R2010-122 - 2010-09-27RESOLUTION NO. R2010-122
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
BARRY ROSE ROAD EXTENSION PROJECT.
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 the Beazer Homes Texas, 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 Beazer Homes Texas, L.
P.
PASSED, APPROVED and ADOPTED this the 27th day of September, A.D., 2010.
�Gny
TOM REID
MAYOR
ATTEST:
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4(A ' a /% _: ice
Yui NG Ley"OrG, TR J
r 'Y SEtrETARY
APPROVED AS TO FORM:
DARRIN M. COKER
CITY ATTORNEY
Exhibit A
Scope of Services*
Staff — Corporation's staff will be employees of City. The cost of the staff including
wages, vacation pay, sick pay, overtime, workers compensation, social security,
retirement, all taxes, health and dental benefits, and unemployment insurance will be a
separate expense to Corporation not included in the Flat Fee.
Legal - The City Attorney shall be the legal counsel for Corporation. The cost
associated with the City Attorney and other legal staff shall be included in the Flat Fee.
Any use of outside legal counsel for specialized needs, including bond counsel, is a
separate expense to Corporation not included in the Flat Fee.
Financial — City will administer Corporation's accounts, expenditures, deposits,
investment of funds and accounts, and provide other financial services for Corporation,
including annual preparation of budget and forecast, and issuance and payment of debt.
The cost associated with the above financial services will be included in the Flat Fee.
Financial advisory services associated with bond sales and other financing vehicles,
arbitrage fees and consulting services for the calculation of any amounts due, as
required by the IRS, are a separate expense to Corporation not included in the Flat Fee.
Audit - Corporation's books, records, accounts and financial statements and all other
financial activities for the previous fiscal year shall be audited at least once each
financial year by an outside, independent, certified public accounting firm selected by the
City Council. The expense of the audit will be included in the Flat Fee. The cost of any
compliance audits for grant or incentive agreements will be a separate expense to
Corporation not included in the Flat Fee.
Insurance — City will allow Corporation to utilize City's insurance company to provide
general liability, automobile coverage, errors and omissions, public employee's
dishonesty, property and windstorm. The cost of the above insurance is included in the
Flat Fee along with the administration thereof. Insurance for other assets of the
Corporation (i.e., land or buildings) shall be a direct cost to the corporation.
Human Resources — City will provide to Corporation human resource services that
include hiring, development and retention of employees, coaching and counseling
services to supervisors and employees, and assistance with benefits, performance
appraisals, policies and procedures, workers compensation, and other services. The
cost of these services will be included in the Flat Fee.
Information Technology — City will maintain and provide support to Corporation's
network, hardware, software, wired and wireless networks, as well as the telephone
system. New and replacement computers, software and other IT requirements are a
separate expense to Corporation not included in the Flat Fee.
Vehicles/Fleet/Fuel — The cost of in-house labor for preventative maintenance and
other repairs is included in the Flat Fee. The cost of fuel, vehicle parts, and outside
labor is a separate expense to Corporation not included in the Flat Fee.
Phones — All phone services, including all equipment, utilized by Corporation's staff will
be a separate expense to Corporation not included in the Flat Fee.
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Purchasing — Corporation's utilization of City's purchasing staff which will be included in
the Flat Fee.
Copier/Cell Phones/Air Card — City will procure copier services, cell phones and air
cards for the Corporation, all of which shall be a separate expense to Corporation not
included in the Flat Fee.
Project Management/Engineering — City will make available to Corporation project
management and engineering services for capital projects conducted by Corporation.
The cost associated with City staff for projects funded with current revenues will be
included in the Flat Fee. For projects funded through sale of Corporation bonds, cost of
City staff time will be a separate expense to Corporation not included in the Flat Fee;
however, the City and Corporation will agree to a percentage Project Management Fee
on a case-by-case basis. Use of outside firms for engineering or construction
management/inspection services will be a separate expense to Corporation not included
in the Flat Fee.
Facilities — The facilities utilized by the corporation located at 1200 Pearland Parkway,
Suite 200 are owned by the City of Pearland and covered under a separate lease
agreement.
City Secretary — The City Secretary will post meeting notices and other public notices
for City Council meetings that pertain to Corporation, retain records, process public
information requests and review disposition of records. These services will be included
in the Flat Fee.
City Manager — The City Manager will provide review and oversight of City staff utilized
by Corporation. This service will be included in the Flat Fee.
* ANY ADDITIONAL SERVICE NOT ITEMIZED IN EXHIBIT "A" AS BEING INCLUDED
IN THE FLAT FEE SHALL BE AT THE DIRECT EXPENSE OF THE CORPORATION.
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ADMINISTRATIVE SERVICES CONTRACT
BETWEEN THE CITY OF PEARLAND, TEXAS
AND THE PEARLAND ECONOMIC DEVELOPMENT CORPORATION
STATE OF TEXAS
COUNTY OF BRAZORIA §
THIS CONTRACT FOR SERVICES ("Contract") is made by and between the City of
Pearland (hereinafter called "City") and the Pearland Economic Development
Corporation (hereinafter called "Corporation") for the purpose of contracting for
administrative services of the staff and employees of City.
WITNESSETH
WHEREAS, on January 21, 1995 City's voters approved the establishment of an
Economic Development Corporation pursuant to Secion 4B of the Economic
Development Corporation Act of 1979 (the "Act") to promote and develop new and
expanded business enterprises on behalf of the City of Pearland; and
WHEREAS, the Board of Directors of Corporation and City have previously approved the
Articles of Incorporation and the Bylaws of Corporation; and
WHEREAS, Section 7.06 of said Bylaws provide that City and Corporation shall execute
an administrative services contract for services to be provided to Corporation by City;
and
WHEREAS. City and Corporation desire to contract for administrative services as
authorized by the Act.
AGREEMENT
NOW, THEREFORE, City and Corporation, in consideration of the mutual covenants
and agreements herein contained, do hereby mutually agree as follows:
ARTICLE I
SCOPE OF SERVICES TO BE PROVIDED BY CITY
The City will furnish items and perform those Administrative Services for fulfillment of the
Contract as identified in the Scope of Services attached hereto as Exhibit "A."
ARTICLE 2
CONTRACT TERM
The term of the Contract shall be ten (10) years from the date of execution by the
parties, unless sooner terminated as provided herein.
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ARTICLE 3
CONTRACT PRICE
Corporation shall pay City for the Administrative Services contemplated herein as
follows:
For all Administrative Services listed in Exhibit "A" except any item specifically listed as
being a separate expense, a monthly flat fee (the "Flat Fee") of $98,297 for the first year
of the Contract. The Flat Fee shall be increased annually by five (5) percent. In addition
to the Flat Fee, Corporation shall pay City for all items that incur a separate expense.
ARTICLE 4
PAYMENT PROCEDURES
Corporation hereby authorizes City to transfer funds on a quarterly basis from
Corporation's accounts to City's accounts to cover all amounts from the previous quarter
owed to City under the Contract.
ARTICLE 5
TERMINATION
The Contract may be terminated before expiration of the Contract term upon occurrence
of any of the following events:
(1)
(2)
(3)
Both parties agree in writing to terminate the Contract at any time;
Either party fails to fulfill its obligations as set forth herein, upon which breach the
other party may terminate the Contract immediately; or
Either party gives the other party written notice of termination to take effect not
sooner than thirty (30) days after said notice is given.
ARTICLE 6
INDEMNIFICATION
Corporation agrees, to save and hold harmless City and its agents, officers and
employees from all claims and liability due to activities of itself, its agents,
officers, or employees, performed under the Contract and which are caused by or
result from error, omission, or negligent act of Corporation or of Corporation's
agents, officers, and employees. Corporation shall also save harmless City and its
agents, officers, and employees from any and all expense, including, but not
limited to, attorney fees which may be incurred by City in litigation or otherwise
resisting said claim or liabilities which may be imposed on City as a result of such
activities by Corporation, its agents, officers, or employees. This indemnity shall
not include claims based upon or arising out of the willful misconduct of City, its
agents, officers or employees. Further, this indemnity shall not require payment of
a claim by City or its agents, officers or employees as a condition precedent to
City's recovery under this provision.
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ARTICLE 7
SEVERABILITY
In the event any one or more of the provisions contained in this Contract shall for any
reason, be held to be invalid, illegal, or unenforceable in any respect, such invalidity,
illegality, or unenforceability shall not affect any other provision thereof and this Contract
shall be construed as if such invalid, illegal, or unenforceable provision had never been
contained herein.
ARTICLE 8
PRIOR CONTRACTS SUPERSEDED
This Contract constitutes the sole and only agreement of the parties hereto and
supersedes any prior understandings or written or oral contracts between the parties
respecting the subject matter defined herein.
ARTICLE 9
NOTICES
All notices to either party by the other required under this Contract shall be personally
delivered or mailed to such party at the following respective addresses:
For City:
For Corporation:
City Manager
City of Pearland
3519 Liberty Drive
Pearland, Texas 77581
PEDC Chairman of the Board
Pearland Economic Development Corporation
1200 Pearland Parkway, Suite 200
Pearland, Texas 77581
IN WITNESS HEREOF, City and Corporation have executed these presents in duplicate
on this the day of
PEARLAND ECONOMIC DEVELOPMENT CORPORATION
By
Prin ed Name: C(\ARLL 5 G►OOLL:-
Title: \I ILL; A]+eMAtJ
ATTEST:
By:;�GWI�C k
Printed ame: SA
Title: oFF lQ-L (Lon r_61 1,3 A.701(
3
CITY OF PEARLAND
By:
Printed Name: Tom Reid
Title: Mayor
ATTEST:
By: 40.10,
Print Name:
Tit! ity Seketary
APPROVED AS TO FORM:
Darrin Coker
City Attorney
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DEVELOPMENT AGREEMENT
(EXHIBIT A TO RESOLUTION R-2010- 122)
This Agreement is entered into this 2C day of Ciee t o bGR. , 2010, by and between
the CITY OF PEARLAND, TEXAS, (hereinafter "City"), and BEAZER HOMES TEXAS, L.P.,
(hereinafter "Developer").
WHEREAS, City desires the construction of 2 lanes of the future ultimate 4 lane divided section of
Barry Rose Extension which also includes a bridge over Clear Creek, a 12" water line, and a 12"
sanitary sewer force main as illustrated in Exhibit "B" (hereinafter "Improvements"); and
WHEREAS, Developer desires to share in the cost of constructing the 12" water line and 12" sanitary
sewer force main improvements ("Utility Portion") and Beazer Homes shall advance 16% of the
cost of these improvements, and
WHEREAS, Developer plans to construct the Improvements and to dedicate said Improvements to
the City for operation and maintenance; and
WHEREAS, City, pursuant to Resolution No. R2010-122, desires to cooperate with Developer to
provide the Improvements to increase traffic mobility in the City; and
WHEREAS, City and Developer desire an agreement to set forth their respective responsibilities with
regard to providing the Improvements.
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. Developer shall hire engineers to perform the construction phase services and manage the
construction of the Improvements, including the hiring of a contractor, described in Exhibit
"A" attached hereto. Developer agrees that the City will not be charged a fee for management
services provided by Developer. In consideration for the construction phase services,
management and construction of the improvements, City agrees to add Developer as an
"additional insured" on City's liability insurance policy.
2. The Developer's engineers will obtain competitive line item bids in accordance with Local
Government Code Chapter 252 ("the Code")for the construction of the Improvements in
accordance with the plans and specifications. Developer shall provide the bid tabulation
sheets to the City, along with any other requested documentation that will allow the City to
confirm that the Improvements were competitively bid as required the Code. Developer and
454541-3 1
the City will review the bids and Developer will award a contract to the lowest responsible
bidder within thirty (30) days following approval of the successful bidder by the City. City
reserves the right to reject any and all bids for the construction of the City Improvements by
providing Developer written notification of said rejection within ten (10) days following
submission of the bids to the City for review. Failure of City to reject any or all of the bids as
provided herein shall be deemed 'as the City's approval of the lowest responsible bidder as
determined by Developer.
3. Following award of the bid by Developer, Developer shall provide the City with an executed
copy of the contract for construction of the Improvements as well as any subsequent change
orders for the Improvements. Developer shall cause construction of the Improvements to
commence within sixty (60) days following written confirmation from the City that all
necessary right-of-way is acquired, and shall cause the Improvements to be completed in
substantial accordance with the plans and specifications within twelve (12) months following
Developer issuing a Notice to Proceed to the contractor. If Developer shall fail to cause
construction to commence by the agreed upon date, and such failure shall continue for thirty
(30) days following written notice of such failure from the City to Developer, the City shall
have the right to terminate this Agreement. Developer's engineer shall monitor the progress
and workmanship of the contractor. Developer shall cause the City to be named as an
additional obligee under any performance bond obtained by Developer to secure the
construction of the Improvements.
4. Developer shall twice monthly, on dates agreed upon by the City and Developer, submit, to
the City, invoices submitted to the Developer by the engineers and contractors selected to
manage and construct the Improvements. Developer shall, prior to submitting any invoice
covered by this Agreement, review and approve the invoice for payment. Within ten (10)
working days, the City shall pay its applicable portion of the submitted invoices (i.e. 100%,
except with respect to the Utility Portion for which the City's portion will be 84%).
5. The Developer shall pay for the design and construction of the landscape improvements of
the Barry Rose Extension to the point where the Improvements terminate, substantially as
shown on Exhibit "B" attached hereto.
6. The Improvements shall be inspected, accepted, maintained and warranted by the parties, as
applicable, in accordance with Sections 3.1.8.5 and 3.1.8.6 of the City's Unified
Development Code [the "UDC"].
7. The initial term of this Agreement shall be for a period of eighteen 18) months, commencing
on the 1. ikday of 00“ -mat 0142010, and terminating on the '51 day of IM , 2012,
provided, however, that this Agreement shall be automatically renewed in own (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.
8. This Agreement may only be amended, modified, or supplemented by written agreement and
signed by both parties.
454541-3
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9. 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.
10. Nothing herein is intended to supersede or waive any City ordinance or regulation pertaining
to such construction.
11. 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.
12. This Agreement shall be construed and enforced in accordance with and governed by the
laws of the State of Texas.
13. To accomplish execution of this Agreement, it may be executed in multiple counterparts.
14. The Parties agree that any suit arising out of or related to this Agreement shall be filed in
Brazoria County Texas.
15. All notices which are required or may be given pursuant to this Agreement shall be in writing
and shall be sufficient if delivered personally or by first class mail, postage prepaid, return
receipt requested, or by a nationally recognized courier, to the parties and their attorneys at
the addresses set out below or such other addresses as the parties or their attorneys may
hereafter notify one another:
If to City:
454541-3
City of Pearland
Attn: Bill Eisen
3519 Liberty Drive
Pearland, TX 77581
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If to Developer:
With a copy to:
Beazer Homes Texas, L.P.
Attn: Kurt Watzek
10110 West Sam Houston Parkway North
Suite A-100
Houston, Texas 77064
Beazer Homes
Attn: General Counsel
1000 Abernathy Road, Suite 1200
Atlanta, Georgia 30328
Notice delivered in accordance with the terms hereof shall be effective upon receipt.
16. Unless and to the extent otherwise expressly provided herein, any approval or
consent required herein shall not be unreasonably withheld, conditioned or
delayed.
17. Notwithstanding anything herein to the contrary, each covenant herein to be performed by
Developer by a specific date or within a specific time period is deemed to be tolled by the
occurrence of Force Majeure to the extent such Force Majeure actually delays such
performance. As used herein, the terns "Force Majeure" means war, act of public enemy,
riot, strikes, unavailability or delay in delivery of materials, insurrection, revolution, fire,
storm, explosion, or governmental order, restriction or control, or any other circumstance
beyond the reasonable control of Developer.
18. It is understood and agreed between the parties that Developer, in performing its obligations
hereunder, is acting independently, and the City assumes no responsibilities or liabilities in
connection therewith to third parties.
19. Developer will use reasonable efforts to include, in any contracts associated with
construction of the Improvements, the City as a third party beneficiary of such contracts.
20. CITY SHALL INDEMNIFY AND HOLD HARMLESS THE DEVELOPER, ITS
OFFICERS, AGENTS, EMPLOYEES, SUCCESSORS, AND ASSIGNS FROM 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 ANY PERSON OR
PERSONS OR DAMAGE TO OR DESTRUCTION OF PROPERTY CAUSED BY
OR RESULTING FROM THE NEGLIGENCE OF THE CITY, ITS AGENTS,
EMPLOYEES, SUCCESSORS, OR ASSIGNS, UNLESS AND TO THE EXTENT
CAUSED BY THE NEGLIGENCE OF THE DEVELOPER, ITS OFFICERS,
AGENTS, EMPLOYEES, SUCCESSORS, OR ASSIGNS.
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In witness whereof, the parties have hereunto set their hands and signatures on the date first above
mentioned.
ATTEST:
454541-3
BEAZER HOMES TEXAS, L.F.
By: Beazer Homes Holdings, Inc., its general
partner
i�tA crS i- i,� t7.A , LP
B33Y: BEAM HOMES i ERAS FI DINGS, INC.,
[T'S GE E . -ARTN
Ne:
Its -1SYNA +I II R DI N PRESIDENT
CITY OF PEARLAND,
a Texas municipal corporation
By:
Bill Eisen,
City Manager
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