R2011-106 - 2011-09-12 RESOLUTION NO. R2011 -106
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 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 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 12 day of September, A.D., 2011.
_0 � 2
TOM REID
MAYOR
ATTEST:
CI ( SEC';L TARY J\
APPROVED AS TO FORM:
DARRIN M. COKER
CITY ATTORNEY
Exhibit "A"
Resolution No. R2011 -106
DEVELOPMENT AGREEMENT
(EXHIBIT A TO RESOLUTION R -2011- 1uC,)
This Agreement is entered into this day of �. tc ( , 201$, by
and between the CITY OF PEARLAND, TEXAS, ( hereingfter "City "), and BEAZER
HOMES TEXAS, L.P., (hereinafter "Developer ").
WHEREAS, Developer desires to fund the project costs of a portion of 2 lanes of the future
ultimate 4 lane divided section of Barry Rose Extension as illustrated in Exhibit "A"
(hereinafter "Improvements "); and
WHEREAS, Developer also desires to construct and maintain landscaping improvements
along the southeastern property line of the Barry Rose Wastewater Treatment Plant as
illustrated in Exhibit "B" (hereinafter "Landscaping "); and
WHEREAS, In consideration of Developer funding the Improvements as well as
constructing and maintaining the Landscaping , City desires to consent to Developer's
placement and maintenance of an entry sign for the Preserve at Clear Creek subdivision at
the intersection of Pearland Parkway and Barry Rose Road as illustrated in Exhibit "B"
hereinafter "Sign "), 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 Responsibilities:
a) On or before the final completion of The Preserve at Clear Creek,
Section 1 (hereinafter "Subdivision "), but no later thanl8 months
following the execution of this Agreement by both parties, Developer
shall pay the sum of $150,000.00 (hereinafter "Improvement Funds ")
to City to fund a portion, or all, of the project costs associated with
the Improvements. Final completion of the Subdivision shall be
demonstrated by City's acceptance of the Subdivision. Failure of
Developer to timely pay the Improvement Funds to City which
continues for thirty (30) days after written notice by the City to
Developer, shall, at City's election, result in the automatic
termination of this Agreement and the termination of Developer's
rights and obligations under Section 1 (b) below.
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b) Developer shall have the right to construct the Landscaping and
Sign, substantially as shown on Exhibit "B" attached hereto.
Furthermore, subject to the restrictions contained in Section 3
below, Developer's right to construct and locate the Landscaping
and Sign on City property shall survive the term of this Agreement.
Developer shall be responsible for all construction and maintenance
costs associated with the Landscaping and Sign; however,
Developer shall not be responsible for the maintenance costs
referenced herein, provided the Preserve at Clear Creek Community
Association (hereinafter "HOA ") enters into a separate agreement
with City obligating the HOA to assume the maintenance
obligations. From and after the time that the HOA enters into said
separate agreement with the City to assume the maintenance
obligations as set forth hereinabove, the City shall grant an access
and maintenance easement to the HOA to the extent necessary to
enable the HOA to perform its assumed maintenance obligations.
2. City Responsibilities:
a) Upon receipt of the Improvement Funds from Developer, City shall
deposit the same into an interest bearing escrow account and City
shall use the Improvement Funds to pay for the construction of the
Improvements.
b) City intends to have the Improvements constructed in conjunction
with the construction of a separate portion of the Barry Rose Road
extension more particularly described in a development agreement
between the City and SHS Partners attached hereto as Exhibit "D."
Pursuant to the development agreement with SHS Partners, the City
must construct Extension A of Barry Rose (aka, Hughes Road), but
SHS partners must complete Extension B of the road within six
months following the completion of Extension A. The City has
initiated construction of Extension A which is scheduled for
completion in the first quarter of 2012, so the City plans to cooperate
with SHS Partners to include the construction of the Improvements
with the Extension B improvements contemplated in Exhibit "A." The
City makes no guarantees with respect to the timing of construction
of the Improvements; however the Improvement Funds shall remain
in escrow with City until such time that all the Improvements are
constructed.
c) City shall be responsible for the acquisition of any easements or
right -of -way's necessary for the construction the Improvements.
3. Sign and Landscaping Restrictions:
a) Nothing herein is intended to limit any of the City's regulatory or
police powers, and it is the responsibility of Developer to comply with
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all applicable rules, regulations and ordinances of the City which
arise out of the City's regulatory or police powers, including but not
limited to the City's Unified Development Code. This consent shall
never be construed to be a variance, special exception, permit, ruling
or order of any kind under or pursuant to any of said rules, regulations
or ordinances. Should any variance, special exception, permit, ruling
or order of any kind be required now or hereafter, it shall be the
responsibility of Developer to seek it separately.
b) In consideration of the consent herein provided, Developer hereby
binds itself, it successors, assigns and grantees, to indemnify and
hold the City, it successors and assigns and their officers, agents,
employees and contractors, harmless from all claims from injury to or
death of any person or for damage to property arising out of or in any
way connected with the construction or maintenance of said Sign or
Landscaping by or under Developer, or which injuries, deaths or
damages would not have occurred but for the presence of said Sign
or Landscaping, including injuries, death or damages caused by the
joint negligence of the City, it successors or assigns, or their officers,
agents, employees or contractors and any other party or parties, but
excluding injuries, death or damages caused solely by the negligence
of the City, its successors or assigns or their officers, agents,
employees or contractors.
c) Developer binds itself and its successors, assigns and grantees, that
if City or its successors or assigns, shall at any time, in its sole
discretion, determine that it is necessary to do so for the purpose of
properly maintaining or installing City facilities on the property
occupied by the Sign and Landscaping, save and except in cases of
emergency, the City shall give Developer written notice that
Developer must remove or alter the Sign and /or Landscaping to the
extent required by the City. Developer shall have five (5) business
days, weather permitting, to remove the Sign and /or Landscaping as
required by the City. In the event Developer fails to timely remove the
Sign and /or Landscaping, the City shall have the right to remove or
alter the same, or any part thereof, and City shall not be obligated in
any manner to restore the Sign or Landscaping s o altered or
removed, but that any restoration shall be made by the Developer at
its sole c ost and expense. Developer f or itself, its successors,
assigns and grantees hereby releases City, its successors and
assigns and their officers, agents, employees and contractors, from
any and all liability for damage caused to the Sign and Landscaping
by any such removal or alteration and further agrees to pay City, its
successors and assigns, for any such costs upon receipt of its billing
for the same.
4. The initial term of this Aa shall be for a period of eighteen (18) months,
commencing on the 0 day of , 2011, and terminating on the
day of n , 2013, provided, however, that this Agreement may be
automatically renewed in one (1) month increments until all of the obligations of the
3
parties hereunder have been fully discharged or specifically waived in writing by the
beneficiary thereof.
5. This Agreement may only be amended, modified, or supplemented by written
agreement and signed by both parties.
6. 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.
7. Nothing herein is intended to supersede or waive any City ordinance or regulation
pertaining to such construction.
8. 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 ofthis
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.
9. This Agreement shall be construed and enforced in accordance with and govemed
by the laws of the State of Texas.
10. To accomplish execution of this Agreement, it may be executed in multiple
counterparts.
11. The Parties agree that any suit arising out of or related to this Agreement shall be
filed in Brazoria County Texas.
12. 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: City of Pearland
Attn: Bill Eisen
3519 Liberty Drive
Pearland, TX 77581
If to Developer: Beazer Homes Texas, L.P.
Attn: Kurt Watzek
10110 West Sam Houston Parkway North
Suite A -100
4
01)
Houston, Texas 77064
Notice delivered in accordance with the terms hereof shall be effective upon
receipt.
13. Unless and to the extent otherwise expressly provided herein, any approval or
consent required herein shall not be unreasonably withheld, conditioned or
delayed.
14. 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 term "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.
In witness whereof, the parties have hereunto set their hands and signatures on the date
first above mentioned.
BEAZER HOMES TEXAS, L.P.
By: Beazer Homes Holdings, Inc., its general
partner
B i
_____A/r
Name: Kurt Watzek
Houston Division President
CITY OF PEARLAND,
a Texas municipal corporation
•
B
Bill Eisen,
City Manager
ATTEST:
Young Lorfing
City Secretary
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Beazer
Homes
September 2, 2011
City of Pearland
Mr. Bill Eisen
3519 Liberty Drive
Pearland,TX 77581
Mr. Eisen,
Enclosed Please find the Development Agreement for the Barry Rose Extension project.This agreement
has been executed by Mr. Watzek.
Regards,
lie Glass
281.897.2110
Beazer Homes
Houston Office •
0:713-849-5017
10110 W Sam Houston Pkwy N,Suite A-100 www.beazer.com
Houston,TX 77064