R2011-055 - 2011-05-23ATTEST:
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
BUSINESS CENTER DRIVE 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 Parkside 59/288, Ltd. 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 Parkside 59/288, Ltd.
PASSED, APPROVED and ADOPTED this the 23 day of May, A.D., 2011.
APPROVED AS TO FORM:
(Z4
DARRIN M. COKER
CITY ATTORNEY
RESOLUTION NO. R2011 -55
co)„T)
TOM REID
MAYOR
Exhibit "A"
Resolution No. R2011 -55
DEVELOPMENT AGREEMENT
(EXHIBIT "A" TO RESOLUTION NO. R2011)
This Agreement "Agreement is entered into this 3 of 2011, by and
between the City of Pearland, Texas (hereinafter "City and Parkside 59/ 88, Ltd., a Texas
Limited Partnership (hereinafter "Parkside
RECITALS:
WHEREAS, Parkside desires the construction of a portion of Business Center Drive and
accompanying storm sewer improvements (hereinafter "Project shown on the site plan attached
hereto as Exhibit "A" (hereinafter, "Site Plan to improve transportation and drainage in the
areas west of SH 288 between CR 59 and Broadway in the City of Pearland, Brazoria County,
Texas; and
WHEREAS, Parkside owns the real property shown on the Site Plan as the "Parkside
Property" and further described on Exhibit `B" attached hereto (hereinafter, "Parkside
Property"); and
WHEREAS, Parkside and certain landowners between CR 59 and Broadway along the
proposed right -of -way of Business Center Drive are cooperating under separate agreements with
Parkside to: (1) dedicate additional rights -of -ways for Business Center Drive as shown on. the Site
Plan (hereinafter, "Right -of- Way (ii) dedicate an easement for a water line to be constructed
along Business Center Drive as shown on the Site Plan (hereinafter, "Water Line Easement
(iii) dedicate an easement for a sanitary sewer line to be constructed along Business Center Drive
as shown on the Site Plan (hereinafter, "Sanitary Sewer Line Easement (iv) dedicate an
easement for and construct a lift station with the associated force main as shown on the Site Plan
(hereinafter, "Lift Station Easement and
WHEREAS, collectively herein, the Right -of -Way, Water Line Easement, Sanitary
Sewer Line Easement, and Lift Station Easement to be dedicated by Parkside and the other
owners between CR 59 and Broadway along the proposed right -of -way for Business Center
Drive, as shown on the Site Plan shall be referred to herein as the "Conveyances;" and
WHEREAS, Brazoria County desires to design and construct improvements to CR 59
"CR 59 Improvements in the vicinity of the Business Center Drive intersection with CR 59 to
improve transportation at the intersection of SH 288 and CR 59 as shown on the Site Plan; and
WHEREAS, the City and Brazoria County are cooperating to develop an interlocal
agreement to facilitate the CR 59 Improvements in conjunction with the Project; and
WHEREAS, Parkside desires to fund the design and construction of the Project and City
is willing to manage construction of the Project; and
WHEREAS, in consideration for City's willingness to manage construction of the
Project, Parkside has also agreed at its sole cost and expense to: (i) pay for the design of the
Project, (ii) pay for the construction of the portion of the Project defined as the Construction
Scope, (iii) coordinate the dedication of the Conveyances, (iv) design and construct the detention
facilities within the existing drainage ditch shown on the Site Plan to serve the portions of
Business Center Drive from CR 59 to Broadway shown on the Site Plan, (v) design and construct
a water line within the Water Line Easement, (vi) design and construct a sanitary sewer line
within the Sewer Line Easement and (vii) design and construct the lift station with the associated
force main within the Lift Station Easement (collectively, Parkside's Obligations and
WHEREAS, the City and Parkside desire an agreement to set forth their respective
responsibilities with regard to the Project and Parkside's Obligations.
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 those used in the recitals
hereto, shall have the meanings set forth in this section, unless otherwise defined, or unless the
context clearly requires another definition.
Project means the design and construction of road and associated storm sewer
improvements for the section of Business Center Drive from CR 59 to Broadway as shown on
the Site Plan.
Engineering Design Services means the scope of services and costs for the design of the
Project described in Exhibit "C" attached hereto.
Construction Scope means the portion(s) of the Project that shall be bid and constructed
in accordance with this Agreement as more particularly described in Exhibit "D" attached
hereto.
City means the City of Pearland, Texas, a home rule municipality located in the counties
of Brazoria, Harris and Ft. Bend, Texas.
Parkside means Parkside 59/288, Ltd., a Texas Limited Partnership.
Parkside's Obligations means the obligation to: (i) pay for the design of the Project, (ii)
pay for the construction of the portion of the Project defined as the Construction Scope, (iii)
coordinate the dedication of the Conveyances, (iv) design and construct the detention facilities
within the existing drainage ditch shown on the Site Plan to serve the portions of Business Center
2
Drive from CR 59 to Broadway shown on the Site Plan, (v) design and construct a water line
within the Water Line Easement as shown on the Site Plan, (vi) design and construct a sanitary
sewer line within the Sewer Line Easement as shown on the Site Plan and (vii) design and
construct the lift station with the associated force main within the Lift Station Easement as
shown on the Site Plan (collectively, "Parkside's Obligations and
Effective Date means the date on which this Agreement is fully executed by the City and
Parkside.
Party or Parties means all or any of the City and Parkside, as applicable.
1.2 Recitals Incorporated. The recitals 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. On or before March 31, 2012, Parkside, at Parkside's sole cost and expense, shall
complete the design and construction of the Water Line, the Sanitary Sewer Line, and the Lift
Station. Parkside shall be responsible to use commercially reasonable efforts to acquire all of the
Conveyances for the construction of the Water Line, Sanitary Sewer Line and the Lift Station
with the associated force main, but in no way shall Parkside be obligated to pay anyone for any
of the easements or rights -of -ways that are part of the Conveyances. Completion of the Water
Line, Sanitary Sewer Line and Lift Station shall be demonstrated by the issuance of a certificate
of substantial completion issued by the City's Engineer.
B. Within three (3) business days following the Effective Date of this Agreement,
City and Parkside shall mutually agree on a design engineer to design the Project. Within ten
(10) days following the selection of the design engineer, Parkside shall make payment to the City
for the estimated Engineering Design Services associated with the Project in the amount of
$357,045.00 "Engineering Costs Within ten (10) days following the City's receipt of the
Engineering Costs, and subject to City Council approval, City shall enter into a contract with the
design engineer to design the Project within 180 days of the signing of such contract. The
engineering plans and specifications shall be reviewed by the Parties at the 60 90% and 100%
stages of completion. The final plans and specifications for the Project shall be subject to the
review and approval of City and Parkside. After the delivery of the final plans and specifications
of the Engineering Design Services, the Parties shall have 10 days to review and approve same.
C. Within 60 days following approval of the final plans and specifications for the
Project by the Parties under Section B, the City shall advertise and competitively bid the
Construction Scope in accordance with Chapter 252 of the Texas Local Government Code. The
bid for the Construction Scope shall include a base bid and two (2) alternate bids as described in
Exhibit "D." The bids shall be subject to the review of the City and Parkside, and the City,
subject to City Council approval, shall award the contract to the lowest responsible bidder. The
City reserves the right to reject any and all bids for the Construction Scope. Within ten (10) days
following written notification of the lowest responsible bidder, Parkside shall deposit funds with
the City that are equal to the amount of the bid for the Construction Scope "Construction
Costs plus an amount equal to (9.5 of the total amount of the Construction Costs "Project
Management Costs The Project Management Costs shall include costs associated with
construction management and inspection, construction materials testing and administrative costs
for City personnel. Upon City's receipt of full payment for the Construction Costs and the
Project Management Costs, and subject to Parkside's compliance with Section.D below, the City
shall enter into a construction contract (the "Construction Contract with the lowest responsible
bidder, and shall cause construction of the Construction Scope to be completed in accordance
with the final plans and specifications. All funding for the design of the Project and the
construction costs for the Construction Scope under this Agreement shall be the responsibility of
Parkside, and City shall not be responsible for any such funding unless mutually agreed upon in
writing by each Party.
D. Within 30 days following the issuance by the City of a permit to Parkside for the
construction of the Water Line, the Sanitary Sewer Line and the Lift Station, Parkside shall
deliver the Conveyances to the City, which includes all of the rights -of -way and easements
necessary for construction of Parkside's Obligations and the Construction Scope as well as
additional road right -of -way for the future construction of other portions of the Project outside of
the Construction Scope as shown on the Site Plan.
E. The City's obligations under Section C of this Agreement shall be contingent
upon City's receipt of the Conveyances in accordance with Section D above and Parkside's
substantial completion of the Water Line, the Sanitary Sewer Line, Lift Station with the
associated force main and Detention Facilities.
F.. Within sixty (60) days following substantial completion of the Construction
Scope, the City shall perform, or cause to be performed a final accounting of the actual cost of
the Construction Scope. If the actual cost of the Engineering Costs, Construction Costs and the
Project Management Costs collectively exceed the amount paid to the City pursuant to Sections
B and C above, Parkside shall pay to the City, the amount of the excess within thirty (30) days
after receiving written notice from the City. If the actual cost of the Engineering Costs,
Construction Costs and the Project Management Costs collectively is less than the amounts paid
to the City pursuant to Sections B and C above, then the City will refund the difference to
Parkside within thirty (30) days following completion of the final accounting of the actual costs
of the Engineering Costs, Construction Costs and the Project Management Costs.
G. Notwithstanding any other provision to the contrary in this Agreement, in the
event that Parkside does not provide written approval of such Construction Costs, Parkside may
terminate this Agreement by providing written notice of such termination to the City within the
approval period for the Construction Costs and the Construction Contract provided in Section C
of this Agreement. Upon any such termination notice to the City, the Parties shall no longer
have any rights or obligations under this Agreement and the City shall retain the Engineering
Costs paid by Parkside.
H. The Parties acknowledge and agree that Parkside in connection with the Project is
only responsible for the payment of (i) the Engineering Costs, (ii) the Construction Costs, and
(iii) the Project Management Costs associated with the Construction Scope. Parkside is not
responsible for the construction of any portion of the Project except for the portion within the
Construction Scope.
J. The City shall be responsible for the accuracy of the construction of the
Construction Scope, and shall promptly make reasonably necessary revisions or corrections
resulting from any errors, omissions or negligent acts in connection with same. Parkside shall be
responsible for the accuracy of the construction of Parkside's Obligations, and shall promptly
make reasonably necessary revisions or corrections resulting from any errors, omissions or
negligent acts in connection with same.
ARTICLE V
TERM
The tern of this Agreement shall be for a period of 540 days, commencing on the
day of 2011, and terminating on the day of 201_, 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
5
Powers.
(a) The City hereby represents and warrants to Parkside 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) Parkside 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 Parkside's authorized representative.
7.2 Default.
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.
(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 its 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 perform the obligation and shall demand performance
of such obligation. 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 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 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 any 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, delays in governmental
permitting 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 sent 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
If to Parkside: Parkside 59/288, Ltd.
3003 W. Alabama
Houston, Texas 77098
Attention: Joe Moody
With a copy to: John S. Moody, Jr.
John S. Moody, Jr., PLLC
3003 W. Alabama
Houston, Texas 77098
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 Parkside, 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
7
Parkside. No course of dealing on the part of the City or Parkside nor any failure or delay by the
City or Parkside 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 severable.
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 stated.
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 Compliance with laws. The Parties shall comply with all Federal, State and local
laws, statutes, ordinances, rules and regulations, and the orders and decrees of any courts or
administrative bodies or tribunals in any manner affecting the perfonnance of this Agreement.
7.11 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.
7.12 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 unreasonably withheld or delayed.
7.13 Counterparts. This Agreement may be executed in several counterparts, each of
which shall be an original and all of which shall constitute one and the same agreement.
7.14 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]
IN WITNESS WHEREOF, the Parties have duly executed this Agreement pursuant to all
requisite authorizations as of the date first above written
ATTEST:
APPROVED AS TO FORM:
GYt
Darrin M. Coker
City Attorney
s spa
10
CITY:
CITY OF PEARLAND, TEXAS, a home
rule municipality �--1
COUNTERSIGNED:
LNIC(LtAck WObb
k r..Young Lorfing P
City Secretary
Bill Eisen
City Manager
Parkside 59/288, Ltd.,
a Texas limited partnership
By: Parkside 59/288 GP, LLC
a Texas limited liability company,
its General Partner
By: Parkside Capital Land Fund, Ltd.
Its: Sole Member
By: Parkside Capital, LLC
Its: General Partner
By: 12+^-
John S. Moody, Manager
STATE OF TEXAS
COUNTY OF ernitoel t x
STATE OF TEXAS
COUNTY OF
t 4
MARIA ESCALATE RODRIGUEZ
NOTARY PUBLIC
STATE OF TEXAS
My Commission Expires' 02- 02-2013
BEFORE ME, the undersigned Notary Public, on this day personally appeared
¶hl■ 9\121A 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 L� 3 DAY OF
May A.D., 2011.
MARIA ESCALATE RODRIGUEL
NOTARY PUBLIC
STATE OF TEXAS
My Commission Expires' 02-07-201
BEF ME, the undersigned Notary Public, on this day personally appeared
't 1\ \Qf 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.
IVEN UNDER MY HAND AND SEAL OF OFFICE THIS DAY OF
A.D.; 2011.
C 4 ../(/IiLC
NOTARY PUBLIC IN AND FOR T
STATE OF TEXAS
Printed Name: Ka_ ric. G Z
My Commission Expires: b2.
a. .a�a.Q
N62TARY PUBLIC IN AND OR
STATE OF TEXAS
Printed Name: A(1 xe .'L
My Commission Expires: 00't-
STATE OF TEXAS
COUNTY OF N AR.F..15
BEFORE ME, the undersigned Notary Public, on this day personally appeared
Sohn 6. Mood known to me to be the person whose name is subscribed to the
foregoing instrument and acknowledged to me that he /she executed th same for the purposes
and consideration therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE THIS S Z DAY OF
May A.D., 2011.
LAURA L CHESSER
Notary Public, State of Texas
My Commission Expires
AprII 06, 2013
1
12
at
NOTARY PUBLIC IN AND FOR THE
STATE OF TEXAS
Printed Name: l- Utr t L• a e5 e
My Commission Expires: 4 b 13
Exhibit "A"
Exhibit `B"
Exhibit "C"
Exhibit "D"
EXHIBIT LIST
Site Plan
Parkside Property
Scope of Engineering Design Services
Construction Scope and Alternate Bids
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BROADWAY ST T
BUSINESS CENTE
DRIVE PROJEC
PEARLAND TOWN CENTER
EXISTING BRAZORIA DRAINAGE
DISTRICT 140.4 (B004) DITCHES
(DETENTION FOR BUSINESS
CENTER DRIVE)
tow. m.:,1
BUSINESS CENTER DRIVE
HARRIS AVE A R.O.W. DEDICATION
j LCrlgam
GRIMES AVF. 17 10' WATER LINE
EASEMENT
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SUBDIVISION
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13735 Northwest Fnewey 5.13e 300 Houston, Tom 77040 (71314024' 170
EXHIBIT A A
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SEWER EASEMENT
SANITARY
LIFT STATION
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Parcels (BCAD 2077 -01)
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Water Line Easement
Sanitary Sewer Easement
Ma Existing BDD4 Ditch
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COUNTY ROAD 58
R.O.W. DEDICATION
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EXHIBIT B
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1. 4
Exhibit C Engineering Costs
a. Design Phase (Lump Sum) $207,988
b. Bid Phase (Hourly Not -to- Exceed) 8,270
c. Construction Phase (Hourly Not -to- Exceed) 60,485
d. Special Services:
1. Traffic Signal Design at CR 59 Int'n Timing
Cycle Study (Lump Sum) 28,555
2. Plans Modifications for Phase 1 Const. (Hourly Not -to- Exceed) $11,184
3. Additional Topo Surveying(Cost 10 %)(Sub Consul)(Budget) $5,500
4. Traffic Count Collection (Cost 10 %)(Sub Consul) 738
5. Landscape Irrigation Design (Cost 10 %)(Sub Consul) 28,325
6. Reimbursable Project Expenses (Printing, Deliveries, Mileage,
outside printing of plans and construction documents) 6.000
Total $357,045
5
3
Broadway
END OF EXIST. 4 LANES
(BUSINESS CENTER DR.)
JO' Pan ',modulo C.
County Road 59
END OF EXIST. 2 LANES
(BUSINESS CENTER DR.)
PARKSIDE NORTHERN PROPERTY LINE
(30.583 ACRES)
PARKSIDE NORTHERN PROPERTY LINE
(9.990 ACRES)
PATE A ENGINEERS
13333 NAY. Freeway, Suite 300 Houston, To. 77040
Phone: 773- 482 -317e
EXHIBIT D
Scale: N.T.S.
Date: 5/3/2011