R2003-0166 11-10-03 RESOLUTION NO. R2003-166
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 SOWELL
INTERESTS-PARKSIDE, L.P., ASSOCIATED WITH THE VETERANS
DRIVE SEWER LINE.
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 Sowell Interests, L.P., a copy of which is attached hereto as Exhibit '%" 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 Sowell Interests-Parkside,
L.P., associated with the Veterans Drive sewer line.
PASSED, APPROVED and ADOPTED this the 10th day of November ,
A.D., 2003.
ATTEST:
/Tf'C)UNG/C-/~I~IG~' /
;/ITY S(E/CRETARY
APPROVED AS TO FORM:
CITY ATTORNEY
TOM REID
MAYOR
Exhibit "A"
Resolution No. R2003-166
DEVELOPMENT AGREEMENT
(EXHIBIT "A" TO RESOLUTION R2003-].§6.)
This Development Agreement (this "Agreement") is entered into this 10 day of November ,2003,
by and between the CITY OF PEARLAND, TEXAS, (hereinafter "City"), and SOWELL INTERESTS-
PARKSIDE, L.P., a Texas limited partnership (hereinafter "Developer").
WHEREAS, Developer intends to construct approximately 463 residential tots on 170.748 acres on
Veterans Road within the Canterbury Park subdivision, on which a preliminary plat has been approved by
the City;
WHEREAS, City has consented to inclusion of Canterbury Park subdivision into Brazoria County
Municipal Utility District No. 28 (hereinafter "MUD"), such land being wholly located within the City of
Pearland;
WHEREAS, Developer intends to install street crossings, landscaping, sidewalks, and fences in or
adjacent to the Veterans Road right of way at a cost estimated to exceed $250,000 and desires to avoid
the disruption to said improvements that would be caused by a future City project to install a sewer main
along Veterans Road adjacent to Canterbury Park (the "Sanitary Sewer Main") as recommended in the
City's Sewer Master Plan;
WHEREAS, City desires to avoid the cost of protecting or replacing street crossings, landscaping,
sidewalks, and fences that it would incur if the Veterans Road Sanitary Sewer Main were constructed
after such improvements were installed;
WHEREAS, sanitary sewer service for Canterbury Park will be provided by a separate sewer main
currently under design by the City, and Developer is not responsible under City codes and regulations to
construct the Veterans Road Sanitary Sewer Main;
WHEREAS, City desires to cooperate with Developer to construct the Veterans Road Sanitary Sewer
Main concurrently with the subdivision improvements for Canterbury Park, which will provide cost
avoidance for the City and increase and improve City's capacity to serve other properties in the vicinity of
the MUD; and
WHEREAS, City and Developer desire an agreement to set forth their respective responsibilities with
regard to constructing the Veterans Road Sanitary Sewer Main.
WlTNESSETH:
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:
Developer agrees to construct the Sanitary Sewer Main as approximately 1,100 feet of 30"
sanitary sewer along the east side of Veterans Road southward from the north line of Canterbury
Park subdivision and 550 feet of 27" sanitary sewer southward from the termination of the 30"
sanitary sewer. The cost estimated for the Sanitary Sewer Main is $276,925 as of the date
hereof, as further shown in Attachment 1. Upon award of the construction contract in accordance
with Paragraph 3 below, Developer will submit to the City a revised estimated cost utilizing the
contract amount, engineering fees calculated as 13% of the contract amount, and a reasonable
estimate (not to exceed 2% of the contract amount) for inspection fees and direct expenses (the
"Target Cost").
Developer will cause its engineers, reasonably approved by the City, to prepare plans and
specifications for the construction of the Sanitary Sewer Main desired by the City.
DEVELOPMENT AGREEMENT
K:\Sowell Parkside\Dev-Agmt-Pearland-3
1
10.
Upon approval of the plans and specifications by the City, which shall not be unreasonably
withheld or delayed, Developer's engineers will obtain competitive tine item bids for the
construction of the Sanitary Sewer Main in accordance with the plans and specifications. The
bids will be reviewed by Developer and the City and a contract will be awarded to the successful
bidder by Developer in accordance with the guidelines established by the MUD. City reserves
the right to reject any and all bids for the construction of the Sanitary Sewer Main; provided,
however, City's approval Of the bids shall not be unreasonably withheld or delayed, nor shall City
be permitted to reject the lowest bid submitted by a qualified bidder.
In the event the lowest bid amount from a qualified bidder exceeds $345,000, Developer shall
have the right, but not the obligation, either (a) to reject all of the bids and terminate this
Agreement, or (b) rebid the work with the same rights and obligations provided herein, except that
Developer shall not have the right to rebid the work again.
Upon award of the construction contract to the successful bidder in accordance with Paragraph 3
hereof, Developer shall cause the work to be completed in accordance with the plans and
specifications. Developer's engineer and/or the MUD engineer and the City Engineer or designee
shall monitor the progress and workmanship of the contractor. Developer shall advance the
funds necessary to pay the contractor for the work performed.
Upon completion of the project, actual costs of the Sanitary Sewer Main will be accounted and
reported to the City. "Actual costs" shall include, without limitation, all amounts paid pursuant to
the construction contract (s), engineering costs, inspection fees, and direct out-of-pocket
expenses of Developer and Developer's engineer. City will reimburse Developer for 100% of the
costs in the form of a credit against water and sewer impact fees due for residential structures
permitted within Canterbury Park subdivision. Actual credits shall not exceed the Target Cost by
more than 5% without prior approval of the City.
The initial term of this Agreement shall be for a period of three (3) years, commencing on the
~-.~o day of ]:)~_..~,~., 2003, and expiring on the ~ day of ~gc. cwwb~,¢ ,2006, at
which time, this Agreement shall be automatically renewed in one (1) year increments, provided,
however, notwithstanding the date set forth herein as the expiration date of this Agreement, if any
construction by Developer of any improvements contemplated in this Agreement has commenced
on or before said expiration date, then this Agreement shall automatically extend as necessary to
allow for the completion of said construction and reimbursement of 100% of the actual costs,
subject only to the limitation set forth in Paragraph 6 hereof, by City to Developer as set forth
herein.
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
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. Provided, however, City hereby approves the assignment of Developer's
rights hereunder to its development lender, First Continental Investment Company, Ltd. or any
successor development lender, as security for a development loan for the Canterbury Park
subdivision (or any portion thereof); provided, however, any such assignment or the City's
approval thereof shall not be deemed to inhibit or interfere with the City's use and operation of the
Sanitary Sewer Main.
Notwithstanding the restrictions concerning assignment of rights set forth in Paragraph 9 hereof,
upon completion of construction of the Sanitary Sewer Main hereunder, Developer shall be
DEVELOPMENT AGREEMENT
K:\Sowell Parkside\Dev~Agmt-Pearland-3
2
11.
12.
13.
14.
15.
16.
17.
permitted to assign its water and sewer impact fee credits to a buyer of the residential lots within
Canterbury Park in increments on a lot-by-lot basis. Upon written notice of such assignment from
Developer to City, City will acknowledge such assignment in its records.
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. R2003- 166is 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.
DEVELOPER 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 DEVELOPER, ITS HEIRS, EXECUTORS, ADMINISTRATORS,
SUCCESSORS, OR ASSIGNS AS A RESULT OF THE CONSTRUCTION BY DEVELOPER 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. DEVELOPER 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
DEVELOPER, THEIR AGENTS, EMPLOYEES, SUCCESSORS, OR ASSIGNS ARISING IN
CONNECTION WITH SUCH CONSTRUCTION BY DEVELOPER. THE PROVISIONS OF THIS
SECTION SHALL SURVIVE THE TERMINATION, EXPIRATION, OR CANCELLATION OF
THIS AGREEMENT.
DEVELOPMENT AGREEMENT
K:\Sowell Parkside\Dev-Agmt-Pearland-3
3
RESOLUTION NO. R2003-166
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. SOWELL.
INTERESTS-PARKSIDE, L.P., ASSOCIATED WITH THE VETERANS ~
DRIVE SEWER LINE.
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 Sowell Interests, L.P., 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 Sowell Interests-Parkside,
L.P., associated with the Veterans Drive sewer line.
PASSED, APPROVED and ADOPTED this the 10th ,
A.D., 2003.
ATTEST:
/,TC'C)UNG~I,~G~' /
TY S~CRETARY
APPROVED AS TO FORM:
DA'P, RIN M. COKER
CITY ATTORNEY
__ day of November
TOM REID
MAYOR
In witness whereof, the parties have hereunto set their hands and signatures on the date first above
mentioned.
SOWELL INTERESTS-PARKSIDE, L.P.
a Texas limited partnership
By: SOWELL PARKSIDE, INC., a Texas corporation, its
General Partner
~e S. 0~°~'~elius
sident
ATTEST:
CITY OF PEARLAND,
a Texas municipal corporation
By:
Bill Eisen
City Manager
DEVELOPMENT AGREEMENT
K:\Sowell Parkside\Dev-Agmt-Pearland-3
4
STATE OF TEXAS §
DALLAS COUNTY §
BEFORE ME, the undersigned Notary Public, on this day personally appeared
,.Td.M¢.S ~.(..orr~iU~ , known to me to be the person whose name is subscribed to the
foregoing instrument and acknowledged to me that he/she exeguted the same for the purposes and
consideration therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE THIS ~/'~t~. DAY OF
~)~ , A.D., 2003.
|1 ALICIA M. BAUGH
I!
II,t-'.~'.',';~. Notary PubliC. State of Texas
! li~..~...",~..~ My Commission Expires
I '"'~'~"'~i~:~'~'~'" November, 10, 2005
t y Public, State of Tex~~
Printed Name:
My Commission Expires:
STATE OF TEXAS
BRAZORIA COUNTY
BEFORE ME, the undersigned Notary Public, on this day personally appeared
"~,"// ~',~.~.-,~- , 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
_./6/e ¢ ~,,,.~,~.~/--. , A.D., 2003.
Printed Name:
My Commission Expires:,2~,~
DEVELOPMENT AGREEMENT
K:\Sowell Parkside\Dev-Agmt-Pearland-3
5
ATTACHMENT 1
Quantity
1,100 L.F.
550 L.F.
6 ea.
1,650 L.F.
1,650 L.F.
1,650 LF.
ILS
1 LS
Estimate of Probable Cost
Veteran Road Sanitary Sewer
Description
30" sanitary sewer ^-2000, all depths, includes
cement stabilized sand bedding and back fill,
cement in place
27" sanitary sewer A-2000, all depths, includes
cement stabilized sand bedding and back fill,
cement in place
4' diameter sanitary manhole with inflow
preventer, extra depth, cement in place
Dewater of subsurface excavation, includes well
point, pumps, header piping with all
appurtenances, cement in place
Modified sewer bedding and backfill includes
aggregate, filter fabric and cement stabilized sand
backfill, cement in place
Trench Safety Insurance
Mobilization (Bonds, Insurance)
Engineering
Total
Unit Price
$60.00
$55.00
$3,500.00
$45.00
$25.00
$0.50
Total
$66,OOO
$30,250
$21,000
$74,250
$39,600
$825
$15,000.
$3o,ooo
$276,925
ATTACHMENT 1 TO DEVELOPMENT AGREEMENT K:\Sowell Parkside\Dev-Agmt-Pearland-3
SOWELL &Co
Third Floor, Thanksgiving Tower
1601 Elm Street
Dallas, Texas 75201
TEL: (214) 871-3320
FAX: (214) 871-1620
website: www.sowellco.com
KATHY FOX POWELL
Vice President and Legal Counsel
Extension 133
e-mail: kp@sowellco.com
November 24, 2003
Alan R. Mueller
Deputy City Manager
City of Pearland
3519 Liberty Drive
Pearland, Texas 77581-5416
Via Telecopy No. (281)652-1708
and U.S. Mail
Re: Development Agreement (Exhibit "A" to Resolution R2003-166) dated November
10, 2003 ("Development Agreement"), between the City of Pearland and Sowell
Interests-Parkside, L.P. (the "Developer")
Dear Mr. Mueller:
Enclosed herewith please find one (1) fully executed counterpart of the above -
referenced Development Agreement.
Thank you. If you need anything further, please let me know.
Very'truly yours,
1
Kathy Fox P 11
KFP/amb
Encl.
cc: Darrin Coker Via Telecopy No. (281)652-1679
K:\Sowell Parkside\Mueller-A-Ltr-1