria County, Texas. Venue for any action arising under this Development Agreement shall
lie in the state district courts of Brazoria County, Texas.
6. This Agreement constitutes the entire understanding and agreement of the parties
as to the matters set forth in this Agreement. No alteration of or amendment to this
Reimbursement Agreement shall be effective unless given in writing and signed by all of the
parties hereto.
7. All notices required to be given under this Agreement shall be given in writing
and shall be effective when actually delivered or when deposited in the United States mail, first
class, postage prepaid, addressed to the party to whom the notice is to be given at the addresses
shown above. Any party may change its address for notices under this Agreement by giving
formal written notice to the other parties, specifying that the purpose of the notice is to change
Page 2 of 6
the party's address. For notice purposes, each party agrees to keep the other informed at all
times of its current address.
EXECUTED on the dates set forth in the acknowledgments, but effective for all purposes
as of the 28th day of September , 2009 (the "Effective Date").
CITY:
CITY OF PEARLAND, TEXAS, a home
rule municipality
By: F~•,'e~
Tom Reid, Mayor
ATTEST: COUNTERSIGNED:
.. ~•
~_ ill Eisen
`~'` City Manager
APPROVED AS TO FORM:
,~~ ~ W1~~
Darrin M. Coker
City Attorney
AGGREKO:
By: ~%~
Title: ~itorG~ 0~'" 1EY~i'~'r~ 7S ~C°(G~ij~~'`~
Page 3 of 6
STATE OF TEXAS §
COUNTY OF ~>'a-~~~' ~ w §
BEFORE ME, the undersigned Notary Public, on this day personally appeared
~ur-~- V\/~ i -le ,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 ~~' DAY OF
~~C6•n ,(~t't~' , A.D., 2009.
~O TA,p`?,~N,,
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N ARY BLIC IN AND FOR THE
STATE OF TEXAS
Printed Name: ~./t'~e fGY ~. sm • ~ h
My Commission Expires: 7~ ~S • Zv i 0
STATE OF TEXAS §
COUNTY OF ~~ ~J~ ~ ~;` §
~, BEFORE ME, the undersigned Notary Public, on this day personally appeared
(6(ul ~~e i c~ ,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 ~ DAY OF
~~ ~ p~p f , A.D., 2009.
~NI~A~u
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